UTAH
|
87-0342734
|
(State or other jurisdiction of
|
(I.R.S. Employer
|
incorporation or organization)
|
Identification No.)
|
Exhibit #
|
SEC
Reference #
|
Title of Document
|
1
|
10
|
Credit Agreement dated as of March 17, 2011 among Utah Medical Products, Inc., as Borrower, and JPMorgan Chase Bank, N.A., as Lender
|
2
|
10
|
Secured Promissory Note by Utah Medical Products, Inc. to JPMorgan Chase Bank, N.A.
|
3
|
10
|
Security Agreement by and among Utah Medical Products, Inc. to JPMorgan Chase Bank, N.A.
|
4
|
10
|
Intellectual Property Security Agreement by and among Utah Medical Products, Inc. and JPMorgan Chase Bank, N.A.
|
5
|
10
|
Charge Over Securities. Utah Medical Products, Inc. (the Chargor) JPMorgan Chase Bank, N.A. as Lender
|
6
|
10
|
Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (Midvale Property)
|
7
|
10
|
Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (Redwood Property)
|
8
|
10
|
Leasehold Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (Leased Property)
|
9
|
10
|
Environmental Indemnity Agreement by Utah Medical Products, Inc. in favor of JPMorgan Chase Bank, N.A.
|
10
|
10
|
Share Charge by Utah Medical Products, Inc. in favor of JPMorgan Chase Bank, N.A.
|
11
|
10
|
Facility Agreement dated 18 March 2011 for Femcare Group Limited as Borrower with JPMorgan Chase Bank, N.A., London Branch as Lender
|
12
|
10
|
Continuing Guarantee by Utah Medical Products, Inc. to JPMorgan Chase Bank, N.A., London Branch
|
13
|
10
|
Guarantee by Femcare Group Limited to JPMorgan Chase Bank, N.A., London Branch
|
14
|
10
|
Charge Over Securities. Femcare Distribution Limited (the Chargor) JPMorgan Chase Bank, N.A. as Lender
|
15
|
10
|
Charge Over Securities. Femcare Holdings Limited (the Chargor) JPMorgan Chase Bank, N.A. as Lender
|
16
|
10
|
Agreement Relating to the sale and purchase of the whole of the issued share capital of Femcare Group Limited dated 18 March 2011
|
17
|
10
|
Short Form Agreement Relating to the sale and purchase of part of the issued share capital of Femcare Group Limited
|
UTAH MEDICAL PRODUCTS, INC.
|
||
REGISTRANT
|
||
Date: 03/22/2011
|
By: /s/ Kevin L. Cornwell
|
|
Kevin L. Cornwell
|
||
CEO
|
![]() CREDIT AGREEMENT
dated as of
March 17, 2011
among
UTAH MEDICAL PRODUCTS, INC.,
as Borrower,
and
JPMORGAN CHASE BANK, N.A.,
as Lender
|
Leverage Ratio
|
Applicable Margin
|
Category 1
≤ 1.50 to 1.0
|
2.00%
|
Category 2
> 1.5 to 1.0 but
≤ 2.50 to 1.0
|
2.80%
|
Category 3
> 2.50 to 1.0
|
3.75%
|
Period
|
Ratio
|
March 31, 2011 to December 31, 2013
|
1.15 to 1.00
|
March 31, 2014 and thereafter
|
1.20 to 1.00
|
(i)
|
if to any Loan Party, to the Borrower at:
|
|
Utah Medical Products, Inc.
|
||
7043 South 300 West
|
||
Midvale, Utah 84047
|
||
Attention: Paul Richins
|
||
Facsimile No: 801-566-7305
|
||
with a copy to:
|
Osborne Clarke
|
|
2 Palo Alto Square
|
||
Suite 200
|
||
Palo Alto, CA 94306, USA
|
||
Attention: Steve Wilson, Esq.
|
||
Facsimile No: 650-739-0360
|
||
(ii)
|
if to Lender at:
|
|
JPMorgan Chase Bank, N.A.
|
||
201 South Main Street
|
||
Suite 300
|
||
Salt Lake City, Utah 84111
|
||
Attention: Lynn Goodale
|
||
Facsimile No: 801-715-7401
|
||
with a copy to:
|
Snell & Wilmer L.L.P.
|
|
Beneficial Tower
|
||
15 West South Temple, Suite 1200
|
||
Salt Lake City, Utah 84101
|
||
Attention: Brian D. Cunningham, Esq.
|
||
Facsimile No: 801-257-1800
|
UTAH MEDICAL PRODUCTS, INC.
|
||
a Utah corporation
|
||
By: /s/ Paul O. Richins
|
||
Name:
|
Paul O. Richins
|
|
Title:
|
V.P.
|
|
JPMORGAN CHASE BANK, N.A.
|
||
By: /s/ Lynn Goodale
|
||
Name:
|
Lynn Goodale
|
|
Title:
|
Senior Banker
|
136 EAST SOUTH TEMPLE, TWENTY-FIRST FLOOR
|
||
SALT LAKE CITY, UTAH 84111-1124
|
||
MAILING ADDRESS:
|
||
ATTORNEYS AT LAW
|
Post Office Box 45561
|
TELEPHONE: (801) 531-7090
|
www.klmrlaw.com
|
Salt Lake City, Utah 84145-0561
|
FACSIMILE: (801) 531-7091
|
Sincerely,
|
|
/s/ Kruse Landa Maycock & Ricks, LLC
|
|
KRUSE LANDA MAYCOCK & RICKS, LLC
|
To:
|
JPMorgan Chase Bank, N.A.
|
UTAH MEDICAL PRODUCTS, INC.
|
|
By ______________________________
|
|
Name:
|
|
Title:
|
[NEW SUBSIDIARY]
|
||
By:______________________________
|
||
Name:____________________________
|
||
Title:_____________________________
|
||
Acknowledged and accepted:
|
||
JPMORGAN CHASE BANK, N.A.
|
||
By:______________________________
|
||
Name:____________________________
|
||
Title:_____________________________
|
Patent
|
Patent
|
Issue
|
Description
|
Number
|
Date
|
MGM
|
4,572,208
|
2/25/1986
|
MGM Jr. Monitor
|
4,619,269
|
10/28/1986
|
Dispiro
|
des 266,695
|
10/26/1982
|
Glove Leak Detector
|
4,909,069
|
3/20/1990
|
Delta-Flow Flush Device
|
4,192,303
|
3/11/1980
|
Delta-Flow Flush Device
|
4,278,083
|
7/14/1981
|
Delta-Flow Flush Device
|
4,337,770
|
7/6/1982
|
Disposa-Hood Neonatal Respiratory Hood
|
4,407,280
|
10/4/1983
|
Disposa-Hood Neonatal Respiratory Hood
|
des 273,612
|
4/24/1984
|
Deltran DPT-BPM
|
4,576,181
|
3/18/1986
|
Veri-Cal
|
4,610,256
|
9/9/1986
|
Delta-Cal
|
4,658,829
|
4/21/1987
|
Delta-Plex
|
4,949,723
|
8/21/1990
|
PTCA
|
5,004,472
|
4/2/1991
|
PTCA
|
5,009,662
|
4/23/1991
|
PTCA
|
5,021,046
|
6/4/1991
|
Intran I - FM
|
4,785,822
|
11/22/1988
|
Combined IUP & FHR
|
4,873,986
|
10/17/1989
|
Intran II - FM
|
4,966,161
|
10/30/1990
|
FSE - FM
|
5,046,965
|
9/10/1991
|
Delta-Plex
|
5,097,840
|
3/24/1992
|
FeO2Sat - FM
|
5,361,757
|
11/8/1994
|
FeO2Sat - FM
|
5,662,103
|
9/2/1997
|
FeO2Sat - FM
|
5,911,689
|
6/15/1999
|
External Bubble Toco - FM
|
5,195,536
|
3/23/1993
|
Cordguard
|
5,190,556
|
3/2/1993
|
Cordguard I
|
5,415,665
|
5/16/1995
|
Cordguard I
|
5,520,699
|
5/28/1996
|
Cordguard II
|
5,575,796
|
11/19/1996
|
Finesse ESU w/ integral smoke evacuator
|
5,160,334
|
11/3/1992
|
Loop SAFE-T-GAUGE
|
5,324,288
|
6/28/1994
|
Knurled Rollerball
|
5,395,363
|
3/7/1995
|
Carbazine Dye for pH
|
5,567,624
|
10/22/1996
|
Lumin Uterine Manipulator
|
5,645,561
|
7/8/1997
|
ABC Blood Sampling System Reservoir
|
5,759,160
|
6/2/1998
|
ABC Blood Sampling System Reservoir
|
6,159,164
|
12/12/2000
|
Intran 500 Meconium Detection System
|
5,713,351
|
2/3/1998
|
Epitome Ceramic Blade Electrode
|
6,126,656
|
10/3/2000
|
Epitome Bendable Ceramic Blade Electrode
|
5,860,976
|
1/19/1999
|
LETZ Contoured Loop Conization Electrode
|
5,951,550
|
9/14/1999
|
Liberty Plus
|
6,086,549
|
7/11/2000
|
EndoCurette
|
5,807,282
|
9/15/1998
|
Fluid Trap Filter for Vacuum Assisted Delivery Hand Pump
|
4,957,629
|
9/18/1990
|
Soft Vacuum Assisted Delivery Cup
|
5,224,947
|
7/6/1993
|
Soft Vacuum Assisted Delivery Cup
|
des 320,855
|
10/15/1991
|
Vacuum Assisted Delivery Hand Pump
|
5,277,557
|
1/11/1994
|
Vacuum Assisted Delivery Hand Pump
|
des 321,927
|
11/26/1991
|
AROM-COT Digital Amniotome w/ directional indicator
|
6,027,511
|
2/22/2000
|
Hemo-Nate Micro-Filtration Blood Filter
|
4,453,927
|
6/12/1984
|
Pala-Nate Neonatal Palate Protector
|
5,195,513
|
3/23/1993
|
TVUS/HSG-Cath
|
s.n. 11/870,491
|
|
OptiSpec Gynecology Light
|
7,631,981
|
12/15/2009
|
Nutri-Lok
|
s.n. 11/970,894
|
|
Nutri-Lok
|
des 29/305,248
|
|
BT-Cath
|
s.n. 12/207,578
|
|
Epitome Patent – Europe
|
0880342
|
Reg.
|
|||
Trademark
|
Serial #
|
Reg. #
|
Date
|
AROM-COT ®
|
75-525596
|
2278017
|
9/14/99
|
BT-CATH ®
|
76-693715
|
3629206
|
6/2/09
|
CMI TM
|
75-327101
|
2210508
|
12/15/98
|
CORDGUARD TM
|
74-378898
|
1909886
|
8/8/95
|
DELTA-CAL TM
|
|||
DELTA-FLOW TM
|
|||
DELTRAN ®
|
74-491516
|
1879646
|
2/21/95
|
DIALY-NATE ®
|
75-492730
|
2576950
|
6/11/02
|
DISPOSA-HOOD TM
|
|||
ENDOCURETTE ®
|
76-167841
|
2673892
|
1/14/03
|
EPITOME ®
|
75-151472
|
2077593
|
7/8/97
|
FILTRESSE TM
|
74-706215
|
2031185
|
1/14/97
|
FINESSE ®
|
74-181220
|
1775806
|
6/8/93
|
FLEX CUP TM
|
|||
LETZ ®
|
74-173056
|
1775804
|
6/8/93
|
LIBERTY ®
|
75-071029
|
2060901
|
5/13/97
|
LUMIN TM
|
75-071008
|
2071431
|
6/17/97
|
MUC-X TM
|
|||
MYELO-NATE ®
|
75-492726
|
2590142
|
7/9/02
|
NUTRI-CATH ®
|
75-492729
|
2277697
|
9/14/99
|
NUTRI-LOK ®
|
76-663534
|
3294526
|
9/18/07
|
OPTIMICRO TM
|
|||
OPTISPEC ®
|
76-682937
|
3518749
|
10/21/08
|
PALA-NATE ®
|
74-713788
|
2186181
|
9/1/98
|
PATHFINDER PLUS TM
|
|||
PICC-NATE ®
|
76-265687
|
2575945
|
6/4/02
|
SAFE-T-GAUGE ®
|
74-235835
|
1773536
|
5/25/93
|
SECURE CUP TM
|
75-723368
|
||
SNAP-TAB TM
|
|||
SOFT TOUCH TM
|
|||
Stork Design TM
|
|||
TENDER TOUCH ®
|
74-143209
|
1841265
|
6/21/94
|
THORA-CATH ®
|
76-016454
|
2495841
|
10/9/01
|
TVUS/HSG-CATH TM
|
|||
UMBILI-CATH TM
|
|||
URI-CATH TM
|
76-015576
|
||
UTAHBALL ®
|
76-167842
|
2613576
|
8/27/02
|
UTAHBALL ®
|
76-696498
|
3697380
|
10/20/09
|
UTAHLOOP ®
|
76-167840
|
2687578
|
3/11/03
|
UTAHLOOP ®
|
76-696534
|
3697381
|
10/20/09
|
VAC-U-NATE TM
|
|||
VELVET TOUCH TM
|
|||
VERI-CAL TM
|
|||
ZAPGUARD TM
|
|||
DISPIRO TM
|
73-419541
|
1280628
|
6/5/84
|
GESCO TM
|
|||
HEMO-NATE ®
|
73-320271
|
1229499
|
3/8/83
|
HEMO-TAP ®
|
73-320360
|
1221539
|
12/28/82
|
INTRAN ®
|
73-678290
|
1499413
|
8/9/88
|
UTAH MEDICAL PRODUCTS INC. UM ®
|
73-416682
|
1285922
|
7/17/84
|
Commercial Package, Excess Liability and Crime Insurance 12/31/10-12/31/11
|
||
Insurer
|
One Beacon Insurance
|
|
Broker
|
Thoits Insurance, Santa Clara, CA
|
|
Commercial Package 12/21/10 – 12/20/11
|
||
Insurer
|
Zurich Insurance Company
|
|
Broker
|
Gateway Insurance, Athlone, Ireland
|
|
Workers Compensation 7/1/10 – 7/1/11
|
||
Insurer
|
Workers Compensation Fund
|
|
Broker
|
The Buckner Company, Salt Lake City, UT
|
|
Medical Plan Stop Loss 3/1/11 – 2/29/12
|
||
Insurer
|
RMTS LLC (Trustmark)
|
|
Broker
|
Wansutter Insurance, Salt Lake City, UT
|
$14,000,000.00
|
Salt Lake City, Utah
|
March 17, 2011
|
UTAH MEDICAL PRODUCTS, INC.
|
||
a Utah corporation
|
||
By: /s/ Paul O. Richins
|
||
Name: Paul O. Richins
|
||
Title: V.P.
|
||
“Borrower”
|
UTAH MEDICAL PRODUCTS, INC.
|
||
a Utah corporation
|
||
By: /s/ Paul O. Richins
|
||
Name: Paul O. Richins
|
||
Title: V.P.
|
||
“Debtor”
|
||
JPMORGAN CHASE BANK, N.A.
|
||
a national banking association
|
||
By: /s/ Lynn Goodale
|
||
Name: Lynn Goodale
|
||
Title: Senior Banker
|
||
“Secured Party”
|
UTAH MEDICAL PRODUCTS, INC.
|
||
a Utah corporation
|
||
By: /s/ Paul O. Richins
|
||
Name: Paul O. Richins
|
||
Title: V.P.
|
||
“Debtor”
|
||
JPMORGAN CHASE BANK, N.A.
|
||
a national banking association
|
||
By: /s/ Lynn Goodale
|
||
Name: Lynn Goodale
|
||
Title: Senior Banker
|
||
“Secured Party”
|
Patent
|
Patent
|
Issue
|
Description
|
Number
|
Date
|
MGM
|
4,572,208
|
2/25/1986
|
MGM Jr. Monitor
|
4,619,269
|
10/28/1986
|
Dispiro
|
des 266,695
|
10/26/1982
|
Glove Leak Detector
|
4,909,069
|
3/20/1990
|
Delta-Flow Flush Device
|
4,192,303
|
3/11/1980
|
Delta-Flow Flush Device
|
4,278,083
|
7/14/1981
|
Delta-Flow Flush Device
|
4,337,770
|
7/6/1982
|
Disposa-Hood Neonatal Respiratory Hood
|
4,407,280
|
10/4/1983
|
Disposa-Hood Neonatal Respiratory Hood
|
des 273,612
|
4/24/1984
|
Deltran DPT-BPM
|
4,576,181
|
3/18/1986
|
Veri-Cal
|
4,610,256
|
9/9/1986
|
Delta-Cal
|
4,658,829
|
4/21/1987
|
Delta-Plex
|
4,949,723
|
8/21/1990
|
PTCA
|
5,004,472
|
4/2/1991
|
PTCA
|
5,009,662
|
4/23/1991
|
PTCA
|
5,021,046
|
6/4/1991
|
Intran I - FM
|
4,785,822
|
11/22/1988
|
Combined IUP & FHR
|
4,873,986
|
10/17/1989
|
Intran II - FM
|
4,966,161
|
10/30/1990
|
FSE - FM
|
5,046,965
|
9/10/1991
|
Delta-Plex
|
5,097,840
|
3/24/1992
|
FeO2Sat – FM
|
5,361,757
|
11/8/1994
|
FeO2Sat - FM
|
5,662,103
|
9/2/1997
|
FeO2Sat - FM
|
5,911,689
|
6/15/1999
|
FeO2Sat - FM
|
s.n. 09/268,935
|
|
External Bubble Toco - FM
|
5,195,536
|
3/23/1993
|
Cordguard
|
5,190,556
|
3/2/1993
|
Cordguard I
|
5,415,665
|
5/16/1995
|
Cordguard I
|
5,520,699
|
5/28/1996
|
Cordguard II
|
5,575,796
|
11/19/1996
|
Finesse ESU w/ integral smoke evacuator
|
5,160,334
|
11/3/1992
|
Loop SAFE-T-GAUGE
|
5,324,288
|
6/28/1994
|
Knurled Rollerball
|
5,395,363
|
3/7/1995
|
Carbazine Dye for pH
|
5,567,624
|
10/22/1996
|
Lumin Uterine Manipulator
|
5,645,561
|
7/8/1997
|
ABC Blood Sampling System Reservoir
|
5,759,160
|
6/2/1998
|
ABC Blood Sampling System Reservoir
|
6,159,164
|
12/12/2000
|
Intran 500 Meconium Detection System
|
5,713,351
|
2/3/1998
|
Epitome Ceramic Blade Electrode
|
6,126,656
|
10/3/2000
|
Epitome Bendable Ceramic Blade Electrode
|
5,860,976
|
1/19/1999
|
LETZ Aspiration/Coag/Irrigation Electrode
|
s.n. 09/162,500
|
|
LETZ Contoured Loop Conization Electrode
|
5,951,550
|
9/14/1999
|
Liberty Plus
|
6,086,549
|
7/11/2000
|
EndoCurette
|
5,807,282
|
9/15/1998
|
Fluid Trap Filter for Vacuum Assisted Delivery Hand Pump
|
4,957,629
|
9/18/1990
|
Soft Vacuum Assisted Delivery Cup
|
5,224,947
|
7/6/1993
|
Soft Vacuum Assisted Delivery Cup
|
des 320,855
|
10/15/1991
|
Vacuum Assisted Delivery Hand Pump
|
5,277,557
|
1/11/1994
|
Vacuum Assisted Delivery Hand Pump
|
des 321,927
|
11/26/1991
|
AROM-COT Digital Amniotome w/ directional indicator
|
6,027,511
|
2/22/2000
|
Hemo-Nate Micro-Filtration Blood Filter
|
4,453,927
|
6/12/1984
|
Pala-Nate Neonatal Palate Protector
|
5,195,513
|
3/23/1993
|
TVUS/HSG-Cath
|
s.n. 11/870,491
|
|
OptiSpec Gynecology Light
|
7,631,981
|
12/15/2009
|
Nutri-Lok
|
s.n. 11/608,573
|
|
Nutri-Lok
|
s.n. 11/970,894
|
|
Nutri-Lok
|
des 29/305,248
|
|
BT-Cath
|
s.n. 12/207,578
|
|
Epitome Patent – Europe
|
0880342
|
|
Heated Wire Epitome
|
s.n. 08/804,208
|
Reg.
|
|||
Trademark
|
Serial #
|
Reg. #
|
Date
|
AROM-COT ®
|
75-525596
|
2278017
|
9/14/99
|
BT-CATH ®
|
76-693715
|
3629206
|
6/2/09
|
BUBBLE TOCO TM
|
74-372854
|
1849173
|
8/9/94
|
CMI TM
|
75-327101
|
2210508
|
12/15/98
|
CORDGUARD TM
|
74-378898
|
1909886
|
8/8/95
|
DELTA-CAL TM
|
|||
DELTA-FLOW TM
|
|||
DELTRAN ®
|
74-491516
|
1879646
|
2/21/95
|
DIALY-NATE ®
|
75-492730
|
2576950
|
6/11/02
|
DISPOSA-HOOD TM
|
|||
ENDOCURETTE ®
|
76-167841
|
2673892
|
1/14/03
|
EPITOME ®
|
75-151472
|
2077593
|
7/8/97
|
FILTRESSE TM
|
74-706215
|
2031185
|
1/14/97
|
FINESSE ®
|
74-181220
|
1775806
|
6/8/93
|
FLEX CUP TM
|
|||
LETZ ®
|
74-173056
|
1775804
|
6/8/93
|
LIBERTY ®
|
75-071029
|
2060901
|
5/13/97
|
LUMIN TM
|
75-071008
|
2071431
|
6/17/97
|
MUC-X TM
|
|||
MYELO-NATE ®
|
75-492726
|
2590142
|
7/9/02
|
NUTRI-CATH ®
|
75-492729
|
2277697
|
9/14/99
|
NUTRI-LOK ®
|
76-663534
|
3294526
|
9/18/07
|
OPTIMICRO TM
|
|||
OPTISPEC ®
|
76-682937
|
3518749
|
10/21/08
|
PALA-NATE ®
|
74-713788
|
2186181
|
9/1/98
|
PARAGRAPH ®
|
74-181219
|
1730292
|
11/3/92
|
PATHFINDER PLUS TM
|
|||
PICC-NATE ®
|
76-265687
|
2575945
|
6/4/02
|
SAFE-T-GAUGE ®
|
74-235835
|
1773536
|
5/25/93
|
SECURE CUP TM
|
75-723368
|
||
SNAP-TAB TM
|
|||
SOFT TOUCH TM
|
|||
Stork Design TM
|
|||
TENDER TOUCH ®
|
74-143209
|
1841265
|
6/21/94
|
THORA-CATH ®
|
76-016454
|
2495841
|
10/9/01
|
TVUS/HSG-CATH TM
|
|||
UMBILI-CATH TM
|
|||
URI-CATH TM
|
76-015576
|
||
UTAHBALL ®
|
76-167842
|
2613576
|
8/27/02
|
UTAHBALL ®
|
76-696498
|
3697380
|
10/20/09
|
UTAHLOOP ®
|
76-167840
|
2687578
|
3/11/03
|
UTAHLOOP ®
|
76-696534
|
3697381
|
10/20/09
|
VAC-U-NATE TM
|
|||
VELVET TOUCH TM
|
|||
VERI-CAL TM
|
|||
ZAPGUARD TM
|
|||
CLEAR-FLOW TM
|
73-320359
|
1219532
|
12/7/82
|
DISPIRO TM
|
73-419541
|
1280628
|
6/5/84
|
GESCO TM
|
73-320411
|
1229501
|
3/8/83
|
HEMO-NATE ®
|
73-320271
|
1229499
|
3/8/83
|
HEMO-TAP ®
|
73-320360
|
1221539
|
12/28/82
|
INTRAN ®
|
73-678290
|
1499413
|
8/9/88
|
UTAH MEDICAL PRODUCTS INC. UM ®
|
73-416682
|
1285922
|
7/17/84
|
DATED
|
17 March 2011
|
CHARGE OVER SECURITIES
|
|
UTAH MEDICAL PRODUCTS, INC. (the Chargor)
|
(1)
|
JPMORGAN CHASE BANK, N.A. as Lender
|
(2)
|
Ref: KH06/RL01
Burges Salmon LLP
www.burges-salmon.com
Tel: +44 (0)117 902 7253
Fax: +44 (0)117 902 4400
|
![]() |
Clause
|
Heading
|
Page
|
1
|
DEFINITIONS AND INTERPRETATION
|
1
|
2
|
COVENANT TO PAY
|
3
|
3
|
CHARGE
|
4
|
4
|
REPRESENTATIONS AND WARRANTIES
|
4
|
5
|
UNDERTAKINGS
|
5
|
6
|
FURTHER ASSURANCE
|
6
|
7
|
DEPOSIT OF DOCUMENTS
|
7
|
8
|
RIGHTS
|
7
|
9
|
CERTAIN POWERS OF THE LENDER
|
8
|
10
|
APPOINTMENT AND POWERS OF RECEIVER
|
9
|
11
|
APPLICATION OF PROCEEDS AND PROTECTION OF PURCHASERS
|
12
|
12
|
INDEMNITIES; COSTS AND EXPENSES
|
13
|
13
|
POWER OF ATTORNEY
|
14
|
14
|
CONTINUING SECURITY AND OTHER MATTERS
|
15
|
15
|
RELEASE
|
16
|
16
|
LIABILITY OF THE CHARGOR
|
17
|
17
|
SET OFF
|
18
|
18
|
MISCELLANEOUS
|
19
|
19
|
NOTICES
|
21
|
20
|
TRANSFERS BY THE LENDER OR THE CHARGOR
|
22
|
21
|
COUNTERPARTS
|
23
|
22
|
THIRD PARTIES
|
23
|
23
|
LAW
|
23
|
Schedule 1
|
25
|
|
Part A - Form of written resolution to amend articles of association
|
25
|
|
Part B - Filing print of written resolutions to file at Companies House
|
28
|
THIS DEED is dated
|
17 March 2011 and made
|
(1)
|
UTAH MEDICAL PRODUCTS, INC. a Utah corporation (the "Chargor"); and
|
(2)
|
JPMORGAN CHASE BANK, N.A. (the "Lender").
|
1
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
|
(a)
|
65% of all the issued voting share capital of the Issuer (at the date of this Deed being 355,000 Ordinary A shares, 545,000 Ordinary B shares and 100,000 Ordinary C shares, (i.e. 65% of the 1,000,000 issued shares, being the issued share capital of the Issuer));
|
|
(b)
|
65% of any additional issued voting share capital of the Issuer in the future legally or beneficially owned by the Chargor;
|
|
(c)
|
100% of the issued non voting share capital of the Issuer in the future legally or beneficially owned by the Chargor;
|
|
(d)
|
any Securities Rights relating to clauses (a), (b) and (c) of this defintion; and
|
|
(e)
|
any proceeds, money, dividends, interest and other distributions, return of capital, marketable securities, accretions rights, benefits, or other property whatsoever now or in the future declared, payable or otherwise distributable in respect of the Charged Shares or the Securities Rights, whether by reason of a payment of a dividend, the making of a distribution of any kind, a rights issue, allotment, offer, conversion, exchange, substitution, consolidation, sub-division, redemption, pre-emption, sale, option, bonus, capitalisation, warrant, cancellation, re-classification, reconstruction, amalgamation, winding up or otherwise, in each case relating to the Charged Shares;
|
1.2
|
Definitions in Credit Agreement
|
1.4
|
Headings
|
1.5
|
Construction of certain terms
|
|
(a)
|
references to clauses and schedules are to be construed as references to the clauses of and schedules to this Deed unless expressly stated otherwise;
|
|
(b)
|
reference to (or to any specified provision of) this Deed, the Credit Agreement or any other document shall be construed as references to this Deed, the Credit Agreement that provision or that document as in force for the time being and as amended, varied, supplemented or restated in accordance with the terms thereof or, as the case may be, with the agreement of the relevant parties;
|
|
(c)
|
words importing the plural shall include the singular and vice versa;
|
|
(d)
|
references to a person shall be construed as including references to an individual, firm, company, corporation, unincorporated body of persons, trust, partnership and limited liability partnership or any state or any agency thereof;
|
|
(e)
|
an Event of Default is "continuing" if it has not been expressly waived in writing by the Lender; and
|
|
(f)
|
references to statutory provisions shall be construed as references to those provisions as replaced, amended or re-enacted from time to time and all regulations made thereunder from time to time.
|
1.6
|
Effect as a deed
|
2
|
COVENANT TO PAY
|
3
|
CHARGE
|
4
|
REPRESENTATIONS AND WARRANTIES
|
4.1
|
Representations and warranties
|
|
(a)
|
Approvals
|
|
(i)
|
That all necessary approvals and consents (whether governmental or otherwise) in relation to the making, performance and validity of this Deed and the transactions contemplated by this Deed have been obtained and remain in full force and effect;
|
|
(ii)
|
That the security created by this Deed does not contravene or result in any of the provisions of its memorandum and articles of association; and
|
|
(iii)
|
That this Deed does not and will not conflict with or result in any breach or constitute a default under any agreement, instrument or obligation to which the Chargor is a party or by which it is bound.
|
|
(b)
|
Security valid
|
|
(c)
|
Title to assets
|
|
(d)
|
Existing security and Disposal
|
|
(i)
|
That no Security exists on or over the Securities and it has not entered into any agreement to grant any Security over the Securities; and
|
|
(ii)
|
That it has not sold, transferred, lend, assigned, parted with its interest in, disposed of, granted any option in respect of or otherwise dealt with any of its rights, title and interest in and to the Securities, or agreed to do any of the foregoing.
|
|
(e)
|
Securities
|
5
|
UNDERTAKINGS
|
5.1
|
Obligations
|
|
(a)
|
Negative covenants
|
|
(i)
|
create or permit to subsist any Security over any of the Securities;
|
|
(ii)
|
enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, transfer, assign, lease, licence, grant an option over or otherwise dispose of any interest in any of the Securities;
|
|
(iii)
|
permit any person other than the Chargor or the Lender (or the nominees or agent of the Lender to be registered as the holder of the Securities or any part thereof; or
|
|
(iv)
|
do or cause or permit to be done anything which may in any way depreciate, jeopardise or otherwise prejudice the interest of the Lender in, or the value to the Lender of the Securities.
|
|
(b)
|
Articles of Association
|
|
(i)
|
Procure the amendment of the articles of association of each issuer of shares by way of written resolution in the form set out in Part A of Schedule 1; and
|
|
(ii)
|
Not, with the prior written consent of the Lender amend or agree to the amendment of, the memorandum or articles of association of any issuer in relation to the rights or liabilities attaching to any of the Securities.
|
|
(c)
|
Liabilities
|
|
(i)
|
Ensure that there are no monies or liabilities outstanding in respect of any of the Securities; and
|
|
(ii)
|
Punctually pay all calls, subscription monies and other monies payable on or in respect of any of the Securities and indemnify and keep indemnified the Lender and its nominees against any cost, liabilities or expenses which it or they may suffer or incur as are result of any failure by the Chargor to pay the same.
|
|
(d)
|
Information
|
|
(i)
|
Deliver to the Lender a copy of every circular, notice, report, set of accounts or other document received by the Chargor in respect of or in connection with any of the Securities promptly on receipt by the Chargor of such document; and
|
|
(ii)
|
Promptly deliver to the Lender all such information concerning the Securities as the Lender may reasonably request from time to time.
|
5.2
|
No limitation
|
5.3
|
Power to remedy
|
6
|
FURTHER ASSURANCE
|
6.1
|
Further assurance
|
7
|
DEPOSIT OF DOCUMENTS
|
7.1
|
All share certificates, warrants or other documents of title and other documentary evidence of ownership in relation to the Securities;
|
7.2
|
Duly executed undated blank stock transfer forms; and
|
7.3
|
Forms of waiver of any pre-emption rights and any other documents, consents and monies necessary to enable such transfers to be registered by the Lender.
|
8
|
RIGHTS
|
8.1
|
Rights prior to an Event of Default
|
|
(a)
|
Prior to an Event of Default that is continuing, the Chargor may continue to exercise all voting and other rights (including the right to collect dividends, interest, principal or other payments of money) relating to the Securities provided that such rights are not exercised in a way which (and the Chargor shall not permit anything which):
|
|
(i)
|
Jeopardises the security constituted by the Loan Documents;
|
|
(ii)
|
Varies the rights attaching to the Securities; or
|
|
(iii)
|
Relates to a participation in a rights issue or to receiving dividends other than in cash
|
|
(iv)
|
or concerns a merger, consolidation, allotment of shares, transfer of ownership (legal or beneficial), insolvency or matters which would otherwise be prohibited by the Loan Documents.
|
8.2
|
Rights after an Event of Default
|
|
(a)
|
Following an Event of Default that is continuing, the Lender may (without notice to or consent from the Chargor and in the Chargor's name or otherwise) exercise any rights (including the right to collect dividends, interest, principal or other payments of money) in respect of the Securities and may do anything necessary to complete any transfer form in favour of itself or otherwise.
|
|
(b)
|
The Lender shall have no duty to ensure that any dividends, interest or other money and assets or rights receivable in respect of the Securities are duly and punctually paid, received, collected or exercised when they become due and payable or exercisable, or to ensure the taking up of any (or any offer of any) stocks, shares, rights, money or other property paid, distributed, accruing or offered at any time by way of redemption, bonus, rights, reference to or otherwise in respect of the Securities.
|
9
|
CERTAIN POWERS OF THE LENDER
|
9.1
|
Subsequent Security
|
9.2
|
Settlement of accounts
|
9.3
|
Suspense accounts
|
|
(a)
|
paying all costs, charges and expenses incurred and payments made by the Lender (or the Receiver) in the course of such enforcement;
|
|
(b)
|
paying remuneration to the Receiver as and when the same becomes due and payable; and
|
|
(c)
|
paying amounts due and payable in respect of the Secured Obligations.
|
9.4
|
Financial Collateral
|
10
|
APPOINTMENT AND POWERS OF RECEIVER
|
10.1
|
Appointment
|
10.2
|
Receiver as agent
|
10.3
|
Powers of Receiver
|
|
(a)
|
Take possession
|
|
(b)
|
Dispose of assets
|
|
(c)
|
Voting Rights
|
|
(d)
|
Compromises and contracts
|
|
(e)
|
Legal proceedings
|
(f)
|
Execute documents
|
|
(g)
|
Approvals
|
|
(h)
|
Insolvency Act powers
|
|
(i)
|
Notices
|
|
(j)
|
Other powers
|
|
(k)
|
Lender powers
|
10.4
|
Remuneration
|
10.5
|
No liability
|
11
|
APPLICATION OF PROCEEDS AND PROTECTION OF PURCHASERS
|
11.1
|
Application of proceeds
|
|
(a)
|
in the payment of all costs, charges and expenses of and incidental to the Receiver's appointment and the payment of his remuneration;
|
|
(b)
|
in the payment and discharge of any liabilities incurred by the Receiver on the Chargor's behalf in the exercise of any of the powers of the Receiver;
|
|
(c)
|
in providing for the matters (other than the remuneration of the Receiver) specified in the first three paragraphs of section 109(8) of the Law of Property Act 1925;
|
|
(d)
|
in or towards payment of any debts or claims which are by statute payable in preference to the Secured Obligations but only to the extent that those debts or claims have that preference;
|
|
(e)
|
in or towards satisfaction of the Secured Obligations; and
|
|
(f)
|
any surplus shall be paid to the Chargor or any other person who may be entitled to it.
|
11.2
|
Protection of purchasers
|
|
(a)
|
Any person (including, without limitation, any purchaser, mortgagor or mortgagee) (in this clause a "purchaser") dealing with the Lender may assume without inquiry that:
|
|
(i)
|
some part of the Secured Obligations has become due;
|
|
(ii)
|
a demand for such Secured Obligations has been duly made; and
|
|
(iii)
|
such Secured Obligations have become due within the meaning of section 101 of the Law of Property Act 1925.
|
|
(b)
|
No purchaser dealing with the Receiver or the Lender is to be concerned to enquire whether any power exercised or purported to be exercised by the Receiver or the Lender has become exercisable, or as to the propriety or regularity of any sale by, or other dealing with, the Receiver or the Lender. Any such sale or dealing is deemed to be within the powers conferred by this Deed and to be valid and effective accordingly. All the protection to purchasers contained in section 104 and section 107 of the Law of Property Act 1925 and section 42(3) of the Insolvency Act 1986 apply to any purchaser.
|
12
|
INDEMNITIES; COSTS AND EXPENSES
|
12.1
|
Enforcement costs
|
12.2
|
No liability as mortgagee in possession
|
12.3
|
Indemnity from Securities
|
(a)
|
anything done or omitted in the exercise or purported exercise of the powers contained in this Deed; or
|
|
(b)
|
any breach by the Chargor of any of its obligations under this Deed;
|
12.4
|
Value Added Tax
|
12.5
|
Challenge of Deed
|
13
|
POWER OF ATTORNEY
|
13.1
|
Power of attorney
|
|
(a)
|
to execute and complete any documents or instruments which the Lender or such Receiver may require for perfecting the title of the Lender to the Securities or for vesting the same in the Lender, its nominees or any purchaser;
|
|
(b)
|
to sign, execute, seal and deliver and otherwise perfect any further security document referred to in clause 6 (Further Assurance); and
|
|
(c)
|
otherwise generally to sign, seal, execute and deliver all deeds, assurances, agreements and documents and to do all acts and things which may be required for the full exercise of all or any of the powers conferred on the Lender or a Receiver under this Deed or which may be deemed expedient by the Lender or a Receiver in connection with any disposition, realisation or getting in by the Lender or such Receiver of the Securities or any part thereof or in connection with any other exercise of any power under this Deed.
|
13.2
|
Ratification
|
14
|
CONTINUING SECURITY AND OTHER MATTERS
|
14.1
|
Continuing security
|
|
(a)
|
secure the ultimate balance from time to time owing to the Lender by the Chargor and shall be a continuing security notwithstanding any settlement of account or other matter whatsoever;
|
|
(b)
|
be in addition to, and not prejudice or affect, any present or future Collateral Instrument, Security, right or remedy held by or available to the Lender;
|
|
(c)
|
not merge with or be in any way prejudiced or affected by the existence of any such Collateral Instruments, Security, rights or remedies or by the same being or becoming wholly or in part void, voidable or unenforceable on any ground whatsoever or by the Lender dealing with, exchanging, releasing, varying or failing to perfect or enforce any of the same or giving time for payment or indulgence or compounding with any other person liable;
|
|
(d)
|
not be discharged or affected by the incapacity or any change in the name of the Chargor or any other person liable;
|
|
(e)
|
not be discharged or affected by the Security Trustee granting any time, indulgence or concession to, or compounding with, discharging, releasing or varying the liability of the Chargor or any other person liable or renewing, determining, varying or increasing any accommodation, facility or transaction or otherwise dealing with the same in any manner whatsoever or concurring in, accepting or varying any compromise, arrangement or settlement or omitting to claim or enforce payment from the Chargor or any other person liable;
|
|
(f)
|
not be discharged or affected by any act or omission which would not have discharged or affected the liability of any or all of the Chargor had it been a principal debtor instead of a surety or by anything done or omitted which but for this provision might operate to exonerate the Chargor;
|
|
(g)
|
not be discharged or affected by any failure of, or defect in, any agreement given by or on behalf of the Chargor in respect of any Secured Obligations nor by any legal limitation in any matter in respect of any Secured Obligations or by any other fact or circumstances (whether known or not to the Chargor or the Lender) as a result of which any Secured Obligations may be rendered illegal, void or unenforceable by the Lender; and
|
|
(h)
|
remain binding on the Chargor notwithstanding any amalgamation, reconstruction, reorganisation, merger, sale or transfer by or involving the Lender or assets of the Lender and for this purpose this Deed and all rights conferred on the Lender under it may be assigned or transferred by the Lender accordingly.
|
14.2
|
Collateral Instruments
|
15
|
RELEASE
|
15.1
|
Release
|
|
(a)
|
If the Lender is satisfied that all the Secured Obligations have been unconditionally and irrevocably paid or discharged in full and the Lender has no further liability or obligation under any Loan Document, the Lender will, at the request and cost of the Chargor, discharge this Deed.
|
|
(b)
|
Any release, discharge or settlement between the Chargor and the Lender shall be conditional upon no security, disposition or payment to the Lender by the Chargor or any other person being void, set aside or ordered to be refunded pursuant to any enactment or law relating to liquidation, administration or insolvency or for any other reason whatsoever and if such condition shall not be fulfilled, the Lender shall be entitled to enforce this Deed subsequently as if such release, discharge or settlement had not occurred and any such payment had not been made.
|
16
|
LIABILITY OF THE CHARGOR
|
16.1
|
Limited Recourse
|
16.2
|
Charge not to be affected
|
|
(a)
|
any time, waiver or consent granted to, or composition with, the Chargor, or other person;
|
|
(b)
|
the release of the Chargor, or any other person under the terms of any composition or arrangement with any creditor of any member of the Chargor;
|
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, the Chargor, or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Chargor, or any other person;
|
|
(e)
|
any amendment (however fundamental) or replacement of a Loan Document or any other document or security;
|
|
(f)
|
any assignment, transfer or novation by the Lender of its rights and/or obligations under the Loan Documents;
|
|
(g)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Loan Document or any other document or security;
|
|
(h)
|
any insolvency or similar proceedings; or
|
|
(i)
|
any other act or omission which but for this provision might have discharged or otherwise prejudiced or affected the liability of the Chargor.
|
16.3
|
Immediate Recourse
|
|
(a)
|
enforce any security or other right; or
|
|
(b)
|
claim any payment from or otherwise proceed against any other person
|
17
|
SET-OFF
|
17.1
|
Set-off
|
|
(a)
|
set off any amounts owed by the Lender to it in or towards satisfaction of the Secured Obligations (which shall be in addition to and without prejudice to such rights of set-off, combination, lien and other rights whatsoever conferred on the Lender by law or under this Deed); and
|
|
(b)
|
transfer any sum or sums standing to the credit of any accounts of the Chargor with the Lender of whatever nature and in whatever currency denominated, in or towards satisfaction of any sums due and payable from the Chargor to the Lender under this Deed or in or towards satisfaction of the Secured Obligations.
|
17.2
|
Additional rights
|
17.3
|
Waiver
|
18
|
MISCELLANEOUS
|
18.1
|
Remedies cumulative
|
18.2
|
Successors and assigns
|
18.3
|
Reorganisation of the Lender
|
18.4
|
Unfettered discretion
|
18.5
|
Provisions severable
|
|
(a)
|
Each of the provisions of this Deed is severable and distinct from the others and if at any time one or more of such provisions is or becomes invalid, illegal or unenforceable the validity, legality and enforceability of the remaining provisions of this Deed shall not in any way be affected or impaired thereby.
|
|
(b)
|
If any invalid or unenforceable clause (or part of a clause) would not be invalid or unenforceable if its drafting or effect were modified in any way, the Chargor agrees that the Lender can require such clause to be modified so as to be valid and enforceable.
|
18.6
|
Preservation of rights
|
18.7
|
Set-aside Payments
|
18.8
|
Redeeming prior security
|
18.9
|
Settlement of accounts
|
18.10
|
Trust period
|
19
|
NOTICES
|
19.1
|
Method
|
19.2
|
Delivery
|
|
(a)
|
Lender:
|
Address:
|
|
Attention:
|
Paul Hogan
|
Fax No:
|
|
|
(b)
|
Chargor:
|
Utah Medical Products, Inc.
|
Address:
|
7043 South 300 West
|
Midvale,
|
Utah 84047
|
Attention:
|
Paul Richins
|
Fax No:
|
801-566-7305
|
19.3
|
Deemed receipt
|
|
(a)
|
Any notice or other communication given by the Lender shall be deemed to have been received:
|
|
(i)
|
in the case of a notice given by hand, at the time of day of actual delivery;
|
|
(ii)
|
if sent by fax, with a confirmed receipt of transmission from the receiving machine, on the day on which transmitted; and
|
|
(iii)
|
if posted, by 10.00 am on the second Business Day following the day on which it was despatched by first class mail postage prepaid
|
|
(b)
|
Any notice or other communication given to the Lender shall be deemed to have been given only on actual receipt.
|
19.4
|
Notices conclusive
|
20
|
TRANSFERS BY THE LENDER OR THE CHARGOR
|
20.1
|
Restriction on the Chargor
|
20.2
|
The Lender
|
|
(a)
|
The Lender may at any time sell, assign, novate, securitise or otherwise transfer all or any part of its rights or obligations under this Deed (a "Transfer") to any person at any time (a "Transferee"). The Lender may, and the Chargor consents to, the disclosure by the Lender of any information and documentation concerning the Chargor to any prospective Transferee.
|
|
(b)
|
If there is a Transfer by the Lender the Chargor will be bound to the Transferee and the rights and obligations of the Chargor under this Deed will remain the same. The Transferee will have the same powers, rights, benefits and obligations of the Lender to the extent that they are sold, assigned, novated or otherwise transferred to the Transferee and the outgoing Lender will be released from its obligations to the Chargor to the extent that those obligations are assumed by the Transferee. The Chargor will enter into all documents necessary to give effect to any such Transfer.
|
21
|
COUNTERPARTS
|
22
|
THIRD PARTIES
|
23
|
LAW
|
23.1
|
English law
|
23.2
|
Submission to jurisdiction
|
23.3
|
Service of process
|
|
(a)
|
irrevocably appoints the Issuer as its agent for service of process in relation to any proceedings before the English courts in connection with this Deed; and
|
|
(b)
|
agrees that failure by a process agent to notify the Chargor of the process will not invalidate the proceedings concerned.
|
PRIVATE COMPANY LIMITED BY SHARES
|
Circulation Date [of first copy]
[l] 20[l]
|
1
|
where such transfer is in favour of a bank or other financial institution or any nominee of a bank or other financial institution and the transfer is as contemplated by, or pursuant to, any mortgage or charge of shares or any call or other share option granted in favour of such bank or financial institution; or
|
2
|
where such transfer is by or on behalf of a bank or financial institution or any nominee of a bank or financial institution in favour of any third party upon disposal or realisation of shares following the bank having become entitled to exercise or enforce its rights under any such mortgage, charge and/or call or other option
|
1
|
If you agree to the proposed Written Resolution please sign and date this document overleaf on the dotted line where indicated and return it to the Company using one of the following methods, in each case by no later than 5pm the date 28 days after the Circulation Date stated overleaf:
|
1.1
|
by hand or by post to [the Company's registered office at [l]]
|
1.2
|
[by electronic mail addressed to [l]]
|
2
|
If you do not agree to the Written Resolution you do not need to do anything. You will not be deemed to agree if you fail to reply.
|
3
|
The Written Resolution will lapse if the agreement of the required majority of eligible members is not received by the Company by 5pm on the date 28 days after the Circulation Date stated overleaf. If the Company does not receive this signed document from you by this date and time it will not be counted in determining whether the Written Resolution is passed.
|
4
|
The Written Resolution is passed on the date and time that the Company receives the agreement of the required majority of eligible members. The required majority for a Special Resolution is eligible members representing not less than 75% of the total voting rights of eligible members.
|
5
|
You may not revoke your agreement to the Written Resolution once you have signed and returned this document to the Company.
|
6
|
If you are signing this document on behalf of a person under a power of attorney or other authority please send a copy of the relevant power of attorney or authority when returning this document.
|
PRIVATE COMPANY LIMITED BY SHARES
|
PASSED ON : [l] 20[l]
|
1
|
where such transfer is in favour of a bank or other financial institution or any nominee of a bank or other financial institution and the transfer is as contemplated by, or pursuant to, any mortgage or charge of shares or any call or other share option granted in favour of [l] bank or other financial institution; or
|
2
|
where such transfer is by or on behalf of a bank or financial institution or any nominee of a bank or financial institution in favour of any third party upon disposal or realisation of shares following the bank having become entitled to exercise or enforce its rights under any such mortgage, charge and/or call or other option
|
SIGNED as a DEED by
|
)
|
|
|
UTAH MEDICAL PRODUCTS, INC.
|
)
|
||
) | |||
acting by
|
)
|
/s/ Paul O. Richins
|
|
)
|
Authorised signatory
|
||
)
|
|||
and
|
)
|
||
)
|
|||
)
|
/s/ Kevin L. Cornwell
|
||
Authorised signatory
|
EXECUTED as a DEED
|
)
|
By JPMORGAN CHASE BANK, N.A.
|
)
|
)
|
|
acting by:-
|
/s/ Lynn Goodale
|
Authorised Signatory
|
To Beneficiary:
|
JPMorgan Chase Bank, N.A.
|
|
201 South Main Street
|
||
Suite 300
|
||
Salt Lake City, Utah 84111
|
||
Attention: Lynn Goodale
|
||
with a copy to:
|
Snell & Wilmer L.L.P.
|
|
Beneficial Tower
|
||
15 West South Temple, Suite 1200
|
||
Salt Lake City, Utah 84101
|
||
Attention: Brian D. Cunningham, Esq.
|
||
To Trustor:
|
Utah Medical Products, Inc.
|
|
7043 South 300 West
|
||
Midvale, Utah 84047
|
||
Attention: Paul Richins
|
||
with a copy to:
|
Osborne Clarke
|
|
2 Palo Alto Square, Suite 200
|
||
Palo Alto, CA 94306
|
||
Attention: Steve Wilson, Esq.
|
UTAH MEDICAL PRODUCTS, INC.
|
||
a Utah corporation
|
||
By: /s/ Paul O. Richins
|
||
Name: Paul O. Richins
|
||
Title: V.P.
|
||
“Trustor”
|
STATE OF UTAH
|
)
|
: ss.
|
|
COUNTY OF SALT LAKE
|
)
|
_____________________________________ | ||
NOTARY PUBLIC
|
To Beneficiary:
|
JPMorgan Chase Bank, N.A.
|
|
201 South Main Street
|
||
Suite 300
|
||
Salt Lake City, Utah 84111
|
||
Attention: Lynn Goodale
|
||
with a copy to:
|
Snell & Wilmer L.L.P.
|
|
Beneficial Tower
|
||
15 West South Temple, Suite 1200
|
||
Salt Lake City, Utah 84101
|
||
Attention: Brian D. Cunningham, Esq.
|
||
To Trustor:
|
Utah Medical Products, Inc.
|
|
7043 South 300 West
|
||
Midvale, Utah 84047
|
||
Attention: Paul Richins
|
||
with a copy to:
|
Osborne Clarke
|
|
2 Palo Alto Square, Suite 200
|
||
Palo Alto, CA 94306
|
||
Attention: Steve Wilson, Esq.
|
UTAH MEDICAL PRODUCTS, INC.
|
||
a corporation
|
||
By: /s/ Paul O. Richins
|
||
Name: Paul O. Richins
|
||
Title: V.P.
|
||
“Trustor”
|
STATE OF UTAH
|
)
|
: ss.
|
|
COUNTY OF SALT LAKE
|
)
|
________________________________ | |
NOTARY PUBLIC
|
To Beneficiary:
|
JPMorgan Chase Bank, N.A.
|
|
201 South Main Street
|
||
Suite 300
|
||
Salt Lake City, Utah 84111
|
||
Attention: Lynn Goodale
|
||
with a copy to:
|
Snell & Wilmer L.L.P.
|
|
Beneficial Tower
|
||
15 West South Temple, Suite 1200
|
||
Salt Lake City, Utah 84101
|
||
Attention: Brian D. Cunningham, Esq.
|
||
To Trustor:
|
Utah Medical Products, Inc.
|
|
7043 South 300 West
|
||
Midvale, Utah 84047
|
||
Attention: Paul Richins
|
||
with a copy to:
|
Osborne Clarke
|
|
2 Palo Alto Square, Suite 200
|
||
Palo Alto, CA 94306
|
||
Attention: Steve Wilson, Esq.
|
UTAH MEDICAL PRODUCTS, INC.
|
||
a Utah corporation
|
||
By: /s/ Paul O. Richins
|
||
Name: Paul O. Richins
|
||
Title: V.P.
|
||
“Trustor”
|
STATE OF UTAH
|
)
|
: ss.
|
|
COUNTY OF SALT LAKE
|
)
|
__________________________________________ | ||
NOTARY PUBLIC
|
UTAH MEDICAL PRODUCTS, INC.
|
|
a Utah corporation
|
|
By: /s/ Paul O. Richins
|
|
Name: Paul O. Richins
|
|
Title: V.P.
|
1.
|
INTERPRETATION
|
1
|
2.
|
CHARGOR'S REPRESENTATIONS AND WARRANTIES
|
3
|
3.
|
CHARGOR'S COVENANTS
|
4
|
4.
|
SECURITY
|
6
|
5.
|
DEALINGS WITH CHARGED PROPERTY
|
7
|
6.
|
PRESERVATION OF SECURITY
|
8
|
7.
|
ENFORCEMENT OF SECURITY
|
10
|
8.
|
FURTHER ASSURANCES
|
13
|
9.
|
INDEMNITIES
|
14
|
10.
|
POWER OF ATTORNEY
|
15
|
11.
|
EXPENSES
|
16
|
12.
|
NOTICES
|
16
|
13.
|
ASSIGNMENTS
|
17
|
14.
|
MISCELLANEOUS
|
18
|
15.
|
LAW AND JURISDICTION
|
18
|
(A)
|
By a credit agreement dated 17 March 2011 (the “Loan Agreement”) made between the Chargor as borrower and the Chargee as lender, the Chargee agreed to provide certain loan facilities to the Chargor on the terms and conditions therein set out.
|
(B)
|
As security for the obligations of the Chargor under the Loan Agreement, the Chargor has agreed to charge, inter alia, 65% of all the issued voting share capital of Utah Medical Products Ltd., an exempted company incorporated under the laws of Bermuda (the “Company”); 65% of any additional issued voting share capital of the Company in the future legally or beneficially owned by the Chargor; and 100% of the issued non- voting share capital of the Company in the future legally or beneficially owned by the Chargor.
|
(C)
|
The Company has an authorised share capital of US$1,000,000 consisting of 1,000,000 common shares of par value US$1.00 each, 330,000 of which have been issued as fully paid to, is beneficially owned by, and is registered in the name of the Chargor.
|
(D)
|
It is a condition precedent to the Chargee advancing the said loan to the Chargor that the Chargor shall execute this Charge in favour of the Chargee and the same is executed by the Chargor in consideration of the Chargee agreeing to advance the said loan to the Chargor and for other good and valuable consideration (the sufficiency of which the Chargor hereby acknowledges).
|
1.
|
INTERPRETATION
|
1.1
|
In this Charge, unless the context otherwise requires, the following words and expressions shall have the following meanings:
|
“Business Day”
|
has the same meaning as in the Loan Agreement;
|
“Charge”
|
means this share charge;
|
“Charged Property”
|
means all of the issued shares of the Company as described in Recital (B) and all other shares in the Company from time to time legally or beneficially owned by the Chargor during the Security Period to the extent set forth in Recital (B) (together the “Charged Shares”) and all dividends or other distributions, interest and other moneys paid or payable after the date hereof in connection therewith and all interests in and all rights accruing at any time to or in respect of all or any of the Charged Shares and all and any other property that may at any time be received or receivable by or otherwise distributed to the Chargor in respect of or in substitution for, or in addition to, or in exchange for, or on account of, any of the foregoing, including, without limitation, any shares or other securities resulting from the division, consolidation, change, conversion or reclassification of any of the Charged Shares, or the reorganization, merger or consolidation of the Company with any other body corporate, or the occurrence of any event which results in the substitution or exchange of the Charged Shares;
|
“Charged Shares”
|
has the meaning assigned thereto in the definition of Charged Property;
|
“Event of Default”
|
has the same meaning as in the Loan Agreement;
|
“Loan”
|
means the loan made available pursuant to the Loan Agreement described in Recital (A);
|
“Parties”
|
means the parties to this Charge collectively; “Party” means any one of them;
|
“Secured Obligations”
|
means all of the present and future payments and other obligations of the Chargor to the Chargee and the Borrower under this Charge, the Loan Agreement and the Security Documents, and includes all obligations of the Chargor described as Secured Obligations in the Loan Agreement;
|
“Security Documents”
|
means the Collateral Documents described in the Loan Agreement;
|
“Security Interest”
|
means any charge, mortgage, pledge, lien, security interest or other encumbrance;
|
“Security Period”
|
means the period commencing on the date of execution of this Charge and terminating upon discharge of the security created by this Charge by payment in full of the Secured Obligations.
|
1.2
|
In this Charge unless the context otherwise requires:
|
|
(a)
|
references to statutory provisions shall be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time and shall include references to any provisions of which they are re-enactments (whether with or without modification);
|
|
(b)
|
references to Clauses and schedules are references to Clauses hereof and schedules hereto; references to sub-Clauses or paragraphs are, unless otherwise stated, references to sub-Clauses of the Clauses hereof or paragraphs of the schedule in which the reference appears;
|
|
(c)
|
references to the singular shall include the plural and vice versa and references to the masculine shall include the feminine and/or neuter and vice versa;
|
|
(d)
|
references to persons shall include companies, partnerships, associations and bodies of persons, whether incorporated or unincorporated;
|
|
(e)
|
references to assets include property, rights and assets of every description; and
|
|
(f)
|
references to any document are to be construed as references to such document as amended or supplemented from time to time.
|
2.
|
CHARGOR’S REPRESENTATIONS AND WARRANTIES
|
2.1
|
The authorised share capital of the Company consists of the shares described in Recital (C) hereof and such shares are beneficially owned and registered as described in the said recital;
|
2.2
|
The Chargor is a company duly organised, validly existing and in good standing under the laws of the State of Utah;
|
2.3
|
The Company is under no obligation, nor is it liable to become under any obligation, to issue any further shares nor, without limiting the generality of the foregoing, has the Company created any option to acquire shares in the Company or any securities exchangeable for or convertible into shares of the Company;
|
2.4
|
Entry into this Charge by the Chargor and enforcement hereof by the Chargee will not contravene the terms of any agreement to which the Chargor is bound or to which the Charged Property are subject or the memorandum of association or bye-laws of the Company;
|
2.5
|
The Chargor is the legal and beneficial owner of all of the Charged Property free from any Security Interest (other than those created by this Charge) and any options or rights of pre-emption;
|
2.6
|
The Chargor has full power and authority (i) to be the legal and beneficial owner of the Charged Property, (ii) to execute and deliver this Charge and (iii) to comply with the provisions of, and perform all its obligations under, this Charge;
|
2.7
|
This Charge constitutes the Chargor’s legal, valid and binding obligations enforceable against the Chargor in accordance with its terms except as such enforcement may be limited by any relevant bankruptcy, insolvency, administration or similar laws affecting creditors’ rights generally;
|
2.8
|
The entry into and performance by the Chargor of this Charge does not violate (i) any law or regulation of any governmental or official authority, or (ii) any agreement, contract or other undertaking to which the Chargor is a party or which is binding upon the Chargor or any of its assets;
|
2.9
|
All consents, licences, approvals and authorisations required in connection with the entry into, performance, validity and enforceability of this Charge have been obtained and are in full force and effect; and
|
2.10
|
The Chargor has taken all corporate and other action required to approve its execution, delivery and performance of this Charge.
|
3.
|
CHARGOR’S COVENANTS
|
3.1
|
To pay all amounts, interests, expenses, claims, liabilities, losses, costs, duties, fees, charges or other moneys as are stated in the Loan Agreement and this Charge to be payable by the Chargor or to be recoverable from the Chargor by the Chargee (or in respect of which the Chargor agrees in the Loan Agreement, the other Security Documents and this Charge to indemnify the Chargee) at the times and in the manner specified in the Loan Agreement, the other Security Documents and this Charge;
|
3.2
|
To pay interest on any such amounts, interests, expenses, claims, liabilities, losses, costs, duties, fees, charges or other moneys referred to in Sub-Clause 3.1 from the date on which the relevant amount, interest, expense, liability, loss, cost, duty, fee, charge or other money is paid or discharged by the Chargee until the date of reimbursement thereof to the Chargee (both before and after any relevant judgment) at the rate set out in Section 2.02 of the Loan Agreement such interest to be compounded in accordance with Section 2.02 of the Loan Agreement and payable on demand;
|
3.3
|
That the Chargor will on demand of the Chargee and at the expense of the Chargor, execute and deliver to the Chargee or to such person or persons as the Chargee may nominate such additional charge or charges of the Charged Property (or any part thereof) for the purpose of further securing the payment and discharge of all Secured Obligations, each such additional charge to be in such form as the Chargee may reasonably require;
|
3.4
|
That the Chargor shall, on request of the Chargee, provide to the Chargee immediately on receipt by the Chargor a copy of all notices, written consents, reports, accounts, circulars and other communications issued by the Company or by any third party in respect of the Charged Shares;
|
3.5
|
That the Chargor will not without the prior written consent of the Chargee:
|
|
(a)
|
permit any person other than the Chargor, the Chargee or any transferee nominated by the Chargee on enforcement of this Charge to be the registered holder of any of the Charged Shares;
|
|
(b)
|
permit any variation of the rights attaching to the Charged Shares;
|
|
(c)
|
take or permit any action which might result in an increase or reduction in the authorised share capital of the Company or the number of shares that the Company is authorised to issue or the issued shares or share capital of the Company;
|
|
(d)
|
effect or permit the Company to be continued to another jurisdiction outside of Bermuda;
|
|
(e)
|
effect or permit the appointment of any new or further directors or officers of the Company;
|
|
(f)
|
effect or permit any scheme of arrangement, merger, amalgamation or other reorganisation applicable to the Company; or
|
|
(g)
|
save in accordance with Sub-Clause 8.2, permit any amendment to the memorandum of association or bye-laws of the Company.
|
4.
|
SECURITY
|
4.1
|
In consideration of the Chargee making the Loan available to the Borrower and as a continuing security for the Secured Obligations, the Chargor as legal and beneficial owner hereby assigns and agrees to assign to the Chargee all benefits present and future, actual and contingent accruing in respect of the Charged Property and all the Chargor’s right, title and interest to and in the Charged Property including (without limitation) all voting and other consensual powers pertaining to the Charged Shares and hereby charges and agrees to charge in favour of the Chargee all of its interest in the Charged Property by way of a first fixed charge.
|
4.2
|
The Chargor hereby agrees to deliver, or cause to be delivered, to the Chargee:
|
|
(a)
|
duly executed undated share transfers in respect of the Charged Shares in favour of the Chargee or its nominees in the form set out in Schedule I;
|
|
(b)
|
all share certificates representing the Charged Shares;
|
|
(c)
|
an executed undated irrevocable proxy made in respect of the Charged Shares in favour of the Chargee in respect of all general meetings of the Company in the form set out in Schedule II;
|
|
(d)
|
executed but undated letters of resignation and release together with letters of authority to date the same from each of the directors, alternate directors and officers of the Company in the form set out in Schedule III; and
|
|
(e)
|
an undertaking from the Company to register transfers of the Charged Shares to the Chargee or its nominee in the form set out in Schedule III.
|
4.3
|
If consent is given in accordance with Paragraph 3.5(c) the Chargor will deliver, or cause to be delivered, to the Chargee immediately upon the issue of any further Charged Shares, the items listed in Paragraphs 4.2(a), 4.2(b), 4.2(c) and 4.2(e) in respect of all such further Charged Shares.
|
4.4
|
If consent is given in accordance with Paragraph 3.5(e) the Chargor will deliver, or cause to be delivered, to the Chargee immediately upon the appointment of any further director, alternate director or officer of the Company an undated, signed letter of resignation from such further director, alternate director or officer in a form acceptable to the Chargee.
|
4.5
|
The Chargor hereby covenants that during the Security Period it will remain the legal and the beneficial owner of the Charged Property (subject only to the Security Interests hereby created) and that it will not:
|
|
(a)
|
create or suffer the creation of any Security Interests (other than those created by this Charge) on or in respect of the whole of any part of the Charged Property or any of its interest therein; or
|
|
(b)
|
sell, assign, transfer or otherwise dispose of any of its interest in the Charged Property (other than with respect to the dividend or distribution payments described in Paragraph 5.1(b)); or
|
|
(c)
|
vote in respect of the Charged Shares or receive any dividends or other distributions paid by the Company in respect of the Charged Shares,
|
4.6
|
The Chargor shall remain liable to perform all the obligations assumed by it in relation to the Charged Property and the Chargee shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Chargor to perform its obligations in respect thereof.
|
4.7
|
Upon the Chargee being satisfied that the Secured Obligations have been unconditionally and irrevocably paid and discharged in full, and following a written request therefor from the Chargor, the Chargee will, subject to being indemnified to its reasonable satisfaction for the costs and expenses incurred by the Chargee in connection therewith, release the security constituted by this Charge.
|
5.
|
DEALINGS WITH CHARGED PROPERTY
|
5.1
|
Unless and until an Event of Default has occurred:
|
|
(a)
|
the Chargor shall be entitled to exercise all voting and/or consensual powers pertaining to the Charged Property or any part thereof for all purposes not inconsistent with the terms of this Charge and/or the Loan Agreement;
|
|
(b)
|
the Chargor shall be entitled to receive and retain any dividends, interest or other moneys or assets accruing on or in respect of the Charged Property or any part thereof; and
|
|
(c)
|
the Chargor shall be entitled to receive all notices pertaining to the Charged Shares.
|
5.2
|
The Chargor shall pay all calls, instalments or other payments, and shall discharge all other obligations, which may become due in respect of any of the Charged Property and in an Event of Default, the Chargee may if it thinks fit make such payments or discharge such obligations on behalf of the Chargor. Any sums so paid by the Chargee in respect thereof shall be repayable on demand and pending such repayment shall constitute part of the Secured Obligations.
|
5.3
|
The Chargee shall not have any duty to ensure that any dividends, distributions, interest or other moneys and assets receivable in respect of the Charged Property are duly and punctually paid, received or collected as and when the same become due and payable or to ensure that the correct amounts (if any) are paid or received on or in respect of the Charged Property or to ensure the taking up of any (or any offer of any) stocks, shares, rights, moneys or other property paid, distributed, accruing or offered at any time by way of redemption bonus, rights, preference, or otherwise on or in respect of, any of the Charged Property.
|
5.4
|
The Chargor hereby authorises the Chargee to arrange at any time and from time to time (whether before or after the occurrence of an Event of Default) for the Charged Property or any part thereof to be registered in the name of the Chargee (or its nominee) thereupon to be held as so registered subject to the terms of this Charge.
|
6.
|
PRESERVATION OF SECURITY
|
6.1
|
It is hereby agreed and declared that:
|
|
(a)
|
the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;
|
|
(b)
|
the security so created shall be in addition to and shall not in any way be prejudiced or affected by any of the other Security Documents;
|
|
(c)
|
the Chargee shall not be bound to enforce any other security before enforcing the security created by this Charge;
|
|
(d)
|
no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Chargee may deem expedient; and
|
|
(e)
|
any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only for the purpose and upon the terms for which it is given.
|
6.2
|
Any settlement or discharge under this Charge between the Chargee and the Chargor shall be conditional upon no security or payment to the Chargee by the Company or the Chargor or any other person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Chargee shall be entitled to recover from the Chargor on demand the value of such security or the amount of any such payment as if such settlement or discharge had not occurred.
|
6.3
|
The rights of the Chargee under this Charge and the Security Interest hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Company, the Chargor, the Chargee or any other person:
|
|
(a)
|
any time or waiver granted to or composition with the Company or any other person;
|
|
(b)
|
the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Company or any other person;
|
|
(c)
|
any legal limitation, disability, incapacity or other circumstances relating to the Company or any other person;
|
|
(d)
|
any amendment or supplement to the Loan Agreement, the other Security Documents or any other document or security;
|
|
(e)
|
the dissolution, liquidation, reconstruction or reorganisation of the Company or any other person; or
|
|
(f)
|
the unenforceability, invalidity or frustration of any obligations of the Company or any other person under the Loan Agreement, the other Security Documents or any other document or security.
|
6.4
|
Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargor shall not by virtue of any payment made hereunder on account of the Secured Obligations or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Charge or by virtue of any relationship between or transaction involving, the Chargor and the Company (whether such relationship or transaction shall constitute the Chargor a creditor of the Company, a guarantor of the obligations of the Company or a party subrogated to the rights of others against the Company or otherwise howsoever and whether or not such relationship or transaction shall be related to, or in connection with, the subject matter of this Charge):
|
|
(a)
|
exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Chargee or any person;
|
|
(b)
|
exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;
|
|
(c)
|
exercise any right of set-off or counterclaim against the Company or any such co-surety;
|
|
(d)
|
receive, claim or have the benefit of any payment, distribution, security or indemnity from the Company or any such co-surety; or
|
|
(e)
|
unless so directed by the Chargee (when the Chargor will prove in accordance with such directions), claim as a creditor of the Company or any such co-surety in competition with the Chargee.
|
6.5
|
The Chargor shall hold in trust for the Chargee and forthwith pay or transfer (as appropriate) to the Chargee any such payment (including an amount equal to any such set-off), distribution (other than such dividend or distribution payments described in Paragraph 5.1(b) or benefit of such security, indemnity or claim in fact received by it.
|
6.6
|
Until the Secured Obligations have been unconditionally and irrevocably satisfied and discharged in full to the satisfaction of the Chargee, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as it may think fit, any moneys received, recovered or realised under this Charge or under any other guarantee, security or agreement relating in whole or in part to the Secured Obligations without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.
|
7.
|
ENFORCEMENT OF SECURITY
|
7.1
|
Upon the occurrence of an Event of Default, the Security Interest hereby constituted shall become immediately enforceable and the power of sale and other powers specified in Section 30 of the Conveyancing Act 1983 (applied in respect of personal property as well as real property) as varied or amended by this Charge shall be immediately exercisable and the Chargee may, at any time, without notice to, or consultation with, or the consent of, the Chargor:
|
|
(a)
|
solely and exclusively exercise all voting and/or consensual powers pertaining to the Charged Property or any part thereof and may exercise such powers in such manner as the Chargee may think fit; and/or
|
|
(b)
|
remove the then existing directors and officers (with or without cause) by dating and presenting the undated, signed letters of resignation delivered pursuant to this Charge; and/or
|
|
(c)
|
receive and retain all dividends, interest, distributions or other moneys or assets accruing on or in respect of the Charged Property or any part thereof, such dividends, interest, distributions or other moneys or assets to be held by the Chargee, until applied in the manner described in Sub-Clause 7.5, as additional security charged under and subject to the terms of this Charge and any such dividends, interest, distributions or other moneys or assets received by the Chargor after such time shall be held in trust by the Chargor for the Chargee and paid or transferred to the Chargee on demand; and/or
|
|
(d)
|
appoint by instrument any person to be a receiver of the Charged Property (the “Receiver”) and remove any Receiver so appointed and appoint another or others in his stead; and/or
|
|
(e)
|
sell, transfer, grant options over or otherwise dispose of the Charged Property or any part thereof at such place and in such manner and at such price or prices as the Chargee may deem fit, and thereupon the Chargee shall have the right to deliver, assign and transfer in accordance therewith the Charged Property so sold, transferred, granted options over or otherwise disposed of; and/or
|
|
(f)
|
complete any undated blank share transfer forms of all or any part of the Charged Property by dating the same and/or inserting its name or the name of its nominee as transferee.
|
7.2
|
The Chargor hereby waives the entitlement conferred by Section 29 of the Conveyancing Act 1983 (to the extent applicable) and agrees that Section 31 of that Act (to the extent applicable) shall not apply to the security created by this Charge. For the avoidance of doubt, the powers of the Chargee by virtue of this Charge shall not be limited to those specified in Section 30 of the Conveyancing Act 1983. For the purpose of all powers conferred by statute, the Secured Obligations shall be deemed to have become due and payable on the date hereof.
|
7.3
|
The Chargee shall not be obliged to make any enquiry as to the nature or sufficiency of any payment received by it under this Charge or to make any claim or to take any action to collect any moneys assigned by this Charge or to enforce any rights or benefits assigned to the Chargee by this Charge or to which the Chargee may at any time be entitled hereunder.
|
7.4
|
Upon any sale of the Charged Property or any part thereof by the Chargee, the purchaser shall not be bound to see or enquire whether the Chargee’s power of sale has become exercisable in the manner provided in this Charge and the sale shall be deemed to be within the power of the Chargee, and the receipt of the Chargee for the purchase money shall effectively discharge the purchaser who shall not be concerned with the manner of application of the proceeds of sale or be in any way answerable therefor.
|
7.5
|
All moneys received by the Chargee pursuant to this Charge shall be held by it upon trust in the first place to pay or make good all such expenses, liabilities, losses, costs, duties, fees, charges or other moneys whatsoever as may have been paid or incurred by the Chargee in exercising any of the powers specified or otherwise referred to in this Charge and the balance shall be applied in the following manner:
|
|
(a)
|
FIRSTLY: in or towards satisfaction of any amounts in respect of the balance of the Secured Obligations as are then accrued due and payable or are then due and payable by virtue of payment demanded, in such order or application as the Chargee shall think fit;
|
|
(b)
|
SECONDLY: in retention of an amount equal to any part or parts of the Secured Obligations as are or are not then due and payable but which (in the sole and absolute opinion of the Chargee) will or may become due and payable in the future and, upon the same becoming due and payable, in or towards satisfaction thereof in accordance with the foregoing provisions of this Sub-Clause 7.5; and
|
|
(c)
|
THIRDLY: the surplus (if any) shall be repaid in accordance with the provisions of the Loan Agreement or applicable law.
|
7.6
|
Neither the Chargee nor its agents, managers, officers, employees, delegates or advisers shall be liable for any claim, demand, liability, loss, damage, cost or expense incurred or arising in connection with the exercise or purported exercise of any rights, powers and discretions hereunder in the absence of fraud or dishonesty; however, in no event shall the Chargee be liable for consequential damages.
|
7.7
|
The Chargee shall not by reason of the taking of possession of the whole or any part of the Charged Property or any part thereof be liable to account as mortgagee-in-possession or for anything except actual receipts or be liable for any loss upon realisation or for any default or omission for which a mortgagee-in-possession might be liable.
|
7.8
|
In addition to all other rights or powers vested in the Chargee hereunder or by statute or otherwise, the Receiver may take such action in relation to the enforcement of this Charge to:
|
|
(a)
|
take possession of, redeem, collect and get in all or any part of the Charged Property;
|
|
(b)
|
raise or borrow money and grant security therefor over all or any part of the Charged Property;
|
|
(c)
|
appoint an attorney or accountant or other professionally qualified person to assist him in the performance of his functions;
|
|
(d)
|
do all acts and to execute in the name and on behalf of the Chargor any document or deed in respect of all or any part of the Charged Property;
|
|
(e)
|
in the name of the Chargor or in his own name, bring, prosecute, enforce, defend and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Charged Property and to submit to arbitration, negotiate, compromise and settle any such applications, claims, disputes, actions, suits or proceedings;
|
|
(f)
|
sell, call in, collect and convert to money the Charged Property or any of it at such place and in such manner and at such price or prices as he shall think fit;
|
|
(g)
|
exercise any powers, discretion, voting or other rights or entitlements in relation to the Charged Property and generally to carry out any other action which he may in his sole discretion deem appropriate in relation to the enforcement of this Charge;
|
|
(h)
|
make any arrangement or compromise which he shall think expedient; and
|
|
(i)
|
do all such other acts and things as may be considered to be incidental or conducive to any of the matters or powers aforesaid and which the Receiver lawfully may or can do as agent for the Chargor.
|
7.9
|
Every Receiver shall, so far as it concerns responsibility for his acts, be deemed to be an agent of the Chargor, which shall be solely responsible for his acts and defaults and for the payment of his remuneration and no Receiver shall at any time act as agent for the Chargee.
|
7.10
|
Every Receiver shall be entitled to remuneration for his services at a rate to be fixed by agreement between him and the Chargee (or, failing such agreement, to be fixed by the Chargee) appropriate to the work and responsibilities involved, upon the basis of current industry practice.
|
8.
|
FURTHER ASSURANCES
|
8.1
|
The Chargor shall execute and do all such assurances, acts and things as the Chargee in its absolute discretion may require for:
|
|
(a)
|
perfecting, protecting or ensuring the priority of the Security Interest hereby created (or intended to be created);
|
|
(b)
|
preserving or protecting any of the rights of the Chargee under this Charge;
|
|
(c)
|
ensuring that the security constituted by this Charge and the covenants and obligations of the Chargor under this Charge shall inure to the benefit of any assignee of the Chargee;
|
|
(d)
|
facilitating the appropriation or realisation of the Charged Property or any part thereof; or
|
|
(e)
|
exercising any power, authority or discretion vested in the Chargee under this Charge,
|
8.2
|
Without limitation to the generality of Sub-Clause 8.1, the Chargor covenants with the Chargee that it will on demand of the Chargee use its best endeavours to procure any amendment to the memorandum of association or bye-laws of the Company necessary or, in the opinion of the Chargee desirable, in order to give effect to the terms of this Charge or any documents or transactions provided for herein.
|
8.3
|
The Chargor shall provide such assurances and do all acts and things the Receiver may in his absolute discretion require for the purpose of exercising the powers (or giving effect to the exercise of the powers) conferred on the Receiver hereunder and the Chargor hereby irrevocably appoints the Receiver to be the lawful attorney in fact of the Chargor to do any act or thing and to exercise all the powers of the Chargor for the purpose of exercising the powers (or giving effect to the exercise of the powers) conferred on the Receiver hereunder.
|
9.
|
INDEMNITIES
|
9.1
|
The Chargor will indemnify and save harmless the Chargee, the Receiver and each agent or attorney appointed under or pursuant to this Charge from and against any and all expenses, claims, liabilities, losses, taxes, costs, duties, fees and charges properly and reasonably suffered, incurred or made by the Chargee, the Receiver or such agent or attorney:
|
|
(a)
|
in the exercise or purported exercise of any rights, powers or discretions vested in them pursuant to this Charge;
|
|
(b)
|
in the preservation or enforcement of the Chargee’s rights under this Charge or the priority thereof; or
|
|
(c)
|
on the release of any part of the Charged Property from the security created by this Charge,
|
9.2
|
If, under any applicable law or regulation, and whether pursuant to a judgment being made or registered against the Chargor or the bankruptcy or liquidation of the Chargor or for any other reason any payment under or in connection with this Charge is made or falls to be satisfied in a currency (the “Payment Currency”) other than the currency in which such payment is due under or in connection with this Charge (the “Contractual Currency”), then to the extent that the amount of such payment actually received by the Chargee when converted into the Contractual Currency at the rate of exchange, falls short of the amount due under or in connection with this Charge, the Chargor, as a separate and independent obligation, shall indemnify and hold harmless the Chargee against the amount of such shortfall. For the purposes of this Clause, “rate of exchange” means the rate at which the Chargee is able on or about the date of such payment to purchase the Contractual Currency with the Payment Currency and shall take into account any premium and other costs of exchange with respect thereto.
|
10.
|
POWER OF ATTORNEY
|
10.1
|
The Chargor, by way of security and in order more fully to secure the performance of its obligations hereunder, hereby irrevocably appoints the Chargee and the persons deriving title under it jointly and also severally to be its attorney:
|
|
(a)
|
to execute and complete in favour of the Chargee or its nominees or of any purchaser any documents which the Chargee may from time to time require for perfecting its title to or for vesting any of the assets and property hereby charged or assigned in the Chargee or its nominees or in any purchaser and to give effectual discharges for payments;
|
|
(b)
|
to take and institute on non-payment (if the Chargee in its sole discretion so decides) all steps and proceedings in the name of the Chargor or of the Chargee for the recovery of such moneys, property and assets hereby charged and to agree accounts;
|
|
(c)
|
to act as the Chargor’s corporate representative (and/or to appoint any officer or nominee of the Chargee for such purpose) to represent the Chargor at any general meeting of the members of the Company and to sign any resolution in writing of the members of the Company or to requisition or convene general meetings of the Company or to waive or consent to short notice of such in that capacity;
|
|
(d)
|
to make allowances and give time or other indulgence to any surety or other person liable;
|
|
(e)
|
otherwise generally to act for it and in its name and on its behalf; and
|
|
(f)
|
to sign, execute, seal and deliver and otherwise perfect and do any such legal assignments and other assurances, charges, authorities and documents over the moneys, property and assets hereby charged, and all such deeds, instruments, acts and things (including, without limitation, those referred to in Clause 8) which may be required for the full exercise of all or any of the powers conferred or which may be deemed proper on or in connection with any of the purposes aforesaid.
|
10.2
|
The power hereby conferred shall be a general power of attorney and the Chargor hereby ratifies and confirms and agrees to ratify and confirm any instrument, act or thing which any such attorney may execute or do. In relation to the power referred to herein, the exercise by the Chargee of such power shall be conclusive evidence of its right to exercise the same.
|
11.
|
EXPENSES
|
11.1
|
The Chargor shall pay to the Chargee on demand all costs, fees and expenses (including, but not limited to, legal fees and expenses) and taxes thereon incurred by the Chargee or for which the Chargee may become liable in connection with:
|
|
(a)
|
the negotiation, preparation and execution of this Charge;
|
|
(b)
|
the preserving or enforcing of, or attempting to preserve or enforce, any of its rights under this Charge or the priority hereof;
|
|
(c)
|
any variation of, or amendment or supplement to, any of the terms of this Charge; and/or
|
|
(d)
|
any consent or waiver required from the Chargee in relation to this Charge,
|
11.2
|
The Chargor shall pay promptly any stamp, documentary and other like duties and taxes to which this Charge may be subject or give rise and shall indemnify the Chargee on demand against any and all liabilities with respect to or resulting from any delay or omission on the part of the Chargor to pay any such duties or taxes.
|
12.
|
NOTICES
|
Chargor:
|
||
Utah Medical Products, Inc.
|
||
7043 South 300 West
|
||
Midvale, Utah 84047
|
||
Attention: Paul Richins
|
||
Facsimile No: 801-566-7305
|
||
with a copy to:
|
Osborne Clarke
|
|
2 Palo Alto Square
|
||
Suite 200
|
||
Palo Alto, CA 94306, USA
|
||
Attention: Steve Wilson, Esq.
|
||
Facsimile No: 650-739-0360
|
||
Chargee:
|
||
JPMorgan Chase Bank, N.A.
|
||
201 South Main Street
|
||
Suite 300
|
||
Salt Lake City, Utah 84111
|
||
Attention: Lynn Goodale
|
||
Facsimile No: 801-715-7401
|
||
with a copy to:
|
Snell & Wilmer L.L.P.
|
|
Beneficial Tower
|
||
15 West South Temple, Suite 1200
|
||
Salt Lake City, Utah 84101
|
||
Attention: Brian D. Cunningham, Esq.
|
||
Facsimile No: 801-257-1800
|
13.
|
ASSIGNMENTS
|
13.1
|
This Charge and all non-contractual obligations arising out of or in connection with it shall be binding upon and shall inure to the benefit of the Chargor and the Chargee and each of their respective successors and (subject as hereinafter provided) assigns and references in this Charge to any of them shall be construed accordingly.
|
13.2
|
The Chargor may not assign or transfer all or any part of its rights and/or obligations under this Charge.
|
13.3
|
The Chargee may not assign or transfer all or any part of its rights or obligations under this Charge to any assignee or transferee without the consent of the Chargor such consent not to be unreasonably withheld, provided that no such consent shall be required if an Event of Default affecting the Chargor has occurred and is continuing.
|
14.
|
MISCELLANEOUS
|
14.1
|
The Chargee, at any time and from time to time, may delegate by power of attorney or in any other manner to any person or persons all or any of the powers, authorities and discretions which are for the time being exercisable by the Chargee under this Charge in relation to the Charged Property or any part thereof. Any such delegation may be made upon such terms and be subject to such regulations as the Chargee may think fit. The Chargee shall not be in any way liable or responsible to the Chargor for any loss or damage arising from any act, default, omission or misconduct on the part of any such delegate provided the Chargee has acted reasonably in selecting such delegate.
|
14.2
|
This Charge (together with any documents referred to herein) constitutes the whole agreement between the Parties relating to its subject matter and no variations hereof shall be effective unless made in writing and signed by each of the Parties.
|
14.3
|
The headings in this Charge are inserted for convenience only and shall not affect the construction of this Charge.
|
14.4
|
This Charge may be executed in counterparts each of which when executed and delivered shall constitute an original but all such counterparts together shall constitute one and the same instrument.
|
14.5
|
If any of the Clauses, sub-Clauses, paragraphs, conditions, covenants or restrictions of this Charge or any deed or document emanating from it shall be found to be void but would be valid if some part thereof were deleted or modified, then such Clause, sub-Clause, paragraph, condition, covenant or restriction shall apply with such deletion or modification as may be necessary to make it valid and effective.
|
15.
|
LAW AND JURISDICTION
|
Signed by:
|
In the presence of:
|
Transferor
|
Witness
|
By:___________________________
|
Date:_______________________
|
||
Name:________________________
|
TO:
|
JPMorgan Chase Bank, N.A.
|
201 South Main Street
|
|
Suite 300
|
|
Salt Lake City, Utah 84111
|
|
Attention: Lynn Goodale
|
SIGNED as a DEED
|
|
by Paul O. Richins
|
|
authorised signatory for
|
s/ Paul O. Richins
|
UTAH MEDICAL PRODUCTS LTD.
|
Authorised Signatory
|
in the presence of:
|
|
Name: Kevin L. Cornwell
|
/s/ Kevin L. Cornwell
|
Witness
|
|
Address: ……………………………………
|
|
……………………………………
|
|
Occupation: ……………………………………
|
![]() £8,000,000
FACILITY AGREEMENT
dated 18 March 2011
for
FEMCARE GROUP LIMITED
as Borrower
with
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
as Lender
|
||
TERM FACILITY AGREEMENT
|
||
CLAUSE
|
PAGE
|
|
1.
|
Definitions And Interpretation
|
1
|
2.
|
The Facility
|
8
|
3.
|
Purpose
|
8
|
4.
|
Conditions Of Utilisation
|
8
|
5.
|
Utilisation
|
8
|
6.
|
Repayment
|
9
|
7.
|
Prepayment And Cancellation
|
9
|
8.
|
Interest
|
11
|
9.
|
Interest Periods
|
12
|
10.
|
Changes To The Calculation Of Interest
|
12
|
11.
|
Tax Gross Up And Indemnities
|
13
|
12.
|
Increased Costs
|
15
|
13.
|
Other Indemnities
|
16
|
14.
|
Mitigation By The Lender
|
17
|
15.
|
Costs And Expenses
|
17
|
16.
|
Representations
|
18
|
17.
|
Information Undertakings
|
21
|
18.
|
General Undertakings
|
22
|
19.
|
Events Of Default
|
26
|
20.
|
Changes To The Lender
|
28
|
21.
|
Changes To The Borrower
|
30
|
22.
|
Conduct Of Business By The Lender
|
31
|
23.
|
Payment Mechanics
|
31
|
24.
|
Set-Off
|
33
|
25.
|
Notices
|
33
|
26.
|
Calculations And Certificates
|
34
|
27.
|
Partial Invalidity
|
34
|
28.
|
Remedies And Waivers
|
34
|
29.
|
Amendments And Waivers
|
35
|
30.
|
Confidentiality
|
35
|
31.
|
Counterparts
|
37
|
32.
|
Governing Law
|
37
|
33.
|
Enforcement
|
37
|
Schedule 1
|
Conditions Precedent
|
39
|
Schedule 2
|
Requests
|
42
|
Schedule 3
|
Mandatory Cost Formulae
|
43
|
Schedule 4
|
Form Of Transfer Certificate
|
45
|
(1)
|
FEMCARE GROUP LIMITED (Company number: 5147637) as borrower (the "Borrower"); and
|
(2)
|
JPMORGAN CHASE BANK, N.A., LONDON BRANCH as lender (the "Lender").
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
|
(a)
|
the interest which the Lender should have received for the period from the date of receipt of all or any part of the Loan or Unpaid Sum to the last day of the current Interest Period in respect of the Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
|
(b)
|
the amount which the Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
|
"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in London.
|
|
"Confidential Information" means all information relating to the Borrower, the Group, the Finance Documents or the Facility of which the Lender becomes aware in its capacity as, or for the purpose of becoming, a Lender or which is received by the Lender in relation to, or for the purpose of becoming a Lender under, the Finance Documents or the Facility from any member of the Group or any of its advisers in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:
|
|
(a)
|
is or becomes public information other than as a direct or indirect result of any breach by the Lender of Clause 32 (Confidentiality); or
|
|
(b)
|
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
|
(c)
|
is known by the Lender before the date the information is disclosed to it by any member of the Group or any of its advisers or is lawfully obtained by the Lender after that date, from a source which is, as far as the Lender is aware, unconnected with the Group and which, in either case, as far as the Lender is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
|
(b)
|
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
|
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
|
(ii)
|
from communicating with any other Party in accordance with the terms of the Finance Documents,
|
|
(a)
|
moneys borrowed;
|
|
(b)
|
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
|
(c)
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
|
(d)
|
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease;
|
|
(e)
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
|
(f)
|
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
|
|
(g)
|
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);
|
|
(h)
|
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;
|
|
(i)
|
any amount raised by the issue of redeemable shares;
|
|
(j)
|
any amount of any liability under an advance or deferred purchase agreement if one of the primary reasons behind the entry into this agreement is to raise finance; and
|
|
(k)
|
(without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above.
|
|
(a)
|
the financial condition, assets, prospects or business of the Borrower or the consolidated financial condition, assets, prospects or business of the Group taken as a whole;
|
|
(b)
|
the ability of the Borrower to perform its obligations under the Finance Documents to which it is a party; or
|
|
(c)
|
the validity or enforceability of the Finance Documents or any of the rights or remedies of the Lender under the Finance Documents.
|
|
(a)
|
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
|
(b)
|
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
|
(c)
|
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
|
1.2
|
Construction
|
|
1.2.1
|
Unless a contrary indication appears any reference in this Agreement to:
|
|
(a)
|
the "Borrower", the "Lender" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
|
|
(b)
|
"assets" includes present and future properties, revenues and rights of every description;
|
|
(c)
|
a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended, replaced or restated;
|
|
(d)
|
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
|
(e)
|
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
|
(f)
|
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;
|
|
(g)
|
a provision of law is a reference to that provision as amended or re-enacted; .and
|
|
(h)
|
a time of day is a reference to London time.
|
|
1.2.2
|
Section, Clause and Schedule headings are for ease of reference only.
|
|
1.2.3
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
|
1.2.4
|
A Default (other than an Event of Default) is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.
|
1.3
|
Currency Symbols and Definitions
|
1.4
|
Third party rights
|
2.
|
THE FACILITY
|
3.
|
PURPOSE
|
3.1
|
Purpose
|
3.2
|
Monitoring
|
4.
|
CONDITIONS OF UTILISATION
|
4.1
|
Initial conditions precedent
|
4.2
|
Further conditions precedent
|
|
4.2.1
|
no Default is continuing or would result from the proposed Loan; and
|
|
4.2.2
|
the Repeating Representations to be made by the Borrower are true in all material respects.
|
5.
|
UTILISATION
|
5.1
|
Delivery of a Utilisation Request
|
5.2
|
Completion of a Utilisation Request
|
|
5.2.1
|
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
|
(a)
|
the proposed Utilisation Date is a Business Day within the Availability Period;
|
|
(b)
|
the Utilisation is for a Loan of £8,000,000;
|
|
(c)
|
the proposed Interest Period complies with Clause 9 (Interest Periods); and
|
|
(i)
|
it specifies the account and bank which must be in the United Kingdom to which the proceeds of the Utilisation are to be credited.
|
|
5.2.2
|
Only one Loan may be requested in each Utilisation Request.
|
5.3
|
Availability of Loan
|
5.4
|
Cancellation of Facility
|
6.
|
REPAYMENT
|
6.1
|
Repayment of Loan
|
|
6.1.1
|
The Borrower shall repay the Loan made to it in instalments by repaying on each Repayment Date an amount which reduces the amount of the outstanding Loan by an amount equal to one sixtieth (1/60th) of the Loan borrowed by the Borrower as at close of business in London on the last day of the Availability Period.
|
|
6.1.2
|
The Borrower may not reborrow any part of the Facility which is repaid.
|
7.
|
PREPAYMENT AND CANCELLATION
|
7.1
|
Illegality
|
|
7.1.1
|
the Lender shall promptly notify the Borrower upon becoming aware of that event whereupon the Facility will be immediately cancelled; and
|
|
7.1.2
|
the Borrower shall repay the Loan made to the Borrower on the last day of the Interest Period for the Loan occurring after the Lender has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Borrower (being no later than the last day of any applicable grace period permitted by law).
|
7.2
|
Change of control
|
|
7.2.1
|
If the Parent ceases to control the Borrower:
|
|
(a)
|
the Borrower shall promptly notify the Lender upon becoming aware of that event;
|
|
(b)
|
the Lender shall not be obliged to fund a Utilisation; and
|
|
(c)
|
the Lender may, by not less than 30 days' notice to the Borrower, cancel the Facility and declare the outstanding Loan, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facility will be cancelled and all such outstanding amounts will become immediately due and payable.
|
|
7.2.2
|
For the purpose of sub-clause 7.2.1 above "control" means:
|
|
(a)
|
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
|
|
(i)
|
cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the Borrower; or
|
|
(ii)
|
appoint or remove all, or the majority, of the directors or other equivalent officers of the Borrower; or
|
|
(iii)
|
give directions with respect to the operating and financial policies of the Borrower which the directors or other equivalent officers of the Borrower are obliged to comply with; or
|
|
(b)
|
the holding of more than one-half of the issued share capital of the Borrower (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).
|
7.3
|
Voluntary cancellation
|
7.4
|
Voluntary prepayment of Loan
|
|
7.4.1
|
The Borrower may, if it gives the Lender not less than 5 Business Days' (or such shorter period as the Lender may agree) prior notice, prepay the whole or any part of the Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of £50,000).
|
|
7.4.2
|
The Loan may only be prepaid after the last day of the Availability Period (or, if earlier, the day on which the Available Facility is zero).
|
|
7.4.3
|
Any prepayment under this Clause 7.4 shall satisfy the obligations under Clause 6.1 (Repayment of Loan) in inverse chronological order.
|
7.5
|
Restrictions
|
|
7.5.1
|
Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
|
7.5.2
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
|
|
7.5.3
|
The Borrower may not reborrow any part of the Facility which is prepaid.
|
|
7.5.4
|
The Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part of the Available Facility except at the times and in the manner expressly provided for in this Agreement.
|
|
7.5.5
|
No amount of the Facility cancelled under this Agreement may be subsequently reinstated.
|
|
7.5.6
|
If all or part of the Loan under the Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent)), an amount of the Facility (equal to the amount of the Loan which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.
|
8.
|
INTEREST
|
8.1
|
Calculation of interest
|
|
8.1.1
|
Margin;
|
|
8.1.2
|
LIBOR; and
|
|
8.1.3
|
Mandatory Cost, if any.
|
8.2
|
Adjustment of Margin
|
|
8.2.1
|
Provided that:
|
|
(a)
|
no Event of Default has occurred; and
|
|
(b)
|
the most recent accounts delivered to the Lender show that the Leverage Ratio for the relevant period is within a range set out below,
|
Leverage Ratio
|
Margin (% per annum):
|
Less than or equal to 1.5:1
|
2%
|
Greater than 1.5:1 but less than or equal to 2.5:1
|
2.80%
|
Greater than 2.5:1
|
3.75%
|
|
8.2.2
|
For the purposes of this Clause 8.2.2 "Leverage Ratio" has the meaning given to it in the US Credit Agreement.
|
|
8.2.3
|
(i)
(ii)
|
Any change in the Margin under Clause 8.2.1 above will take effect 5 Business Days after the Lender receives the most recent financial statements.
For so long as:
|
|
(i)
|
the Borrower is in default of its obligation to provide its financial statements; or
|
|
(ii)
|
an Event of Default is continuing
|
8.4
|
Default interest
|
|
8.4.1
|
If the Borrower fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to sub-clause 8.4.2 below is three per cent. higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Lender (acting reasonably). Any interest accruing under this Clause 8.4 shall be immediately payable by the Borrower on demand by the Lender.
|
|
8.4.2
|
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
|
|
(a)
|
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
|
|
(b)
|
the rate of interest applying to the overdue amount during that first Interest Period shall be three per cent. higher than the rate which would have applied if the overdue amount had not become due.
|
|
8.4.3
|
Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
|
8.5
|
Notification of rates of interest
|
9.
|
INTEREST PERIODS
|
9.1
|
Selection of Interest Periods
|
|
9.1.1
|
Subject to this Clause 9, each Interest Period shall be one Month or any other period agreed between the Borrower and the Lender.
|
|
9.1.2
|
An Interest Period for the Loan shall not extend beyond the Termination Date.
|
|
9.1.3
|
Each Interest Period for the Loan shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period.
|
9.2
|
Non-Business Days
|
10.1
|
Market disruption
|
|
10.1.1
|
If a Market Disruption Event occurs in relation to the Loan for any Interest Period, then the rate of interest on the Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
|
|
(a)
|
the Margin;
|
|
(b)
|
the rate notified to the Borrower by the Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to the Lender of funding the Loan from whatever source it may reasonably select; and
|
|
(c)
|
the Mandatory Cost, if any.
|
|
10.1.2
|
In this Agreement, "Market Disruption Event" means before close of business in London on the Quotation Day for the relevant Interest Period, the Lender determines that the cost to it of obtaining matching deposits in the Relevant Interbank Market would be in excess of LIBOR.
|
10.2
|
Alternative basis of interest or funding
|
|
10.2.1
|
If a Market Disruption Event occurs and the Lender or the Borrower so requires, the Lender and the Borrower shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
|
|
10.2.2
|
Any alternative basis agreed pursuant to sub-clause 10.2.1 above shall, with the prior consent of the Lender and the Borrower be binding on all Parties.
|
10.3
|
Break Costs
|
11.
|
TAX GROSS UP AND INDEMNITIES
|
11.1
|
Definitions
|
|
11.1.1
|
In this Agreement:
|
|
11.1.2
|
Unless a contrary indication appears, in this Clause 11 a reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.
|
11.2
|
Tax gross-up
|
|
11.2.1
|
The Borrower shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
|
11.2.2
|
The Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Lender accordingly.
|
|
11.2.3
|
If a Tax Deduction is required by law to be made by the Borrower, the amount of the payment due from the Borrower shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
|
11.2.4
|
If the Borrower is required to make a Tax Deduction, the Borrower shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
|
11.2.5
|
Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Borrower shall deliver to the Lender a statement under section 975 of the ITA or other evidence reasonably satisfactory to the Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
11.3
|
Tax indemnity
|
|
11.3.1
|
The Borrower shall (within three Business Days of demand by the Lender) pay to the Lender an amount equal to the loss, liability or cost which the Lender determines will be or has been (directly or indirectly) suffered for or on account of Tax by the Lender in respect of a Finance Document.
|
|
11.3.2
|
Sub-clause 11.3.1 above shall not apply:
|
|
(a)
|
with respect to any Tax assessed on the Lender:
|
|
(i)
|
under the law of the jurisdiction in which the Lender is incorporated or, if different, the jurisdiction (or jurisdictions) in which the Lender is treated as resident for tax purposes; or
|
|
(ii)
|
under the law of the jurisdiction in which the Lender's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
|
(b)
|
to the extent a loss, liability or cost is compensated for by an increased payment under Clause 11.2 (Tax gross-up).
|
|
11.3.3
|
If the Lender makes, or intends to make a claim under sub-clause 11.3.1 above, the Lender shall promptly notify the Borrower of the event which will give, or has given, rise to the claim.
|
11.4
|
Stamp taxes
|
11.5
|
Value added tax
|
|
11.5.1
|
All amounts set out, or expressed in a Finance Document to be payable by the Borrower to the Lender which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to sub-clause 11.5.2 below, if VAT is or becomes chargeable on any supply made by the Lender to the Borrower under a Finance Document, the Borrower shall pay to the Lender (in addition to and at the same time as paying the consideration for such supply) an amount equal to the amount of such VAT (and the Lender shall promptly provide an appropriate VAT invoice to the Borrower).
|
|
11.5.2
|
Where a Finance Document requires the Borrower to reimburse or indemnify the Lender for any cost or expense, the Borrower shall reimburse or indemnify (as the case may be) the Lender for the full amount of such cost or expense, including such part thereof as represents VAT save to the extent that the Lender reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
11.6
|
Tax Credit
|
|
11.6.1
|
a Tax Credit is attributable to either an increased payment of which that Tax Payment forms part, or to that Tax Payment; and
|
|
11.6.2
|
the Lender has obtained, utilised and retained that Tax Credit,
|
12.
|
INCREASED COSTS
|
12.1
|
Increased costs
|
|
12.1.1
|
Subject to Clause 12.3 (Exceptions) the Borrower shall, within three Business Days of a demand by the Lender, pay for the account of the Lender the amount of any Increased Costs incurred by the Lender or any of its Affiliates as a result of (a) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (b) compliance with any law or regulation made after the date of this Agreement.
|
|
12.1.2
|
In this Agreement "Increased Costs" means:
|
|
(a)
|
a reduction in the rate of return from the Facility or on the Lender's (or its Affiliate's) overall capital;
|
|
(b)
|
an additional or increased cost; or
|
|
(c)
|
a reduction of any amount due and payable under any Finance Document,
|
|
which is incurred or suffered by the Lender or any of its Affiliates to the extent that it is attributable to the Lender having entered into a commitment or funding or performing its obligations under any Finance Document.
|
12.2
|
Increased cost claims
|
12.3
|
Exceptions
|
|
12.3.1
|
Clause 12.1 (Increased costs) does not apply to the extent any Increased Cost is:
|
|
(a)
|
attributable to a Tax Deduction required by law to be made by the Borrower;
|
|
(b)
|
compensated for by Clause 11.3 (Tax indemnity) (or would have been compensated for under Clause 11.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in sub-clause 11.3.2 of Clause 11.3 (Tax indemnity) applied);
|
|
(c)
|
compensated for by the payment of the Mandatory Cost; or
|
|
(d)
|
attributable to the wilful breach by the Lender or its Affiliates of any law or regulation.
|
|
12.3.2
|
In this Clause 12.3, a reference to a "Tax Deduction" has the same meaning given to the term in Clause 11.1 (Definitions).
|
13.
|
OTHER INDEMNITIES
|
13.1
|
Currency indemnity
|
|
13.1.1
|
If any sum due from the Borrower under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:
|
|
(a)
|
making or filing a claim or proof against the Borrower;
|
|
(b)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
|
13.1.2
|
The Borrower waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
13.2
|
Other indemnities
|
|
13.2.1
|
The Borrower shall, within three Business Days of demand, indemnify the Lender against any cost, loss or liability incurred by the Lender as a result of:
|
|
(a)
|
the occurrence of any Event of Default;
|
|
(b)
|
a failure by the Borrower to pay any amount due under a Finance Document on its due date;
|
|
(c)
|
funding, or making arrangements to fund, the Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by the Lender); or
|
|
(d)
|
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
|
|
13.2.2
|
The Borrower shall promptly indemnify the Lender against any cost, loss or liability incurred by the Lender (acting reasonably) as a result of:
|
|
(a)
|
investigating any event which it reasonably believes is a Default; or
|
|
(b)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
14.
|
MITIGATION BY THE LENDER
|
14.1
|
Mitigation
|
|
14.1.1
|
The Lender shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 11 (Tax gross-up and indemnities), Clause 12 (Increased costs) or paragraph 3 of Schedule 3 (Mandatory Cost formulae) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
|
14.1.2
|
Sub-clause 14.1.1 above does not in any way limit the obligations of the Borrower under the Finance Documents.
|
14.2
|
Limitation of liability
|
|
14.2.1
|
The Borrower shall indemnify the Lender for all costs and expenses reasonably incurred by the Lender as a result of steps taken by it under Clause 14.1 (Mitigation).
|
|
14.2.2
|
The Lender is not obliged to take any steps under Clause 14.1 (Mitigation) if, in the opinion of the Lender (acting reasonably), to do so might be prejudicial to it.
|
15.
|
COSTS AND EXPENSES
|
15.1
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Transaction expenses
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15.1.1
|
this Agreement and any other documents referred to in this Agreement; and
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15.1.2
|
any other Finance Documents executed after the date of this Agreement.
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15.2
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Amendment costs
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15.2.1
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the Borrower requests an amendment, waiver or consent; or
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15.2.2
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an amendment is required pursuant to Clause 23.8 (Change of currency),
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15.3
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Enforcement costs
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16.
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REPRESENTATIONS
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16.1
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Status
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16.1.1
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It is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation.
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16.1.2
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It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
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16.2
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Binding obligations
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16.3
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Non-conflict with other obligations
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16.3.1
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any law or regulation applicable to it;
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16.3.2
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its or any of its Subsidiaries' constitutional documents ; or
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16.3.3
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any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets.
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16.4
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Power and authority
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16.5
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Validity and admissibility in evidence
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16.5.1
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to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and
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16.5.2
|
to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,
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16.6
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Governing law and enforcement
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16.6.1
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The choice of English law as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation.
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16.6.2
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Any judgment obtained in England in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.
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16.7
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Deduction of Tax
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16.8
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No filing or stamp taxes
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16.9
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No default
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16.9.1
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No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.
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16.9.2
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No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries') assets are subject which might have a Material Adverse Effect.
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16.10
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No misleading information
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16.10.1
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Any factual information provided to the Lender prior to the date of this Agreement by any member of the Group was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
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16.10.2
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All financial projections provided to the Lender prior to the date of this Agreement by any member of the Group have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
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16.10.3
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Nothing has occurred or been omitted from any factual information and no information has been given or withheld that results in the information provided to the Lender prior to the date of this Agreement being untrue or misleading in any material respect.
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16.10.4
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All written information (other than the information provided pursuant to sub-clauses 16.10.1 to 16.10.3 above) supplied by any member of the Group is true, complete and accurate in all material respects as at the date it was given and is not misleading in any respect.
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16.11
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Financial Statements
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16.11.1
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The Original Consolidated Financial Statements were prepared in accordance with GAAP consistently applied.
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16.11.2
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The Original Consolidated Financial Statements fairly represent the consolidated financial condition and operations of the Group during the relevant financial year.
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16.11.3
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There has been no material adverse change in the business or consolidated financial condition of the Group since 31 December 2009.
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16.11.4
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The financial statements and accounts most recently delivered under Clause 17.1 (Financial Statements) (i) were prepared in accordance with GAAP consistently applied and (ii) give a true and fair view of (if audited) or fairly present (if unaudited) the consolidated financial condition of the Group as at the end of the period to which they relate.
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16.12
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Pari passu ranking
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16.13
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No proceedings pending or threatened
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16.14
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Environmental compliance
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16.15
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Environmental Claims
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16.16
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Taxation
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|
16.16.1
|
It has duly and punctually paid and discharged all Taxes imposed upon it or its assets within the time period allowed without incurring penalties (except to the extent that (a) payment is being contested in good faith, (b) it has maintained adequate reserves for those Taxes and (c) payment can be lawfully withheld).
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16.16.2
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It is not materially overdue in the filing of any Tax returns.
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16.16.3
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No claims are being or are reasonably likely to be asserted against it with respect to Taxes.
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16.17
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No Immunity
|
16.18
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Private and commercial acts
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16.19
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Repetition
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17.
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INFORMATION UNDERTAKINGS
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17.1
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Financial Statements
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17.1.1
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The Borrower shall comply with the provisions of Section 5.01 of the US Credit Agreement.
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17.1.2
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If requested by the Lender, the Borrower shall provide the Lender with such information required under Section 5.01 of the US Credit Agreement within the timescales detailed in Section 5.01 of the US Credit Agreement.
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17.2
|
Information: miscellaneous
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|
17.2.1
|
all documents dispatched by the Borrower to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
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17.2.2
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promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group, and which might, if adversely determined, have a Material Adverse Effect; and
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|
17.2.3
|
promptly, such further information regarding the financial condition, business and operations of the Borrower or any other member of the Group as the Lender may reasonably request.
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17.3
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Notification of default
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|
17.3.1
|
The Borrower shall notify the Lender of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.
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17.3.2
|
Promptly upon a request by the Lender, the Borrower shall supply to the Lender a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
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17.4
|
"Know your customer" checks
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|
17.4.1
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
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17.4.2
|
any change in the status of the Borrower or the composition of the shareholders of the Borrower after the date of this Agreement; or
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17.4.3
|
a proposed assignment or transfer by the Lender of any of its rights and obligations under this Agreement,
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18.
|
GENERAL UNDERTAKINGS
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18.1
|
Authorisations
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|
18.1.1
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
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|
18.1.2
|
supply certified copies to the Lender of,
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18.2
|
Compliance with laws
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18.3
|
Negative pledge
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18.3.1
|
The Borrower shall not (and shall ensure that no other member of the Borrower Group will) create or permit to subsist any Security over any of its assets.
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18.3.2
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The Borrower shall not (and shall ensure that no other member of the Borrower Group will):
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(a)
|
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by the Borrower or any other member of the Borrower Group;
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(b)
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sell, transfer or otherwise dispose of any of its receivables on recourse terms;
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(c)
|
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
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(d)
|
enter into any other preferential arrangement having a similar effect,
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|
18.3.3
|
Sub-clauses 18.3.1 and 18.3.2 above do not apply to any Security or (as the case may be) Quasi-Security, listed below:
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|
(a)
|
any netting or set-off arrangement entered into by any member of the Borrower Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;
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|
(b)
|
any payment or close-out netting or set-off arrangement pursuant to any hedging transaction entered into by a member of the Borrower Group for the purpose of:
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|
(i)
|
hedging any risk to which any member of the Borrower Group is exposed in its ordinary course of trading; or
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|
(ii)
|
its interest rate or currency management operations which are carried out in the ordinary course of business and for non-speculative purposes only,
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(c)
|
any lien arising by operation of law and in the ordinary course of trading;
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|
(d)
|
any Security or Quasi-Security over or affecting any asset acquired by a member of the Borrower Group after the date of this Agreement if:
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|
(i)
|
the Security or Quasi-Security was not created in contemplation of the acquisition of that asset by a member of the Borrower Group;
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|
(ii)
|
the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Borrower Group; and
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(iii)
|
the Security or Quasi-Security is removed or discharged within three months of the date of acquisition of such asset;
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(e)
|
any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Borrower Group after the date of this Agreement, where the Security or Quasi-Security is created prior to the date on which that company becomes a member of the Borrower Group, if:
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|
(i)
|
the Security or Quasi-Security was not created in contemplation of the acquisition of that company;
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|
(ii)
|
the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
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(iii)
|
the Security or Quasi-Security is removed or discharged within three months of that company becoming a member of the Borrower Group
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(f)
|
any Security or Quasi-Security entered into pursuant to any Finance Document;
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|
(g)
|
any Security or Quasi-Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Borrower Group in the ordinary course of trading and on the supplier's standard or usual terms and not arising as a result of any default or omission by any member of the Borrower Group;
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(h)
|
any Security or Quasi-Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi-Security given by any member of the Borrower Group other than any permitted under paragraphs (a) to (g) above) does not exceed £100,000 (or its equivalent in another currency or currencies).
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18.4
|
Disposals
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|
18.4.1
|
The Borrower shall not (and shall ensure that no other member of the Borrower Group will), enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset.
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18.4.2
|
Sub-clause 18.4.1 above does not apply to any sale, lease, transfer or other disposal:
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|
(a)
|
of stock in trade made in the ordinary course of trading and on arm's length terms of the disposing entity;
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(b)
|
of assets in exchange for other assets comparable or superior as to type, value and quality; or
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|
(c)
|
of obsolete vehicles, plant or equipment..
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18.5
|
Merger
|
18.6
|
Change of business
|
18.7
|
Insurance
|
18.8
|
Environmental Compliance
|
18.9
|
Environmental Claims
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|
18.9.1
|
if any Environmental Claim has been commenced or (to the best of its knowledge and belief) is threatened against any member of the Borrower Group, or
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|
18.9.2
|
of any facts or circumstances which will or are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Borrower Group,
|
18.10
|
Taxation
|
18.11
|
Acquisitions
|
18.12
|
Loans and Guarantees
|
18.13
|
Dividends
|
18.14
|
Restriction on Financial Indebtedness
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|
(a)
|
Except as permitted under paragraph (b) below, the Borrower shall not, and shall not permit any of its Subsidiaries, to incur or allow to remain outstanding any Financial Indebtedness other than:
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|
(b)
|
(i) Financial Indebtedness incurred to another member of the Group and (ii) Permitted Financial Indebtedness.
|
18.15
|
Material operating companies
|
18.16
|
Conditions Subsequent
|
19.
|
EVENTS OF DEFAULT
|
19.1
|
Non-payment
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|
19.1.1
|
its failure to pay is caused by:
|
|
(a)
|
administrative or technical error; or
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|
(b)
|
a Disruption Event; and
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|
19.1.2
|
payment is made within 2 Business Days of its due date.
|
19.2
|
Other obligations
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|
19.2.1
|
The Borrower does not comply with any provision of the Finance Documents (other than those referred to in Clause 19.1 (Non-payment)).
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|
19.2.2
|
No Event of Default under sub-clause 19.2.1 above will occur if the failure to comply is capable of remedy and is remedied within 5 Business Days or the earlier of (A) of the Lender giving notice to the Borrower and (B) the Borrower becoming aware of the failure to comply.
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19.3
|
Misrepresentation
|
19.4
|
Cross default
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|
19.4.1
|
Any Financial Indebtedness of any member of the Borrower Group is not paid when due nor within any originally applicable grace period.
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|
19.4.2
|
Any Financial Indebtedness of any member of the Borrower Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
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|
19.4.3
|
Any creditor of any member of the Borrower Group becomes entitled to declare any Financial Indebtedness of any member of the Borrower Group due and payable prior to its specified maturity as a result of an event of default (however described).
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|
19.4.4
|
No Event of Default will occur under this Clause 19.4 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within sub-clauses 19.4.1 to 19.4.3 above is less than $250,000 (or its equivalent in another currency or currencies).
|
19.5
|
Credit Agreement Default
|
19.6
|
Insolvency
|
|
19.6.1
|
A member of the Borrower Group is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
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|
19.6.2
|
The value of the assets of any member of the Borrower Group is less than its liabilities (taking into account contingent and prospective liabilities).
|
|
19.6.3
|
A moratorium is declared in respect of any indebtedness of any member of the Borrower Group.
|
19.7
|
Insolvency proceedings
|
|
19.7.1
|
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Borrower Group other than a solvent liquidation or reorganisation of any member of the Borrower Group other than the Borrower;
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|
19.7.2
|
a composition, compromise, assignment or arrangement with any creditor of any member of the Borrower Group;
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|
19.7.3
|
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Borrower Group other than the Borrower), receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any member of the Borrower Group or any of its assets; or
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|
19.7.4
|
enforcement of any Security over any assets of any member of the Borrower Group,
|
19.8
|
Creditors' process
|
19.9
|
Unlawfulness
|
19.10
|
Repudiation
|
19.11
|
Governmental Intervention
|
|
19.11.1
|
the management of any member of the Borrower Group is wholly or partially displaced or the authority of any member of the Borrower Group in the conduct of its business is wholly or partially curtailed; or
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|
19.11.2
|
all or a majority of the issued shares of any member of Borrower Group or the whole or any part (the book value of which is 10 per cent. or more of the book value of the whole) of its revenues or assets is seized, nationalised, expropriated or compulsorily acquired.
|
19.12
|
Material adverse change
|
19.13
|
Acceleration
|
|
19.13.1
|
cancel the Facility whereupon the Facility shall immediately be cancelled;
|
|
19.13.2
|
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or
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|
19.13.3
|
declare that all or part of the Loan be payable on demand, whereupon they shall immediately become payable on demand by the Lender.
|
20.
|
CHANGES TO THE LENDER
|
20.1
|
Assignments and transfers by the Lender
|
20.2
|
Conditions of assignment or transfer
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|
20.2.1
|
An assignment will only be effective on:
|
|
(a)
|
receipt by the Borrower of written confirmation from the New Lender (in form and substance satisfactory to the Borrower (acting reasonably)) that the New Lender will assume the same obligations to the other Parties as it would have been under if it was the Lender; and
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|
(b)
|
performance by the Lender of all "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Lender shall promptly notify to the New Lender.
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|
20.2.2
|
A transfer will only be effective if the procedure set out in Clause 20.4 (Procedure for transfer) is complied with.
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|
20.2.3
|
If:
|
|
(a)
|
the Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
|
(b)
|
as a result of circumstances existing at the date the assignment, transfer or change occurs, the Borrower would be obliged to make a payment to the New Lender (or the Lender acting through its new Facility Office) under Clause 11 (Tax gross-up and indemnities) or Clause 12 (Increased costs),
|
20.3
|
Limitation of responsibility of the Lender
|
|
20.3.1
|
Unless expressly agreed to the contrary, the Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
|
(a)
|
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
|
|
(b)
|
the financial condition of the Borrower;
|
|
(c)
|
the performance and observance by the Borrower of its obligations under the Finance Documents or any other documents; or
|
|
(d)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
20.3.2
|
Each New Lender confirms to the Lender that it:
|
|
(a)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of the Borrower and its related entities in connection with this Agreement and has not relied exclusively on any information provided to it by the Lender in connection with any Finance Document; and
|
|
(b)
|
will continue to make its own independent appraisal of the creditworthiness of the Borrower and its related entities whilst any amount is or may be outstanding under the Finance Documents or at any time during the Availability Period.
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|
20.3.3
|
Nothing in any Finance Document obliges the Lender to:
|
|
(a)
|
accept a re-assignment or re-transfer from a New Lender of any of the rights and/or obligations assigned or transferred under this Clause 20; or
|
|
(b)
|
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by the Borrower of its obligations under the Finance Documents or otherwise.
|
20.4
|
Procedure for transfer
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|
20.4.1
|
Subject to the conditions set out in Clause 20.2 (Conditions of assignment or transfer) a transfer is effected in accordance with sub-clause 22.4.2 below when the Lender and the New Lender execute a Transfer Certificate.
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|
20.4.2
|
On the Transfer Date:
|
|
(a)
|
to the extent that in the Transfer Certificate the Lender seeks to transfer by novation its rights and obligations under the Finance Documents the Borrower and the Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the "Discharged Rights and Obligations");
|
|
(b)
|
the Borrower and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as the Borrower and the New Lender have assumed and/or acquired the same in place of the Borrower and the Lender; and
|
|
(c)
|
the New Lender shall become a Party as a "Lender".
|
20.5
|
Security over Lender's rights
|
|
20.5.1
|
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
|
20.5.2
|
if the Lender is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by the Lender as Security for those obligations or securities,
|
|
(a)
|
release the Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or
|
|
(b)
|
require any payments to be made by the Borrower or grant to any person any more extensive rights than those required to be made or granted to the Lender under the Finance Documents.
|
21.
|
CHANGES TO THE BORROWER
|
22.
|
CONDUCT OF BUSINESS BY THE LENDER
|
|
22.1.1
|
interfere with the right of the Lender to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
|
22.1.2
|
oblige the Lender to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
|
22.1.3
|
oblige the Lender to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
23.
|
PAYMENT MECHANICS
|
23.1
|
Payments to the Lender
|
|
23.1.1
|
On each date on which the Borrower is required to make a payment under a Finance Document, the Borrower shall make the same available to the Lender for value on the due date at the time and in such funds specified by the Lender as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
|
23.1.2
|
Payment shall be made to such account in London with such bank as the Lender may notify to the Borrower by not less than five Business Days' notice.
|
23.2
|
Payments by the Lender
|
|
23.2.1
|
On each date on which the Lender is required to make a payment under a Finance Document, the Lender shall make the same available to the Borrower for value on the due date at the time and in such funds specified by the Lender as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
|
23.2.2
|
Payment shall be made to such account in London with such bank as the Borrower may notify to the Lender in the relevant Utilisation Request.
|
A payment will be deemed to have been made by the Lender on the date on which it was required to be made under this Agreement if the Lender has, on or before that date, taken steps to make that payment in accordance with the regulations or operating procedures of the clearing system used by the Lender in order to make the payment.
|
23.3
|
Distributions to the Borrower
|
23.4
|
Partial payments
|
|
23.4.1
|
If the Lender receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under the Finance Documents, the Lender shall apply that payment towards the obligations of the Borrower under the Finance Documents in any order selected by the Lender.
|
|
23.4.2
|
Sub-clause 25.4.1 above will override any appropriation made by the Borrower.
|
23.5
|
No set-off by the Borrower
|
23.6
|
Business Days
|
|
23.6.1
|
Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
|
23.6.2
|
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
23.7
|
Currency of account
|
|
23.7.1
|
Subject to sub-clauses 23.7.2 and 23.7.3 below Sterling is the currency of account and payment for any sum from the Borrower under any Finance Document.
|
|
23.7.2
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
|
23.7.3
|
Any amount expressed to be payable in a currency other than Sterling shall be paid in that other currency.
|
23.8
|
Change of currency
|
|
23.8.1
|
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
|
(a)
|
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Lender (after consultation with the Borrower); and
|
|
(b)
|
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Lender (acting reasonably).
|
|
23.8.2
|
If a change in any currency of a country occurs, this Agreement will, to the extent the Lender (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
23.9
|
Disruption to Payment Systems etc.
|
|
23.9.1
|
the Lender may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Facility as the Lender may deem necessary in the circumstances;
|
|
23.9.2
|
the Lender shall not be obliged to consult with the Borrower in relation to any changes mentioned in sub-clause 23.9.1 if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
|
23.9.3
|
any such changes agreed upon by the Lender and the Borrower shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 29 (Amendments and Waivers); and
|
|
23.9.4
|
the Lender shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Lender) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 23.9.
|
24.
|
SET-OFF
|
25.
|
NOTICES
|
25.1
|
Communications in writing
|
25.2
|
Addresses
|
|
25.2.1
|
in the case of the Borrower, that identified with its name below; and
|
|
25.2.2
|
in the case of the Lender, that identified with its name below,
|
25.3
|
Delivery
|
|
25.3.1
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
|
(a)
|
if by way of fax, when received in legible form; or
|
|
(b)
|
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address,
|
|
25.3.2
|
Any communication or document to be made or delivered to the Lender will be effective only when actually received by the Lender and then only if it is expressly marked for the attention of the department or officer identified with the Lender's signature below (or any substitute department or officer as the Lender shall specify for this purpose).
|
25.4
|
English language
|
|
25.4.1
|
Any notice given under or in connection with any Finance Document must be in English.
|
|
25.4.2
|
All other documents provided under or in connection with any Finance Document must be:
|
|
(a)
|
in English; or
|
|
(b)
|
if not in English, and if so required by the Lender, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
26.
|
CALCULATIONS AND CERTIFICATES
|
26.1
|
Accounts
|
26.2
|
Certificates and Determinations
|
26.3
|
Day count convention
|
27.
|
PARTIAL INVALIDITY
|
28.
|
REMEDIES AND WAIVERS
|
29.
|
AMENDMENTS AND WAIVERS
|
30.
|
CONFIDENTIALITY
|
30.1
|
Confidential Information
|
30.2
|
Disclosure of Confidential Information
|
|
30.2.1
|
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as the Lender shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this sub-clause 30.2.1 is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
|
30.2.2
|
to any person:
|
|
(a)
|
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
|
(b)
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or the Borrower and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
|
(c)
|
appointed by the Lender or by a person to whom paragraph (a) or (b) of this sub-clause 30.2.2 applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf;
|
|
(d)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (a) or (b) of this sub-clause 30.2.2;
|
|
(e)
|
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
|
(f)
|
to whom or for those benefit the Lender charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 20.5 (Security over Lender's rights);
|
|
(g)
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
|
|
(h)
|
who is a Party; or
|
|
(i)
|
with the consent of the Borrower;
|
|
(i)
|
in relation to paragraphs (a), (b) and (c) of this sub-clause 30.2.2, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
|
(ii)
|
in relation to paragraph (d) of this sub-clause 30.2.2, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
|
(iii)
|
in relation to paragraphs (e), (f) and (g) of this sub-clause 30.2.2, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Lender, it is not practicable to so do in the circumstances;
|
|
30.2.3
|
to any person appointed by the Lender or by a person to whom paragraphs (a) and (b) of sub-clause 30.2.2 above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this sub-clause 30.2.3 if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Borrower and the Lender.
|
30.3
|
Entire agreement
|
30.4
|
Notification of disclosure
|
|
30.4.1
|
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (e) of sub-clause 30.2.2(e) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
|
30.4.2
|
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 30 (Confidentiality).
|
30.5
|
Continuing obligations
|
|
30.5.1
|
the date on which all amounts payable by the Borrower under or in connection with this Agreement have been paid in full and the Facility has been cancelled or otherwise ceases to be available; and
|
|
30.5.2
|
the date on which the Lender otherwise ceases to be a Lender.
|
31.
|
COUNTERPARTS
|
32.
|
GOVERNING LAW
|
33.
|
ENFORCEMENT
|
33.1
|
Jurisdiction
|
|
33.1.1
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or the consequences of its nullity or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").
|
|
33.1.2
|
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
|
|
33.1.3
|
This Clause 33.1 is for the benefit of the Lender only. As a result, the Lender shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent proceedings in any number of jurisdictions.
|
1.
|
The Borrower
|
|
(a)
|
A copy of the constitutional documents of the Borrower.
|
|
(b)
|
A copy of a resolution of the board of directors of the Borrower:
|
|
(i)
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
|
(ii)
|
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
|
(iii)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
|
|
(c)
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above.
|
|
(d)
|
A certificate of the Borrower (signed by a director) confirming that borrowing the Facility would not cause any borrowing or similar limit binding on the Borrower to be exceeded.
|
|
(e)
|
A certificate of the Borrower (signed by a director) confirming that the giving of the Guarantee would not cause any guaranteeing or similar limit binding on the Borrower to be exceeded.
|
|
(f)
|
A certificate of an authorised signatory of the Borrower certifying that each copy document relating to it specified in this Schedule 1 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
2.
|
The Guarantors
|
|
(a)
|
A copy of the constitutional documents of each Guarantor.
|
|
(b)
|
A copy of a resolution of the board of directors of each Guarantor:
|
|
(i)
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
|
(ii)
|
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
|
(iii)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
|
|
(c)
(d)
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above.
A written resolution of the shareholders of each Guarantor (other than the Borrower) approving its entry into and execution of the Guarantee.
|
|
(e)
|
A written resolution of the shareholders of Femcare-Nikomed Limited approving the amended Articles of Association of Femcare-Nikomed Limited.
|
|
(f)
|
A copy of minutes of a board meeting of the directors of Femcare-Nikomed Limited in which the directors of Femcare-Nikomed Limited circulate the shareholders resolution to amend the Articles of Association and note that the shareholders resolution to amend the Articles of Association was approved.
|
|
(g)
|
A certificate of each Guarantor (signed by a director) confirming that giving of the Guarantee would not cause any guaranteeing or similar limit binding on the relevant Guarantor to be exceeded.
|
|
(h)
|
A certificate of an authorised signatory of the each Guarantor certifying that each copy document relating to it specified in this Schedule 1 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
3.
|
Other documents and evidence
|
|
(a)
|
The Guarantee, the US Guarantee, each Share Charge, the US Credit Agreement and this Agreement executed by each party to it.
|
|
(b)
|
The Original Consolidated Financial Statements.
|
|
(c)
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 15 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.
|
|
(d)
|
Evidence that all of the conditions precedent to the US Credit Agreement have been satisfied.
|
|
(e)
|
Evidence that all Financial Indebtedness, Security and guarantees (other than those arising under any Finance Document or the US Credit Agreement) have been discharged in full.
|
|
(f)
|
A funds flow statement.
|
|
(g)
|
Evidence that the Borrower has entered into Hedging Agreements which effectively limit the amount of interest to be paid by the Borrower on 100% of the Loan.
|
|
(h)
|
The Utilisation Request duly executed by the Borrower.
|
|
(i)
|
A copy of any other Authorisation or other document, opinion or assurance which the Lender considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
|
From:
|
Femcare Group Limited
|
To:
|
JPMorgan Chase Bank, N.A., London Branch
|
Dated:
|
18 March 2011
|
1.
|
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2.
|
We wish to borrow a Loan on the following terms:
|
Proposed Utilisation Date:
|
18 March 2011
|
Currency of Loan:
|
£
|
Amount:
|
£8,000,000
|
Interest Period:
|
One Month
|
3.
|
We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.
|
4.
|
The proceeds of this Loan should be credited to:
|
5.
|
This Utilisation Request is irrevocable.
|
Yours faithfully
|
||
/s/ Kevin L. Cornwell
|
||
authorised signatory for
|
||
Femcare Group Limited
|
1.
|
The Mandatory Cost is an addition to the interest rate in relation to the cost of compliance with (a) the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b) the requirements of the European Central Bank.
|
2.
|
On the first day of each Interest Period (or as soon as possible thereafter) the Lender shall calculate a rate (the "Additional Cost Rate") in accordance with the paragraphs set out below (expressed as a percentage rate per annum).
|
3.
|
The Additional Cost Rate for the Lender if lending from a Facility Office in a Participating Member State will be the percentage determined by the Lender as the cost of complying with the minimum reserve requirements of the European Central Bank.
|
4.
|
The Additional Cost Rate for the Lender lending from a Facility Office in the United Kingdom will be calculated by the Lender as follows:
|
|
(a)
|
in relation to a sterling Loan
|
AB + C (B - D) + E x 0.01
|
per cent. per annum
|
100 - (A + C)
|
|
(b)
|
in relation to a Loan in any currency other than sterling
|
E x 0.01
|
per cent. per annum
|
300
|
|
A
|
is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which the Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements.
|
|
B
|
is the percentage rate of interest (excluding the Margin and the Mandatory Cost) payable for the relevant Interest Period on the Loan.
|
|
C
|
is the percentage (if any) of Eligible Liabilities which the Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of England.
|
|
D
|
is the percentage rate per annum payable by the Bank of England to the Lender on interest bearing Special Deposits.
|
|
E
|
is the rate of charge payable by the Lender to the Financial Services Authority pursuant to the Fees Rules (calculated for this purpose by the Lender as being the average of the Fee Tariffs applicable to the Lender) and expressed in pounds per £1,000,000 of the Tariff Base of the Lender.
|
5.
|
For the purposes of this Schedule:
|
|
(a)
|
"Eligible Liabilities" and "Special Deposits" have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England;
|
|
(b)
|
"Fees Rules" means the rules on periodic fees contained in the FSA Fees Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits;
|
|
(c)
|
"Fee Tariffs" means the fee tariffs specified in the Fees Rules under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate); and
|
|
(d)
|
"Tariff Base" has the meaning given to it in, and will be calculated in accordance with, the Fees Rules.
|
6.
|
In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places.
|
7.
|
The Lender shall have no liability to any person if such determination results in an Additional Cost Rate which over or under compensates the Lender.
|
8.
|
Any determination by the Lender pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to the Lender shall, in the absence of manifest error, be conclusive and binding on all Parties.
|
9.
|
The Lender may from time to time, after consultation with the Borrower, determine and notify to all Parties any amendments which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all Parties.
|
1.
|
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2.
|
We refer to Clause 20.4 (Procedure for transfer):
|
|
(a)
|
The Lender and the New Lender agree to the Lender transferring to the New Lender by novation all or part of the Lender's commitment, rights and obligations referred to in the Schedule in accordance with Clause 20.4 (Procedure for transfer).
|
|
(b)
|
The Transfer Date is [ ].
|
|
(c)
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 25.2 (Addresses) are set out in the Schedule.
|
3.
|
The New Lender expressly acknowledges the limitations on the Lender's obligations set out in sub-clause 20.3.3 of Clause 20.3 (Limitation of responsibility of the Lender).
|
4.
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
5.
|
This Transfer Certificate is governed by English law.
|
By:
|
/s/ Paul O. Richins
|
Name:
|
Paul O. Richins
|
Title:
|
Director
|
Address:
|
Stuart Court, Spursholt Place Salisbury Road
|
Romsey, Hampshire SO51 6DJ
|
|
Fax:
|
|
Attention:
|
By:
|
/s/ Paul Hogan |
Name:
|
Paul Hogan |
Title:
|
Executive Director |
Address:
|
125 London Wall
|
London EC2Y 5AJ
|
|
Fax:
|
|
Attention:
|
JPMorgan Chase Bank, N.A.
|
||
201 South Main Street
|
||
Suite 300
|
||
Salt Lake City, Utah 84111
|
||
Attention: Lynn Goodale
|
||
Facsimile No: 801-715-7401
|
||
with a copy to:
|
Snell & Wilmer L.L.P.
|
|
Beneficial Tower
|
||
15 West South Temple, Suite 1200
|
||
Salt Lake City, Utah 84101
|
||
Attention: Brian D. Cunningham, Esq.
|
||
Facsimile No: 801-257-1800
|
Guarantor:
|
|
UTAH MEDICAL PRODUCTS, INC.
|
|
By /s/ Paul O. Richins
|
|
Paul O. Richins V.P.
|
|
Printed Name Title
|
|
Date Signed: 17-March-2011
|
Guarantee
|
|
The entities listed in Schedule 1
and
JPMorgan Chase Bank, N.A. as Lender
|
(1)
(2)
|
Ref: KH06
Burges Salmon LLP
www.burges-salmon.com
Tel: +44 (0) 117 939 2000
Fax: +44 (0)117 902 4400
|
![]() |
Clause
|
Heading
|
Page
|
1
|
DEFINITIONS AND INTERPRETATION
|
1
|
2
|
GUARANTEE
|
5
|
3
|
PAYMENTS AND TAXES
|
10
|
4
|
REPRESENTATIONS AND WARRANTIES
|
11
|
5
|
COVENANTS
|
13
|
6
|
BENEFIT OF THIS GUARANTEE
|
14
|
7
|
COSTS AND EXPENSES
|
14
|
8
|
STAMP TAXES
|
14
|
9
|
CERTIFICATES AND DETERMINATIONS
|
15
|
10
|
SET-OFF
|
15
|
11
|
ASSIGNMENT
|
15
|
12
|
AMENDMENTS
|
16
|
13
|
NOTICES
|
16
|
14
|
REMEDIES AND WAIVERS
|
16
|
15
|
PARTIAL INVALIDITY
|
17
|
16
|
EXECUTION OF GUARANTEE AS A DEED
|
17
|
17
|
COUNTERPARTS
|
17
|
18
|
PERPETUITY PERIOD
|
17
|
19
|
GOVERNING LAW
|
17
|
20
|
ENFORCEMENT
|
17
|
Schedule 1 - Guarantors
|
18
|
|
Schedule 2 - Principals
|
18
|
(1)
|
THE ENTITIES LISTED IN SCHEDULE 1 (each a "Guarantor" and together the "Guarantors"); and
|
(2)
|
JPMORGAN CHASE BANK, N.A. (the "Lender").
|
(A)
|
By an agreement (the "Facility Agreement") dated on or about the date of this Guarantee and made between the Borrower (as defined below) (1) and the Lender (2), the Lender has agreed, upon and subject to the terms and conditions of the relevant documentation, to make available certain financial facilities to the Borrower.
|
(B)
|
The execution and delivery of this Guarantee is a condition precedent to the Lender making the facilities available under the Facility Agreement.
|
1
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
|
(a)
|
to pay money or perform ( or not to perform) any other act;
|
|
(b)
|
express or implied;
|
|
(c)
|
present, future, actual or contingent;
|
|
(d)
|
joint or several;
|
|
(e)
|
incurred as principal or surety or in any other manner;
|
|
(f)
|
originally owing to the person claiming performance or acquired by that person from someone else;
|
|
(g)
|
denominated in Sterling or in any other currency; or
|
|
(h)
|
incurred on any banking account or in any other manner whatsoever
|
1.2
|
Definitions in the Facility Agreement/other
|
1.3
|
Construction of particular terms
|
|
(a)
|
an "amendment" includes amendment, implementation, novation, re-enactment, replacement, reinstatement or variation and "amend" will be considered accordingly;
|
|
(b)
|
"assets" includes present and future properties, revenues and rights of every description whether or not contingent and whether tangible or intangible;
|
|
(c)
|
a "company" includes any company, corporation or other body corporate, wherever and however incorporated or established;
|
|
(d)
|
the "Guarantor" or the "Lender" shall be construed so as to include any permitted successors, permitted assigns and permitted transferees of that person;
|
|
(e)
|
"this Guarantee" or any other agreement, deed, document or instrument is a reference to this Guarantee or other agreement, deed, document or instrument as it may have been amended, supplemented, replaced or novated from time to time and includes a reference to any agreement, deed, document or instrument which amends, supplements, replaces, novates or is entered into, made or given pursuant to or in accordance with any of the terms of this Guarantee or, as the case may be, the relevant agreement, deed, document or instrument;
|
|
(f)
|
a "guarantee" includes references to an indemnity or other assurance against financial loss including, without limitation, an obligation to purchase assets or services as a consequence of a default by any other person to pay any financial indebtedness and "guaranteed" shall be construed accordingly;
|
|
(g)
|
the word "including" and the phrase "and includes" are each without limitation;
|
|
(h)
|
"indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
|
(i)
|
"law" includes common or customary law, principles of equity and any constitution, code of practice, decree, judgement, decision, legislation, order, ordinance, regulation, bye-law, statute, treaty or other legislative measure in any jurisdiction or any present or future directive, regulation, guideline, request, rule or requirement (in each case, whether or not having the force of law but, if not having the force of law, the compliance with which is in accordance with the general practice of persons to whom the directive, regulation, guideline, request, rule or requirement is intended to apply) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
|
(j)
|
a "person" includes any individual, firm, company, corporation, government, state or agency of a state, or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality) and includes that persons permitted successors and assigns;
|
|
(k)
|
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, being a regulation, rule, directive, request or guideline with which a prudent person carrying on the same or similar business as the Principal would comply) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
|
(l)
|
"rights" includes all rights, title, benefits, powers, privileges, interests, claims, authorities, discretions, remedies, liberties, easements, quasi-easements and appurtenances (in each case, of every kind, present, future and contingent);
|
|
(m)
|
"security" or "security interest" includes any mortgage, charge, pledge, lien, security assignment, hypothecation or, trust or other arrangement for the purpose of providing security and any other encumbrance or security interest of any kind having the effect of securing any obligation of any person (including, without limitation, the deposit of moneys, property or title documents with a person with the intention of affording such person a right of set-off or lien) and any other agreement or any other type of arrangement having a similar effect.
|
1.4
|
Interpretation
|
|
(a)
|
Unless a contrary indication appears in this Guarantee:
|
|
(i)
|
words importing the singular shall include the plural and vice versa;
|
|
(ii)
|
a reference to any party or person shall be construed as including its and any subsequent successors in title, permitted transferees and permitted assigns, in each case in accordance with their respective interests; and
|
|
(iii)
|
references to any provision of any law or regulation are to be construed as referring to that provision as it may have been, or may from time to time be, extended, amended or re-enacted, and as referring to all bye-laws, instruments, orders, regulations or subordinate legislation for the time being made under or deriving validity from that provision.
|
|
(b)
|
Section, clause, sub-clause and Schedule headings are for ease of reference only and shall be ignored in construing this Guarantee.
|
|
(c)
|
The table of contents to this Guarantee does not affect is interpretation.
|
1.5
|
Third Party Rights
|
2
|
GUARANTEE
|
2.1
|
Covenant to pay
|
2.2
|
Guarantor as principal debtor and indemnity
|
2.3
|
Interest
|
|
(a)
|
each amount demanded of it under this Guarantee; and
|
|
(b)
|
any Expenses or other amounts payable by the Guarantor under or in connection with this Guarantee
|
2.4
|
Statements of account conclusive
|
2.5
|
No security taken by the Guarantors
|
2.6
|
Continuing security and other matters
|
|
(a)
|
secure the ultimate balance from time to time owing to the Lender by any Principal and shall be a continuing security for the benefit of the Lender, notwithstanding any intermediate discharge or payment in whole or in part, settlement of account or other matter whatsoever;
|
|
(b)
|
be in addition to any present or future Collateral Instrument, right or remedy held by or available to the Lender; and
|
|
(c)
|
not be in any way prejudiced or affected by the existence of any Collateral Instrument, rights or remedies or by the same becoming wholly or in part void, voidable or unenforceable on any ground whatsoever or by the dealing with, exchanging, varying or failing to perfect or enforce any of the same or giving time for payment or indulgence or compounding with any other person liable.
|
2.7
|
Termination of Liability
|
|
(a)
|
No Guarantor shall have any right to determine its liability under this Guarantee (whether by notice to the Lender or by any other means) at any time during the Guaranteed Period.
|
2.8
|
New accounts
|
2.9
|
Liability unconditional
|
|
(a)
|
any Incapacity of or in relation to any Guarantor or any other person liable;
|
|
(b)
|
the Lender or any other person granting any time or waiver, or any other indulgence or concession to, or compounding with, discharging, releasing or varying the liability of any Principal or any other person liable or renewing, determining, varying or increasing any accommodation, facility or transaction or otherwise dealing with the same in any manner whatsoever or concurring in, accepting or varying any compromise, arrangement or settlement or omitting to claim or enforce payment from any Principal or any other person; or
|
|
(c)
|
any variation or amendment of, or waiver or release granted under or in connection with any facility agreement or any other security or any guarantee or indemnity or other document; or
|
|
(d)
|
the taking, holding, failure to take or hold, varying, realisation, non-enforcement, non- perfection or release by the Lender or any other person of any other security or any guarantee or indemnity or other document; or
|
|
(e)
|
any change in the constitution of any Principal; or
|
|
(f)
|
any amalgamation, merger or reconstruction that may be effected by the Lender with any other person, including, but not limited to, any reconstruction by the Lender involving the formation of a new company or other extent any with separate legal personality and the transfer of all or any of its assets to that company or other extent any with separate legal personality, or any sale or transfer of the whole or any part of the undertaking and assets of the Lender to any other person; or
|
|
(g)
|
the existence of any claim, set-off or other right which any Principal may have at any time against the Lender or any other person; or
|
|
(h)
|
the making or absence of any demand for payment or discharge of any Guaranteed Obligations of any Principal or any other person, whether by the Lender or any other person; or any arrangement or compromise entered into by the Lender with any Principal or any other person; or
|
|
(i)
|
any other thing done or omitted or neglected to be done by the Lender or any other person or any other dealing, fact, matter or thing which, but for this provision, might operate to discharge, prejudice or affect any of the liability of any Principal, or any Guarantor had it been a principal debtor instead of a guarantor or by anything done or omitted which but for this provision might operate to exonerate any Guarantor.
|
2.10
|
Collateral Instruments
|
2.11
|
Immediate recourse
|
|
(a)
|
take action or obtain judgement against any Principal or any other person in any court;
|
|
(b)
|
make or file any claim or proof in the liquidation of any Principal or any other person; or
|
|
(c)
|
enforce or seek to enforce the recovery of the moneys and liabilities hereby secured or enforce or seek to enforce any other security interest or guarantee.
|
2.12
|
Non-competition
|
|
(a)
|
Until all the Guaranteed Obligations have been unconditionally and irrevocably paid and discharged in full, a Guarantor shall not (other than with the prior consent of the Lender and pursuant to and in accordance with this Guarantee) exercise any rights it may have by reason of performance by it of its obligations under this Guarantee or by reason of any amount being payable or liability arising under this Guarantee:
|
|
(i)
|
to claim, rank, prove or vote as a creditor of any Principal or its estate; or
|
|
(ii)
|
to receive, claim or have the benefit of any payment, guarantee, distribution or security from or on account of any such party, or exercise any right of combination, counter-claim, "flawed-asset" arrangement or set-off as against such person.
|
|
(b)
|
Each Guarantor will hold on trust for, and forthwith pay or transfer to, the Lender in accordance with any facility agreement with the Lender to which the relevant Principal is a party, any payment or distribution or the benefit of any guarantee or security received or receivable by it contrary to the above. If a Guarantor exercises any right of set-off, counterclaim or combination contrary to the above, it will forthwith pay an amount equal to the amount set-off, counterclaimed or combined to the Lender to be distributed in accordance with any facility agreement with the Lender to which the relevant Principal is a party.
|
2.13
|
Waiver of Guarantor's rights
|
|
(a)
|
Until all the Guaranteed Obligations have been paid, discharged or satisfied in full each Guarantor agrees that, without the prior written consent of the Lender, it shall not:
|
|
(i)
|
exercise its rights of subrogation, reimbursement and indemnity against any Principal or any other person liable;
|
|
(ii)
|
demand or accept repayment in whole or in part of any indebtedness now or hereafter due to it from any Principal or from any other person liable or demand or accept any Collateral Instrument in respect of the same or dispose of the same;
|
|
(iii)
|
take any step to enforce any right against any Principal or any other person liable in respect of any Guaranteed Obligations; or
|
|
(iv)
|
claim any set-off or counterclaim against any Principal or any other person liable or claim or prove in competition with the Lender in the liquidation of any Principal or any other person liable or have the benefit of, or share in, any payment from or composition with, any Principal or any other person liable or any other Collateral Instrument now or hereafter held by any of the Lender for any Guaranteed Obligations or for the obligations or liabilities of any other person liable.
|
2.14
|
Suspense accounts
|
2.15
|
Settlements conditional
|
|
(a)
|
Any release, discharge or settlement between a Guarantor and the Lender shall be conditional upon no security, disposition or payment to the Lender by any Principal or any other person liable being void, set aside or ordered to be refunded pursuant to any requirement having the force of law and if such condition shall not be fulfilled the Lender shall be entitled to enforce this Guarantee subsequently as if such release, discharge or settlement had not occurred and any such payment had not been made.
|
|
(b)
|
Where any such re-assignment, release, settlement or discharge is made in whole or in part on the faith of any payment, guarantee, security or other disposition, transaction or arrangement which is or is required to be repaid, restored or otherwise avoided, invalidated or reduced by virtue of any requirement having the force of law, any such re-assignment, release, settlement or discharge of, or other arrangement in connection with, any guarantee or other obligation of any Guarantor under this Guarantee shall ipso facto be treated as null and void and shall for all purposes be deemed not to have occurred, and the Lender shall be entitled to recover the value or amount of any such payment, guarantee, security or other disposition and the relevant Guaranteed Obligations shall continue as if the re-assignment, release, settlement or discharge had not occurred.
|
2.16
|
Guarantor to deliver up certain property
|
2.17
|
Retention of this Guarantee
|
3
|
PAYMENTS AND TAXES
|
3.1
|
No set-off or counterclaim
|
3.2
|
Gross up for Tax Deductions
|
4
|
REPRESENTATIONS AND WARRANTIES
|
4.1
|
Giving of Representations
|
4.2
|
Status
|
|
(a)
|
It is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation.
|
|
(b)
|
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
4.3
|
Binding obligations
|
4.4
|
Non-conflict with other obligations
|
|
(a)
|
any law or regulation applicable to it;
|
|
(b)
|
its or any of its Subsidiaries' constitutional documents ; or
|
|
(c)
|
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets.
|
4.5
|
Power and authority
|
4.6
|
Validity and admissibility in evidence
|
|
(a)
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations under this Guarantee; and
|
|
(b)
|
to make this Guarantee admissible in evidence in its jurisdiction of incorporation,
|
4.7
|
Governing law and enforcement
|
|
(a)
|
The choice of English law as the governing law of this Guarantee will be recognised and enforced in its jurisdiction of incorporation.
|
|
(b)
|
Any judgment obtained in England in relation to this Guarantee will be recognised and enforced in its jurisdiction of incorporation.
|
4.8
|
Deduction of Tax
|
4.9
|
No filing or stamp taxes
|
4.10
|
Pari passu ranking
|
4.11
|
No proceedings pending or threatened
|
4.12
|
Times for making representations and warranties
|
|
(a)
|
each of the representations and warranties set out in this Guarantee are made by each Guarantor on the date of this Guarantee;
|
|
(b)
|
each representation and warranty under this Guarantee is deemed to be repeated by each Guarantor on each date during the Guaranteed Period; and
|
|
(c)
|
when a representation and warranty is deemed to be repeated, it is deemed to be made by reference to the circumstances existing at the time of repetition.
|
5
|
COVENANTS
|
5.1
|
Giving of Covenants
|
5.2
|
Authorisations
|
|
(a)
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
|
(b)
|
supply certified copies to the Lender of,
|
5.3
|
Compliance with laws
|
5.4
|
Notice of default
|
5.5
|
Timing of covenants
|
6
|
BENEFIT OF THIS GUARANTEE
|
6.1
|
Benefit and burden
|
6.2
|
Changes in constitution or reorganisations of the Lender
|
7
|
COSTS AND EXPENSES
|
7.1
|
the negotiation, preparation, printing, execution, stamping, filing, registration and perfection of this Guarantee and any other document referred to in this Guarantee;
|
7.2
|
any waiver or consent in relation to this Guarantee or any other document referred to in this Guarantee;
|
7.3
|
any variation, amendment, extension or modification of, or supplemental to, this Guarantee or any other document referred to in this Guarantee; and
|
7.4
|
the enforcement, preservation, protection or realisation, or attempted enforcement , protection or realisation of any of the Lender's rights and remedies under or in connection with this Guarantee or of any Guaranteed Obligation or any other document referred to in this Guarantee or in connection with any Proceedings in relation to any of the foregoing.
|
8
|
STAMP TAXES
|
9
|
CERTIFICATES AND DETERMINATIONS
|
9.1
|
Accounts
|
9.2
|
Certificates and Determinations
|
10
|
SET-OFF
|
10.1
|
The Lender may (but shall not be obliged to) set off against any obligation of a Guarantor due and payable by it to or for the account of the Lender under this Guarantee and not paid on the due date or, where applicable, within any grace period for payment, any moneys held by the Lender for the account of that Guarantor at any office of the Lender anywhere and in any currency, whether or not matured. If any such obligation is un-liquidated or unascertained, the Lender may set off in an amount estimated by it in good faith to be amount of that obligation. The Lender may effect such currency exchanges at such rates as it considers are appropriate to implement the set-off and any usual charges and all applicable Taxes in relation to such currency exchanges shall be paid by that Guarantor within 3 Business Days of demand. If the Lender has set off, it shall give prompt notice of that fact to that Guarantor;
|
10.2
|
This clause 10 is intended to give rise to rights in contract only and is not intended to constitute or create or give rise to a security interest of any kind over any asset of a Guarantor. If and to the extent that any right conferred by this clause 10 would, notwithstanding the foregoing sentence constitute, create or give rise to any security interest such right shall be of no effect.
|
11
|
ASSIGNMENT
|
11.1
|
Assignment by the Lender
|
11.2
|
Assignment by Guarantor
|
12
|
AMENDMENTS
|
13
|
NOTICES
|
13.1
|
Communications in writing
|
13.2
|
Addresses
|
13.3
|
Delivery
|
|
(a)
|
Any communication or document made or delivered by one person to another under or in connection with this Guarantee will only be effective:
|
|
(i)
|
if by way of fax, when received in legible form; or
|
|
(ii)
|
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address.
|
|
(b)
|
Any communication or document to be made or delivered to the Lender will be effective only when actually received by the Lender and then only if it is expressly marked for the attention of the department or officer identified with the Lender's signature below (or any substitute department or officer as the Lender shall specify for this purpose).
|
13.4
|
Approvals etc. to be in writing
|
14
|
REMEDIES AND WAIVERS
|
15
|
PARTIAL INVALIDITY
|
16
|
EXECUTION OF GUARANTEE AS A DEED
|
17
|
COUNTERPARTS
|
18
|
PERPETUITY PERIOD
|
19
|
GOVERNING LAW
|
20
|
ENFORCEMENT
|
20.1
|
Jurisdiction
|
|
(a)
|
The courts of England are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Guarantee or its subject matter or formation (including non-contractual disputes or claims or disputes regarding the existence, validity, determination or expiration of this Guarantee or the rights expressed to be conferred by it (a "Dispute").
|
|
(b)
|
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
|
|
(c)
|
This clause 20.1 is for the benefit of the Lender only. As a result the Lender shall not be prevented from taking Proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent Proceedings in any number of jurisdictions.
|
Company name
|
Company number
|
Registered office
|
Femcare Group Limited
|
05147637
|
Stuart Court, Spursholt Place, Salisbury Road, Romsey, Hampshire SO51 6DJ
|
Femcare (Holdings) Limited
|
03788956
|
Stuart Court, Spursholt Place, Salisbury Road, Romsey, Hampshire SO51 6DJ
|
Femcare Distribution Limited
|
04329399
|
Stuart Court, Spursholt Place, Salisbury Road, Romsey, Hampshire SO51 6DJ
|
Femcare-Nikomed Limited
|
02301779
|
Stuart Court, Spursholt Place, Salisbury Road, Romsey, Hampshire SO51 6DJ
|
Company name
|
Company number
|
Registered office
|
Femcare Group Limited
|
05147637
|
Stuart Court, Spursholt Place, Salisbury Road, Romsey, Hampshire SO51 6DJ
|
Femcare (Holdings) Limited
|
03788956
|
Stuart Court, Spursholt Place, Salisbury Road, Romsey, Hampshire SO51 6DJ
|
Femcare Distribution Limited
|
04329399
|
Stuart Court, Spursholt Place, Salisbury Road, Romsey, Hampshire SO51 6DJ
|
Femcare-Nikomed Limited
|
02301779
|
Stuart Court, Spursholt Place, Salisbury Road, Romsey, Hampshire SO51 6DJ
|
SIGNED as a DEED by
|
)
|
|
FEMCARE GROUP LIMITED
|
)
|
|
)
|
||
acting by a director
|
)
|
/s/ Paul O. Richins
|
Director
|
SIGNED as a DEED by
|
)
|
||
FEMCARE (HOLDINGS) LIMITED
|
)
|
||
)
|
|||
acting by a director
|
)
|
/s/ Paul O. Richins
|
|
Director
|
SIGNED as a DEED by
|
)
|
||
FEMCARE DISTRIBUTION LIMITED
|
)
|
||
)
|
|||
acting by a director
|
)
|
/s/ Paul O. Richins
|
|
Director
|
SIGNED as a DEED by
|
)
|
|
FEMCARE-NIKOMED LIMITED
|
)
|
|
)
|
||
acting by a director
|
)
|
/s/ Paul O. Richins
|
Director
|
SIGNED for and on behalf of
|
)
|
JPMORGAN CHASE BANK, N.A.
|
)
|
/s/ Lynn Goodale
|
|
Authorised Signatory
|
DATED
|
March 18 2011
|
CHARGE OVER SECURITIES
|
|
FEMCARE DISTRIBUTION LIMITED (the Chargor)
JPMORGAN CHASE BANK, N.A. as Lender
|
(1)
(2)
|
Ref: KH06/RL01
Burges Salmon LLP
www.burges-salmon.com
Tel: +44 (0)117 902 7253
Fax: +44 (0)117 902 4400
|
![]() |
Clause
|
Heading
|
Page
|
1
|
DEFINITIONS AND INTERPRETATION
|
1
|
2
|
COVENANT TO PAY
|
4
|
3
|
CHARGE
|
4
|
4
|
REPRESENTATIONS AND WARRANTIES
|
4
|
5
|
UNDERTAKINGS
|
5
|
6
|
FURTHER ASSURANCE
|
7
|
7
|
DEPOSIT OF DOCUMENTS
|
7
|
8
|
RIGHTS
|
7
|
9
|
CERTAIN POWERS OF THE LENDER
|
8
|
10
|
APPOINTMENT AND POWERS OF RECEIVER
|
9
|
11
|
APPLICATION OF PROCEEDS AND PROTECTION OF PURCHASERS
|
12
|
12
|
INDEMNITIES; COSTS AND EXPENSES
|
13
|
13
|
POWER OF ATTORNEY
|
14
|
14
|
CONTINUING SECURITY AND OTHER MATTERS
|
15
|
15
|
RELEASE
|
16
|
16
|
LIABILITY OF THE CHARGOR
|
17
|
17
|
SET OFF
|
18
|
18
|
MISCELLANEOUS
|
19
|
19
|
NOTICES
|
21
|
20
|
TRANSFERS BY THE LENDER OR THE CHARGOR
|
22
|
21
|
COUNTERPARTS
|
23
|
22
|
THIRD PARTIES
|
23
|
23
|
LAW
|
23
|
Schedule 1
|
24
|
|
Part A - Form of written resolution to amend articles of association
|
24
|
|
Part B - Filing print of written resolutions to file at Companies House
|
27
|
THIS DEED is dated
|
18 March 2011 and made
|
(1)
|
FEMCARE DISTRIBUTION LIMITED a company incorporated in England and Wales (Registered No. 04329399) whose registered office is at Stuart Court, Spursholt Place, Salisbury Road, Romsey, Hampshire SO51 6DJ (the "Chargor"); and
|
(2)
|
JPMORGAN CHASE BANK, N.A. (the "Lender").
|
1
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
|
(a)
|
all of the securities issued share capital of the Issuer;
|
|
(b)
|
any further securities substituted or added from time to time pursuant to the provisions of this Deed;
|
|
(c)
|
any additional shares in the issued share capital of the Issuer in the future legally or beneficially owned by the Chargor;
|
|
(d)
|
any Securities Rights relating to the Charged Shares;
|
|
(e)
|
any proceeds, money, dividends, interest and other distributions, return of capital, marketable securities, accretions rights, benefits, or other property whatsoever now or in the future declared, payable or otherwise distributable in respect of the Charged Shares or the Securities Rights, whether by reason of a payment of a dividend, the making of a distribution of any kind, a rights issue, allotment, offer, conversion, exchange, substitution, consolidation, sub-division, redemption, pre-emption, sale, option, bonus, capitalisation, warrant, cancellation, re-classification, reconstruction, amalgamation, winding up or otherwise, in each case relating to the Charged Shares;
|
1.2
|
Definitions in Finance Documents
|
1.3
|
Successors and assigns
|
1.4
|
Headings
|
1.5
|
Construction of certain terms
|
|
(a)
|
references to clauses and schedules are to be construed as references to the clauses of and schedules to this Deed unless expressly stated otherwise;
|
|
(b)
|
reference to (or to any specified provision of) this Deed, any Finance Document or any other document shall be construed as references to this Deed, any Finance Document that provision or that document as in force for the time being and as amended, varied, supplemented or restated in accordance with the terms thereof or, as the case may be, with the agreement of the relevant parties;
|
|
(c)
|
words importing the plural shall include the singular and vice versa;
|
|
(d)
|
references to a person shall be construed as including references to an individual, firm, company, corporation, unincorporated body of persons, trust, partnership and limited liability partnership or any state or any agency thereof;
|
|
(e)
|
an Event of Default is "continuing" if it has not been expressly waived in writing by the Lender; and
|
|
(f)
|
references to statutory provisions shall be construed as references to those provisions as replaced, amended or re-enacted from time to time and all regulations made thereunder from time to time.
|
1.6
|
Effect as a deed
|
2
|
COVENANT TO PAY
|
3
|
CHARGE
|
4
|
REPRESENTATIONS AND WARRANTIES
|
4.1
|
Representations and warranties
|
|
(a)
|
Approvals
|
|
(i)
|
That all necessary approvals and consents (whether governmental or otherwise) in relation to the making, performance and validity of this Deed and the transactions contemplated by this Deed have been obtained and remain in full force and effect;
|
|
(ii)
|
That the security created by this Deed does not contravene or result in any of the provisions of its memorandum and articles of association; and
|
|
(iii)
|
That this Deed does not and will not conflict with or result in any breach or constitute a default under any agreement, instrument or obligation to which the Chargor is a party or by which it is bound.
|
|
(b)
|
Security valid
|
|
(c)
|
Title to assets
|
|
(d)
|
Existing security and Disposal
|
|
(i)
|
That no Security exists on or over the Securities and it has not entered into any agreement to grant any Security over the Securities; and
|
|
(ii)
|
That it has not sold, transferred, lend, assigned, parted with its interest in, disposed of, granted any option in respect of or otherwise dealt with any of its rights, title and interest in and to the Securities, or agreed to do any of the foregoing.
|
|
(e)
|
Securities
|
5
|
UNDERTAKINGS
|
5.1
|
Obligations
|
|
(a)
|
Negative covenants
|
|
(i)
|
create or permit to subsist any Security over any of the Securities;
|
|
(ii)
|
enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, transfer, assign, lease, licence, grant an option over or otherwise dispose of any interest in any of the Securities;
|
|
(iii)
|
permit any person other than the Chargor or the Lender (or the nominees or agent of the Lender to be registered as the holder of the Securities or any part thereof; or
|
|
(iv)
|
do or cause or permit to be done anything which may in any way depreciate, jeopardise or otherwise prejudice the interest of the Lender in, or the value to the Lender of the Securities.
|
|
(b)
|
Articles of Association
|
|
(i)
|
Procure the amendment of the articles of association of each issuer of shares by way of written resolution in the form set out in Part A of Schedule 1; and
|
|
(ii)
|
Not, with the prior written consent of the Lender amend or agree to the amendment of, the memorandum or articles of association of any issuer in relation to the rights or liabilities attaching to any of the Securities.
|
|
(c)
|
Liabilities
|
|
(i)
|
Ensure that there are no monies or liabilities outstanding in respect of any of the Securities; and
|
|
(ii)
|
Punctually pay all calls, subscription monies and other monies payable on or in respect of any of the Securities and indemnify and keep indemnified the Lender and its nominees against any cost, liabilities or expenses which it or they may suffer or incur as are result of any failure by the Chargor to pay the same.
|
|
(d)
|
Information
|
|
(i)
|
Deliver to the Lender a copy of every circular, notice, report, set of accounts or other document received by the Chargor in respect of or in connection with any of the Securities promptly on receipt by the Chargor of such document; and
|
|
(ii)
|
Promptly deliver to the Lender all such information concerning the Securities as the Lender may reasonably request from time to time.
|
5.2
|
No limitation
|
5.3
|
Power to remedy
|
6
|
FURTHER ASSURANCE
|
6.1
|
Further assurance
|
7
|
DEPOSIT OF DOCUMENTS
|
7.1
|
All share certificates, warrants or other documents of title and other documentary evidence of ownership in relation to the Securities;
|
7.2
|
Duly executed undated blank stock transfer forms; and
|
7.3
|
Forms of waiver of any pre-emption rights and any other documents, consents and monies necessary to enable such transfers to be registered by the Lender.
|
8
|
RIGHTS
|
8.1
|
Rights prior to an Event of Default
|
|
(a)
|
Prior to an Event of Default that is continuing, the Chargor may continue to exercise all voting and other rights (including the right to collect dividends, interest, principal or other payments of money) relating to the Securities provided that such rights are not exercised in a way which (and the Chargor shall not permit anything which):
|
|
(i)
|
Jeopardises the security constituted by the Finance Documents;
|
|
(ii)
|
Varies the rights attaching to the Securities; or
|
|
(iii)
|
Relates to a participation in a rights issue or to receiving dividends other than in cash
|
|
(iv)
|
or concerns a merger, consolidation, allotment of shares, transfer of ownership (legal or beneficial), insolvency or matters which would otherwise be prohibited by the Finance Documents.
|
8.2
|
Rights after an Event of Default
|
|
(a)
|
Following an Event of Default that is continuing, the Lender may (without notice to or consent from the Chargor and in the Chargor's name or otherwise) exercise any rights (including the right to collect dividends, interest, principal or other payments of money) in respect of the Securities and may do anything necessary to complete any transfer form in favour of itself or otherwise.
|
|
(b)
|
The Lender shall have no duty to ensure that any dividends, interest or other money and assets or rights receivable in respect of the Securities are duly and punctually paid, received, collected or exercised when they become due and payable or exercisable, or to ensure the taking up of any (or any offer of any) stocks, shares, rights, money or other property paid, distributed, accruing or offered at any time by way of redemption, bonus, rights, reference to or otherwise in respect of the Securities.
|
9
|
CERTAIN POWERS OF THE LENDER
|
9.1
|
Subsequent Security
|
9.2
|
Settlement of accounts
|
9.3
|
Suspense accounts
|
|
(a)
|
paying all costs, charges and expenses incurred and payments made by the Lender (or the Receiver) in the course of such enforcement;
|
|
(b)
|
paying remuneration to the Receiver as and when the same becomes due and payable; and
|
|
(c)
|
paying amounts due and payable in respect of the Secured Obligations.
|
9.4
|
Financial Collateral
|
10
|
APPOINTMENT AND POWERS OF RECEIVER
|
10.1
|
Appointment
|
10.2
|
Receiver as agent
|
10.3
|
Powers of Receiver
|
|
(a)
|
Take possession
|
|
(b)
|
Dispose of assets
|
(c)
|
Voting Rights
|
|
(d)
|
Compromises and contracts
|
|
(e)
|
Legal proceedings
|
|
(f)
|
Execute documents
|
|
(g)
|
Approvals
|
|
(h)
|
Insolvency Act powers
|
|
(i)
|
Notices
|
|
(j)
|
Other powers
|
(k)
|
Lender powers
|
10.4
|
Remuneration
|
10.5
|
No liability
|
11
|
APPLICATION OF PROCEEDS AND PROTECTION OF PURCHASERS
|
11.1
|
Application of proceeds
|
|
(a)
|
in the payment of all costs, charges and expenses of and incidental to the Receiver's appointment and the payment of his remuneration;
|
|
(b)
|
in the payment and discharge of any liabilities incurred by the Receiver on the Chargor's behalf in the exercise of any of the powers of the Receiver;
|
|
(c)
|
in providing for the matters (other than the remuneration of the Receiver) specified in the first three paragraphs of section 109(8) of the Law of Property Act 1925;
|
|
(d)
|
in or towards payment of any debts or claims which are by statute payable in preference to the Secured Obligations but only to the extent that those debts or claims have that preference;
|
|
(e)
|
in or towards satisfaction of the Secured Obligations; and
|
|
(f)
|
any surplus shall be paid to the Chargor or any other person who may be entitled to it.
|
11.2
|
Protection of purchasers
|
|
(a)
|
Any person (including, without limitation, any purchaser, mortgagor or mortgagee) (in this clause a "purchaser") dealing with the Lender may assume without inquiry that:
|
|
(i)
|
some part of the Secured Obligations has become due;
|
|
(ii)
|
a demand for such Secured Obligations has been duly made; and
|
|
(iii)
|
such Secured Obligations have become due within the meaning of section 101 of the Law of Property Act 1925.
|
|
(b)
|
No purchaser dealing with the Receiver or the Lender is to be concerned to enquire whether any power exercised or purported to be exercised by the Receiver or the Lender has become exercisable, or as to the propriety or regularity of any sale by, or other dealing with, the Receiver or the Lender. Any such sale or dealing is deemed to be within the powers conferred by this Deed and to be valid and effective accordingly. All the protection to purchasers contained in section 104 and section 107 of the Law of Property Act 1925 and section 42(3) of the Insolvency Act 1986 apply to any purchaser.
|
12
|
INDEMNITIES; COSTS AND EXPENSES
|
12.1
|
Enforcement costs
|
12.2
|
No liability as mortgagee in possession
|
12.3
|
Indemnity from Securities
|
|
(a)
|
anything done or omitted in the exercise or purported exercise of the powers contained in this Deed; or
|
|
(b)
|
any breach by the Chargor of any of its obligations under this Deed;
|
12.4
|
Value Added Tax
|
12.5
|
Challenge of Deed
|
13
|
POWER OF ATTORNEY
|
13.1
|
Power of attorney
|
|
(a)
|
to execute and complete any documents or instruments which the Lender or such Receiver may require for perfecting the title of the Lender to the Securities or for vesting the same in the Lender, its nominees or any purchaser;
|
|
(b)
|
to sign, execute, seal and deliver and otherwise perfect any further security document referred to in clause 6 (Further Assurance); and
|
|
(c)
|
otherwise generally to sign, seal, execute and deliver all deeds, assurances, agreements and documents and to do all acts and things which may be required for the full exercise of all or any of the powers conferred on the Lender or a Receiver under this Deed or which may be deemed expedient by the Lender or a Receiver in connection with any disposition, realisation or getting in by the Lender or such Receiver of the Securities or any part thereof or in connection with any other exercise of any power under this Deed.
|
13.2
|
Ratification
|
14
|
CONTINUING SECURITY AND OTHER MATTERS
|
14.1
|
Continuing security
|
|
(a)
|
secure the ultimate balance from time to time owing to the Lender by the Chargor and shall be a continuing security notwithstanding any settlement of account or other matter whatsoever;
|
|
(b)
|
be in addition to, and not prejudice or affect, any present or future Collateral Instrument, Security, right or remedy held by or available to the Lender;
|
|
(c)
|
not merge with or be in any way prejudiced or affected by the existence of any such Collateral Instruments, Security, rights or remedies or by the same being or becoming wholly or in part void, voidable or unenforceable on any ground whatsoever or by the Lender dealing with, exchanging, releasing, varying or failing to perfect or enforce any of the same or giving time for payment or indulgence or compounding with any other person liable;
|
|
(d)
|
not be discharged or affected by the incapacity or any change in the name of the Chargor or any other person liable;
|
|
(e)
|
not be discharged or affected by the Security Trustee granting any time, indulgence or concession to, or compounding with, discharging, releasing or varying the liability of the Chargor or any other person liable or renewing, determining, varying or increasing any accommodation, facility or transaction or otherwise dealing with the same in any manner whatsoever or concurring in, accepting or varying any compromise, arrangement or settlement or omitting to claim or enforce payment from the Chargor or any other person liable;
|
|
(f)
|
not be discharged or affected by any act or omission which would not have discharged or affected the liability of any or all of the Chargor had it been a principal debtor instead of a surety or by anything done or omitted which but for this provision might operate to exonerate the Chargor;
|
|
(g)
|
not be discharged or affected by any failure of, or defect in, any agreement given by or on behalf of the Chargor in respect of any Secured Obligations nor by any legal limitation in any matter in respect of any Secured Obligations or by any other fact or circumstances (whether known or not to the Chargor or the Lender) as a result of which any Secured Obligations may be rendered illegal, void or unenforceable by the Lender; and
|
|
(h)
|
remain binding on the Chargor notwithstanding any amalgamation, reconstruction, reorganisation, merger, sale or transfer by or involving the Lender or assets of the Lender and for this purpose this Deed and all rights conferred on the Lender under it may be assigned or transferred by the Lender accordingly.
|
14.2
|
Collateral Instruments
|
15
|
RELEASE
|
15.1
|
Release
|
|
(a)
|
If the Lender is satisfied that all the Secured Obligations have been unconditionally and irrevocably paid or discharged in full and the Lender has no further liability or obligation under any Finance Document, the Lender will, at the request and cost of the Chargor, discharge this Deed.
|
|
(b)
|
Any release, discharge or settlement between the Chargor and the Lender shall be conditional upon no security, disposition or payment to the Lender by the Chargor or any other person being void, set aside or ordered to be refunded pursuant to any enactment or law relating to liquidation, administration or insolvency or for any other reason whatsoever and if such condition shall not be fulfilled, the Lender shall be entitled to enforce this Deed subsequently as if such release, discharge or settlement had not occurred and any such payment had not been made.
|
16
|
LIABILITY OF THE CHARGOR
|
16.1
|
Limited Recourse
|
16.2
|
Charge not to be affected
|
|
(a)
|
any time, waiver or consent granted to, or composition with, the Chargor, or other person;
|
|
(b)
|
the release of the Chargor, or any other person under the terms of any composition or arrangement with any creditor of any member of the Chargor;
|
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, the Chargor, or other person or any non-presentation or non observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Chargor, or any other person;
|
|
(e)
|
any amendment (however fundamental) or replacement of a Finance Document or any other document or security;
|
|
(f)
|
any assignment, transfer or novation by the Lender of its rights and/or obligations under the Finance Documents;
|
|
(g)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security;
|
|
(h)
|
any insolvency or similar proceedings; or
|
|
(i)
|
any other act or omission which but for this provision might have discharged or otherwise prejudiced or affected the liability of the Chargor.
|
16.3
|
Immediate Recourse
|
|
(a)
|
enforce any security or other right; or
|
|
(b)
|
claim any payment from or otherwise proceed against any other person
|
17
|
SET-OFF
|
17.1
|
Set-off
|
|
(a)
|
set off any amounts owed by the Lender to it in or towards satisfaction of the Secured Obligations (which shall be in addition to and without prejudice to such rights of set-off, combination, lien and other rights whatsoever conferred on the Lender by law or under this Deed); and
|
|
(b)
|
transfer any sum or sums standing to the credit of any accounts of the Chargor with the Lender of whatever nature and in whatever currency denominated, in or towards satisfaction of any sums due and payable from the Chargor to the Lender under this Deed or in or towards satisfaction of the Secured Obligations.
|
17.2
|
Additional rights
|
17.3
|
Waiver
|
18
|
MISCELLANEOUS
|
18.1
|
Remedies cumulative
|
18.2
|
Successors and assigns
|
18.3
|
Reorganisation of the Lender
|
18.4
|
Unfettered discretion
|
18.5
|
Provisions severable
|
|
(a)
|
Each of the provisions of this Deed is severable and distinct from the others and if at any time one or more of such provisions is or becomes invalid, illegal or unenforceable the validity, legality and enforceability of the remaining provisions of this Deed shall not in any way be affected or impaired thereby.
|
|
(b)
|
If any invalid or unenforceable clause (or part of a clause) would not be invalid or unenforceable if its drafting or effect were modified in any way, the Chargor agrees that the Lender can require such clause to be modified so as to be valid and enforceable.
|
18.6
|
Preservation of rights
|
18.7
|
Set-aside Payments
|
18.8
|
Redeeming prior security
|
18.9
|
Settlement of accounts
|
18.10
|
Trust period
|
19
|
NOTICES
|
19.1
|
Method
|
19.2
|
Delivery
|
(a)
|
Lender:
|
||
Address:
|
|||
Attention:
|
Paul Hogan
|
||
Fax No:
|
|||
Chargor:
|
Femcare Distribution Limited
|
||
Address:
|
Stuart Court, Spursholt Place Salisbury Road
|
||
Romsey, Hampshire SO51 6DJ
|
|||
Attention:
|
John Willis
|
||
Fax No:
|
19.3
|
Deemed receipt
|
|
(a)
|
Any notice or other communication given by the Lender shall be deemed to have been received:
|
|
(i)
|
in the case of a notice given by hand, at the time of day of actual delivery;
|
|
(ii)
|
if sent by fax, with a confirmed receipt of transmission from the receiving machine, on the day on which transmitted; and
|
|
(iii)
|
if posted, by 10.00 am on the second Business Day following the day on which it was despatched by first class mail postage prepaid
|
|
(b)
|
Any notice or other communication given to the Lender shall be deemed to have been given only on actual receipt.
|
19.4
|
Notices conclusive
|
20
|
TRANSFERS BY THE LENDER OR THE CHARGOR
|
20.1
|
Restriction on the Chargor
|
20.2
|
The Lender
|
|
(a)
|
The Lender may at any time sell, assign, novate, securitise or otherwise transfer all or any part of its rights or obligations under this Deed (a "Transfer") to any person at any time (a "Transferee"). The Lender may, and the Chargor consents to, the disclosure by the Lender of any information and documentation concerning the Chargor to any prospective Transferee.
|
|
(b)
|
If there is a Transfer by the Lender the Chargor will be bound to the Transferee and the rights and obligations of the Chargor under this Deed will remain the same. The Transferee will have the same powers, rights, benefits and obligations of the Lender to the extent that they are sold, assigned, novated or otherwise transferred to the Transferee and the outgoing Lender will be released from its obligations to the Chargor to the extent that those obligations are assumed by the Transferee. The Chargor will enter into all documents necessary to give effect to any such Transfer.
|
21
|
COUNTERPARTS
|
22
|
THIRD PARTIES
|
23
|
LAW
|
23.1
|
English law
|
PRIVATE COMPANY LIMITED BY SHARES
|
Circulation Date [of first copy]
[l] 20[l]
|
24
|
where such transfer is in favour of a bank or other financial institution or any nominee of a bank or other financial institution and the transfer is as contemplated by, or pursuant to, any mortgage or charge of shares or any call or other share option granted in favour of such bank or financial institution; or
|
25
|
where such transfer is by or on behalf of a bank or financial institution or any nominee of a bank or financial institution in favour of any third party upon disposal or realisation of shares following the bank having become entitled to exercise or enforce its rights under any such mortgage, charge and/or call or other option
|
1
|
If you agree to the proposed Written Resolution please sign and date this document overleaf on the dotted line where indicated and return it to the Company using one of the following methods, in each case by no later than 5pm the date 28 days after the Circulation Date stated overleaf:
|
1.1
|
by hand or by post to [the Company's registered office at [l]]
|
1.2
|
[by electronic mail addressed to [l]]
|
2
|
If you do not agree to the Written Resolution you do not need to do anything. You will not be deemed to agree if you fail to reply.
|
3
|
The Written Resolution will lapse if the agreement of the required majority of eligible members is not received by the Company by 5pm on the date 28 days after the Circulation Date stated overleaf. If the Company does not receive this signed document from you by this date and time it will not be counted in determining whether the Written Resolution is passed.
|
4
|
The Written Resolution is passed on the date and time that the Company receives the agreement of the required majority of eligible members. The required majority for a Special Resolution is eligible members representing not less than 75% of the total voting rights of eligible members.
|
5
|
You may not revoke your agreement to the Written Resolution once you have signed and returned this document to the Company.
|
6
|
If you are signing this document on behalf of a person under a power of attorney or other authority please send a copy of the relevant power of attorney or authority when returning this document.
|
PRIVATE COMPANY LIMITED BY SHARES
|
PASSED ON : [l] 20[l]
|
1
|
where such transfer is in favour of a bank or other financial institution or any nominee of a bank or other financial institution and the transfer is as contemplated by, or pursuant to, any mortgage or charge of shares or any call or other share option granted in favour of [l] bank or other financial institution; or
|
2
|
where such transfer is by or on behalf of a bank or financial institution or any nominee of a bank or financial institution in favour of any third party upon disposal or realisation of shares following the bank having become entitled to exercise or enforce its rights under any such mortgage, charge and/or call or other option
|
EXECUTED as a DEED | ) |
By FEMCARE DISTRIBUTION LIMITED | ) |
) | |
acting by:-
|
) /s/ Paul O. Richins
|
Director
|
|
in the presence of a witness:
|
) /s/ Kevin L. Cornwell
|
Name of witness:
|
Kevin L. Cornwell
|
EXECUTED as a DEED | ) |
By JPMORGAN CHASE BANK, N.A. | ) |
) | |
acting by:-
|
) /s/ Lynn Goodale
|
Authorised Signatory
|
|
DATED
|
18 March 2011
|
CHARGE OVER SECURITIES
|
|
FEMCARE (HOLDINGS) LIMITED (the Chargor)
JPMORGAN CHASE BANK, N.A. as Lender
|
(1)
(2)
|
Ref: KH06/RL01
Burges Salmon LLP
www.burges-salmon.com
Tel: +44 (0)117 902 7253
Fax: +44 (0)117 902 4400
|
![]() |
Clause
|
Heading
|
Page
|
1
|
DEFINITIONS AND INTERPRETATION
|
1
|
2
|
COVENANT TO PAY
|
4
|
3
|
CHARGE
|
4
|
4
|
REPRESENTATIONS AND WARRANTIES
|
4
|
5
|
UNDERTAKINGS
|
5
|
6
|
FURTHER ASSURANCE
|
7
|
7
|
DEPOSIT OF DOCUMENTS
|
7
|
8
|
RIGHTS
|
7
|
9
|
CERTAIN POWERS OF THE LENDER
|
8
|
10
|
APPOINTMENT AND POWERS OF RECEIVER
|
9
|
11
|
APPLICATION OF PROCEEDS AND PROTECTION OF PURCHASERS
|
12
|
12
|
INDEMNITIES; COSTS AND EXPENSES
|
13
|
13
|
POWER OF ATTORNEY
|
14
|
14
|
CONTINUING SECURITY AND OTHER MATTERS
|
15
|
15
|
RELEASE
|
16
|
16
|
LIABILITY OF THE CHARGOR
|
17
|
17
|
SET OFF
|
18
|
18
|
MISCELLANEOUS
|
19
|
19
|
NOTICES
|
21
|
20
|
TRANSFERS BY THE LENDER OR THE CHARGOR
|
22
|
21
|
COUNTERPARTS
|
23
|
22
|
THIRD PARTIES
|
23
|
23
|
LAW
|
23
|
Schedule 1
|
24
|
|
Part A - Form of written resolution to amend articles of association
|
24
|
|
Part B - Filing print of written resolutions to file at Companies House
|
27
|
THIS DEED is dated |
March 18 2011 and made
|
(1)
|
FEMCARE (HOLDINGS) LIMITED a company incorporated in England and Wales (Registered No. 03788956) whose registered office is at Stuart Court, Spursholt Place, Salisbury Road, Romsey, Hampshire SO51 6DJ (the "Chargor"); and
|
(2)
|
JPMORGAN CHASE BANK, N.A. (the "Lender").
|
1
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
|
(a)
|
all of the securities issued share capital of the Issuer;
|
|
(b)
|
any further securities substituted or added from time to time pursuant to the provisions of this Deed;
|
|
(c)
|
any additional shares in the issued share capital of the Issuer in the future legally or beneficially owned by the Chargor;
|
|
(d)
|
any Securities Rights relating to the Charged Shares;
|
|
(e)
|
any proceeds, money, dividends, interest and other distributions, return of capital, marketable securities, accretions rights, benefits, or other property whatsoever now or in the future declared, payable or otherwise distributable in respect of the Charged Shares or the Securities Rights, whether by reason of a payment of a dividend, the making of a distribution of any kind, a rights issue, allotment, offer, conversion, exchange, substitution, consolidation, sub-division, redemption, pre-emption, sale, option, bonus, capitalisation, warrant, cancellation, re-classification, reconstruction, amalgamation, winding up or otherwise, in each case relating to the Charged Shares;
|
1.2
|
Definitions in Finance Documents
|
1.3
|
Successors and assigns
|
1.4
|
Headings
|
1.5
|
Construction of certain terms
|
|
(a)
|
references to clauses and schedules are to be construed as references to the clauses of and schedules to this Deed unless expressly stated otherwise;
|
|
(b)
|
reference to (or to any specified provision of) this Deed, any Finance Document or any other document shall be construed as references to this Deed, any Finance Document that provision or that document as in force for the time being and as amended, varied, supplemented or restated in accordance with the terms thereof or, as the case may be, with the agreement of the relevant parties;
|
|
(c)
|
words importing the plural shall include the singular and vice versa;
|
|
(d)
|
references to a person shall be construed as including references to an individual, firm, company, corporation, unincorporated body of persons, trust, partnership and limited liability partnership or any state or any agency thereof;
|
|
(e)
|
an Event of Default is "continuing" if it has not been expressly waived in writing by the Lender; and
|
|
(f)
|
references to statutory provisions shall be construed as references to those provisions as replaced, amended or re-enacted from time to time and all regulations made thereunder from time to time.
|
1.6
|
Effect as a deed
|
2
|
COVENANT TO PAY
|
3
|
CHARGE
|
4
|
REPRESENTATIONS AND WARRANTIES
|
4.1
|
Representations and warranties
|
|
(a)
|
Approvals
|
|
(i)
|
That all necessary approvals and consents (whether governmental or otherwise) in relation to the making, performance and validity of this Deed and the transactions contemplated by this Deed have been obtained and remain in full force and effect;
|
|
(ii)
|
That the security created by this Deed does not contravene or result in any of the provisions of its memorandum and articles of association; and
|
|
(iii)
|
That this Deed does not and will not conflict with or result in any breach or constitute a default under any agreement, instrument or obligation to which the Chargor is a party or by which it is bound.
|
|
(b)
|
Security valid
|
|
(c)
|
Title to assets
|
|
(d)
|
Existing security and Disposal
|
|
(i)
|
That no Security exists on or over the Securities and it has not entered into any agreement to grant any Security over the Securities; and
|
|
(ii)
|
That it has not sold, transferred, lend, assigned, parted with its interest in, disposed of, granted any option in respect of or otherwise dealt with any of its rights, title and interest in and to the Securities, or agreed to do any of the foregoing.
|
|
(e)
|
Securities
|
5
|
UNDERTAKINGS
|
5.1
|
Obligations
|
|
(a)
|
Negative covenants
|
|
(i)
|
create or permit to subsist any Security over any of the Securities;
|
|
(ii)
|
enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, transfer, assign, lease, licence, grant an option over or otherwise dispose of any interest in any of the Securities;
|
|
(iii)
|
permit any person other than the Chargor or the Lender (or the nominees or agent of the Lender to be registered as the holder of the Securities or any part thereof; or
|
|
(iv)
|
do or cause or permit to be done anything which may in any way depreciate, jeopardise or otherwise prejudice the interest of the Lender in, or the value to the Lender of the Securities.
|
|
(b)
|
Articles of Association
|
|
(i)
|
Procure the amendment of the articles of association of each issuer of shares by way of written resolution in the form set out in Part A of Schedule 1; and
|
|
(ii)
|
Not, with the prior written consent of the Lender amend or agree to the amendment of, the memorandum or articles of association of any issuer in relation to the rights or liabilities attaching to any of the Securities.
|
|
(c)
|
Liabilities
|
|
(i)
|
Ensure that there are no monies or liabilities outstanding in respect of any of the Securities; and
|
|
(ii)
|
Punctually pay all calls, subscription monies and other monies payable on or in respect of any of the Securities and indemnify and keep indemnified the Lender and its nominees against any cost, liabilities or expenses which it or they may suffer or incur as are result of any failure by the Chargor to pay the same.
|
|
(d)
|
Information
|
|
(i)
|
Deliver to the Lender a copy of every circular, notice, report, set of accounts or other document received by the Chargor in respect of or in connection with any of the Securities promptly on receipt by the Chargor of such document; and
|
|
(ii)
|
Promptly deliver to the Lender all such information concerning the Securities as the Lender may reasonably request from time to time.
|
5.2
|
No limitation
|
5.3
|
Power to remedy
|
6
|
FURTHER ASSURANCE
|
6.1
|
Further assurance
|
7
|
DEPOSIT OF DOCUMENTS
|
7.1
|
All share certificates, warrants or other documents of title and other documentary evidence of ownership in relation to the Securities;
|
7.2
|
Duly executed undated blank stock transfer forms; and
|
7.3
|
Forms of waiver of any pre-emption rights and any other documents, consents and monies necessary to enable such transfers to be registered by the Lender.
|
8
|
RIGHTS
|
8.1
|
Rights prior to an Event of Default
|
|
(a)
|
Prior to an Event of Default that is continuing, the Chargor may continue to exercise all voting and other rights (including the right to collect dividends, interest, principal or other payments of money) relating to the Securities provided that such rights are not exercised in a way which (and the Chargor shall not permit anything which):
|
|
(i)
|
Jeopardises the security constituted by the Finance Documents;
|
|
(ii)
|
Varies the rights attaching to the Securities; or
|
|
(iii)
|
Relates to a participation in a rights issue or to receiving dividends other than in cash
|
|
(iv)
|
or concerns a merger, consolidation, allotment of shares, transfer of ownership (legal or beneficial), insolvency or matters which would otherwise be prohibited by the Finance Documents.
|
8.2
|
Rights after an Event of Default
|
|
(a)
|
Following an Event of Default that is continuing, the Lender may (without notice to or consent from the Chargor and in the Chargor's name or otherwise) exercise any rights (including the right to collect dividends, interest, principal or other payments of money) in respect of the Securities and may do anything necessary to complete any transfer form in favour of itself or otherwise.
|
|
(b)
|
The Lender shall have no duty to ensure that any dividends, interest or other money and assets or rights receivable in respect of the Securities are duly and punctually paid, received, collected or exercised when they become due and payable or exercisable, or to ensure the taking up of any (or any offer of any) stocks, shares, rights, money or other property paid, distributed, accruing or offered at any time by way of redemption, bonus, rights, reference to or otherwise in respect of the Securities.
|
9
|
CERTAIN POWERS OF THE LENDER
|
9.1
|
Subsequent Security
|
9.2
|
Settlement of accounts
|
9.3
|
Suspense accounts
|
|
(a)
|
paying all costs, charges and expenses incurred and payments made by the Lender (or the Receiver) in the course of such enforcement;
|
|
(b)
|
paying remuneration to the Receiver as and when the same becomes due and payable; and
|
|
(c)
|
paying amounts due and payable in respect of the Secured Obligations.
|
9.4
|
Financial Collateral
|
10
|
APPOINTMENT AND POWERS OF RECEIVER
|
10.1
|
Appointment
|
10.2
|
Receiver as agent
|
10.3
|
Powers of Receiver
|
|
(a)
|
Take possession
|
|
(b)
|
Dispose of assets
|
(c)
|
Voting Rights
|
|
(d)
|
Compromises and contracts
|
|
(e)
|
Legal proceedings
|
|
(f)
|
Execute documents
|
|
(g)
|
Approvals
|
|
(h)
|
Insolvency Act powers
|
|
(i)
|
Notices
|
|
(j)
|
Other powers
|
(k)
|
Lender powers
|
10.4
|
Remuneration
|
10.5
|
No liability
|
11
|
APPLICATION OF PROCEEDS AND PROTECTION OF PURCHASERS
|
11.1
|
Application of proceeds
|
|
(a)
|
in the payment of all costs, charges and expenses of and incidental to the Receiver's appointment and the payment of his remuneration;
|
|
(b)
|
in the payment and discharge of any liabilities incurred by the Receiver on the Chargor's behalf in the exercise of any of the powers of the Receiver;
|
|
(c)
|
in providing for the matters (other than the remuneration of the Receiver) specified in the first three paragraphs of section 109(8) of the Law of Property Act 1925;
|
|
(d)
|
in or towards payment of any debts or claims which are by statute payable in preference to the Secured Obligations but only to the extent that those debts or claims have that preference;
|
|
(e)
|
in or towards satisfaction of the Secured Obligations; and
|
|
(f)
|
any surplus shall be paid to the Chargor or any other person who may be entitled to it.
|
11.2
|
Protection of purchasers
|
|
(a)
|
Any person (including, without limitation, any purchaser, mortgagor or mortgagee) (in this clause a "purchaser") dealing with the Lender may assume without inquiry that:
|
|
(i)
|
some part of the Secured Obligations has become due;
|
|
(ii)
|
a demand for such Secured Obligations has been duly made; and
|
|
(iii)
|
such Secured Obligations have become due within the meaning of section 101 of the Law of Property Act 1925.
|
|
(b)
|
No purchaser dealing with the Receiver or the Lender is to be concerned to enquire whether any power exercised or purported to be exercised by the Receiver or the Lender has become exercisable, or as to the propriety or regularity of any sale by, or other dealing with, the Receiver or the Lender. Any such sale or dealing is deemed to be within the powers conferred by this Deed and to be valid and effective accordingly. All the protection to purchasers contained in section 104 and section 107 of the Law of Property Act 1925 and section 42(3) of the Insolvency Act 1986 apply to any purchaser.
|
12
|
INDEMNITIES; COSTS AND EXPENSES
|
12.1
|
Enforcement costs
|
12.2
|
No liability as mortgagee in possession
|
12.3
|
Indemnity from Securities
|
|
(a)
|
anything done or omitted in the exercise or purported exercise of the powers contained in this Deed; or
|
|
(b)
|
any breach by the Chargor of any of its obligations under this Deed;
|
12.4
|
Value Added Tax
|
12.5
|
Challenge of Deed
|
13
|
POWER OF ATTORNEY
|
13.1
|
Power of attorney
|
|
(a)
|
to execute and complete any documents or instruments which the Lender or such Receiver may require for perfecting the title of the Lender to the Securities or for vesting the same in the Lender, its nominees or any purchaser;
|
|
(b)
|
to sign, execute, seal and deliver and otherwise perfect any further security document referred to in clause 6 (Further Assurance); and
|
|
(c)
|
otherwise generally to sign, seal, execute and deliver all deeds, assurances, agreements and documents and to do all acts and things which may be required for the full exercise of all or any of the powers conferred on the Lender or a Receiver under this Deed or which may be deemed expedient by the Lender or a Receiver in connection with any disposition, realisation or getting in by the Lender or such Receiver of the Securities or any part thereof or in connection with any other exercise of any power under this Deed.
|
13.2
|
Ratification
|
14
|
CONTINUING SECURITY AND OTHER MATTERS
|
14.1
|
Continuing security
|
|
(a)
|
secure the ultimate balance from time to time owing to the Lender by the Chargor and shall be a continuing security notwithstanding any settlement of account or other matter whatsoever;
|
|
(b)
|
be in addition to, and not prejudice or affect, any present or future Collateral Instrument, Security, right or remedy held by or available to the Lender;
|
|
(c)
|
not merge with or be in any way prejudiced or affected by the existence of any such Collateral Instruments, Security, rights or remedies or by the same being or becoming wholly or in part void, voidable or unenforceable on any ground whatsoever or by the Lender dealing with, exchanging, releasing, varying or failing to perfect or enforce any of the same or giving time for payment or indulgence or compounding with any other person liable;
|
|
(d)
|
not be discharged or affected by the incapacity or any change in the name of the Chargor or any other person liable;
|
|
(e)
|
not be discharged or affected by the Security Trustee granting any time, indulgence or concession to, or compounding with, discharging, releasing or varying the liability of the Chargor or any other person liable or renewing, determining, varying or increasing any accommodation, facility or transaction or otherwise dealing with the same in any manner whatsoever or concurring in, accepting or varying any compromise, arrangement or settlement or omitting to claim or enforce payment from the Chargor or any other person liable;
|
|
(f)
|
not be discharged or affected by any act or omission which would not have discharged or affected the liability of any or all of the Chargor had it been a principal debtor instead of a surety or by anything done or omitted which but for this provision might operate to exonerate the Chargor;
|
|
(g)
|
not be discharged or affected by any failure of, or defect in, any agreement given by or on behalf of the Chargor in respect of any Secured Obligations nor by any legal limitation in any matter in respect of any Secured Obligations or by any other fact or circumstances (whether known or not to the Chargor or the Lender) as a result of which any Secured Obligations may be rendered illegal, void or unenforceable by the Lender; and
|
|
(h)
|
remain binding on the Chargor notwithstanding any amalgamation, reconstruction, reorganisation, merger, sale or transfer by or involving the Lender or assets of the Lender and for this purpose this Deed and all rights conferred on the Lender under it may be assigned or transferred by the Lender accordingly.
|
14.2
|
Collateral Instruments
|
15
|
RELEASE
|
15.1
|
Release
|
|
(a)
|
If the Lender is satisfied that all the Secured Obligations have been unconditionally and irrevocably paid or discharged in full and the Lender has no further liability or obligation under any Finance Document, the Lender will, at the request and cost of the Chargor, discharge this Deed.
|
|
(b)
|
Any release, discharge or settlement between the Chargor and the Lender shall be conditional upon no security, disposition or payment to the Lender by the Chargor or any other person being void, set aside or ordered to be refunded pursuant to any enactment or law relating to liquidation, administration or insolvency or for any other reason whatsoever and if such condition shall not be fulfilled, the Lender shall be entitled to enforce this Deed subsequently as if such release, discharge or settlement had not occurred and any such payment had not been made.
|
16
|
LIABILITY OF THE CHARGOR
|
16.1
|
Limited Recourse
|
16.2
|
Charge not to be affected
|
|
(a)
|
any time, waiver or consent granted to, or composition with, the Chargor, or other person;
|
|
(b)
|
the release of the Chargor, or any other person under the terms of any composition or arrangement with any creditor of any member of the Chargor;
|
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, the Chargor, or other person or any non-presentation or non observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Chargor, or any other person;
|
|
(e)
|
any amendment (however fundamental) or replacement of a Finance Document or any other document or security;
|
|
(f)
|
any assignment, transfer or novation by the Lender of its rights and/or obligations under the Finance Documents;
|
|
(g)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security;
|
|
(h)
|
any insolvency or similar proceedings; or
|
|
(i)
|
any other act or omission which but for this provision might have discharged or otherwise prejudiced or affected the liability of the Chargor.
|
16.3
|
Immediate Recourse
|
|
(a)
|
enforce any security or other right; or
|
|
(b)
|
claim any payment from or otherwise proceed against any other person
|
17
|
SET-OFF
|
17.1
|
Set-off
|
|
(a)
|
set off any amounts owed by the Lender to it in or towards satisfaction of the Secured Obligations (which shall be in addition to and without prejudice to such rights of set-off, combination, lien and other rights whatsoever conferred on the Lender by law or under this Deed); and
|
|
(b)
|
transfer any sum or sums standing to the credit of any accounts of the Chargor with the Lender of whatever nature and in whatever currency denominated, in or towards satisfaction of any sums due and payable from the Chargor to the Lender under this Deed or in or towards satisfaction of the Secured Obligations.
|
17.2
|
Additional rights
|
17.3
|
Waiver
|
18
|
MISCELLANEOUS
|
18.1
|
Remedies cumulative
|
18.2
|
Successors and assigns
|
18.3
|
Reorganisation of the Lender
|
18.4
|
Unfettered discretion
|
18.5
|
Provisions severable
|
|
(a)
|
Each of the provisions of this Deed is severable and distinct from the others and if at any time one or more of such provisions is or becomes invalid, illegal or unenforceable the validity, legality and enforceability of the remaining provisions of this Deed shall not in any way be affected or impaired thereby.
|
|
(b)
|
If any invalid or unenforceable clause (or part of a clause) would not be invalid or unenforceable if its drafting or effect were modified in any way, the Chargor agrees that the Lender can require such clause to be modified so as to be valid and enforceable.
|
18.6
|
Preservation of rights
|
18.7
|
Set-aside Payments
|
18.8
|
Redeeming prior security
|
18.9
|
Settlement of accounts
|
18.10
|
Trust period
|
19
|
NOTICES
|
19.1
|
Method
|
19.2
|
Delivery
|
(a)
|
Lender:
|
||
Address:
|
|||
Attention:
|
Paul Hogan
|
||
Fax No:
|
|||
Chargor:
|
Femcare (Holdings) Limited
|
||
Address:
|
Stuart Court, Spursholt Place, Salisbury Road
|
||
Romsey, Hampshire SO51 6DJ
|
|||
Attention:
|
John Willis
|
||
Fax No:
|
19.3
|
Deemed receipt
|
|
(a)
|
Any notice or other communication given by the Lender shall be deemed to have been received:
|
|
(i)
|
in the case of a notice given by hand, at the time of day of actual delivery;
|
|
(ii)
|
if sent by fax, with a confirmed receipt of transmission from the receiving machine, on the day on which transmitted; and
|
|
(iii)
|
if posted, by 10.00 am on the second Business Day following the day on which it was despatched by first class mail postage prepaid
|
|
(b)
|
Any notice or other communication given to the Lender shall be deemed to have been given only on actual receipt.
|
19.4
|
Notices conclusive
|
20
|
TRANSFERS BY THE LENDER OR THE CHARGOR
|
20.1
|
Restriction on the Chargor
|
20.2
|
The Lender
|
|
(a)
|
The Lender may at any time sell, assign, novate, securitise or otherwise transfer all or any part of its rights or obligations under this Deed (a "Transfer") to any person at any time (a "Transferee"). The Lender may, and the Chargor consents to, the disclosure by the Lender of any information and documentation concerning the Chargor to any prospective Transferee.
|
|
(b)
|
If there is a Transfer by the Lender the Chargor will be bound to the Transferee and the rights and obligations of the Chargor under this Deed will remain the same. The Transferee will have the same powers, rights, benefits and obligations of the Lender to the extent that they are sold, assigned, novated or otherwise transferred to the Transferee and the outgoing Lender will be released from its obligations to the Chargor to the extent that those obligations are assumed by the Transferee. The Chargor will enter into all documents necessary to give effect to any such Transfer.
|
21
|
COUNTERPARTS
|
22
|
THIRD PARTIES
|
23
|
LAW
|
23.1
|
English law
|
PRIVATE COMPANY LIMITED BY SHARES
|
Circulation Date [of first copy]
[l] 20[l]
|
24
|
where such transfer is in favour of a bank or other financial institution or any nominee of a bank or other financial institution and the transfer is as contemplated by, or pursuant to, any mortgage or charge of shares or any call or other share option granted in favour of such bank or financial institution; or
|
25
|
where such transfer is by or on behalf of a bank or financial institution or any nominee of a bank or financial institution in favour of any third party upon disposal or realisation
|
|
of shares following the bank having become entitled to exercise or enforce its rights under any such mortgage, charge and/or call or other option
|
1
|
If you agree to the proposed Written Resolution please sign and date this document overleaf on the dotted line where indicated and return it to the Company using one of the following methods, in each case by no later than 5pm the date 28 days after the Circulation Date stated overleaf:
|
1.1
|
by hand or by post to [the Company's registered office at [l]]
|
1.2
|
[by electronic mail addressed to [l]]
|
2
|
If you do not agree to the Written Resolution you do not need to do anything. You will not be deemed to agree if you fail to reply.
|
3
|
The Written Resolution will lapse if the agreement of the required majority of eligible members is not received by the Company by 5pm on the date 28 days after the Circulation Date stated overleaf. If the Company does not receive this signed document from you by this date and time it will not be counted in determining whether the Written Resolution is passed.
|
4
|
The Written Resolution is passed on the date and time that the Company receives the agreement of the required majority of eligible members. The required majority for a Special Resolution is eligible members representing not less than 75% of the total voting rights of eligible members.
|
5
|
You may not revoke your agreement to the Written Resolution once you have signed and returned this document to the Company.
|
6
|
If you are signing this document on behalf of a person under a power of attorney or other authority please send a copy of the relevant power of attorney or authority when returning this document.
|
PRIVATE COMPANY LIMITED BY SHARES
|
PASSED ON : [l] 20[l]
|
1
|
where such transfer is in favour of a bank or other financial institution or any nominee of a bank or other financial institution and the transfer is as contemplated by, or pursuant to, any mortgage or charge of shares or any call or other share option granted in favour of [l] bank or other financial institution; or
|
2
|
where such transfer is by or on behalf of a bank or financial institution or any nominee of a bank or financial institution in favour of any third party upon disposal or realisation of shares following the bank having become entitled to exercise or enforce its rights under any such mortgage, charge and/or call or other option
|
EXECUTED as a DEED
|
)
|
By FEMCARE (HOLDINGS) LIMITED
|
)
|
)
|
|
acting by:-
|
) /s/ Paul O. Richins
|
Director
|
|
in the presence of a witness:
|
) /s/ Kevin L. Cornwell
|
Name of witness:
|
Kevin L. Cornwell
|
Address:
|
|
Occupation:
|
|
LENDER
|
|
EXECUTED as a DEED
|
)
|
By JPMORGAN CHASE BANK, N.A.
|
)
|
)
|
|
acting by:-
|
) /s/ Lynn Goodale
|
Authorised Signatory
|
|
Agreement
|
||
Relating to the sale and purchase of the whole of the issued share capital of Femcare Group Limited
|
||
Dated
|
18-March-2011
|
|
Osborne Clarke
|
||
Apex Plaza
|
||
Forbury Road
|
||
Reading
|
||
RG1 1AX
|
||
Telephone +44 (0) 118 925 2004
|
||
Fax +44 (0) 118 925 2005
|
||
1.
|
Definitions and interpretation
|
1
|
2.
|
Sale and purchase
|
12
|
3.
|
Consideration
|
14
|
4.
|
Leakage
|
14
|
5.
|
Completion
|
14
|
6.
|
Escrow Amount
|
15
|
7.
|
Release of guarantee(s)
|
17
|
8.
|
Post Completion matters
|
17
|
9.
|
Warranties
|
18
|
10.
|
Tax Covenant
|
19
|
11.
|
Purchaser's remedies
|
19
|
12.
|
Limitations on liability
|
20
|
13.
|
Indemnities
|
20
|
14.
|
Protection of goodwill
|
21
|
15.
|
General
|
23
|
16.
|
Announcements
|
25
|
17.
|
Costs and expenses
|
25
|
18.
|
Payments
|
26
|
19.
|
Notices
|
26
|
20.
|
Governing law and jurisdiction
|
26
|
Schedule 1
|
27
|
|
Part 1
|
27
|
|
(The Shareholders)
|
27
|
|
Part 2
|
30
|
|
(Addresses for service)
|
30
|
|
Schedule 2
|
1
|
|
Part 1
|
1
|
|
(The Company)
|
1
|
|
(The Group Companies)
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2
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Schedule 3 (The Properties)
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9
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Part 1
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9
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(Freehold Property)
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9
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Part 2
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9
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(Leasehold Properties)
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9
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Part 3
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9
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(Tenancies)
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9
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Schedule 4
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10
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(Non Tax Warranties)
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10
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Schedule 5
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37
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(Limitations on liability)
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37
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Schedule 6
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41
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(Tax Schedule)
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41
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Part 1 (Definitions and interpretation)
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41
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Part 2 - Tax Warranties and Undertakings
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44
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Part 4 - Limitations and general
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53
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Schedule 7
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59
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(Completion obligations)
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59
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This Agreement is made on
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18 March 2011
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(1)
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The persons whose names and addresses are set out in Parts A to C (inclusive) of part 1 Schedule 1 (the "Vendors"); and
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(2)
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Utah Medical Products, Inc. whose registered office is at 7043 South 300 West, Midvale, Utah 84047 USA (the "Purchaser").
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1.
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Definitions and interpretation
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1.1
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In this Agreement, including the Background, unless a contrary intention is expressly stated, the following definitions shall apply:
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(a)
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all payments of fees, salary, emoluments (but not bonuses), the provision of benefits and reimbursement of expenses to any Vendor or its Vendor Associate in each case pursuant to the terms of the existing service or consultancy agreements Disclosed;
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(b)
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the accrual of any interest in relation to the BPE Debt;
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(c)
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the payment of the Bonuses (together with employer's national insurance contributions of £9,600 in respect of each of the Bonuses);
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(d)
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any payment made under the Compromise Agreement;
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(e)
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any payment made under the Warrant Surrender Deed.
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(a)
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£75,000 to Adam McQuilkin;
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(b)
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£75,000 to John Willis;
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(a)
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the pollution, conservation or protection of, or prevention of harm to, the Environment or health and safety of humans and animals;
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(b)
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the presence, existence, disposal, release, spillage, deposit, escape, migration or emission of any Dangerous Substance;
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(c)
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the exposure or risk of exposure of any person to any Dangerous Substance;
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(d)
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the creation or existence of any noise, odour, radiation or nuisance; or
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(e)
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the health and safety of any person, including any accidents, injuries, illnesses or diseases.
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(f)
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evidence satisfactory to the Purchaser to show that all outstanding loans between the Company and the Trustee has been repaid or written off;
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(g)
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evidence satisfactory to the Purchaser to show that any and all assets held in the EST have been distributed in accordance with the terms of the trust deed constituting the EST; and
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(h)
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a deed of termination of trust executed by the Company and the Trustee providing for the EST to be wound up in accordance with its terms.
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(a)
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Scottish Equitable Group Personal Pension Scheme (Scheme No. 62109);
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(b)
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Canada Life Pension Scheme (EPP) (Scheme No. 050162);
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(c)
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The Sun Life of Canada Executive Retirement Plan (Scheme No. ERP239700R);
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(d)
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The Sun Life of Canada Scheme;
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(e)
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The Royal and Sun Alliance Scheme (Scheme No. 1716);
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(f)
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Axa Sun Life Scheme (Scheme No. 9579725);
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(g)
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Scottish Equitable EPP Scheme;
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(h)
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Allied Dunbar Personal Pension Plan; and
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(i)
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AM Life Track Stakeholder Scheme.
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(a)
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any dividend or distribution, in each case declared, paid or made by any Group Company other than to another Group Company;
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(b)
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any other payment in respect of any share capital or other securities of any Group Company other than to another Group Company;
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(c)
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any fees and expenses incurred or to be incurred by any Group Company in connection with the transactions contemplated by this Agreement save to the extent that such fees and expenses are accrued for in the Management Accounts;
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(d)
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any payments made or future benefits granted by any Group Company to any Vendor or any of its Vendor Associates (including any related tax or national insurance contributions for which any Group Company is liable to account);
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(e)
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any assets transferred to, or liabilities assumed, indemnified or incurred for the benefit of, any Vendor or any of its Vendor Associates;
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(f)
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any waiver of all or any part of any debt or liability amount owed to any Group Company by any Vendor or any of its Vendor Associates;
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(g)
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any gratuitous or discretionary payment (including but not limited to any sale bonuses) in connection with the sale of the Shares) to any Vendor or any of its or his Vendor Associates by any Group Company;
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(h)
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any transaction or agreement entered into by any Group Company with or for the benefit of any Vendor or any of its Vendor Associates (save for the Consultancy Agreement);
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(i)
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any liabilities incurred for (including any guarantees given in relation to the liabilities of) any Vendor or for the benefit of any of its Vendor Associates; or
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(j)
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any agreement to do any of the matters referred to in any of (a) to (i) above,
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(k)
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as free, libre or open source software;
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(l)
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under a licensing or distribution arrangement that requires, as a condition of use, modification and/or distribution of such software or material, that other software incorporated into, derived from or distributed with such software or material be:
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(i)
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disclosed or distributed in source code form;
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(ii)
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licensed for the purpose of making derivative works; or
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(iii)
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redistributable at no charge; or
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(m)
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under a licensing or distribution arrangement similar to (a) or (b) including but not limited to the GNU General Public License, GNU Lesser General Public License, Mozilla Public License, the Artistic License, the Netscape Public License, the Apache License, the Sun Community Source License and the Sun Industry Standards License.
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(a)
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female surgical contraception or any tubal ligation with a device which is same in form and function as a filshie clip;
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(b)
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supra pubic catheterisation; and/or
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(c)
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basic laser fibre technology for kidney stone treatment,
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(a)
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the relevant payments made or payable by any Group Company;
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(b)
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the market value of the asset transferred by any Group Company less any consideration received for it from the Vendor and his Vendor Associates;
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(c)
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the amount of the liabilities assumed or incurred by any Group Company; or
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(d)
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the amount of debts waived or to be waived by any Group Company,
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1.2
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In this Agreement:
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(a)
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words in the singular include the plural and vice versa and words in one gender include any other gender;
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(b)
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a reference to a statute or statutory provision includes:
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(i)
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any subordinate legislation;
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(ii)
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any repealed statute or statutory provision which it re enacts (with or without modification); and
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(iii)
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any statute, statutory provision or subordinate legislation which modifies, consolidates, re enacts or supersedes it,
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(c)
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a reference to:
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(i)
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a "party" means each person as set out at the head of page 1, a reference to "parties" means all of the parties to this Agreement and, upon any succession or permitted assignment, a reference to any party shall be deemed to include a reference to that party's successors in title or permitted assignees;
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(ii)
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a "person" includes any individual, firm, corporation, body corporate, association or partnership, trust, unincorporated organisation, employee representative body, government or state or agency or department thereof, executors, administrators or successors in title (whether or not having a separate legal personality);
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(iii)
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clauses and schedules are to clauses and schedules of this Agreement and references to sub clauses and paragraphs are references to sub clauses and paragraphs of the clause or schedule in which they appear;
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(iv)
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any provision of this Agreement is to that provision as amended in accordance with the terms of this Agreement;
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(v)
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any document being "in the agreed form" means in a form which has been agreed by the parties on or before the date of this Agreement and for identification purposes initialled by them or on their behalf by their solicitors;
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(vi)
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an obligation due from any party to "indemnify" or "keep indemnified" (or words to that effect) any other party or other person(s) in relation to a particular circumstance:
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(A)
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shall be an obligation to pay on a pound for pound basis a sum equal to all losses, claims, liabilities, damages and demands suffered and all costs and expenses reasonably and properly incurred by the indemnified party or person(s) arising out of that circumstance;
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(B)
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shall include such additional amount as is necessary so as to ensure that the net receipt to the indemnified party or person(s) shall be free from the effects of any deduction in relation to Taxation; and
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(C)
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is without prejudice to any other rights and remedies the indemnified party or person(s) have under this Agreement;
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(vii)
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"writing" shall not, for the avoidance of doubt, include e mail or any other communication in electronic form, other than fax where explicitly stated and "written" shall be construed accordingly;
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(viii)
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any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing, state of affairs or thing or references to any English body, organisation, official, statute, statutory provision or EC directive, shall in each case in respect of any jurisdiction other than England or any body corporate incorporated in any such jurisdiction, be deemed to refer to and include that which most approximates in that jurisdiction to the English legal term, body, organisation, official or English statute, statutory provision or EC directive; and
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(ix)
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any English statute, statutory provision or EC directive shall in each case in respect of any jurisdiction other than England or a company in any such jurisdiction, notwithstanding sub clause 1.2(c)(viii) (Definitions and interpretation), be deemed to include a reference to all Applicable Law relating to the same subject matter as that English statute, statutory provision or EC directive;
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(d)
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save as expressly defined or otherwise set out in sub clause 1.1 (Definitions and interpretation) or this sub clause 1.2 (Definitions and interpretation) or in any other provision of this Agreement, words and expressions which are defined in the CA2006 shall have the meaning attributed to them in the CA2006 when used in this Agreement;
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(e)
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"sterling" and the sign "£" means pounds sterling in the currency of the United Kingdom;
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(f)
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the table of contents and headings are for convenience only and shall not affect the interpretation of this Agreement;
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(g)
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general words shall not be given a restrictive meaning:
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(i)
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if they are introduced by the word "other" or "including" or similar words by reason of the fact that they are preceded by words indicating a particular class of act, matter or thing; or
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(ii)
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by reason of the fact that they are followed by particular examples intended to be embraced by those general words;
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(h)
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where any statement is qualified by the expression "so far as the Warrantors are aware" or "to the best of the Warrantors' knowledge and belief" or any similar expression, it shall be deemed to include an additional statement that it has been made after due and careful enquiry of:
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(i)
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each Warrantor, Terry Watson, each Other Shareholder, all relevant employees and directors of the Group and Pinsent Masons LLP in respect of each Warranty;
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(ii)
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Deloitte in respect of the Tax Warranties; and
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(iii)
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any trustee or similar person responsible for the operation of any the Pension Schemes (but excluding Scottish Widows), in respect of the Warranties set out in paragraph 48 Pensions) of Schedule 4 (Non Tax Warranties) only;
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(i)
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where any liability or obligation is undertaken by two or more Vendors or Warrantors or any combination of them, the liability or obligation of each of them shall be joint and several, unless expressly stated to the contrary save that any liability or obligation undertaken by the BPE Vendors shall be deemed to be for themselves only in relation to those Shares registered in their name; and
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(j)
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where any provision is qualified or phrased by reference to the ordinary course of business, such reference shall be construed as meaning the customary course of trading for the business of the Group in the country concerned.
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2.
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Sale and purchase
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2.1
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Subject to the provisions of this Agreement, the Vendors shall sell, and the Purchaser shall purchase, the Shares with effect from Completion.
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2.2
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The Shares shall be sold with the benefit of all rights attaching to or accruing to them as at the date of Completion including all dividends or other distributions declared, paid or made by the Company on or after the date of Completion.
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2.3
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The Purchaser shall not be obliged to complete the purchase of the Shares unless the sale and purchase of all the Shares is completed simultaneously.
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2.4
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Each of the Vendors hereby irrevocably and unconditionally waives all rights of pre emption or similar rights over any of the Shares conferred on him by either the articles of association of the Company or in any other way.
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2.5
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Each of the Vendors for himself or itself only hereby irrevocably and unconditionally waives all and any claims they have against any Group Company as at Completion and shall indemnify and keep indemnified each Group Company in respect of all and any claims that it or his Vendor Associates may have against any Group Company as at Completion. Notwithstanding the generality of the above, each Vendor confirms that the performance of any of its Vendor Agreements by a Group Company at any time prior to the date of the agreement is or was in accordance with its terms and no act or omission of a Group Company has caused it to be in default of any such Vendor Agreement.
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2.6
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Each of the Vendors covenants to the Purchaser for himself or itself only that:
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(a)
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the Shares set out opposite that Vendor's name in Parts A to C of Schedule 1 (The Vendors) are fully paid up (or credited as fully paid);
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(b)
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such Vendor is the sole legal and beneficial owner of such Shares and that it has and shall have pursuant to this Agreement the right to transfer the legal and beneficial title to such Shares on the terms of this Agreement and without the consent of any third party and that they are transferred free from any Encumbrance;
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(c)
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such Vendor has the full power and authority to enter into and perform this Agreement and each of the documents to be executed by it and delivered pursuant to this Agreement, each of which shall constitute valid and binding obligations on it; and
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(d)
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(i)
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in respect of any private individual Vendor, such Vendor is not bankrupt, has not proposed a voluntary arrangement nor has made or proposed any arrangement or composition with his creditors or any class of his creditors and (to the fullest extent applicable) the Warranties set out at paragraph 8 (Insolvency) of Schedule 4 (Non Tax Warranties) shall be deemed to be repeated here but in respect of such Vendor, instead of the Company; or
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(ii)
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in respect of any corporate Vendor, such Vendor is not insolvent and has not had a petition in respect of its winding up presented and the Warranties set out at paragraph 8 (Insolvency) of Schedule 4 (Non Tax Warranties) shall be deemed to be repeated here but in respect of such Vendor, instead of the Company.
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2.7
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The Warrantors severally covenant to the Purchaser that:
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(a)
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the Shares constitute the whole of the allotted and issued share capital of the Company; and
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(b)
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there is no agreement or commitment outstanding under which the Company or any Group Company is or may be obliged to allot or issue any shares in the capital of the Company or any Group Company or under which any person is or may be entitled to the allotment, issue or transfer of any shares in the capital of the Company or any Group Company.
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2.8
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None of the covenants set out in sub clause 2.6 (Sale and purchase) is subject to any qualification whatsoever and no letter, document or other communication shall be deemed to constitute a disclosure against these covenants and each Vendor hereby agrees to indemnify and keep indemnified the Purchaser, or at the Purchaser's direction any Group Company, against any breach of such covenants by that Vendor.
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2.9
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Part 1, Law of Property (Miscellaneous Provisions) Act 1994 shall not apply to any disposition of the Shares made under or pursuant to this Agreement.
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3.
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Consideration
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3.1
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The Initial Cash Consideration is to be satisfied as follows:
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(a)
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by the payment by the Purchaser of £288,496.36 in accordance with clause 5 (Completion) and the Legacy Shareholders SPAs; and
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(b)
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by the payment by the Purchaser of the Escrow Amount into the Escrow Account in accordance with clause 5 (Completion).
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3.2
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The Initial Consideration, and each Shareholder's contribution to the Escrow Amount, shall be apportioned between the Shareholders in accordance with Part 1 of Schedule 1 (The Shareholders).
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3.3
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Any payment made by the Purchaser pursuant to paragraph 8.5 of part 4 of Schedule 6 shall be treated as Consideration.
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4.
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Leakage
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4.1
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Each Vendor for himself or itself only undertakes to the Purchaser to pay to the relevant Group Company immediately on demand an amount equal to the Value of any Leakage received by or for the benefit of him or it or any Vendor Associate of such Vendor.
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4.2
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Each Vendor undertakes to pay to the Purchaser on demand a sum equal to all costs (including all properly incurred legal costs), expenses or other liabilities which the Purchaser may incur either before or after the commencement of any action in connection with:
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(a)
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any Leakage received by or for the benefit of him or it or any Vendor Associate of such Vendor;
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(b)
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any legal proceedings (including, but not limited to, litigation and arbitration) including any application, in respect of any claim made against him or it pursuant to clause 4.1 above in which a judgment, decision or order is made in favour of the Purchaser; or
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(c)
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the enforcement of any such settlement or judgment.
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4.3
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If, in respect of or in connection with any claim made against a Vendor pursuant to clause 4.1, any amount payable to the Purchaser by a Vendor is subject to Taxation, the amount to be paid to the Purchaser by the Vendor shall be such as to ensure that the net amount retained by the Purchaser after such Taxation has been taken into account is equal to the full amount which would be payable to the Purchaser had the amount not been subject to Taxation.
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4.4
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Any payment by any Vendor(s) pursuant to this clause shall (to the extent possible) be treated as a pro rata reduction of the Consideration received by the relevant Vendor(s).
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5.
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Completion
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5.1
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Completion shall take place at the offices of the Purchaser's Solicitors immediately after execution of this Agreement (or on such other date, time and place as the parties may agree).
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5.2
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At Completion, the Vendors shall perform their respective obligations under this Agreement, including, without limitation, those obligations set out in sub clause 7.2 (Release of guarantee(s)) and Schedule 9 (Completion obligations).
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5.3
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When the Vendors have complied with the provisions of sub clause 5.2 (Completion), the Purchaser shall:
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(a)
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pay the Initial Cash Consideration (less the Escrow Amount) to the Vendors' Solicitors Account in accordance with clause 18 (Payments) or otherwise as in accordance with the Legacy Shareholders SPAs;
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(b)
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pay the Escrow Amount into the Escrow Account on Completion or as soon as practicable after such Escrow Account has been opened, whichever is later (to be held in accordance with clause 6 (Escrow); and
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(c)
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take such steps as may be required to enable the relevant Group Company to repay or redeem (as applicable) the following in full:
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(i)
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the Bank Debt;
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(ii)
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the BPE Debt; and
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(iii)
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the Loan Notes.
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5.4
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Each party to this Agreement undertakes to indemnify and keep indemnified the others in respect of any document which such indemnifying party is obliged to deliver under this Agreement being unauthorised, invalid or for any other reason ineffective.
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6.
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Escrow Amount
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6.1
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On Completion:
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(a)
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the Warrantors' Representative and the Purchaser shall enter into the Escrow Account Instruction Letter;
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(b)
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the Warrantors' Representative shall procure that the Vendors' Solicitors execute the Escrow Account Instruction Letter and deliver to the Bank any necessary documents pursuant to that Escrow Account Instruction Letter; and
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(c)
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the Purchaser shall procure that the Purchaser's Solicitors execute the Escrow Account Instruction Letter and deliver to the Bank any necessary documents pursuant to that Escrow Account Instruction Letter.
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6.2
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The parties undertake to procure that the Stakeholders operate the Escrow Account in accordance with the provisions of this clause 6 and in accordance with the Escrow Account Instruction Letter.
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6.3
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The Warrantors' Representative and the Purchaser irrevocably undertake only to instruct the Stakeholders pursuant to the Escrow Account Instruction Letter as follows:
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(a)
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to instruct the Escrow Bank to pay to the Purchaser (or as it may direct) out of the Escrow Account, (as soon as reasonably practicable following notification that it is payable) the amount (to the extent it can be met by the sum standing to the credit of the Escrow Account) admitted by the Vendors' Representatives or determined or awarded by any court of competent jurisdiction or in any arbitration (including any costs which may have been admitted, determined or awarded in favour of the Purchaser) from which there is no further appeal, the time period for appeal has lapsed or the right to appeal has been waived ("finally determined"), as being due to the Purchaser in respect of any Claim in respect of the provisions of this Agreement together with interest earned on it to the date of payment;
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(b)
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subject to paragraph (c):
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(i)
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on the First Escrow Release Date to instruct the Bank to pay 25% of the then current balance from the Escrow Account; and
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(ii)
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on the Second Escrow Release Date to instruct the Bank to release the whole of the monies then standing to the credit of the Escrow Account, including interest accrued on the Escrow Amount and any other monies deposited in the Escrow Account pursuant to the terms of the Tax Schedule,
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(c)
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subject to paragraph (d), to retain in the Escrow Account any amount notified to the Warrantors' Representative prior to the relevant First Escrow Release Date or the Second Escrow Release Date (as applicable) as being claimed by the Purchaser in respect of any Claim pending it being finally determined provided that (i) if the Warrantor's Representative notifies the Purchaser in writing prior to the First Escrow Release Date or the Second Escrow Release Date (as applicable) that the amount to be retained in the Escrow Account is not acceptable, the provisions of clause 6.4 shall apply and (ii) the Warrantors would be liable for that Claim at the First Escrow Release Date or the Second Escrow Release Date, as appropriate (having regard to the provisions of clause 12 (Limitations on liability)); and
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(d)
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to instruct the Escrow Bank to pay out of the Escrow Account as soon as practicable to the Vendors' Solicitors who are irrevocably authorised to receive it (and such instruction to the Bank shall be a valid discharge by the Stakeholders), any monies retained pursuant to paragraph (c) if legal proceedings have not been commenced by a claim form being issued and served on the Warrantors' Representative in respect of the Claim within the period of 6 months from the date of notification issued pursuant to paragraph (c). For the avoidance of doubt, the issue of legal proceedings shall mean the issue of a claim form or any equivalent originating process formally commencing proceedings in any court of competent jurisdiction and proceedings will be deemed to be served where service has been properly effected in accordance with one of the methods prescribed by the court having jurisdiction;
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6.4
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In the event of notification by the Warrantors' Representative pursuant to sub clause 6.3(c) the following provisions shall apply:
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(a)
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the Purchaser shall refer the relevant Claim to counsel (of at least 10 year's call) ("Counsel");
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(b)
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Counsel shall determine whether the Claim in respect of which the retention is proposed to be made is bona fide and whether the amount proposed to be retained in respect of such Claim is a reasonable estimate by the Purchaser of the Warrantors' liability in respect of such Claim;
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(c)
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if Counsel decides that the amount proposed to be retained is excessive (and "excessive" shall mean at least 10% more than the amount estimated by Counsel), an amount equal to the amount in excess of the Counsel's reasonable estimate of the quantum of the claim shall be released from the Escrow Account within 5 Business Days of such determination;
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(d)
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Counsel shall act as an expert and not as an arbitrator and his or her opinion as regards the matters in question shall be final and binding on the parties. For the avoidance of doubt, this shall only relate to the Purchaser's entitlement to retain funds in the Escrow Account and shall not be binding in relation to the amount which may be payable by the Warrantors in respect of any Claim; and
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(e)
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the expenses incurred in connection with reference to the Counsel shall be borne equally by the Purchaser (on the one hand) and the Warrantors (on the other hand) unless Counsel determines that the Purchaser has proposed to retain funds that are excessive (as defined in paragraph (c) above), in which case the Purchaser shall pay the cost of such Counsel.
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6.5
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The payment to the Purchaser of any sums out of the Escrow Account in respect of any claim shall not prejudice its right to recover any further sum due to it for that or any other claim not satisfied by the Escrow Amount.
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6.6
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Where any amounts of the Escrow Amount have been paid to the Vendors Solicitors pursuant to this clause, the Vendors shall procure that the Vendors Solicitors shall distribute such amounts to the Shareholders according to their proportionate entitlement to the Consideration set out opposite their name in Schedule 1.
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7.
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Release of guarantee(s)
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7.1
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The Purchaser shall use all reasonable endeavours (short of actual payment of any monies or the substitution of the relevant Vendor by any person other than the Purchaser or any Purchaser Group Company) after Completion to procure the release of the Vendors as soon as practicable from any guarantee, suretyship, indemnity, counter indemnity, bonding liability, letter of comfort or support or similar obligation given by them for the benefit of the Group (subject to such guarantee, suretyship, indemnity, counter indemnity, bonding liability, letter of comfort or support or similar obligation having been Disclosed) forthwith upon being notified of its existence or otherwise becoming aware of it.
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7.2
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On Completion the Vendors shall:
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(a)
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release or procure the release of each Group Company from any guarantee, suretyship, indemnity, counter indemnity, bonding liability, letter of comfort or support or similar obligation given by the any Group Company to any person in respect of any liabilities or obligations of any Vendor or any Vendor Associate and shall indemnify and keep indemnified the Purchaser and each Group Company in relation to any such guarantee suretyship, indemnity, counter indemnity, bonding liability, letter of comfort or support or similar obligation; and
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(b)
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save as otherwise expressly provided in this Agreement, be deemed to have irrevocably and unconditionally released each Group Company from all other liabilities to any Vendor or any Vendor Associate.
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8.
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Post Completion matters
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8.1
|
Each Vendor for himself only in relation to the Shares which he is selling to the Purchaser irrevocably undertakes to the Purchaser that, for as long as it remains the registered holders of the Shares after Completion, he shall:
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(a)
|
hold the Shares and any dividends and other moneys or assets paid or distributed in respect of them and all rights arising out of or in connection with them from Completion in trust for the Purchaser; and
|
|
(b)
|
deal with the Shares and all such dividends, distributions and rights as the Purchaser may direct from Completion until the date on which the Purchaser or its nominee is entered in the register of members of the Company as the holder of the Shares.
|
8.2
|
Each Vendor irrevocably and unconditionally appoints the Purchaser as its attorney to do and perform any acts and things which the Purchaser in its absolute discretion considers necessary or desirable in connection with the Shares from Completion until the date on which the Purchaser or its nominee is entered in the register of members of the Company as the holder of the Shares, including (without prejudice to the generality of the foregoing):
|
|
(a)
|
exercising any rights, privileges or duties attaching to the Shares including, without limitation, receiving notices of, and attending and voting at, all meetings of the shareholders of the Company and meetings of the members of any particular class of the Shares and all or any adjournment of such meetings; and
|
|
(b)
|
completing and delivering any consents, proxies or resolution and any other documents required to be signed by a Vendor as a member of the Company from Completion until the date on which the Purchaser or its nominee is entered in the register of members of the Company as the holder of the Shares.
|
8.3
|
For the purpose of sub clause 8.2 (Post Completion matters), each Vendor irrevocably and unconditionally authorises the Company from Completion to send any notices in respect of its shareholding to the Purchaser and the Company shall not be required also to send such notices the relevant Vendor.
|
8.4
|
Each Warrantor undertakes to disclose in writing to the Purchaser anything which he is aware is likely to give rise to a Claim or any other claim under this Agreement or which is inconsistent with the contents of the Disclosure Letter promptly (and in any case within one week) when it comes to the notice of any of them after Completion.
|
8.5
|
In the event that the EST Termination Arrangements are not complete at Completion then:
|
|
(a)
|
the Warrantors undertake to procure that as soon as reasonably practicable following Completion the Company take all such actions within its power necessary to complete and procure that the Trustee completes the EST Termination Arrangements; and
|
|
(b)
|
the Purchaser shall allow the Warrantors to take all such necessary steps and provide the necessary authorisations to the Trustee to allow the Warrantors to act on its behalf if required,
|
8.6
|
In the event that upon Completion Praxis Trustees Limited has not retired as trustee of the EBT and been replaced by Andrew Tiplady and Peter McQuilkin then the provisions of clause 8.5 shall apply mutatis mutandis to such retirement and replacement.
|
9.
|
Warranties
|
9.1
|
The Warrantors jointly and severally warrants to the Purchaser in the terms of the Warranties at the date of this Agreement.
|
9.2
|
The Warrantors acknowledge that they give the Warranties with the intention of inducing the Purchaser to enter into this Agreement and that the Purchaser does so in reliance on the Warranties.
|
9.3
|
Each of the Warranties is a separate and independent Warranty and shall not be limited by reference to any other Warranty or anything in this Agreement (save to the extent expressly provided to the contrary in Schedule 5 (Limitations on liability) or paragraph 6 of the Tax Schedule).
|
9.4
|
Unless the context otherwise permits or requires, each of the Warranties given by or relating to the Company shall be deemed to be given by or relate to all Group Companies (or each or any of them as the context requires) and any reference to the Company in a Warranty shall be deemed to be a reference to all Group Companies (or each or any of them as the context requires).
|
9.5
|
The only warranty given in respect of a claim for product liability is the warranty set out in paragraph 22 of Schedule 4.
|
10.
|
Tax Covenant
|
11.
|
Purchaser's remedies
|
11.1
|
The rights and remedies of the Purchaser in respect of any breach of the Warranties or the Tax Covenant or of any other provision of this Agreement shall not be affected by Completion or by any investigation made, or which could have been made, by it or on its behalf into the affairs of the Group Companies or by any other event or matter whatsoever, except by a specific and duly authorised written waiver or release by the Purchaser.
|
11.2
|
If any Claim or claim under any other provision of this Agreement is made, save in the event of fraud, no Vendor shall make any claim against any Group Company or any director or employee of any Group Company (each a "Relevant Person") on whom it may have relied before agreeing to any provisions of this Agreement or authorising any statement in the Disclosure Letter. This sub clause shall not preclude any Vendor from claiming against any other Vendor under any right of contribution or indemnity to which he may be entitled.
|
11.3
|
In the event of a Warranty Claim, without prejudice to the right of the Purchaser to claim damages on any basis available to it or to any other right or remedy available to it, the Warrantors undertake to pay on demand in cash to the Purchaser, or at the Purchaser's direction, the relevant Group Company, a sum by way of damages as agreed between the Warrantors and the Purchaser or, in default of such agreement, as determined by order of a court of competent jurisdiction, whichever is equal to the higher of:
|
|
(a)
|
an amount sufficient to put the Group or the relevant Group Company into the position which would have existed if the Warranties had been true and accurate in all respects or not misleading when given;
|
|
(b)
|
an amount equal to the resulting diminution in value of the Shares;
|
|
(c)
|
the amount by which the assets of the Group or the relevant Group Company at the Accounts Date were less, or less valuable, or its liabilities greater, than the values at which the same were included in the Accounts or (if the Purchaser so elects) than they would have been if the Warranty concerned had been true and accurate in all respects and not misleading; and
|
|
(d)
|
the amount by which the profitability of the Group or the relevant Group Company is less, or its losses greater, than it or they would have been if the Warranty concerned had been true and accurate in all respects and not misleading, calculated on the same basis as if such reduction in profitability or increase in losses were suffered as the result of an actionable wrong done to the Group.
|
11.4
|
This sub clause applies if at any time the Purchaser makes any Warranty Claim against any Warrantor in circumstances where:
|
(a)
|
no Disclosure has been made in the Disclosure Letter; or
|
|
(b)
|
the Purchaser has no actual knowledge of the matters which could give rise to a breach of a Warranty,
|
11.5
|
The Warrantors undertake to pay to the Purchaser on demand a sum equal to all properly incurred costs (including all properly incurred legal costs), expenses or other liabilities which the Purchaser may incur either before or after the commencement of any action in connection with:
|
|
(a)
|
the settlement of any Non Tax Claim;
|
|
(b)
|
any legal proceedings (including, but not limited to, litigation and arbitration) including any application, in respect of any Non Tax Claim in which a judgment, decision or order is made in favour of the Purchaser; or
|
|
(c)
|
the enforcement of any such settlement or judgment.
|
11.6
|
Any amount paid by the Warrantors to the Purchaser in respect of any of the provisions of this Agreement shall be treated as paid to the Purchaser by way of pro rata reduction in the Consideration.
|
11.7
|
If, in respect of or in connection with any Warranty Claim, any amount payable to the Purchaser by the Warrantors is subject to Taxation, the amount to be paid to the Purchaser by the Warrantors shall be such as to ensure that the net amount retained by the Purchaser after such Taxation has been taken into account is equal to the full amount which would be payable to the Purchaser had the amount not been subject to Taxation.
|
12.
|
Limitations on liability
|
13.
|
Indemnities
|
13.1
|
The Warrantors irrevocably undertake to indemnify and keep indemnified the Purchaser:
|
|
(a)
|
in relation to any claim made by the Other Shareholders, Des Miles, Howard Beaumont and Paul Hill against a Group Company relating to the non payment of any bonus or similar payments to them in the period prior to Completion;
|
|
(b)
|
in relation to any and all liabilities of any kind whatsoever and howsoever arising in any jurisdiction whatsoever in respect of the establishment, operation or winding up of the EBT and/or the EST provided that this indemnity shall not apply to any liability arising as a result of the Purchaser's breach of clause 8.5 of this Agreement;
|
|
(c)
|
in relation to the historic termination of the sole distributor agreement between Femcare Limited and Porges SA, dated 1 November 2003 and the subsequent appointment by Femcare-Nikomed Limited of Laborie Medical Technologies Europe Limited;
|
|
(d)
|
in relation to:
|
|
(i)
|
any defects in title or ownership (whether legal or beneficial) of the Shares or any Subsidiary Shares;
|
|
(ii)
|
any defects in the transfer or allotment or issue of any of the Shares or any Subsidiary Shares;;
|
|
(iii)
|
any other defects affecting the authorised and/or issued share capital of the Company or any Group Company or causing the same to be uncertain; or
|
|
(iv)
|
any Encumbrances or other claims which may subsist or arise in connection with any of the Shares or any Subsidiary Shares; as a result of any of the matters referred to in paragraphs (i) to (iii) above,
|
|
(e)
|
in relation to:
|
|
(i)
|
any omissions to file or any errors or delays in filings of any documents, forms, information or monies at Companies House;
|
|
(ii)
|
any material omission in or material error on the face of any of the Company's statutory or other company books and records required to be kept by law or the failure of the Company to adopt any such books or records;
|
|
(iii)
|
any omission on the face of any share certificates issued by the Company; or
|
|
(iv)
|
any failure by the Company or any other person to pay any taxes, duties or levies due on any documents which relate to the Company.
|
14.
|
Protection of goodwill
|
14.1
|
In order to assure to the Purchaser the full benefit of the business and goodwill of the Group, each Warrantor and Terry Watson undertakes on his own behalf that (save as may be bona fide in fulfilling his duties as an employee of a Purchaser Group Company thereafter) he shall not directly or indirectly (whether as principal, shareholder, partner, employee, agent or otherwise), whether on his own account or in conjunction with or on behalf of any other person, do any of the following things:
|
|
(a)
|
during the Restricted Period carry on or be engaged, concerned or interested in (except as the holder of shares in a company whose shares are listed on a recognised investment exchange or overseas investment exchange (as such terms are defined in Sections 285 and 313, Financial Services and Markets Act 2000) which confer not more than 1% of the votes which could normally be cast at a general meeting of that company) any business:
|
|
(i)
|
which competes with the Restricted Business within the Territory; or
|
|
(ii)
|
which does not compete with the Restricted Business but with the intention that the Warrantor will help such business to develop female surgical contraception, tubal ligation devices, suprapubic catheterisation or basic laser fibre technology for kidney stone treatment; or
|
|
(b)
|
during the Restricted Period canvass or solicit or seek to entice away the custom of any Client or Prospective Client for the purposes of providing Restricted Business within the Territory; or
|
|
(c)
|
during the Restricted Period accept orders for the provision of Restricted Business within the Territory in respect of any Client or Prospective Client; or
|
|
(d)
|
during the Restricted Period endeavour to entice away from any Group Company or encourage to terminate his employment with any Group Company (whether or not such termination would be a breach of his contract of employment) any Senior Employee; or
|
|
(e)
|
subject to paragraph 14.2 below during the Restricted Period employ or otherwise engage any Senior Employee; or
|
|
(f)
|
save as required by law, during the Restricted Period do or say anything likely or calculated to lead any person to withdraw from or cease to continue offering to any Group Company any rights (whether of purchase, sale, import, distribution, agency or otherwise) then enjoyed by it or in any other way to cease to do business or reduce the amount of business it transacts with any Group Company; or
|
|
(g)
|
save in the circumstances referred to in sub clause 15.10 (Confidentiality), disclose to any other person any information which is secret or confidential to the business or affairs of the Group or any Purchaser Group Company or use any such information to the detriment of the business of the Group or any Purchaser Group Company for so long as that information remains secret or confidential; or
|
|
(h)
|
in relation to a business which is competitive or is likely to be competitive with the Restricted Business, use any trade or business name or distinctive mark, style or logo used by or in the business of any Group Company at Completion or anything intended or likely to be confused with it.
|
14.2
|
Nothing in paragraph 14.1 above shall prevent any Warrantor from:
|
|
(a)
|
considering or accepting an application for employment from a Senior Employee in response to a recruitment advertisement published generally and not specifically directed at any Senior Employee nor responding to an approach by such a Senior Employee which a Warrantor can establish from their records as having been initiated by such Senior Employee without any encouragement or other solicitation from the Warrantor; and/or
|
|
(b)
|
being employed or engaged by a company or business that does not compete with the Restricted Business but which employs or otherwise engages a Senior Employee and a Warrantor can establish from their records that such employment or engagement was prior to the Warrantor's involvement with such business or company.
|
14.3
|
Each undertaking contained in this clause 14 (Protection of goodwill) shall be construed as a separate and independent undertaking and, while the restrictions set out in this clause are considered by the parties to be reasonable in all the circumstances, it is agreed that if any one or more of such restrictions shall, either taken by itself or themselves together, be adjudged to go beyond what is reasonable in all the circumstances for the protection of the Purchaser's legitimate interests but would be adjudged reasonable if any particular restriction or restrictions were deleted or any part or parts of the wording thereof were deleted, restricted or limited in any particular manner (including without limitation any reduction in their duration or geographical scope) then the said restrictions shall apply with such deletions, restrictions or limitation as the case may be.
|
14.4
|
Each of the Warrantors and Terry Watson agrees that, having regard to the facts and matters set out above and having taken professional advice, the restrictions contained in this clause 14 (Protection of goodwill) are reasonable and necessary for the protection of the legitimate business interests of the Purchaser.
|
15.
|
General
|
15.1
|
Entire agreement
|
15.2
|
Contracts (Rights of Third Parties) Act 1999
|
|
(a)
|
Save as expressly provided in sub clause (b), no term of this Agreement (whether express or implied) is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise by any person who is not a party to it.
|
|
(b)
|
Subject to sub clause 15.4(b) (Variation):
|
|
(i)
|
the Company may enforce sub clause 8.3 (Post completion matters);
|
|
(ii)
|
Each Group Company may enforce:
|
|
(A)
|
sub clause 2.5 (Sale and Purchase);
|
|
(B)
|
sub clause 5.4 (Completion);
|
|
(C)
|
sub clause 7.2 (Release of Guarantee(s)); and
|
|
(iii)
|
Each Relevant Person (as such is defined) may enforce sub clause 11.2 (Purchaser's remedies).
|
|
(iv)
|
Each Legacy Shareholder may enforce any provisions of this Agreement relating to the payment of the relevant part of the Consideration (including the Escrow Amount) to that Legacy Shareholder.
|
15.3
|
Assignment
|
|
(a)
|
This Agreement shall be binding on and enure for the benefit of the successors in title of the parties but, except as set out in sub paragraphs (b) and (c), shall not be assignable by any party without the prior written consent of the other.
|
|
(b)
|
The Purchaser may not assign the benefit of this Agreement (including, without limitation, the Warranties) other than to any Purchaser Group Company, or by way of security to any bank or financial institution financing or refinancing the transaction which is the subject of this Agreement and, in the event of any such assignment, all references in this Agreement to the Purchaser shall be deemed to include its assigns.
|
15.4
|
Variation
|
|
(a)
|
Subject to sub-paragraph (b), no purported variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties.
|
|
(b)
|
Pursuant to Section 2(3)(a), Contracts (Rights of Third Parties) Act 1999, the parties, in accordance with sub paragraph (a), may without limit or restriction vary this Agreement or any provision of it which may be enforced by a third party or otherwise amend this Agreement in such a way as to extinguish or alter such third party's entitlement under any such provision without the consent of that third party.
|
15.5
|
Effect of Completion
|
15.6
|
Invalidity
|
|
(a)
|
be deemed not to be a part of this Agreement;
|
|
(b)
|
not affect the enforceability of the remainder of this Agreement; and
|
|
(c)
|
not affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
|
15.7
|
Releases and waivers
|
|
(a)
|
The rights, powers and remedies conferred on any party by this Agreement and the remedies available to any party are cumulative and are additional to any right, power or remedy which it may have under general law or otherwise.
|
|
(b)
|
Any party may, in whole or in part, release, compound, compromise, waive or postpone, in its absolute discretion, any liability owed to it or right granted to it in this Agreement by any other party or parties without in any way prejudicing or affecting its rights in respect of that or any other liability or right not so released, compounded, compromised, waived or postponed.
|
|
(c)
|
No single or partial exercise, or failure or delay in exercising any right, power or remedy by any party shall constitute a waiver by that party of, or impair or preclude any further exercise of, that or any right, power or remedy arising under this Agreement or otherwise.
|
15.8
|
Further assurance
|
15.9
|
Counterparts
|
|
(a)
|
This Agreement may be executed in any number of counterparts and by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart.
|
|
(b)
|
Each counterpart, when executed, shall be an original of this Agreement and all counterparts shall together constitute one instrument.
|
15.10
|
Confidentiality
|
15.11
|
Default Interest
|
16.
|
Announcements
|
16.1
|
Except as provided in sub clause 16.2 (Announcements), no announcement, circular or other communication (whether oral or written) concerning the terms of this Agreement (or the transaction contemplated or referred to in it) shall be made or issued by or on behalf of any of the parties without the prior written consent of the Purchaser and the Vendors' Representatives, such consent not to be unreasonably withheld or delayed.
|
16.2
|
Any announcement, circular or other communication made or issued by or on behalf of any party which is required by law or the rules of any regulatory or governmental body to which such party is subject, including, without limitation, any stock exchange on which any securities of such party are listed, may be made or issued by or on behalf of that party without consent if it has first sought consent and given the other parties a reasonable opportunity to comment on the subject matter and form of the announcement or circular (given the time scale within which it is required to be released or despatched).
|
16.3
|
Nothing in this clause 16 (Announcements) shall restrict the Purchaser or any other Purchaser Group Company from:
|
|
(a)
|
disclosing any and all required details of:
|
|
(i)
|
the transactions contemplated by this Agreement or any Agreed Form document;
|
|
(ii)
|
the Company or any Group Company; and/or
|
|
(iii)
|
the terms of this Agreement (including making a public filing of this Agreement),
|
|
(b)
|
providing information regarding the acquisition of the Group to its shareholders, provided that any such information does not contain any statement of fact, opinion, belief or otherwise which is intended to adversely affect the reputation or prospects of the Vendors; or
|
|
(c)
|
informing customers or suppliers of the acquisition of the Company by the Purchaser after Completion, provided that any such information does not contain any statement of fact, opinion, belief or otherwise which is intended to adversely affect the reputation or prospects of the Vendors.
|
17.
|
Costs and expenses
|
17.1
|
Except as set out in sub-clause 17.2 (Costs and expenses) or otherwise expressly provided in this Agreement, each party shall bear its own costs and expenses incurred in the preparation, execution and implementation of this Agreement and in respect of all corporate finance advice provided to it.
|
17.2
|
The Purchaser shall pay all stamp and other transfer duties and registration fees applicable to any document to which it is a party and which arise as a result of or in consequence of this Agreement.
|
18.
|
Payments
|
18.1
|
Save as expressly provided to the contrary in this Agreement and subject to sub clause 18.2 (Payments):
|
|
(a)
|
any payment to be made pursuant to this Agreement by the Purchaser to the Vendors shall be made to the Vendors' Solicitors' Account;
|
|
(b)
|
any payment to be made pursuant to this Agreement by the Vendors to the Purchaser shall be made to the Purchaser's bank account details of which will be provided by the Purchaser to the Vendors Representatives in writing;
|
|
(c)
|
payment under sub clauses (a) and/or (b) shall be in immediately available funds by electronic transfer on the due date for payment. Receipt of the amount due shall be an effective discharge of the relevant payment obligation; and
|
|
(d)
|
if any sum due for payment is not paid on its due date in accordance with this Agreement, default interest shall accrue in accordance with sub clause 15.11 (Default Interest).
|
18.2
|
The Initial Cash Consideration shall be satisfied by payment to the Vendors' Solicitors whose receipt on behalf of the Shareholders shall be good discharge of the obligation to make the relevant payment and the Purchaser shall not be obliged to enquire as to the due apportionment thereof as between the Shareholders.
|
19.
|
Notices
|
19.1
|
Any notice to a party under this Agreement shall be in writing signed by or on behalf of the party giving it and shall, unless delivered to a party personally, be left at, or sent by prepaid first class post, prepaid recorded delivery to the address of the party as set out in Part 2 of Schedule 1 or as otherwise notified in writing from time to time. For this purpose, any party not ordinarily resident in the United Kingdom shall maintain an address for service within the United Kingdom.
|
19.2
|
Except as referred to in sub clauses 19.3 and 19.4 (Notices), a notice shall be deemed to have been served:
|
|
(a)
|
at the time of delivery if delivered personally; and
|
|
(b)
|
48 hours after posting in the case of an address in the United Kingdom and 96 hours after posting for any other address.
|
19.3
|
If the deemed time of service is not during normal business hours in the country of receipt, the notice shall be deemed served after the opening of business on the next Business Day of that country.
|
19.4
|
The deemed service provisions set out in sub clause 19.2 (Notices) shall not apply to a notice served by post, if there is a national or local suspension, curtailment or disruption of postal services which affects the collection of the notice or is such that the notice cannot reasonably be expected to be delivered within 48 hours or 96 hours (as appropriate) after posting.
|
19.5
|
In proving service it shall be sufficient to prove:
|
|
(a)
|
in the case of personal service, that it was handed to the party or delivered to or left in an appropriate place for receipt of letters at its address; and
|
|
(b)
|
in the case of a letter sent by post, that the letter was properly addressed, stamped and posted.
|
19.6
|
A party shall not attempt to prevent or delay the service on it of a notice connected with this Agreement.
|
20.
|
Governing law and jurisdiction
|
20.1
|
This Agreement and any dispute, claim or obligation (whether contractual or non contractual) arising out of or in connection with it, its subject matter or formation shall be governed by English law.
|
20.2
|
The parties irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non contractual) arising out of or in connection with this Agreement, its subject matter or formation.
|
Names
|
Company number
(where relevant)
|
Address or Registered Office
|
Country of incorporation
(where relevant)
|
Number of Shares
|
Consideration (%)
|
Initial Cash
Consideration
|
Limit of Liability for the purposes of paragraph 1 of Schedule 5 (£)
|
Clink Street Nominees Limited
|
2223016
|
1 Churchill Place, London E14 5HP
|
England and Wales
|
25,828 B ordinary
|
2.583%
|
£59,107.28
|
£59,107.28
|
Eurovent Societe Civile
|
Centre d'affaires, Paris-Trocadero 112 avenue kleber, F-75116, Paris
|
France
|
553 B ordinary
|
0.055%
|
£1,265.54
|
£20,083.64
|
|
Barclays Private Equity European Fund A
|
5 The North Colonnade, Canary Wharf, London E14 4BB
|
-
|
139,592 B ordinary
|
13.959%
|
£319,455.78
|
£5,068,276.76
|
|
Barclays Private Equity European Fund B
|
5 The North Colonnade, Canary Wharf, London E14 4BB
|
-
|
66,253 B ordinary
|
6.625%
|
£151,619.75
|
£2,405,489.57
|
|
Barclays Private Equity European Fund C
|
5 The North Colonnade, Canary Wharf, London E14 4BB
|
-
|
47,392 B ordinary
|
4.739%
|
£108,456.42
|
£1,720,678.11
|
Barclays Private Equity European Fund D
|
5 The North Colonnade, Canary Wharf, London E14 4BB
|
-
|
26,372 B ordinary
|
2.637%
|
£60,352.23
|
£957,505.62
|
|
Barclays Private Equity PVLP Limited Partnership
|
5 The North Colonnade, Canary Wharf, London E14 4BB
|
-
|
69,487 B ordinary
|
6.949%
|
£159,020.75
|
£3,227,823.20
|
|
Barclays Industrial Investments Limited
|
1444637
|
1 Churchill Place, London E14 5HP
|
England and Wales
|
158,878 B ordinary
|
15.888%
|
£363,591.72
|
£6,990,362.76
|
Barclays Private Equity European Fund GmbH & Co KG
|
AM Platzl 480331 Munchen, Germany
|
-
|
4,739 B ordinary
|
0.474%
|
£10,845.18
|
£172,073.62
|
|
BPE European Partner LP
|
50 Lothian Road, Edinburgh
|
-
|
1,818 B ordinary
|
0.182%
|
£4,160.49
|
£65,992.43
|
|
Parallel Venture Nominees No 2 Limited
|
49 St James's Street, London SW1A 1JT
|
England and Wales
|
4,088 B ordinary
|
0.409%
|
£9,355.37
|
£9,355.37
|
Names
|
Address
|
Number of Shares
|
Consideration (%)
|
Initial Cash Consideration
|
Limit of Liability for the purposes of paragraph 1 of Schedule 5 (£)
|
Limit of Liability for the purposes of paragraph 2(i) of Schedule 5 (£)
|
Adam Peter McQuilkin
|
Jack's Barn, Norwell Woodhouse, Newark, Nottinghamshire NG23 6NG
|
70,000 A ordinary
|
7%
|
£160,194.74
|
£144,175.27
|
£4,175.27
|
Roy Smith
|
Silver Thatch, Silver Street Hordle, Lymington, Hampshire SO41 6DF
|
140,000 A ordinary
|
14%
|
£320,389.49
|
£288,350.54
|
£8,350.54
|
John Anthony Willis
|
3 Shepherds Way, Everton, Nr Lymington, Hampshire SO41 0DB
|
55,000 A ordinary
|
5.5%
|
£125,867.30
|
£90,624.46
|
£0
|
Names
|
Address
|
Number of Shares
|
Consideration (%)
|
Initial Cash Consideration
|
Limit of Liability for the purposes of paragraph 1 of Schedule 5 (£)
|
Terence Watson
|
1 Dawnway Drive, Swarland, Northumberland NE65 9BA
|
75,000 A ordinary
|
7.5%
|
£171,637.23
|
£123,578.80
|
Names
|
Address
|
Number of Shares
|
Consideration (%)
|
Initial Cash Consideration
|
Julie Thornley
|
Ashdene, 30 Main Road, Colden Common, Winchester, Hampshire SO21 1RR
|
10,000 A Ordinary
|
1%
|
£22,884.96
|
Steve Verdin
|
33 Glebe Villas, Hove, East Sussex BN3 5SL
|
5,000 A Ordinary
|
0.5%
|
£11,442.48
|
Names
|
Address
|
Number of Shares
|
Consideration (%)
|
Initial Cash Consideration
|
Christos George Lambrianos
|
27 Mavromichali Street, Filothei, Athens 152-37 Greece
|
25,000 C ordinary
|
2.5%
|
£57,212.41
|
Gilbert Marcus Filshie
|
The End House, Pembroke Drive, Mapperley Park, Nottingham NG35 BG
|
25,000 C ordinary
|
2.5%
|
£57,212.41
|
The West Corporation (as trustees of The McQuilkin Family Settlement)
|
PO Box 16, Analyst House, 20-26 Peel Road, Douglas, Isle of Man
|
25,000 C ordinary
|
2.5%
|
£57,212.41
|
Appleby Trust Jersey Limited (as trustees of The Bedfordview Trust)
|
PO Box 207, Piermont House, 33-35 Piermont Road, St Helier, Jersey, Channel Islands JE1 1BD
|
25,000 C ordinary
|
2.5%
|
£57,212.41
|
Name of party
|
Address for service
|
Marked for the attention of
|
Each Vendor
|
As above
|
The relevant Vendor
|
Vendors' Representatives
|
Roy Smith – As above
Phil Griesbach – Barclays Private Equity Ltd
4th Floor Bank House
8 Cherry Street
Birmingham B2 5AZ
|
Roy Smith, Phil Griesbach
|
Warrantors' Representative
|
Roy Smith – As above
Copied to Phil Griesbach – As above
|
|
Purchaser
|
7043 South 300 West, Midvale, Utah 84047 USA
|
Kevin Cornwell
|
AGREED FORM
|
Company name
|
Femcare Group Limited
|
Registered number
|
05147637
|
Date of incorporation
|
08/06/2004
|
Place of incorporation
|
United Kingdom
|
Address of registered office
|
Stuart Court, Spursholt Place Salisbury Road, Romsey Hampshire SO51 6DJ
|
Issued share capital
|
£10,000 divided into
355,000 A ordinary shares of £0.01 each;
545,000 B ordinary shares of £0.01 each; and
100,000 C ordinary shares of £0.01 each
|
Charges
|
Lloyds TSB Bank plc – Omnibus Guarantee and Set-Off Agreement – all monies due.
Created 27/08/2004.
Registered 04/09/2004.
|
Lloyds TSB Bank plc – Debenture – all monies due.
Created 27/08/2004.
Registered 04/09/2004.
|
|
Directors
|
Adam Peter McQuilkin
Roy Smith
Terence Watson
John Anthony Willis
|
Secretary
|
John Anthony Willis
|
Accounting reference date
|
31 March
|
Auditors
|
Deloitte LLP
|
Tax residence
|
United Kingdom
|
AGREED FORM
|
Company name
|
Femcare Distribution Limited
|
Registered number
|
04329399
|
Date of incorporation
|
27/11/2001
|
Place and jurisdiction of incorporation
|
United Kingdom
|
Address of registered office
|
Stuart Court, Spursholt Place Salisbury Road, Romsey Hampshire SO51 6DJ
|
Issued share capital
|
£800 divided into 800 ordinary shares of £1 each
|
Charges
|
Lloyds TSB Bank plc – Debenture Deed – all monies due.
Created 27/08/2004.
Registered 04/09/2004.
|
Lloyds TSB Bank plc – Omnibus Guarantee and Set-Off Agreement – all monies due.
Created 27/08/2004.
Registered 04/09/2004.
|
|
Directors
|
Adam Peter McQuilkin
Roy Smith
|
Secretary
|
John Anthony Willis
|
Accounting reference date
|
31 March
|
Auditors
|
Deloitte LLP
|
Tax residence
|
United Kingdom
|
Shareholder(s)
|
Femcare Group Limited
|
AGREED FORM
|
Company name
|
Femcare Limited
|
Registered number
|
01650215
|
Date of incorporation
|
12/07/1982
|
Place and jurisdiction of incorporation
|
United Kingdom
|
Address of registered office
|
Stuart Court, Spursholt Place Salisbury Road, Romsey Hampshire SO51 6DJ
|
Issued share capital
|
£8000 divided into 8000 ordinary shares of £1 each
|
Charges
|
Lloyds TSB Bank plc – Debenture Deed – all monies due.
Created 27/08/2004.
Registered 04/09/2004.
|
Lloyds TSB Bank plc – Omnibus Guarantee and Set-Off Agreement – all monies due.
Created 27/08/2004.
Registered 04/09/2004.
|
|
Directors
|
Adam Peter McQuilkin
Roy Smith
|
Secretary
|
John Anthony Willis
|
Accounting reference date
|
31 March
|
Auditors
|
Deloitte LLP
|
Tax residence
|
United Kingdom
|
Shareholder(s)
|
Femcare (Holdings) Limited
|
AGREED FORM
|
Company name
|
Femcare Urology Limited
|
Registered number
|
03851251
|
Date of incorporation
|
30/09/1999
|
Place and jurisdiction of incorporation
|
United Kingdom
|
Address of registered office
|
Stuart Court, Spursholt Place Salisbury Road, Romsey Hampshire SO51 6DJ
|
Issued share capital
|
£1 divided into 1 ordinary share of £1 each
|
Charges
|
Lloyds TSB Bank plc – Debenture Deed – all monies due.
Created 27/08/2004.
Registered 04/09/2004.
|
Lloyds TSB Bank plc – Omnibus Guarantee and Set-Off Agreement – all monies due.
Created 27/08/2004.
Registered 04/09/2004.
|
|
Directors
|
Adam Peter McQuilkin
Roy Smith
|
Secretary
|
John Anthony Willis
|
Accounting reference date
|
31 March
|
Auditors
|
Deloitte LLP
|
Tax residence
|
United Kingdom
|
Shareholder(s)
|
Femcare (Holdings) Limited
|
AGREED FORM
|
Company name
|
Femcare (Holdings) Limited
|
Registered number
|
03788956
|
Date of incorporation
|
14/06/1999
|
Place and jurisdiction of incorporation
|
United Kingdom
|
Address of registered office
|
Stuart Court, Spursholt Place Salisbury Road, Romsey Hampshire SO51 6DJ
|
Issued share capital
|
£8000 divided into 2,000 ordinary A shares of £1 each, 2,000 ordinary B shares of £1 each, 2,000 ordinary C shares of £1 each and 2,000 ordinary D shares of £1 each
|
Charges
|
Lloyds TSB Bank plc – Mortgage – all monies due.
Created 01/10/2001.
Registered 06/10/2001.
|
Lloyds TSB Bank plc – Debenture – all monies due.
Created 27/08/2004.
Registered 04/09/2004.
|
|
Directors
|
Adam Peter McQuilkin
Roy Smith
|
Secretary
|
John Anthony Willis
|
Accounting reference date
|
31 March
|
Auditors
|
Deloitte LLP
|
Tax residence
|
United Kingdom
|
Shareholder(s)
|
Percheron Limited : 2,000 ordinary A shares
Femcare Group Limited: 2,000 ordinary B shares, 2,000 ordinary C shares + 2,000 ordinary D shares
|
AGREED FORM
|
Company name
|
Femcare Nikomed Limited
|
Registered number
|
02301779
|
Date of incorporation
|
03/10/1988
|
Place and jurisdiction of incorporation
|
United Kingdom
|
Address of registered office
|
Stuart Court, Spursholt Place Salisbury Road, Romsey Hampshire SO51 6DJ
|
Issued share capital
|
£29,520 divided into 29,520 ordinary shares of £1 each
|
Charges
|
Lloyds TSB Bank plc – Single Debenture.
Created 29/11/1989.
Registered 30/11/1989.
|
Lloyds TSB Commercial Finance Limited – All asset debenture deed .
Created 26/04/2002.
Registered 27/04/2002.
|
|
Lloyds TSB Bank plc – Debenture.
Created 27/08/2004.
Registered 04/09/2004.
|
|
Lloyds TSB Bank plc – Omnibus Guarantee and Set-Off Agreement.
Created 27/08/2004.
Registered 04/09/2004.
|
|
Directors
|
Adam Peter McQuilkin
Roy Smith
John Anthony Willis
|
Secretary
|
John Anthony Willis
|
Accounting reference date
|
31 March
|
Auditors
|
Deloitte LLP
|
Tax residence
|
United Kingdom
|
Shareholder(s)
|
Femcare Distribution Limited: 14,464 ordinary shares of £1 each and Femcare (Holdings) Limited: 15,056 ordinary shares of £1 each
|
Company name
|
Percheron Limited
|
Registered number
|
083581C
|
Date of incorporation
|
20/02/1997
|
Place and jurisdiction of incorporation
|
Isle of Man
|
Address of registered office
|
Analys House, 20-26 Peel Road, Douglas, Isle of Man IM99 1AP
|
Issued share capital
|
£2 divided into 2 ordinary shares of £1 each
|
Charges
|
Lloyds TSB Bank plc – Debenture.
Created 27/08/2004.
Registered 04/09/2004.
|
Directors
|
Adam Peter McQuilkin
Roy Smith
|
Secretary
|
Roy Smith
|
Accounting reference date
|
31 March
|
Auditors
|
West Corporation Limited
|
Tax residence
|
United Kingdom
|
Shareholder(s)
|
Femcare Group Limited
|
AGREED FORM
|
Company name
|
Femcare Australia Pty Limited
|
Registered number
|
094718911
|
Date of incorporation
|
10/10/2000
|
Place and jurisdiction of incorporation
|
New South Wales, Australia
|
Address of registered office
|
C/-T.E. Gibbs & Co Pty Limited, Level 5, 20-24 Wentworth Street, Parramatta, NSW 2150
|
Issued share capital
|
AUS$1 divided into 1 ordinary share of AUS$1
|
Charges
|
None
|
Directors
|
Adam Peter McQuilkin
Roy Smith
Terrence Gibbs
|
Secretary
|
Roy Smith
|
Accounting reference date
|
31 March
|
Auditors
|
PKF
|
Tax residence
|
New South Wales, Australia
|
Shareholder(s)
|
Femcare (Holdings) Limited
|
AGREED FORM
|
Address
|
Date and Parties
|
Term
|
Authorised User
|
Current Rental
|
Rent Reviews
|
Spursholt Farm Buildings, Broadlands, Romsey
|
19.10.2009
(1) Baron Banbourne (2) Femcare-Nikomed Limited
|
From 20.12.09 to 31.3.13
|
Light industrial
|
£72,000 rising to £74,000 at 1.4.2011 and £76,000 at 1.4.2012
|
None
|
Unit 2 Fenacre Business Park, Romsey
|
(1) Warwick Mantel Property Partnership (2) Femcare-Nikomed Limited
|
Initial term of one year, the terminable on 6 months' notice. Term expressed to be for 5 years from 1 March 2011
|
B8
|
£11,000 for first year then £12,000 for second and third years
|
Review at end of third year.
|
Unit 2 Moorside Point, Moorside Road, Winnal, Winchester
|
1.04.2009
(1) Warren & Son Limited (2) Femcare Limited
|
01.04.09 to 31.03.11
|
£37,000
|
Unknown
|
AGREED FORM
|
1
|
Arrangements with Vendor Associates
|
2
|
Other interests of any Vendor Associate
|
3
|
Nomination agreements
|
4
|
Transfers at an undervalue and preferences
|
5
|
Changes to share capital
|
5.1
|
The Company has not at any time:
|
|
(a)
|
reduced its share capital;
|
|
(b)
|
redeemed any share capital;
|
|
(c)
|
purchased any of its shares; or
|
|
(d)
|
forfeited any of its shares.
|
6
|
Brokerage, commission and other fees
|
AGREED FORM
|
7
|
Interests in undertakings
|
7.1
|
Schedule 2 contains details of all Group Companies.
|
7.2
|
The Company does not have a participating interest (as defined in paragraph 11 of Schedule 10 of The Large and Medium sized Companies and Groups (Accounts and Directors' Report) Regulations 2008) in any undertaking or in the share capital of any body corporate which is not a Group Company nor has it agreed to acquire such an interest.
|
7.3
|
The Company does not hold nor does it have any liability in respect of any share or any right or obligation to subscribe for, or to convert any security into, a share, which, as the case may be, is not fully paid up or which carries any liability.
|
7.4
|
Apart from this Agreement, there is no agreement, arrangement or commitment outstanding which calls for the allotment, issue or transfer of, or accords to any person the right to call for the allotment, issue or transfer of, any share or loan capital of the Company.
|
7.5
|
The Company does not reside, operate or have any branch, agency, place of business or establishment outside England & Wales.
|
7.6
|
The Company and each Group Company is incorporated and validly subsisting under the laws of its country of incorporation and is licensed or qualified to do business under the laws of that country and neither the character nor the location of the properties owned by the Company or any Group Company nor the nature of the business conducted by it requires licensing or qualification under the laws of any other country.
|
7.7
|
The Company has full corporate power to carry on its business and to own and operate its assets, properties and business as now carried on and owned and operated.
|
8
|
Insolvency
|
8.1
|
No order has been made, no resolution has been passed, no petition presented, no meeting convened for the winding up of the Company or for a provisional liquidator to be appointed in respect of the Company and the Company has not been a party to any transaction which could be avoided in a winding up.
|
8.2
|
No administration order has been made and no petition for one has been presented in respect of the Company.
|
8.3
|
No administrator, receiver or administrative receiver has been appointed in respect of the Company or any of its assets.
|
8.4
|
The Company is not insolvent, has not failed nor is unable to pay, nor has no reasonable prospect of being unable to pay, any of its debts as they fall due, within the meaning of Section 123, Insolvency Act 1986.
|
8.5
|
No voluntary arrangement has been proposed under Sections 1, 256A or 263A, Insolvency Act 1986 in respect of the Company and the Company has not made or proposed any arrangement or composition with its creditors or any class of them.
|
8.6
|
No distress, execution or other process has been levied on the Company's assets or action taken to repossess goods in the possession of the Company.
|
8.7
|
No unsatisfied judgment is outstanding against the Company and no demand has been served on the Company under Section 123(1)(a), Insolvency Act 1986.
|
AGREED FORM
|
8.8
|
The Company is not an insolvent person within the meaning of any Applicable Law.
|
8.9
|
No event analogous to any referred to in sub paragraphs 8.1 to 8.8 (inclusive) has occurred anywhere in the world.
|
9
|
Statutory books and documents filed
|
9.1
|
The statutory books, including all registers and minute books, of the Company have been properly kept and are up to date and contain a materially accurate and complete record of the matters with which those books should deal in accordance with Applicable Law.
|
9.2
|
All documents which should have been delivered by the Company to the Registrar of Companies in England and Wales or any relevant authority charged with maintaining a companies registry under Applicable Law are materially complete and accurate and have been properly so delivered and the Company is not registered for the PROOF (PROtected Online Filing) scheme at Companies House.
|
9.3
|
The copy of the articles of association of the Company that has been Disclosed has embodied in it or annexed to it a copy of each resolution as referred to in Section 380, CA1985 and Section 29, CA2006 or as required under Applicable Law, and is accurate and complete in all respects.
|
9.4
|
Since the Accounts Date the members of the Company in general meeting, or of any class of them, have not passed any resolution other than resolutions relating to the ordinary business of annual general meetings.
|
10
|
Accuracy and adequacy of information
|
10.1
|
The information contained in schedule 2 is accurate and complete and is not misleading because of any omission or ambiguity.
|
11
|
Preparation and contents of the Accounts
|
11.1
|
The Accounts:
|
|
(a)
|
have been prepared in accordance with the requirements of all relevant statutes and generally accepted United Kingdom accounting practices including, without limitation, all applicable Financial Reporting Standards issued by the Accounting Standards Board, Statements of Standard Accounting Practice issued by the Institute of Chartered Accountants of England and Wales and Statements from the Urgent Issues Task Force current at the Accounts Date and, where the accounting practice used to prepare the Accounts differs from those applicable in previous financial periods, the effect of any such difference has been disclosed;
|
|
(b)
|
have been audited by a statutory or certified auditor (as applicable) who has rendered an auditor's certificate without qualification; and
|
|
(c)
|
have been duly filed in accordance with the CA2006.
|
11.2
|
Without prejudice to the generality of sub paragraph 11.1:
|
|
(a)
|
the Accounts:
|
|
(i)
|
give a true and fair view of the state of affairs of the Company at the Accounts Date and the profits or losses of the Company for the financial period ending on that date in accordance with the relevant financial reporting framework;
|
AGREED FORM
|
|
(ii)
|
contain proper provision or reserve for all liabilities and for all capital and revenue commitments of the Company as at the Accounts Date;
|
|
(iii)
|
disclose all the assets of the Company as at the Accounts Date and none of the values placed in the Accounts on any of those assets was in excess of its market value at the Accounts Date;
|
|
(iv)
|
make proper provision for bad and doubtful debts;
|
|
(v)
|
do not include any figure which is referable to the value of an intangible asset; and
|
|
(vi)
|
make proper provision for depreciation of the fixed assets of the Company having regard to their original cost and life.
|
|
(b)
|
in the Accounts:
|
|
(i)
|
in valuing work in progress, no value was attributed in respect of eventual profits and adequate provision was made for such losses as were at the time of signature of the Accounts by directors of the Company reasonably foreseeable as arising or likely to arise; and
|
|
(ii)
|
slow moving stock was written down appropriately, redundant, obsolete, obsolescent or defective stock was wholly written off and the value attributed to any other stock did not exceed the lower of cost (on a first in first out basis) and net realisable value (or replacement value) at the Accounts Date.
|
11.3
|
The profits and losses of the Company shown in the Accounts were not, save as disclosed in the Accounts or in any note accompanying them, affected by any transactions entered into otherwise than on normal commercial terms nor, to any material extent affected by any extraordinary, exceptional, unusual or non recurring income, capital gain or expenditure or by any other factor known to the Warrantors rendering any such profit or loss for such period exceptionally high or low.
|
11.4
|
The audited profit and loss accounts and the audited balance sheets contained in the Accounts were prepared on a consistent basis with each other.
|
11.5
|
Except for obligations and liabilities reflected in the Accounts, the Company has no off balance sheet obligation or liability of any nature (matured or unmatured, fixed or contingent) to, or any financial interest in, any third party or entities, the purpose or effect of which is to defer, postpone, reduce or otherwise avoid or adjust the recording of debt expenses incurred by the Company.
|
11.6
|
There are no significant deficiencies or material weaknesses in the design or operation of the Company's internal financial processes which could adversely affect the Company’s ability to record, process, summarise and report financial data taking into account the turnover and size of the Company.
|
11.7
|
There has been no change in the Company's accounting policies in the last three years except as described in the Accounts.
|
12
|
Accounting records
|
12.1
|
The accounting records of the Company comply with the requirements of Sections 221 and 222, CA1985, or, as the case may be, Sections 386 and 388, CA2006 (whichever provision is applicable to the Company at the relevant time), do not contain or reflect any material inaccuracy or discrepancy and present and reflect in accordance with generally accepted accounting principles and standards the financial position of and all transactions entered into by the Company or to which it has been a party.
|
AGREED FORM
|
12.2
|
All relevant financial books and records of the Company are in its possession or otherwise under its direct control.
|
12.3
|
Where any of the records of the Company are kept on computer, the Company:
|
|
(a)
|
is the owner of all hardware and all software necessary to enable it to use the records as they have been used in its business;
|
|
(b)
|
does not share any hardware or software relating to the records with any person; and
|
|
(c)
|
maintains adequate back up records and support in the event of any fault or failure of such computer hardware and/or software.
|
13
|
Management Accounts
|
13.1
|
The Management Accounts have been carefully prepared on a basis consistent with the Accounts, reflect with material accuracy the trading position of the Company as at their date and for the period to which they relate, and are not affected by any extraordinary, exceptional, unusual or non recurring income, capital gain or expenditure or by any other factor known by the Warrantors rendering profits or losses for the period covered exceptionally high or low.
|
14
|
Events since the Accounts Date
|
14.1
|
Since the Accounts Date there has been no material adverse change in:
|
|
(a)
|
the financial or trading position of the Company;
|
|
(b)
|
the value of assets or amount of liabilities of the Company as at Completion as compared with the position disclosed in the Accounts save for where any change is as a result of:
|
|
(i)
|
the writing down of assets through depreciation and/or amortisation; or
|
|
(ii)
|
the accrual of interest on the BPE Debt or Loan Notes; or
|
|
(c)
|
the turnover, direct or indirect expenses or the margin of profitability of the Company as compared with the position disclosed in the Accounts for the equivalent period of the previous financial year.
|
14.2
|
Since the Accounts Date, the Company has carried on its business in the ordinary course and without material interruption or alteration in the nature or scope of the business of the Company, so as to maintain it as a going concern, and paid its creditors in the ordinary course and within the credit periods agreed with such creditors on a consistent basis.
|
14.3
|
Since the Accounts Date, no supplier of the Company with an annual spend in excess of £100,000 has ceased or restricted supplies or threatened so to do, there has been no loss or material curtailment of the business transacted by the Company with any customer which at any time in the preceding financial year represented 2.5% or more of the turnover of the Company and the Warrantors are not aware of any circumstances likely to give rise to any of the above.
|
14.4
|
Since the Accounts Date, the Company has not:
|
AGREED FORM
|
(a)
|
incurred or committed to incur capital expenditure in excess of £50,000;
|
|
(b)
|
acquired or agreed to acquire:
|
|
(i)
|
any asset for a consideration higher than its market value at the time of acquisition or otherwise than in the ordinary course of business; or
|
|
(ii)
|
any business or substantial part of it or any share or shares in a body corporate;
|
|
(c)
|
disposed of, or agreed to dispose of, any of its assets except in the ordinary course of business and for full value;
|
|
(d)
|
repaid wholly or in part any loan except upon the due date or dates for repayment; or
|
|
(e)
|
declared, made or paid any distribution of profit.
|
14.5
|
None of the debts included in the Accounts or any of the debts subsequently arising has been the subject of factoring by the Company and the Warrantors are not aware of any circumstances which could result in any presently outstanding debt in excess of £15,000 not being paid in full.
|
14.6
|
The Company has no material liabilities, obligations or commitments (whether absolute or contingent), except those which are properly shown, provided for or reserved against in the Accounts or the Management Accounts.
|
15
|
Auditor's liability limitation agreements
|
16
|
Financial commitments and borrowings
|
16.1
|
Details of all overdraft, loan and other financial facilities in the nature of borrowing available to the Company and the amounts outstanding under them at the close of business on the day preceding the date of this Agreement have been Disclosed and none of the Warrantors nor the Company has done anything, or omitted to do anything, as a result of which the continuance of or availability of funds under any of those facilities might be affected or prejudiced.
|
16.2
|
The Company is not a party to, nor has agreed to enter into, any lending, or purported lending, agreement or arrangement (other than agreements to give credit in the ordinary course of its business).
|
16.3
|
The Company is not exceeding any borrowing limit imposed upon it by its bankers, other lenders or its articles of association nor has the Company entered into any commitment or arrangement which might lead it so to do.
|
16.4
|
No overdraft or other financial facilities available to the Company are dependent upon the guarantee of or security provided by any other person.
|
16.5
|
No event has occurred or been alleged in writing (including by electronic mail) to the Company which is or, with the passing of any time or the giving of any notice, certificate, declaration or demand, would become an event of default under, or breach of, any of the terms of any loan capital, borrowing, debenture or financial facility of the Company or which would entitle any person to call for repayment prior to normal maturity.
|
AGREED FORM
|
16.6
|
The Company is not, nor has it agreed to become, bound by any guarantee, indemnity, surety or similar commitment.
|
16.7
|
The Company does not have any credit cards in issue in its own name or that of any officer or employee of the Company or any person connected with any officer or employee.
|
16.8
|
The Company has not received any grants, allowances, loans or financial aid of any kind from any government department or other board, body, agency or authority which may become liable to be refunded or repaid in whole or in part.
|
16.9
|
The Company has not engaged in financing of a type which is not required to be or has not been shown or reflected in the Accounts.
|
16.10
|
The Company has no outstanding obligations in respect of a derivative transaction, including but not limited to, any foreign exchange transaction other than under any derivative transaction that has been Disclosed.
|
17
|
Insurance cover
|
17.1
|
Complete and accurate details of all insurances and indemnity policies in respect of which the Company has an interest are attached to the Disclosure Letter.
|
17.2
|
All of the insurance policies maintained by the Company are valid and enforceable and all premiums due have been paid. There are no outstanding claims or so far as the Warrantors are aware circumstances likely to give rise to a claim under such insurance policies or which would be required to be notified to the insurers and nothing has been done or omitted to be done which has made or could make any of the policies void or voidable or so far as the Warrantors are aware as a result of which the renewal of any such policy might be refused or the premiums due in respect of them may be liable to be increased.
|
17.3
|
Completion shall not have the effect of terminating, or entitling any insurer to terminate cover under any such insurance.
|
18
|
Insurance claims
|
19
|
Contracts and commitments
|
19.1
|
All contracts, agreements, transactions or obligations (including, in each case, confirmation of whether such is with a client, supplier or otherwise, as applicable) requiring in relation to its discharge any payment in excess of £250,000 to which the Company is a party are Disclosed.
|
19.2
|
The Company is not a party to any Material Contract which:
|
|
(a)
|
has or is expected to have materially adverse consequences in terms of expenditure or revenue;
|
|
(b)
|
relates to matters outside its ordinary business or was not entered into on arms' length terms;
|
AGREED FORM
|
|
(c)
|
can be terminated in the event of any change in the underlying ownership or control of it;
|
|
(d)
|
cannot readily be fulfilled or performed by it on time without material expenditure outside the ordinary course of business;
|
|
(e)
|
cannot be terminated, without giving rise to any liabilities on it, by it giving 3 months' notice or less;
|
|
(f)
|
is a customer contract and known to be likely to result in a loss to it on completion of performance; or
|
|
(g)
|
is subject to a notice of termination which is outstanding.
|
19.3
|
The Company is not party to a distributor agreement which is subject to a notice of termination which is outstanding.
|
19.4
|
The Company has not outstanding any bid, tender, sale or service proposal which is material in relation to its business or which, if accepted, would be likely to result in a loss.
|
19.5
|
The Company has not granted any power of attorney or other such authority (whether express or implied) which is still outstanding.
|
19.6
|
No act or omission by the Company has caused it to be in material default of any Material Contract and the Warrantors are not aware of any actual, potential or alleged breach, invalidity, grounds for termination, grounds for rescission, grounds for avoidance or grounds for repudiation of, any Material Contract to which the Company is a party.
|
19.7
|
A list of all of the Material Contracts is disclosed and no party to a Material Contract has withdrawn or so far as the Warrantors are aware is considering withdrawing from or not placing with the Company all or any part of the work placed with the Company during the 12 months immediately preceding Completion.
|
19.8
|
No matter has arisen in respect of any Material Contract which, so far as the Warrantors are aware, is or could be construed as a potential or actual breach by any party thereto.
|
19.9
|
There have been no material or written (including by electronic mail) complaints within the last two years made by any party to a Material Contract (a "Material Customer" or a "Material Supplier", as applicable) in respect of any aspect of any of the Material Contracts nor with regard to the performance of any agents or sub contractors appointed by the Company to perform any part of any such contract and the Company has received no notice of any default under any contract to which it is a party.
|
19.10
|
Each Material Customer has promptly paid or procured the payment of any remuneration or other amounts due to the Company.
|
19.11
|
Within the 12 months preceding the date of this Agreement no surcharges have been levied or arisen with regard to any expenditure whether due to delay in payment by any client or customer of any sums due in respect thereof or otherwise.
|
19.12
|
No current Material Customer or Material Supplier has sought to negotiate a material reduction (in the case of a Material Customer) or material increase (in the case of a Material Supplier) or material change in the terms of remuneration as contained in its contract with the Company.
|
19.13
|
There is not outstanding any contract or arrangement to which the Company is a party and to which any director of the Company and/or any associate thereof is or has been interested whether directly or indirectly.
|
AGREED FORM
|
19.14
|
Neither the Company, nor, so far as the Warrantors are aware, any director, officer, employee or agent of the Company, has directly or indirectly:
|
|
(a)
|
made any contribution, gift, bribe, rebate, payoff, influence payment, kickback or other payment to any person or governmental or quasi governmental body, regardless of form, whether in money, property, or services (other than promotional gifts or corporate hospitality made in the ordinary course of business):
|
|
(i)
|
to obtain favourable treatment in securing any contract;
|
|
(ii)
|
to pay for favourable treatment for any contract secured;
|
|
(iii)
|
to obtain special concessions or for special concessions already obtained for or in respect of the Company; or
|
|
(iv)
|
in violation of any Applicable Law; or
|
|
(b)
|
established or maintained any fund or asset that has not been recorded in the books and records of the Company.
|
20
|
Trading partners
|
20.1
|
The Company does not act or carry on business in partnership with any other person and is not a member of any corporate or unincorporated body, undertaking or association.
|
20.2
|
The Company is not a party to any joint venture agreement or arrangement or any other agreement or arrangement under which it is to participate with any other person in any business.
|
20.3
|
The Company is not a party to any agency, distributorship, licence or management agreement nor is it a party to any contract or arrangement which restricts its freedom to carry on its business in such manner as it may think fit in any part of the world.
|
20.4
|
The Company is not, nor has it agreed to become, a party to an agreement or arrangement for sharing commissions or other income.
|
21
|
Terms of trade
|
22
|
Product liability
|
23
|
Licences and consents
|
23.1
|
Complete and accurate details of all material licences, consents, permissions, authorisations and approvals required by the Company (except in relation to the Properties and Intellectual Property and any Regulatory Authorisations) for the carrying on of its business have been Disclosed and all of them have been obtained by it and are in full force and effect.
|
AGREED FORM
|
23.2
|
Other than any Regulatory Authorisations and other filings and notifications required by Relevant Regulatory Authorities, which are covered by the warranties in paragraph 24 below, all material reports, returns and information required by law or as a condition of any licence, consent, permission, authorisation or approval to be made or given to any person or authority in connection with the business of the Company have been made or given to the appropriate person or authority and there are no circumstances which reasonably indicate that any material licence, consent, permission, authorisation or approval might not be renewed in whole or in part or so far as the Warrantors are aware is likely to be revoked, suspended or cancelled or which may confer a right of revocation, suspension or cancellation.
|
24
|
Compliance with specific regulatory requirements relating to the Products
|
24.1
|
All Regulatory Authorisations held by the Group and issued by the appropriate Regulatory Authority are in full force and effect.
|
24.2
|
The Group is in material compliance with the relevant regulatory requirements of all competent Relevant Regulatory Authorities relating to the Products and the Group has not received any notice or charge relating to the Products, which has not been or is not being complied with or withdrawn, from such Regulatory Authorities asserting any material violation of any such regulatory requirement.
|
24.3
|
The Group has all Regulatory Authorisations necessary for it to carry on its business in the Products and in the jurisdictions as currently undertaken including, but not limited to, the manufacture, importation, development, marketing, distribution and sale of the Products (as applicable) and has made all filings or registration with, and notifications to, all Relevant Regulatory Authorities as are required to be made by the Group by the Relevant Regulatory Authorities in relation to the Products. .
|
24.4
|
In relation to the Products, no results have been obtained by the Group from any laboratory, pre-clinical or clinical study which the Group has conducted or procured to be conducted, or have relied upon to support an application for a Regulatory Authorisation, which would seriously prejudice any application for, or grant of, Regulatory Authorisation or any extension thereto.
|
24.5
|
There is no correspondence or documentation between, on the one hand, the Group and, on the other hand, any Relevant Regulatory Authority relating to the Group's regulatory compliance (which term shall include but is not limited to compliance with Applicable Laws, site inspections, Product inspections, Regulatory Authorisations and promotion of Products) which refer to any action that the Relevant Regulatory Authority is taking that would result in a material fine, material civil or criminal liability or penalty being imposed upon the Group relating to the Products (including injunction, seizure or criminal prosecution) or that would result in any Regulatory Authorisation being revoked, suspended, cancelled or not renewed.
|
24.6
|
The Company has in place quality systems that meet the requirements of BS EN ISO 13485: 2003 and BS EN ISO 9001: 2008 and all other relevant Applicable Laws and requirements of the Relevant Regulatory Authorities, including without limitation Title.21, Code of Federal Regulations section 820 (FDA).
|
25
|
The Products
|
25.1
|
So far as the Warrantors are aware all Products made by or on behalf of the Group have been manufactured in accordance with BS EN ISO 13485: 2003 and all Applicable Laws, and Relevant Regulatory Authority approved guidelines including without limitation Title.21, Code of Federal Regulations section 820 (FDA).
|
AGREED FORM
|
25.2
|
So far as the Warrantors are aware all laboratory studies, pre-clinical studies and clinical studies relating to the Products which the Group has conducted or procured to be conducted have been carried out in all material respects in accordance with all Applicable Laws, and the Relevant Regulatory Authority approved guidelines including without limitation those set out in Title.21, Code of Federal Regulations section 820 (FDA).
|
25.3
|
The Group holds complete and up-to-date Regulatory Dossiers in relation to each type of Product (other than Products which it distributes for third parties).
|
25.4
|
To the extent required by Applicable Law or the regulatory requirements of Relevant Regulatory Authorities in the jurisdictions where the Company currently carries on its business, the Company has in place and operates compliant procedures for monitoring and reporting (a) any malfunction, failure or deterioration in the characteristics and/or performance of each Product, as well as any inadequacy in the labelling or the instructions for use; and (b) any technical or medical reason in relation to the characteristics or performance of a device for the reasons referred to in subparagraph (a), leading to systematic recall of devices of the same type by the manufacturer.
|
26
|
Competition and trade regulation law
|
26.1
|
So far as the Warrantors are aware the Company is not nor has it been a party to any agreement, arrangement, understanding or concerted practice:
|
|
(a)
|
which infringes, or has infringed, any applicable competition law;
|
|
(b)
|
in respect of which any filing, registration or notification is, was or will be required by any applicable competition law (whether or not the same has in fact been made);
|
|
(c)
|
which is, or was, the subject of an investigation under any applicable competition law; or
|
|
(d)
|
in connection with which it is or has been subject to any orders or directions, or has given any undertakings or commitments or assurances under any applicable competition law.
|
26.2
|
So far as the Warrantors are aware there is, and has been, no aspect of the conduct of the business of the Company (including refusals or omissions to act, and actions which constitute or may give rise to a concentration, merger or similar transaction) in respect of which any of sub paragraphs 26.1(a) to 26.1(d) applies.
|
26.3
|
The Warrantors have no reason to believe that any action or investigation under any applicable competition law is being or will be taken against the Company in relation to any of its current activities.
|
26.4
|
The Company has not made or threatened to make any complaint against any other person in relation to alleged infringements of any applicable competition law.
|
26.5
|
For the purposes of this paragraph 26, the term "applicable competition law" means all competition law applicable to the business carried on by the Company, whether of the United Kingdom, the European Union or any other jurisdiction, and includes (but is not limited to) any applicable rules dealing with anti competitive agreements, arrangements or practices, abuse of dominant position, state aid, public procurement or merger control, and the requirements of any special regulatory regime to which the business carried on by the Company may be subject in any area of its activities.
|
27
|
Compliance with law
|
27.1
|
The business of the Company in the United States, the Commonwealth and Europe has at all times been conducted in accordance with all material applicable laws, regulations, orders and byelaws and so far as the Warrantors are aware, the business of the Company which is carried on in other territories is conducted in accordance with all applicable laws, regulations, orders, byelaws.
|
AGREED FORM
|
27.2
|
The Company has not committed nor is it liable for, and no claim has been or, so far as the Warrantors are aware, shall be made that it has committed or is liable for, any criminal, illegal, unlawful or unauthorised act or breach of any obligation or duty whether imposed by or pursuant to Applicable Law or otherwise.
|
27.3
|
So far as the Warrantors are aware, no investigation or inquiry is being, or has been, conducted by and the Warrantors have not received any request for information from any Governmental Authority in respect of its affairs and, so far as the Warrantors are aware, there are no circumstances which would give rise to such investigation, inquiry or request.
|
27.4
|
None of the activities, contracts or rights of the Company is ultra vires, unauthorised, invalid or unenforceable or in breach of any contract or covenant and all documents whose enforcement it may be interested in are valid.
|
28
|
Litigation and disputes
|
28.1
|
Except for actions to recover any debt incurred in the ordinary course of the business owed to the Company where each individual debt and its costs outstanding amount to less than £10,000:
|
|
(a)
|
neither the Company nor any person for whose acts the Company may be liable is engaged in any litigation, arbitration, administrative or criminal proceedings, whether as claimant, defendant or otherwise;
|
|
(b)
|
no litigation, arbitration, administrative or criminal proceedings by or against the Company or any person for whose acts it may be liable have been threatened in writing (including by electronic mail) or reasonably expected and, as far as the Warrantors are aware, none are pending; and
|
|
(c)
|
so far as the Warrantors are aware there are no facts or circumstances likely to give rise to any litigation, arbitration, administrative or criminal proceedings against the Company or any person for whose acts it may be liable.
|
28.2
|
The Company is not subject to any outstanding order or judgment given by any court or Governmental Authority and has not been a party to any undertaking or assurance given to any court or governmental or other authority, department, board, body or agency which is still in force, nor are there any facts or circumstances likely to give rise to it becoming subject to such an order or judgment or to be a party to any such undertaking or assurance.
|
28.3
|
In relation to the business of the Company, the Warrantors have not committed nor are they liable for, and no claim has been or, so far as the Warrantors are aware, shall be made that they have committed or are liable for, any criminal, illegal, unlawful or unauthorised act or breach of any obligation or duty whether imposed by or pursuant to Applicable Law or otherwise.
|
28.4
|
So far as the Warrantors are aware, no investigation or inquiry is being, or has been, conducted by, and the Warrantors have not received any request for information from any Governmental Authority in respect of their affairs and, so far as the Warrantors are aware, there are no circumstances which would give rise to such investigation, inquiry or request.
|
29
|
Ownership and condition of assets
|
29.1
|
Each of the assets included in the Accounts or acquired by the Company since the Accounts Date (other than the Properties and current assets subsequently disposed of or realised in the ordinary course of business) is owned both legally and beneficially by the Company free from Encumbrance and any third party rights and, if capable of possession, is in its possession.
|
AGREED FORM
|
29.2
|
Each item of plant and machinery, vehicle and office equipment used by the Company is (fair wear and tear excepted):
|
|
(a)
|
in good repair and condition, regularly maintained and, where required by law, certified safe and without risk to health when used;
|
|
(b)
|
capable of doing the work for which it was designed or purchased; and
|
|
(c)
|
not surplus to requirements.
|
29.3
|
The Company has not acquired, or agreed to acquire, any asset on terms that title to that asset does not pass until full payment is made or all indebtedness incurred in connection with the acquisition is discharged.
|
29.4
|
The assets owned by the Company, together with all assets held under hire purchase, lease or rental agreements have been Disclosed and such assets comprise all assets necessary for the continuation of the business of the Company as it is currently carried on.
|
30
|
Stock
|
31
|
Charges and Encumbrances over assets
|
31.1
|
No Encumbrance (other than a lien arising by operation of law in the ordinary course of trading) or other form of security or encumbrance or equity on, over or affecting the Shares or the whole or any part of the undertaking or assets of the Company, including any investment in any other company, is outstanding and, apart from this Agreement, there is no agreement or commitment to give or create any of them and no claim has been made by any person to be entitled to any of them.
|
31.2
|
No floating charge created by the Company has crystallised and there are no circumstances likely to cause such a floating charge to crystallise.
|
31.3
|
The Company has not received notice from any person intimating that it will enforce any security which it may hold over the assets of the Company, and there are no circumstances likely to give rise to such a notice.
|
31.4
|
All charges in favour of the Company have, if required, been registered in accordance with the provisions of the CA1985 or the CA2006 (as the case may be).
|
32
|
Details of Intellectual Property
|
32.1
|
Complete and accurate details of all registered Company Owned Intellectual Property (including any applications for registration) and a summary of material unregistered Company Owned Intellectual Property and copies of all licences and other agreements relating to Company Intellectual Property licensed by or to the Company (the "Licences") have been Disclosed (other than standard off the shelf software licences).
|
AGREED FORM
|
32.2
|
So far as the Warrantors are aware, all Company Intellectual Property is either owned by or properly licensed to a Group Company.
|
32.3
|
All Company Owned Intellectual Property is in the sole legal and beneficial ownership of a Group Company free from all licences, charges or other encumbrances, other than the Licences.
|
32.4
|
In respect of the subject of the Licences from third parties in favour of a Group Company:
|
|
(a)
|
no Group Company has received notice to terminate such Licences;
|
|
(b)
|
the Group Company has and so far as the Warrantors are aware, the other party has fully complied with all obligations in those Licences; and
|
|
(c)
|
no disputes have arisen or are reasonably foreseeable by the Warrantors,
|
32.5
|
Nothing has been done or omitted to be done whether by a Group Company or, as far as the Warrantors are aware, by any person which would jeopardise the validity, enforceability or subsistence of any Company Owned Intellectual Property or any such Licences.
|
33
|
Registration
|
33.1
|
As far as the Warrantors are aware all registered Company Owned Intellectual Property is valid and enforceable.
|
33.2
|
In the case of registrations of Company Owned Intellectual Property, all renewal fees that have fallen due have been paid and all renewals have been made by their due date.
|
33.3
|
In the case of registrations of Company Owned Intellectual Property, each is presently used by the Company and is in full force and effect and has not been abandoned.
|
33.4
|
In the case of pending applications for registration of Company Owned Intellectual Property, the Warrantors are aware of no reason why any such applications should not proceed to grant.
|
33.5
|
In the case of a patent application comprising Company Owned Intellectual Property, the invention which is the subject matter of such application has not been used or published by any Group Company except experimentally prior to the date of the UK patent application and the true and first inventors thereof have no outstanding rights to compensation pursuant to the Patents Act 1977.
|
33.6
|
So far as the Warrantors are aware none of the Company Owned Intellectual Property is subject to any use, claim, application or attack by any other person.
|
34
|
Infringement and royalties etc
|
34.1
|
So far as the Warrantors are aware, at no time during the past 6 years has there been any unauthorised use or infringement by any person of any Company Owned Intellectual Property.
|
34.2
|
So far as the Warrantors are aware, none of the processes employed, or products or services dealt in, by the Group infringes any rights of any third party relating to Intellectual Property nor do they make any Group Company liable to pay a fee or royalty and no claims have been made, threatened or, so far as the Warrantors are aware, are pending, in relation to any Intellectual Property of any third party against any Group Company.
|
35
|
Disclosure of confidential information etc
|
AGREED FORM
|
|
Except in the ordinary course of business and on a confidential basis, no disclosure has been made by any Group Company or so far as the Warrantors are aware by a third party of any of the confidential information, know how, technical processes, financial or confidential trade secrets or confidential customer or supplier lists of the Group.
|
36
|
Names
|
37
|
Open Source Software
|
37.1
|
So far as the Warrantors are aware, no Group Company uses any software products, materials or IT systems which incorporate, contain or use in any manner (in whole or in part) any Open Source Materials.
|
37.2
|
No Group Company has:
|
|
(a)
|
incorporated or combined Open Source Materials with the Company Owned Intellectual Property; or
|
|
(b)
|
distributed or licensed Open Source Materials in conjunction with any Company Owned Intellectual Property.
|
38
|
Compliance
|
38.1
|
The Group has complied in all material respects with the provisions of the Data Protection Act 1998 and all other applicable data protection legislation and codes of practice including, without limitation, the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) (together the "DPA").
|
38.2
|
No Group Company has been served with an information or enforcement notice or any obligation to meet undertakings (including pursuant to Section 40, Data Protection Act 1998) by a UK or any other world wide data protection regulatory authority nor so far as the Warrantors are aware are there any circumstances which might give rise to a Group Company being served with such a notice in the future.
|
38.3
|
No Group Company has not been served with a notice under Sections 10, 11 or 12, Data Protection Act 1998.
|
39
|
Requests for information
|
40
|
Particulars of employees and workers
|
40.1
|
Complete and accurate details of the terms and conditions of employment of all employees of the Company, including, without limitation, their identity, age, dates of birth, the date of commencement of their continuous period of employment, their remuneration (including, without limitation, bonus, commission, overtime, profit sharing, share incentive, restricted shares, phantom share option scheme, long term incentives car, redundancy, permanent health insurance, medical expenses insurance, life assurance and pension benefits, benefit schemes, or any other payment, benefits or arrangements and understandings whatsoever payable to employees (the "Schemes"), job title, notice periods, holiday entitlement, sick pay entitlement and any arrangements or assurances (whether or not legally binding) in relation to their employment or its termination and particulars of employment given to each employee pursuant to Section 1, Employment Rights Act 1996 have been Disclosed.
|
AGREED FORM
|
40.2
|
The Schemes have at all times been operated in accordance with their governing rules or terms and all applicable laws and all documents which are required to be filed with any regulatory authorities have been so filed and all tax clearances and approvals have been obtained. There are no proposals to introduce any Schemes save as Disclosed.
|
40.3
|
Complete and accurate details of the terms of engagement of all persons who are consultants to or workers in the Company (including, but not limited to, out workers, agency staff, self employed persons, contracted labour or agents), including the date of commencement of their engagement, the role they undertake, the number of hours per week they commit to the Company, the fees paid to them, any other benefits provided to them (whether or not legally binding), the notice period required to terminate the relationship and holiday arrangements have been Disclosed.
|
40.4
|
The Company has maintained up to date, adequate and suitable records regarding the service and terms and conditions of employment of each of its employees.
|
40.5
|
True and complete copies of all offer letters, contracts of employment, variations to contracts of employment, staff handbooks, policies, procedures (including disciplinary, dismissal and grievance procedures) and other documents relating to the employment of the employees have been Disclosed.
|
40.6
|
True and complete copies of all consultancy agreements, letters of engagement and other documents relating to the engagement of consultants and workers have been Disclosed.
|
40.7
|
The Company is not a party to any agreement for management services or any contract for services with any director.
|
41
|
Remuneration and incentives
|
41.1
|
Complete and accurate details have been Disclosed of any arrangements or assurances as to future remuneration or benefits to be provided to any officer or employee, worker or consultant howsoever arising (including, but not limited to, any remuneration, agreements, Schemes, obligations or benefits to be provided as a consequence of this Agreement) or as to any compensation or payment to be made to any such person in the event of early retirement, redundancy or other termination of employment however arising, however funded and whether or not legally binding.
|
41.2
|
Since the Accounts Date or (where the relevant employment commenced after that date) since the commencing date of the particular employee's employment there has been:
|
|
(a)
|
no material alteration in the terms of employment and/or engagement or any material change in the number of officers, employees, workers or consultants employed and/or engaged by the Company; or
|
|
(b)
|
no material increase in any fees, earnings, remuneration or benefits paid or payable to any officer, employee, consultant or worker of the Company, nor are any negotiations for any such increase current or likely to take place in the next 6 months.
|
41.3
|
The Company is not bound or accustomed to pay any monies other than in respect of contractual remuneration or earnings of employment to or for the benefit of any employee.
|
41.4
|
No agreement has been reached with any employee, trade union or other employee representative that will on a future date result in an increase in the rate of remuneration or enhanced benefits for any employee.
|
AGREED FORM
|
41.5
|
No negotiations for any increase in the remuneration or benefits of any employees is current or (based on past practice) anticipated to take place within 6 months.
|
41.6
|
Other than salary for the current month and accrued holiday pay for the current holiday year, no amount is owing to any present or former officer, employee, worker or consultant of the Company in respect of the period up to the date of this Agreement.
|
41.7
|
There is not outstanding any agreement or arrangement to which the Company is party in relation to profit sharing or for payment of bonuses or for incentive payments or other similar matters.
|
42
|
Compliance
|
42.1
|
The Company has at all material times complied with all its material obligations under statute and otherwise concerning the health and safety at work of its employees and workers and no claims have been threatened in writing (including by electronic mail) or, so far as the Warrantors are aware, capable of arising or pending by any employee or third party in respect of any accident or injury which are not fully covered by insurance.
|
42.2
|
In relation to each of the employees (and so far as relevant to each of its former employees) so far as the Warrantors are aware the Company has:
|
|
(a)
|
materially complied with all obligations imposed on it by Articles of the Treaty of Rome, European Commission Regulations and Directives and all statutes and regulations relevant to the relations between it and any employee or it and any recognised trade union or other employee representative; and
|
|
(b)
|
complied with all relevant orders and awards affecting the conditions of service of any employee.
|
42.3
|
The Company has paid to HMRC and any other appropriate authority all Taxation, National Insurance contributions and other levies due in respect of any employee in respect of their employment by the Company.
|
42.4
|
The Company has obtained and maintained up to date, adequate and suitable records regarding each employee's eligibility to work in the United Kingdom in accordance with Section 8, Asylum and Immigration Act 1996, the Immigration, Asylum and Nationality Act 2006 and/or the Immigration (Restrictions on Employment) Order 2007 and no individual is employed such that the Company would be liable for a penalty (whether criminal or civil) under the Asylum and Immigration Act 1996 and/or the Immigration, Asylum and Nationality Act 2006.
|
42.5
|
All employees of the Company have a valid and subsisting permission or authority to remain in the United Kingdom and work for the Company and no such permission or authority will expire within the next 6 months.
|
42.6
|
There is currently no employee who is a sponsored migrant under Tier 2 of the Points Based System.
|
42.7
|
The Company has maintained up to date adequate and suitable records for the purposes of the Working Time Regulations and has complied with all other obligations to its workers (as "workers" is defined in Regulation 2, Working Time Regulations) and there are no claims capable of arising or pending or threatened by any officer or employee or former officer or employee or the Health and Safety Executive or any local authority Environmental Health Department or any trade union or employee representative related to the Working Time Regulations.
|
AGREED FORM
|
43
|
The Options
|
43.1
|
There are no outstanding share options granted over shares in the Company or any Group Company. No person or entity holds any present or future rights to acquire or be issued Shares.
|
43.2
|
Other than the EMI Scheme, the Company does not and has not at any time operated any other share incentive arrangements for the benefit of its employees or directors, or the employees or directors of any Group Company.
|
43.3
|
All of the EMI Options were qualifying options, were granted at an exercise price no lower than the market value of the Shares on the date of grant (as agreed with HMRC), were duly notified to HMRC within 92 days of grant, and no disqualifying event had occurred in respect of the EMI Options prior to their exercise.
|
43.4
|
The EMI Scheme was at all times operated in accordance with its terms, and no claims have arisen or are expected to arise in respect of the EMI Scheme.
|
43.5
|
All Options have now been exercised in full, and the full amount of any income tax and national insurance arising on exercise have been calculated, recovered from the option holder and paid to HMRC through the PAYE system in accordance with the Income Tax (Pay As You Earn) Regulations 2003.
|
43.6
|
All Shares acquired or subscribed for by an employee, director or non-executive director of the Company were acquired at market value as at the date of acquisition and the purchase or subscription price was paid in full by the relevant person at the date of acquisition.
|
43.7
|
Each employee, director or non-executive director who holds Shares in the Company or any Group Company (whether on exercise of Options or otherwise) has entered into an election under section 431, Income Tax (Earnings and Pensions) Act 2003 in respect of the Shares held by that person, or by any of that person's associated persons.
|
43.8
|
All HMRC annual share scheme returns (including but not limited to Forms 42 and EMI 40) have been made fully, accurately and on time.
|
44
|
Employment Benefit Trust
|
44.1
|
The EBT is and has always been resident in Guernsey and is and has always been operated in accordance with the terms of the trust deed and Guernsey law, and no claims have arisen or are expected to arise in respect of the trust.
|
44.2
|
The EST is and has always been resident in Jersey and is and has always been operated in accordance with the terms of the trust deed and Jersey law, and no claims have arisen or are expected to arise in respect of the trust.
|
44.3
|
The respective trustees of the EBT and the EST have paid all and any tax arising in any jurisdiction in respect of the trust assets or the operation of the EBT within the appropriate time limits and there is no tax liability of any kind outstanding at Completion in relation to either trust.
|
44.4
|
The EBT has been transferred to Pete McQuilkin and the Company has been and remains fully indemnified in respect of any and all liabilities arising after Completion in relation to the EBT.
|
44.5
|
The EST does not hold any Shares at Completion.
|
44.6
|
All tax or company law returns required to be made by the Company in connection with the EBT and the EST (including but not limited to a notification pursuant to section 218, Inheritance Tax Act 1984) have been made fully, accurately and on time.
|
AGREED FORM
|
45
|
Termination of employment
|
45.1
|
No officer or employee of the Company has given notice or is under notice of dismissal or will be entitled to give notice solely as a result of the provisions of this Agreement.
|
45.2
|
All service contracts between the Company and its officers or employees can be terminated by the Company by 13 weeks' notice or less without giving rise to a claim for damages or compensation (other than a statutory redundancy payment or statutory compensation for unfair dismissal).
|
45.3
|
No contracts of employment with the Company contain pay in lieu clauses, liquidated damages clauses or other terms and conditions giving rise to any debt payable by the Company on the lawful termination of such contract.
|
45.4
|
Details of all employees who have been dismissed or who have resigned in the last 6 months, together with the reason for or an explanation of the dismissal or resignation have been Disclosed.
|
45.5
|
Other than the Pension Schemes, there is no agreement, arrangement, scheme or obligation (whether legal or moral) for the payment of any pensions allowances lump sums or other like benefits on retirement or on death or during periods of sickness or disablement for the benefit of any employee or former employees or for the benefit of dependants of such persons.
|
46
|
General
|
46.1
|
Complete and accurate details of any employee who is currently absent from work (including but not limited to those on secondments, maternity leave, parental leave or absent for any other reason) or who is anticipated to be absent from work for any reason for a period of one month or more have been Disclosed.
|
46.2
|
Complete and accurate details of any disciplinary action (including warnings, suspension with or without pay, demotion and performance management or monitoring) taken by the Company against any employee within the previous 12 months, including details of the procedure followed and action taken and all other relevant documentation have been Disclosed.
|
46.3
|
Complete and accurate details of any grievance made by any employee within the previous 12 months, including details of the procedure followed and action taken and all other relevant documentation have been Disclosed.
|
46.4
|
The Company has not made any loan or advance to any employee which is outstanding.
|
46.5
|
There are no home working, part time, job share, flexitime or flexible working arrangements or early retirement schemes applicable to any employee.
|
46.6
|
The Company’s normal retirement age for all employees is 65. There are currently no employees who are aged 64 or over.
|
47
|
Industrial relations
|
47.1
|
Details of any court or tribunal case, claim or action brought by any present or former officer, employee, worker or consultant within the previous 2 years and complete and accurate details of any court or tribunal case, any claim or action which the Warrantors have reasonable grounds to believe to the best of their knowledge, information and belief, that any such person may bring against the Company have been Disclosed. Any such claims have been provided for or taken into account in the Accounts.
|
47.2
|
The Company has not received a request for recognition pursuant to the Trade Union and Labour Relations (Consolidation) Act 1992 nor is the Company party to any contract, agreement or arrangement with any trade union or other body or organisation representing any of its employees nor has it done any act which might be construed as recognition of a trade union.
|
47.3
|
The Company has in relation to its officers and employees and former officers and employees complied with all relevant legislation (including, without limitation, the TUPE Regulations and the Working Time Regulations), conditions of service, customs and practices and, where relevant, all collective agreements, recognition agreements, workforce agreements and relevant agreements for the time being.
|
47.4
|
There has been no recommendation made by an Employment Tribunal in relation to the Company and/or any of its employees. Any recommendations made by an Employment Tribunal have been complied with.
|
47.5
|
In the 12 months preceding the date of this Agreement, the Company has not given notice of any redundancies to the Secretary of State, stated consultations with any appropriate representatives or failed to comply with any obligations under the provisions of chapter II, Trade Union and Labour Relations (Consolidation) Act 1992.
|
47.6
|
The Company has not been a party to any relevant transfer as defined in the TUPE Regulations and no employee has been dismissed or is under notice of termination by reason of or in connection with the TUPE Regulations.
|
47.7
|
No dispute has arisen between the Company and a material number or category of its employees or workers nor are there any present circumstances known to the Warrantors which are likely to give rise to any such dispute.
|
47.8
|
Details of any collective agreement (whether with a trade union, staff association or any other body representing workers and whether legally binding or not) have been Disclosed.
|
47.9
|
No training schemes, arrangements or proposals exist nor have there been any such schemes, arrangements or proposals in the past in respect of which a levy may become payable by the Company under the Industrial Training Act 1982.
|
47.10
|
No investigation is in progress or, so far as the Warrantors are aware, planned to be made in respect of the Company by the Health and Safety Executive, the Equality and Human Rights Commission and/or any similar body. The Company is not and/or has not been subject to any enforcement order made by the Health and Safety Executive, the Equality and Human Rights Commission and/or any similar body and there is no outstanding liability to any such body for any penalty, fine or otherwise.
|
47.11
|
No outstanding liability has been incurred by the Company for breach of any contract of employment or redundancy payments, protective awards, compensation for wrongful dismissal or unfair dismissal or for failure to comply with any order for reinstatement or re engagement of any person or in respect of any other liability arising out of termination of any contract of employment or contract for services.
|
48
|
Pensions
|
48.1
|
Save for the Pension Schemes, there is not in operation by the Company and there has not, at any time, been in operation by the Company (and no proposal has been announced by the Company to enter into or establish) and the Company has no liability in respect of any plan, scheme, agreement, arrangement, custom or practice whether or not approved or registered by HM Revenue and Customs) for the payment of (or for the payment of any contribution towards), any pensions, allowances, lump sum or other like benefits payable on retirement, death, termination of employment (whether voluntary or not or whether arising from a transfer of an undertaking within the meaning of the TUPE Regulations or otherwise) or during periods of sickness or disablement, for the benefit of any of the employees (or ex-employees) or directors (or ex-directors) of the Company or for the benefit of the dependants of any of such employees or directors of the Company.
|
AGREED FORM
|
48.2
|
In relation to the Pension Schemes:
|
|
(a)
|
material details of them which are sufficient to enable the Purchaser to administer them and to form a fair and accurate assessment of all of the benefits provided by or in respect of them and all of the Company's current or contingent liabilities or obligations in relation to them (including all details of the basis on which the Company and the employees who are members of them make, or are liable to make, contributions to them) and full and accurate details of all of the schemes current and former participating employers and all members of them at Completion have been Disclosed;
|
|
(b)
|
all contributions which are payable by the Company in respect of them and all contributions due from the employees as members of them which have fallen due to be paid, and all fees, charges and expenses due have been duly paid in accordance with all applicable laws or requirements;
|
|
(c)
|
every person who has had a right to join, or apply to join, them have been properly notified of that right and no employee of the Company has been excluded from membership of them or from any of the benefits under them in contravention of any of their provisions, any employment contract, or any applicable law including without limitation under Article 157 of the Treaty on the Functioning of the European Union, section 62 Pensions Act 1995, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 1551/2000) or the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034);
|
|
(d)
|
so far as the Warrantors are aware they have been administered in all material respects in accordance with all requirements of the Pension Schemes Act 1993, the Pensions Act 1995, and the Pensions Act 2004 and in accordance with the trusts, powers and provisions of such plans, schemes or arrangements and all other laws and regulations and all requirements of any competent government body or regulatory authority (including the requirements of Article 157 of the Treaty on the Functioning of the European Union);
|
|
(e)
|
all benefits (other than a refund of contributions with interest where appropriate, spouses' death in service and ill health early retirement pensions) payable on the death of a member while in service, or during a period of sickness or disability of a member, are fully insured under a policy effected with an insurance company to which section 275 of the Finance Act 2004 applies and all insurance premiums due have been paid and the Warrantors are not aware of any circumstances in which such insurance would be invalidated. Each member has been covered for that insurance at the insurance company's usual rates and on its usual terms for persons in good health;
|
|
(f)
|
prior to 6 April 2006 they have at all times been personal pension plans (within the meaning of Chapter IV Part XIV of ICTA), and with effect from 6 April 2006 they have been registered pension schemes within the meaning of Chapter 2 of the Finance Act 2004, and so far as the Warrantors are aware nothing has been done or omitted to be done which will or may result in the cessation of such approval or registration;
|
|
(g)
|
no undertakings or assurances have been given to any of the employees of the Company as to the continuance, introduction, increase or improvement of any rights or entitlements in relation to pension, death, disability or retirement; and
|
|
(h)
|
they provide only money purchase benefits as defined in section 181 Pension Schemes Act 1993;
|
|
(i)
|
all of its assets are under the possession or control of its trustees or administrator and are not subject to any encumbrance and do not include any securities issued by, properties leased to or occupied by, or loans made to or from, any Group Company or any connected person (as defined under sections 249 and 435 of the Insolvency Act 1985) nor have the assets been depleted in any improper manner; and
|
AGREED FORM
|
|
(j)
|
no claim or complaint has been threatened or made or litigation commenced against the Company (or its trustees, administrators or principal employer or any other person whom the Company is liable to indemnify or compensate) in respect of any matter arising out of or in connection with them and so far as the Warrantors are aware there are no circumstances which may give rise to any such claim or litigation.
|
48.3
|
The Company has complied with all of its obligations relating to stakeholder pension schemes including without limitation under the Welfare Reform and Pensions Act 1999, the Stakeholder Pension Schemes Regulations (S.I. 2000 No. 1403), and the Financial Services and Markets Act 2000.
|
48.4
|
In the six years prior to Completion none of the employees of the Company have been transferred to it in connection with a business transfer to which the TUPE Regulations may have applied and none of the employees of the Company (nor any of their dependants) has any right or entitlement to any benefit of any kind based directly or indirectly upon or arising as a consequence of the decisions of the European Court of Justice in Beckmann v Dynamco Whicheloe Macfarlane Limited [2002] or Martin & Others v South Bank University [2003] or any grounds to make a claim against the Company in respect of such right or entitlement.
|
48.5
|
Neither the Company nor the Vendors, nor any Associated Persons, is a person who has in the period since 27 April 2004 been a party to an act or a deliberate failure to act relating to a debt due from an employer in relation to a pension scheme under section 75 of the Pensions Act 1995 and no circumstances exist which would or might result or have resulted in the Company, the Vendors or the Purchaser becoming liable under sections 38 to 51 of the Pensions Act 2004 including without limitation:
|
|
(a)
|
to pay any sum specified by a contribution notice as defined in section 38 of the Pensions Act 2004; and/or
|
|
(b)
|
under a financial support direction as defined in section 43 of the Pensions Act 2004
|
48.6
|
In relation to each of the Former Schemes and the SIPP:
|
|
(a)
|
the Company has no liability whatsoever in respect of it including any liability to make any contribution;
|
|
(b)
|
it is not a scheme to which section 75 of the Pensions Act 1995 currently applies or has at any time in the past applied; and
|
|
(c)
|
the only benefits which it is required to provide are money purchase benefits as defined in section 181 Pension Schemes Act 1993 and there has not at any time been any requirement to provide any defined, guaranteed or targeted level of benefit (on a salary related basis or otherwise).
|
49
|
Title
|
49.1
|
The Properties comprise all the properties presently owned, occupied, held, controlled or otherwise used by the Company and the Company is in actual and exclusive occupation .
|
49.2
|
The Company's title to each of the Properties is good and marketable.
|
49.3
|
Each Property is occupied or otherwise used by the Company by right of ownership or under the Leases, the terms of which permit its occupation or use as tenant and not under any provision allowing the parting of or sharing of possession with group or associated companies and there are no outstanding circumstances known to the Warrantors which would restrict the continued possession and enjoyment of any Property or any part of it.
|
AGREED FORM
|
49.4
|
All deeds and documents necessary to prove title to each Property are in the possession and control of the Company and consist of original deeds and documents or properly examined abstracts.
|
49.5
|
No person is in adverse possession of any Property nor has acquired nor is acquiring:
|
|
(a)
|
where the title to any Property is unregistered, unregistered interests which override first registration as defined in Schedule 1, Land Registration Act 2002 ("2002 Act"), any interest which fall within Section 11(4)(c), 2002 Act, such unregistered interests as may affect any Property to the extent and for so long as they are preserved by the transitional provisions of schedule 12, 2002 Act and PPP leases as defined in Section 90, 2002 Act; and
|
|
(b)
|
where title to any Property is registered, unregistered interests which override registered dispositions as defined in Schedule 3, the 2002 Act, such unregistered interests as may affect any Property to the extent and for so long as they are preserved by the transitional provisions of schedule 12, 2002 Act and PPP leases as defined in Section 90, 2002 Act.
|
49.6
|
The Company has not had occasion to make any claim or complaint in relation to any neighbouring property or its use or occupation and there are no disputes, claims, actions, demands or complaints in respect of any Property which are ongoing nor are any disputes, claims, actions, demands or complaints anticipated and no notices materially affecting any Property have been given or received and not complied with.
|
50
|
Encumbrances
|
50.1
|
No Property is subject to any outgoings other than business rates, water rates and insurance premiums and, in the case of leasehold properties, rent, insurance rent and service charges.
|
50.2
|
No Property is subject to any restrictive covenant, reservation, stipulation, easement, profits à prendre, wayleave, licence, grant, restriction, overriding interest, agreement for sale, estate contract, option, right of pre emption or other similar agreement or right vested in third parties.
|
50.3
|
No matter exists which is registered or is properly capable of registration against any Property as a Land Charge, Local Land Charge, notice or restriction.
|
50.4
|
Where any matter has been Disclosed against sub paragraphs 50.1 to 50.3 (inclusive), the obligations and liabilities imposed and arising under the Disclosed matter have been fully observed and performed in all material respects and any payments in respect of it which are due and payable have been duly paid.
|
50.5
|
None of the documents held by The Land Registry relating to any Property has been the subject of an application for exemption of information.
|
51
|
Planning matters
|
51.1
|
The use of each Property is a lawful and permitted use for the purposes of the Planning Acts.
|
51.2
|
So far as the Warrantors are aware, planning permission has been obtained, or is deemed to have been granted for the purposes of the Planning Acts for each Property; no planning permission is the subject of a temporary or personal consent or has been modified or revoked; no application for planning permission is awaiting decision; no application for planning permission is the subject of appeal proceedings; no planning permission has been granted within the last 3 months and the validity of any planning permission relating to any Property is not currently being or is likely to be challenged.
|
AGREED FORM
|
51.3
|
So far as the Warrantors are aware, Building Regulations Consents have been obtained with respect to all development, alterations and improvements to the Properties.
|
51.4
|
So far as the Warrantors are aware, in respect of each Property, the Company and each Group Company has complied, and is continuing to comply, in all respects with:
|
|
(a)
|
all planning permissions, orders and regulations issued under the Planning Acts and Building Regulations Consents and by laws for the time being in force;
|
|
(b)
|
all agreements under Section 52, Town and Country Planning Act 1971 and planning obligations under Section 106, Town and Country Planning Act 1990; and
|
|
(c)
|
all agreements made under Sections 38 and 278, Highways Act 1980, Section 33, Local Government (Miscellaneous Provisions) Act 1982, Section 18, Public Health Act 1936 and Section 104, Water Industry Act 1991.
|
51.5
|
No Property is listed as being of special historic or architectural importance or located in a conservation or other area, or subject to an order, designation or affected by a planning proposal which may regulate or affect the use or development of any Property in the future.
|
51.6
|
All claims and liabilities under the Planning Acts including all planning covenants and obligations under Section 52, Town and Country Planning Act 1991 and Section 106, Town and Country Planning Act 1990 and all planning covenants or obligations under any other legislation have been discharged and so far as the Warrantors are aware no claim or liability, actual or contingent, is outstanding.
|
51.7
|
No enforcement action of any kind has been served or threatened by any planning authority exercising powers under the Planning Acts in relation to any Property.
|
52
|
Statutory obligations
|
52.1
|
The Company has complied with and is continuing to comply in all material respects with all applicable statutory and by law requirements with respect to each Property, and in particular with the requirements as to fire safety and fire precautions under the Regulatory Reform (Fire Safety) Order 2005, asbestos under the Control of Asbestos Regulations 2006 and general matters under the Public Health Acts, the Offices, Shops and Railway Premises Act 1963, the Health and Safety at Work Act 1974 and the Factories Act 1961.
|
52.2
|
No licences are required in relation to any of the Properties under the Licensing Act 2003.
|
53
|
Adverse orders
|
53.1
|
There are no compulsory purchase notices, orders or resolutions affecting any of the Properties and there are no circumstances likely to lead to any being made.
|
53.2
|
There are no closing, demolition or clearance orders, enforcement notices or stop notices affecting any of the Properties and there are no circumstances likely to lead to any being made.
|
54
|
Condition of the Properties
|
54.1
|
So far as the Warrantors are aware the buildings and other structures on each Property are in good and substantial repair and fit for the purposes for which they are used and so far as the Warrantors are aware no building or other structure on any of the properties has been affected by any material structural damage, electrical defects, timber infestation or disease.
|
AGREED FORM
|
54.2
|
The principal means of access to each Property is over roads which have been adopted by the local or other highway authority and which are maintainable at the public expense and no means of access to any of the Properties is shared with any other person nor subject to rights of determination by any other person.
|
54.3
|
Each Property enjoys the mains services of water, drainage, electricity and gas.
|
55
|
Leasehold properties
|
55.1
|
Each Lease is valid and in full force and there are no circumstances known to the Warrantors which would entitle any landlord or other person to exercise any power of entry or take possession of any of the Properties.
|
55.2
|
The Company has paid the rent and observed and performed in all material respects the covenants on the part of the tenant and the conditions contained in any Lease to which it is a party, and the last demands (or receipts for rent if issued) were unqualified.
|
55.3
|
All licences, consents and approvals required from the landlords and any superior landlords for the grant of the Leases and during the continuance of the Leases have been obtained and any covenants on the part of the tenant contained in those licences, consents and approvals have been duly performed and observed.
|
55.4
|
There are no rent reviews outstanding or in progress under any Lease.
|
55.5
|
Any alteration or improvement carried out on any Property is to be disregarded for rent review purposes.
|
55.6
|
There is no obligation to reinstate any Property by removing or dismantling any alteration made to it by the Company or any of its predecessors in title and the Company has not incurred nor is it likely to incur any liability for dilapidation.
|
55.7
|
The Company has not in the past been the tenant of or guarantor of any leasehold premises not listed in Schedule 3 (The Properties) in respect of which any obligations or liabilities could still accrue to the Company.
|
55.8
|
The sale of the Shares will not constitute an assignment or other dealing in respect of any of the Properties under the terms of the Leases.
|
55.9
|
Rights appurtenant to each Lease granted or assigned on or after 13 October 2003 and subject to registration at The Land Registry are properly noted against affected titles.
|
56
|
Tenancies
|
56.1
|
The Properties are not held subject to, and with the benefit of, any tenancy other than the Tenancies.
|
56.2
|
Complete and accurate details of:
|
|
(a)
|
the rent and any rent reviews and, with respect to rent reviews, the date for giving notice of exercise of the reviews and the operative review date;
|
|
(b)
|
the term and any rights to break or renew the term;
|
|
(c)
|
the obligations of the landlord and tenant in respect of outgoings, repairs, user, insurance services and service charge;
|
AGREED FORM
|
|
(d)
|
any options, pre emption or first refusal rights;
|
|
(e)
|
the user required or permitted under the terms of the Tenancies;
|
|
(f)
|
any entitlement of a tenant of the whole or any part of the Properties to compensation on quitting the premises let to him in respect of disturbance and improvements or otherwise; and
|
|
(g)
|
any unusual provisions,
|
56.3
|
The Warrantors are not aware of any material or persistent breaches of covenant or agreement by a tenant of any of the Properties.
|
57
|
Contamination
|
57.1
|
So far as the Warrantors are aware no Property is as a result of the activities of the Company in such a condition that it could be entered in any register introduced under the Environment Act 1995 or otherwise as land which is contaminated.
|
58
|
Environmental Consents and Compliance
|
58.1
|
All material documentation relating to EHS Matters procured by the Company and in its possession has been Disclosed to the Purchaser.
|
58.2
|
In relation to its business, the Company holds all Environmental Consents.
|
58.3
|
Details of all Environmental Consents held by the Company have been Disclosed and are valid and subsisting.
|
58.4
|
The Company has not received any written notification which is outstanding nor is it aware of any circumstances whereby any Environmental Consent it holds is or could be modified, suspended, restricted, or withdrawn.
|
58.5
|
So far as the Warrantors are aware the Company has not breached the terms, conditions or provisions of any Environmental Consent.
|
58.6
|
The Company has not received any written notification or informal written indication that further Environmental Consents are required under Environmental Law in order for it to continue its present business.
|
58.7
|
The Company materially complies with all applicable Environmental Law and has never received any written notification under Environmental Law requiring it to take or omit to take any action which is outstanding.
|
58.8
|
So far as the Warrantors are aware there are no facts or circumstances which may give rise to any material non compliance with or material liability under Environmental Law by or for the Company.
|
58.9
|
The Company has not in the last 2 years been threatened in writing with any investigation or enquiry by any authority, group, organisation or other person, nor has it received any written complaint, in connection with the Environment.
|
58.10
|
So far as the Warrantors are aware the Company has no material liability to any person in respect of any matter relating to the Environment or EHS Matters under any contract or indemnity.
|
AGREED FORM
|
58.11
|
There are no current prosecutions, claims, proceedings notices, disputes (including dispute resolution procedures), complaints or investigations of which the Vendors has received written notice nor so far as the Warrantors are aware any circumstances or material facts which could, if true, give rise to any of the same, in which it is alleged that the Company is responsible for any clean up, remediation or similar works in relation to lands contaminated with any Dangerous Substance or for any other liability or remedial action under Environmental Law or in relation to EHS Matters.
|
58.12
|
So far as the Warrantors are aware there is no material capital expenditure or materially increased operating expenditure known in relation to the Environment or Environmental Law which is not provided for in the Company's financial forecasts, a copy of which is attached to the Disclosure Letter.
|
59
|
Additional warranties
|
59.1
|
Without detracting from any of the preceding Warranties contained in this Schedule (Non-Tax Warranties) which relate to and are given by each Group Company, the Warranties set out below apply only to Femcare Australia pty ("Femcare Australia").
|
59.2
|
Femcare Australia does not have and has never had any employees, consultants or workers.
|
59.3
|
Femcare Australia does not hold any real estate property or interest in real estate property.
|
59.4
|
All of the material operations of Femcare Australia are carried out on behalf of that company by Interventional Technologies Australasia Pty Limited pursuant to the terms of a services agreement undated but stated to commence on 3 December 2001. Notwithstanding any other provision to the contrary, such contract is a "Material Contract" for the purposes of these Warranties (and in particular those set out in paragraph 19).
|
AGREED FORM
|
1
|
Save as set out in paragraph 2 below the individual liability of each Vendor for claims under this Agreement shall not exceed the amount set out opposite his or its name in Part 1 of Schedule 1.
|
2
|
The aggregate liability of the Warrantors in respect of all Claims shall not exceed the sum of the following:
|
|
(h)
|
the Escrow Amount to the extent it is held in the Escrow Account from time to time; and
|
|
(i)
|
the amount set out opposite his name in Part 1B of Schedule 1,
|
3
|
The liability of the Warrantors under the Warranties shall be reduced if and to the extent that the loss shall have been recovered under the Tax Covenant (and vice versa).
|
4
|
The Warrantors shall not be liable for any Warranty Claim if, and to the extent that, the fact, matter, circumstance or event giving rise to such Warranty Claim has been Disclosed in the Disclosure Letter in respect of the Warranties given at the date of this Agreement provided that:
|
|
(a)
|
only the disclosures in section ● of the Disclosure Letter (to the extent Disclosed) shall be treated as having been Disclosed against the Tax Warranties;
|
|
(b)
|
nothing in the Disclosure Letter shall limit the Warrantors' liability under the Tax Covenant; and
|
|
(c)
|
only the disclosures in section ● of the Disclosure Letter (to the extent Disclosed) shall be treated as having been Disclosed against the Warranties in paragraph 48.1 (Pensions) of Schedule 4 (Non-Tax Warranties) and only the disclosures in section ● of the Disclosure Letter (to the extent Disclosed) shall be treated as having been Disclosed against the Warranties in paragraphs 55 and 56 (Environment) of Schedule 4 (Non-Tax Warranties).
|
5
|
Subject to paragraph 8, the Warrantors shall not be liable for a Claim unless:
|
|
(a)
|
the Warrantors' Representative has received written notice from the Purchaser giving reasonable details of the Claim:
|
|
(i)
|
in the case of a Non Tax Claim, on or before 31 March 2013; or
|
|
(ii)
|
in the case of any Tax Claim not later than 7 years from the date of Completion; and
|
|
(b)
|
the amount of the Warranty Claim:
|
|
(i)
|
exceeds £10,000, in which case the Warrantors shall be liable for the whole amount of the Warranty Claim and not simply the excess paid; and
|
|
(ii)
|
when aggregated with all other Warranty Claims made on the same occasion or previously, is equal to or exceeds £60,000 (in which case the Warrantors shall be liable for the whole amount of all of the Warranty Claims and not simply the excess).
|
AGREED FORM
|
6
|
The Warrantors shall not be liable for a claim under this Agreement which is not a Warranty Claim or a Tax Claim unless the Warrantors' Representative has received written notice from the Purchaser giving reasonable details of the claim not later than 7 years from the date of Completion;
|
7
|
Subject to paragraph 8, any Non Tax Claim which has been made against the Warrantors (and which has not been previously satisfied, settled or withdrawn) shall be deemed to have been withdrawn and shall become fully barred and unenforceable on the expiry of the period of 6 months commencing on the date on which notice of the Non Tax Claim was given to the Warrantors in accordance with paragraph 5(a)(i) unless legal proceedings in respect of the Non Tax Claim shall have been properly issued and validly served on the Warrantors.
|
8
|
The Warrantors shall not be liable in respect of a Non Tax Claim based on a contingent liability only unless and until that contingent liability has become an actual liability, provided that if notice of a Non Tax Claim based on a contingent liability only has been given to the Warrantors in accordance with paragraph 5(a)(i), the 6 month period referred to in paragraph 7 shall not commence until the date on which the contingent liability becomes an actual liability.
|
9
|
The amount of any Claim once finally agreed or finally determined (as such term is defined in clause 6 of this Agreement) shall be satisfied in the following order:
|
|
(a)
|
firstly by payment from the Escrow Account in accordance with clause 6 of this Agreement; and
|
|
(b)
|
thereafter by the Warrantors personally.
|
10
|
The Warrantors shall not be liable for any Non Tax Claim if:
|
|
(a)
|
the Non Tax Claim arises or is increased as a result of any voluntary act or deliberate omission of the Purchaser (or any persons deriving title from it) after Completion done or suffered outside the ordinary course of business and other than:
|
|
(i)
|
pursuant to a legally binding obligation entered into by a Group Company before Completion; or
|
|
(ii)
|
in order to comply with any law; or
|
|
(iii)
|
at the request of or with the consent of the Warrantors' representative;
|
|
(b)
|
the Non Tax Claim arises or is increased as a result of, or is otherwise attributable to, the passing or coming into force of, or any change in, after the date of this Agreement, any law, rule, regulation, directive, interpretation of the law or any administrative practice of any government, governmental department, agency or regulatory body, in any such case not actually or prospectively in force at the date of this Agreement;
|
|
(c)
|
the Non Tax Claim arises or is increased as a result of, or is otherwise attributable to, any changes made after Completion in the accounting policies or accounting practices of the Purchaser or a Group Company save for any changes required to comply with generally accepted accounting practices current at the date of Completion;
|
|
(d)
|
the matter giving rise to the Non Tax Claim arises (in whole or in part) from any event before Completion at the written request or direction of, or with the written acquiescence or consent of, any member of the Purchaser's Group or an authorised representative of any member of the Purchaser's Group; or
|
AGREED FORM
|
|
(e)
|
and to the extent that the matter giving rise to the Non Tax Claim was allowed, provided for or reserved in the Accounts or the Management Accounts.
|
11
|
Third Party Claims
|
11.1
|
The Purchaser shall notify the Warrantors' Representative in writing of:
|
|
(a)
|
any claim made against it by a third party which may give rise to a Non Tax Claim; and
|
|
(b)
|
any claim any Group Company is entitled to bring against a third party which claim is based on circumstances which may give rise to a Non Tax Claim,
|
11.2
|
The Purchaser shall procure that the conduct, negotiation, settlement or litigation of such Third Party Claim is, so far as is reasonably practicable, carried out in accordance with the reasonable requests of the Warrantors' Representative and at the cost of the Warrantors subject to the Warrantors Representative:
|
|
(a)
|
giving timely instructions to the Purchaser;
|
|
(b)
|
indemnifying and keeping indemnified the Purchaser, to the Purchaser's reasonable satisfaction, in respect of any losses, claims, liabilities, damages and demands suffered and all costs and expenses (including, but not limited to, all legal costs and expenses) which might be incurred by the Purchaser or the Group in connection with such Third Party Claim; and
|
|
(c)
|
providing security to the Purchaser's reasonable satisfaction in respect of any such losses, claims, liabilities, damages and demands, costs and expenses as referred to in sub paragraph (b),
|
11.3
|
The rights of the Warrantors' Representative under this paragraph 11 (Third Party Claims) shall only apply to a Third Party Claim if the Warrantors' Representative gives notice to the Purchaser in writing of its intention to exercise its rights within 10 Business Days of the Purchaser giving notice of such Third Party Claim. If the Warrantors' Representative does not give notice during that period any relevant Purchaser Group Company shall be entitled in its absolute discretion to settle, compromise, or take or resist any action, proceedings or claim in respect of such Third Party Claim.
|
11.4
|
The Purchaser shall not by reason of any breach of the terms of this paragraph 11 (Third Party Claims) be precluded from bringing any Claim against the Warrantors.
|
11.5
|
If any matter gives rise to a Non Tax Claim in relation to the Product Liability Warranties, the Purchaser shall procure that the relevant member of the Group makes any claim it is entitled to make under any relevant insurance policy of the Group in force on the date of such loss and has recovered to the extent possible thereunder before bringing a Non Tax Claim against the Warrantors provided that if notice of such Non Tax Claim has been given to the Warrantors in accordance with paragraph 5a(i), the 6 month period referred to in paragraph 7 shall not commence until the date on which the insurance claim has been settled or rejected. The Warrantors shall not be liable for a Non Tax Claim in relation to the Product Liability
|
AGREED FORM
|
|
Warranties to the extent that the loss in respect of which the Non Tax Claim is made is actually recovered under any such insurance policy of the Group, provided that the Warrantors shall reimburse the Purchaser for all reasonable costs and expenses of the Purchaser incurred in making such claim (including any excess).
|
11.6
|
If the Warrantors make any payment to the Purchaser or any Group Company in relation to any Non Tax Claim and the Purchaser or any Group Company subsequently receives from a third party any sum referable to, or any benefit which would not have been received but for the circumstances giving rise to, the subject matter of that Non Tax Claim, the Purchaser shall, once it or the Group has received such sum or benefit, promptly repay or procure the repayment to the Warrantors of either:
|
|
(a)
|
the amount of such receipt (after deducting an amount equal to the costs of the Purchaser or the Group incurred in recovering such receipt and any Taxation payable on it); or if lesser;
|
|
(b)
|
the amount paid by the Warrantors.
|
AGREED FORM
|
1
|
Definitions and interpretation
|
1.1
|
In this Agreement, unless the context otherwise requires, the following words have the following meanings:
|
|
(a)
|
has been treated as an asset in preparing the Completion Statement (in respect of corporation tax) and/or the Management Accounts (in respect of PAYE, national insurance and VAT); or
|
|
(b)
|
has been taken into account in computing (and so reducing) or obviating any provision for deferred Taxation which appears or which but for the availability or presumed availability of the Relief would have appeared in the Completion Statement.
|
AGREED FORM
|
|
(c)
|
any liability to make a payment or increased payment of or in respect of Taxation regardless of whether such Taxation is chargeable primarily to a Group Company or to any other person;
|
|
(d)
|
the loss in whole or in part of any Accounts Relief; or
|
|
(e)
|
the setting off against any liability to Taxation or against Profits earned, accrued or received on or before the Locked Box Date of any Purchaser's Relief in circumstances where, but for the setting off, any Group Company would have had a liability to Taxation in respect of which the Purchaser would have been able to make a claim against the Warrantors under the Tax Covenant.
|
AGREED FORM
|
1.2
|
In this Schedule:
|
|
(f)
|
a reference to a jurisdiction shall include any union (including for the avoidance of doubt, the European Union), country, state, province, district or division of whatever nature which imposes or raises Taxation;
|
|
(g)
|
a reference to any law shall include any statute, statutory instrument, law, regulation, treaty, notice, directive or similar provision relating to Taxation, whether of the United Kingdom or elsewhere;
|
|
(h)
|
references to specific parts of the law of the United Kingdom shall be taken to include a reference to the law of any other jurisdiction (so far as the same may apply to any Group Company) which may be similar to or have a similar purpose to the law of the United Kingdom to which reference is made; and
|
|
(i)
|
references to the VATA shall include all law relating to value added tax in the United Kingdom and any value added, turnover, sales, purchase or similar tax of any other jurisdiction and references to value added tax shall be construed accordingly.
|
AGREED FORM
|
2
|
Tax Warranties
|
2.1
|
Since the Accounts Date:
|
|
(a)
|
no Event has occurred, either in circumstances where the consideration actually received or receivable (if any) was less than the consideration which could be deemed to have been received for Tax purposes or which will give rise to a Liability to Taxation on any Group Company calculated by reference to deemed as opposed to actual Profits;
|
|
(b)
|
so far as the Warrantors are aware no Event has occurred which will result in any Group Company becoming liable to pay or bear a Liability to Taxation directly or primarily chargeable against or attributable to another person other than another Group Company;
|
|
(c)
|
no Group Company has been a party to any Event for which any Tax clearance provided for by statute has been obtained; and
|
|
(d)
|
no accounting period or period of account by reference to which Taxation is measured of any Group Company has ended (including within the meaning of Part 2, Chapter 2 CTA (accounting periods)).
|
2.2
|
Each Group Company has duly complied with all requirements imposed on it by law and in particular:
|
|
(e)
|
each Group Company has paid all Taxation for which it is liable and made all withholdings and deductions in respect, or on account, of any Taxation from any payments made by it which it is obliged to make;
|
|
(f)
|
each Group Company has properly prepared and punctually submitted all notices, returns and applications for clearances or consents required for Tax purposes and provided complete and accurate information to any Tax Authority;
|
|
(g)
|
each Group Company has kept and maintained complete and accurate records, invoices and other documents and information of whatever nature required for Tax purposes and so far as the Warrantors are aware has sufficient such records, invoices and other documents and information relating to past Events to calculate its liability to Taxation or the relief from Taxation which would arise on any disposal or on the realisation of any assets owned at Completion;
|
|
(h)
|
there are no enquiries, disputes, unsettled or outstanding assessments or appeals in respect of Taxation and no Group Company has within the last 6 years been subject to any enquiry, investigation or other dispute (other than routine PAYE, national insurance and VAT audits) with any Tax Authority and so far as the Warrantors are aware there are no circumstances which may give rise to such an enquiry or dispute;
|
|
(i)
|
no Group Company has within the last 6 years been liable or will in respect of any Event occurring on or before Completion become liable to pay any interest, penalty, fine or sum of a similar nature in respect of Taxation nor, in relation to VAT, has received any penalty liability notice, default surcharge liability notice or other written notice or warning under the VATA;
|
|
(j)
|
each Group Company has duly submitted all claims and elections which have been assumed to have been made for the purposes of the Accounts; and
|
|
(k)
|
no Group Company is a qualifying company within the meaning of Schedule 46, Finance Act 2009 (Duties of Senior Accounting Officers of Qualifying Companies).
|
2.3
|
Each Group Company has at all times been resident for Tax purposes in the jurisdiction of its incorporation and no Group Company has during the past 4 years paid and/or is not liable to pay Tax in any other jurisdiction, other than the jurisdiction of its incorporation.
|
2.4
|
The amount of Tax chargeable on each Group Company or subject to withholding or deduction by the relevant Group Company during any accounting period ending on or within the last 4 years has not to any material extent depended on any dispensation, concession or other informal arrangement with any Tax Authority.
|
2.5
|
No Group Company is liable to be assessed to Tax as agent for, or on account of, or otherwise on behalf of, any other person.
|
2.6
|
No Group Company has made any claim or application or is required to pay any Tax by instalments or to defer the payment of any Tax.
|
2.7
|
Each Group Company applies UK GAAP in calculating its income, profits and gains for Tax purposes and no Group Company is required, and has not voluntarily chosen, to calculate such income, profits and gains in accordance with International Accounting Standards.
|
2.8
|
No Group Company operates (nor is any Group Company proposing to introduce) any share incentive, share option, restricted stock, phantom share option, or any long term incentive plan or scheme, any stock appreciation right or other incentive scheme for the benefit of all or any of its current or past directors or employees.
|
2.9
|
No shares or securities have been issued by any Group Company, and no options have been granted or issued in respect of such shares or securities, such that the any Group Company will or may be liable to account for income tax under the PAYE system or to collect or pay any national insurance contributions.
|
2.10
|
No shares or securities have been issued by any Group Company, and no reportable event under ITEPA has occurred, such that any Group Company will or, so far as the Warrantors are aware, may be liable to make a notification to any Tax Authority (including any notification to HMRC under ITEPA).
|
2.11
|
No Group Company is involved with any managed service company for the purposes of Chapter 9, Part 2 ITEPA, nor does any Group Company engage any individuals in circumstances falling within Chapter 8, Part 2 ITEPA such that any Group Company has been or will, so far as the Warrantors are aware, become liable to account for income tax under the PAYE system or to collect or account for any national insurance contributions in respect of such individuals (including, for the avoidance of doubt, any liabilities arising directly or indirectly from the transfer of any PAYE debt to the Company pursuant to Chapter 4, Part 4 of the Income Tax (Pay as You Earn) Regulations 2003).
|
2.12
|
Each Group Company:
|
|
(l)
|
is registered for the purpose of, and has complied in all material respects with, the VATA; and
|
|
(m)
|
is not, and has not within the last 6 years been a member of a group for VAT purposes under section 43, VATA (groups of companies).
|
2.13
|
No Group Company is subject to The Value Added Tax (Payments on Account) Order 1993.
|
2.14
|
All supplies made by each Group Company are taxable supplies, and all input tax for which any Group Company has claimed credit has been paid by that Group Company, in respect of supplies made to it relating to goods or services used or to be used for the purpose of the business of that Group Company.
|
2.15
|
No Group Company has been required to give security for payment of Tax to any Tax Authority (including under paragraph 4, Schedule 11, VATA (power to require security and production of evidence)).
|
2.16
|
No Group Company has made, nor will prior to Completion make, any option to tax under Part 1, Schedule 10, VATA (the option to tax land).
|
2.17
|
So far as the Warrantors are aware, each Group Company has made all necessary returns in relation to the collection and payment of customs duties, excise duties and other Taxes having an equivalent effect and has provided to any relevant Tax Authority all necessary information, returns and documentation and paid all amounts due in relation to the same and within the prescribed time limits.
|
2.18
|
Details of all duty deferment schemes used by or in relation to each Group Company are set out in the Disclosure Letter.
|
2.19
|
No Group Company has at any time in respect of any asset owned at the date of this Agreement which is reflected in the Accounts with a value in excess of £100,000 made, nor will it prior to Completion make, any claim under sections 152 to 158 (inclusive) TCGA (replacement of business assets) nor has any such claim or election been assumed to have made for the purposes of calculating any provision for Tax made in the Accounts. No Group Company has at any time in respect of any intangible fixed assets owned at the date of this Agreement which is reflected in the Accounts with a value in excess of £100,000 made any claims or elections under Chapter 7, Part 8, CTA (rollover relief in case of realisation and reinvestment).
|
2.20
|
No Group Company is either a close company within the meaning of section 439, CTA 2010 (previously section 414, ICTA) (close companies) or a close investment holding company for the purposes of section 34, CTA 2010 (previously section 13A, ICTA) (close investment-holding companies).
|
2.21
|
No Group Company has at any time made any loan or advance or payment or given any consideration or effected any transaction falling within Chapter 3, Part 10, CTA 2010 (previously sections 419 to 422 (inclusive), ICTA) (loans to participators etc)
|
2.22
|
Within the last 3 years no Group Company has been a member of a group of companies for tax purposes (including within the meaning of section 170, TCGA (groups of companies)), other than one of which the Group Companies were the only members.
|
2.23
|
Within the last 3 years no Group Company has:
|
(n)
|
acquired any capital asset from any other company which was at the time of acquisition a member of the same group of companies as that of which the relevant Group Company was also a member; or
|
|
(o)
|
entered into any group payment arrangements for tax purposes (including in respect of corporation tax pursuant to section 59F, TMA (as relocated by Paragraph 79, Schedule 7, TIOPA, previously section 36, Finance Act 1998)) (arrangements with respect to the payment of corporation tax).
|
2.24
|
No Group Company has claimed relief from stamp duty, stamp duty land tax or other transfer tax (whether in the United Kingdom or elsewhere in the world) on the transfer of any asset between Group Companies.
|
2.25
|
Each Group Company has within the last three years ended on the Accounts Date and in the period from the Accounts Date to Completion complied fully in relation to claims or surrenders of group relief under the provisions of Part 5, CTA 2010 (group relief) and every such claim made has complied with the provisions of Part VIII of Schedule 18 to Finance Act 1998 (claims for group relief).
|
2.26
|
The accounting treatment adopted by each Group Company in its accounts in relation to any loan relationship as defined in section 302, CTA (meaning of "loan relationships" etc.) is in accordance with generally accepted accounting practice for the purposes of sections 307 and 309, CTA.
|
2.27
|
No Group Company has been a party to a loan relationship treated as being for an unallowable purpose within the meaning of section 442, CTA (meaning of "unallowable purpose").
|
2.28
|
No Group Company has at any time in the last 4 years purchased its share capital, or otherwise issued any share capital or other security as paid up otherwise than by the receipt of new consideration within the meaning of section 1115, CTA 2010 (previously section 254, ICTA).
|
2.29
|
There is no Tax Authority charge (including any charge within the meaning of section 237, Inheritance Tax Act 1984 (imposition of charge)) attaching to, or which may attach to any shares or securities in or over any assets of any Group Company.
|
2.30
|
No Group Company has within the last 4 years:
|
|
(p)
|
entered into, or been party to, any Event, scheme or arrangement the main purpose or one of the main purposes of which was to reduce Taxation; or
|
|
(q)
|
acquired or disposed of any asset otherwise than by way of a bargain at arm's length except where acquire from or disposed to another Group Company; or
|
|
(r)
|
entered into any arrangements or Event which may require disclosure to any Tax Authority (including under Schedule 11A, VATA 1994 (disclosure of avoidance schemes) or Part 7, Finance Act 2004 (disclosure of tax avoidance schemes) or any regulations made thereunder).
|
2.31
|
All provisions made by each Group Company have complied in all material respects with all applicable transfer pricing requirements (including the provisions of Part 4, TIOPA (previously Schedule 28AA, ICTA) (provision not at arm's length) and any law made pursuant or with respect thereto)) and in particular each Group Company has sufficient records to comply with its obligations under all applicable transfer pricing laws (including under paragraph 21, Schedule 18, Finance Act 1998 (duty to keep and preserve records)).
|
2.32
|
No Group Company has entered into or applied for an advance pricing agreement with any Tax Authority (including any agreement with HMRC pursuant to Part 5, TIOPA (previously section 85, Finance Act 1999) (advance pricing agreements)).
|
2.33
|
In the 3 years prior to Completion there has been no major change in the nature or conduct of the trade or business carried on by any Group Company for the purposes of Part 14, CTA 2010 (previously sections 768 to 768A-E (inclusive), ICTA) (change in company ownership).
|
2.34
|
No Event has occurred in consequence of which any Group Company has or may incur a Liability to Taxation primarily chargeable against some other person other than a Group Company (whether by reason of another company being or having been a member of the same group of companies or otherwise).
|
2.35
|
So far as the Warrantors are aware, no Group Company is liable to make any payment pursuant to an indemnity, guarantee or covenant entered into before the date of this Agreement under which the relevant Group Company has agreed to meet or pay a sum equivalent to or by reference to another person's liability to tax.
|
2.36
|
The value attributed in the Accounts to each pool of assets is such that on a disposal of each pool of assets on the Accounts Date for a consideration equal to such value or aggregate value no balancing charge would have arisen under any law relating to tax depreciation or capital allowances.
|
2.37
|
All capital expenditure exceeding £50,000 incurred by each Group Company on the acquisition of machinery or plant or industrial buildings (in each case within the meaning of the CAA) since the Accounts Date and all such capital expenditure which may be incurred by each Group Company under any existing contract has qualified or, so far as the Warrantors are aware, will be capable of qualifying for capital allowances.
|
2.38
|
Since the Accounts Date no Group Company has done or omitted to do or agreed to do or permitted to be done any act as a result of which the relevant Group Company could be required to bring a disposal value into account in excess of £50,000 and in respect of which that relevant Group Company will suffer a balancing charge or be subject to recovery of excess relief or a withdrawal of allowances for the purpose of the CAA.
|
2.39
|
No Group Company has been a party to an Event to which Chapter 17, Part 2, CAA (anti-avoidance) applies.
|
2.40
|
Each Group Company has paid all stamp duty land tax which it is liable to pay and has filed all land transaction returns which it is obliged to file within 30 days of the effective date of the relevant land transaction and no enquiries have been or are expected to be made into such land transaction returns.
|
2.41
|
The Disclosure Letter contains full and accurate details of:
|
|
(s)
|
any lease transaction entered into by any Group Company to which Schedule 17A, Finance Act 2003 (further provisions relating to leases) may apply;
|
|
(t)
|
any chargeable interest (as defined in section 48, Finance Act 2003) acquired or held by any Group Company on or before Completion in respect of which the Warrantors are aware or ought reasonably to be aware that an additional land transaction return will be required to be filed with a Taxation Authority and/or payment of stamp duty land tax made on or after Completion.
|
2.42
|
The provision for corporation tax contained in the Completion Statement has been calculated on a basis consistent with that which was adopted for the purposes of calculating the provision for corporation tax in the Accounts and fully provides for all corporation tax liabilities of each Group Company as at the Locked Box Date.
|
3
|
Stamp duty
|
3.1
|
The Warrantors jointly and severally covenant and undertake to the Purchaser that:
|
|
(u)
|
all documents to which a Group Company is party or by virtue of which a Group Company has any rights which are required to be stamped or upon which any form of Taxation is due, have been duly and sufficiently stamped or the Taxation on such documents has been paid, and
|
|
(v)
|
no such document has been executed and retained outside the United Kingdom in circumstances in which a liability to stamp duty or Taxation would arise if such document were to be brought into the United Kingdom.
|
3.2
|
The covenant and undertaking given pursuant to this paragraph 3 is separate and distinct from the Warranties and the Tax Covenant and, in the event of any breach of such covenant and undertaking, the Purchaser shall be entitled to procure that the relevant document is stamped, or the Taxation paid, together with any interest, penalty, fine or similar charge in respect thereof, and the Purchaser shall be entitled to claim the liability, costs and other expenses thereby incurred from the Warrantors by way of liquidated damages for breach of the covenant and undertaking.
|
4
|
Tax Covenant
|
4.1
|
The Warrantors jointly and severally covenant to pay to the Purchaser an amount equal to any Liability to Taxation of any Group Company:
|
|
(w)
|
arising directly or indirectly from any Event occurring on or before Completion;
|
|
(x)
|
in respect of, or by reference to, any Profits earned, accrued or received on or before Completion;
|
|
(y)
|
which would not have arisen but for the failure by any person who is or has been a Vendor Associate (other than a member of the Purchaser's Tax Group) to discharge a Liability to Taxation which falls upon such Vendor Associate:
|
|
(i)
|
arising directly or indirectly from any Event effected or deemed to have been effected at any time by such Vendor Associate; or
|
|
(ii)
|
in respect of any Profits earned, accrued or received at any time by such Vendor Associate,
|
|
(z)
|
which is a liability for inheritance tax which:
|
|
(i)
|
arises as a result of a transfer of value occurring or being deemed to occur on or before Completion (whether or not in conjunction with the death of any person whensoever occurring);
|
|
(ii)
|
has given rise before or on Completion to a charge on any of the shares in or assets of the Company or a power to sell, mortgage or charge any of the shares in or assets of the Company; or
|
|
(iii)
|
gives rise at any time after Completion to a charge on or to a power to sell, mortgage or charge any of the shares in or assets of the Company as a result of the death of any person within seven years of a transfer of value which occurred before Completion;
|
4.2
|
The Warrantors severally covenant to pay to the Purchaser an amount equal to any Liability to Taxation of any Group Company which arises:
|
|
(aa)
|
on any earnings and/or employment income (including earnings and employment income deemed for tax purposes to arise); or
|
|
(bb)
|
as a result of the failure of an employee or former employee to reimburse any Group Company in respect of any Taxation
|
4.3
|
Where the Warrantors become liable to make any payment under the Tax Covenant, the due date for the making of that payment (which shall be in cleared funds) shall be 7 Business Days following a written demand from the Purchaser or if later in cases within paragraphs 4.3(cc), 4.3(dd) and/or 4.3(ee) below the later of 5 Business Days following a written demand from the Purchaser to the Warrantors' Representative and:
|
|
(cc)
|
in a case that involves an actual payment of Taxation by any Group Company, or falls within paragraph 4.4(b)(gg)(ii) and involves a payment of Taxation that would not have arisen but for the loss, the date falling 5 Business Days before the last date on which the relevant Group Company is liable to pay (or would be so liable, on the assumption that the relevant Group Company would have been able to fully utilise the Relief in the accounting period during which the Accounts Relief was lost) to the appropriate Tax Authority the Taxation in question in order to avoid incurring a liability to interest or penalties;
|
|
(dd)
|
in a case that falls within paragraph 4.4(b)(gg)(i), the date that the repayment would have been made by the relevant Tax Authority; and
|
|
(ee)
|
in a case that falls within paragraph 4.4(hh), the date falling 5 Business Days before the date on which the Taxation saved would otherwise have become payable to the relevant Tax Authority.
|
4.4
|
The amount that is to be treated under the Tax Covenant as a Liability to Taxation shall be:
|
|
(ff)
|
in the case of a liability under (a) of the definition of Liability to Taxation, the amount of the payment or repayment;
|
|
(gg)
|
in the case of a liability under (b) of the definition of Liability to Taxation,
|
|
(i)
|
if the Accounts Relief is a right to repayment of Tax, the amount of the repayment that is lost,
|
|
(ii)
|
in any other case, the amount of Taxation that would have been saved but for the loss of the Accounts Relief on the assumption that the relevant Group Company would have been able to fully utilise the Relief in the accounting period during which the Accounts Relief was lost;
|
|
(hh)
|
in the case of a liability under (c) of the definition of Liability to Taxation, the amount of Taxation that has been saved in consequence of the setting off.
|
4.5
|
If, in respect of or in connection with any Claim, or otherwise in connection with any payment made under this Agreement, any amount payable to the Purchaser by any of the Warrantors is subject to Taxation (ignoring the availability of any Purchaser Relief), the amount to be paid to the Purchaser by any of the Warrantors shall (save where such Taxation has already been taken into account in calculating any damages paid) be increased by such additional amount as will ensure that the net amount received by the Purchaser after such Taxation has been taken into account is equal to the full amount which would be receivable by the Purchaser had the amount not been subject to Taxation and the Purchaser shall be entitled to claim any additional amount due under this sub-paragraph 4.5 at any time and on any number of occasions at or after the time that the initial Claim is made or is payable.
|
4.6
|
If the Purchaser assigns the benefit of this Schedule, the Warrantors shall have no greater liability pursuant to this Clause 4.5 than the Warrantors would have been so liable had no such assignment occurred.
|
5
|
Covenant to the Warrantors
|
5.1
|
The Purchaser covenants with the Warrantors to pay to the Warrantors an amount equal to any Taxation which is assessed on the Warrantors or on any Vendor Associate pursuant to either section 710, CTA 2010 (previously section 767A, ICTA) or section 713, CTA 2010 (previously section 767AA, ICTA) or section 109E TMA 1970 (previously section 132, Finance Act 1988) or any other relevant tax legislation by reason of Taxation assessed on or primarily or directly attributable to the Purchaser, any member of the Purchaser's group or any Group Company for any accounting period remaining unpaid provided that this covenant shall not apply to any Taxation in respect of which the Purchaser is entitled to bring a Tax Claim against the Warrantors or would have been so entitled but for paragraphs 6 (Limitations), 7 (Repayment) and 8 (Reliefs) below or clause 12 of the Agreement (Limitations).
|
5.2
|
The Warrantors covenant that they shall make no claim under paragraph 5.1 above to the extent that they have recovered the Taxation in question under section 717, CTA 2010 (previously section 767B(2), ICTA) or section 109E TMA 1970 (previously section 132(4) Finance Act 1988) (as the case may be) and that to the extent that they recover any amount under paragraph 5.1 they shall not seek to recover payment under section 717, CTA 2010 or section 109E TMA 1970 (as the case may be).
|
5.3
|
The provisions of paragraphs 4.3 (Date for payment), 4.5 (Grossing Up), 7 (Repayment) and 9 (Claims Procedure) shall apply to this covenant as if references to the "Purchaser" were to the "Warrantors" (and vice versa), references to "Group Company" were also to the "Warrantors" and references to "Tax Covenant" were to "the covenant under paragraph 5".
|
6
|
Limitations on liability
|
6.1
|
The liability of the Warrantors under the Tax Covenant shall be reduced if and to the extent that the Liability to Taxation shall have been recovered under the Warranties or under any other part of the Tax Covenant (and vice versa).
|
6.2
|
The Warrantors shall not be liable to the Purchaser for a Tax Claim in respect of any Liability to Taxation:
|
|
(a)
|
to the extent that such liability is a liability for any Tax other than corporation tax and such provision, allowance or reserve in respect of that liability (or discharge and payment thereof) was included or taken into account in the Management Accounts;
|
|
(b)
|
to the extent that such liability is a liability for corporation tax and provision, allowance or reserve in respect of that corporation tax (or the discharge and payment thereof) was included or taken into account in the Completion Statement;
|
|
(c)
|
to the extent that the Liability to Taxation arises or is increased as a result only of:
|
|
(i)
|
any increase in rates of Taxation;
|
|
(ii)
|
any change in law or in the published practice of any Tax Authority;
|
|
(iii)
|
any change in accounting practice or principles or any change in the bases on which the accounts of the relevant Group Company are prepared except in either case in order to comply with generally accepted accounting practice; or
|
|
(iv)
|
any change in the date to which the relevant Group Company makes up its accounts,
|
6.3
|
The Warrantors shall not be liable to the Purchaser for a Tax Claim in respect of a Liability to Taxation to the extent that such Liability to Taxation:
|
|
(d)
|
is upon income, profits or gains which were actually earned, accrued or received by a Group Company or upon any Event carried out by a Group Company, in each case from the Locked Box Date to Completion in the ordinary and normal course of the business of that Group Company provided that any failure to comply with any requirement imposed on it by law shall not for the purposes of this paragraph be within the ordinary and normal course of the business of that Group Company;
|
|
(e)
|
would not have arisen but for a voluntary act or omission carried out or effected by the relevant Group Company at any time after Completion, other than any act or omission carried out or effected:
|
|
(i)
|
under a legally binding commitment created on or before Completion;
|
|
(ii)
|
in order to comply with any law or in order to comply with generally accepted accounting principles;
|
|
(iii)
|
in the ordinary and normal course of the business carried on by that Group Company;
|
|
(iv)
|
at the request of or with the consent of the Warrantors; or
|
|
(v)
|
pursuant to the terms of the Agreement;
|
|
(f)
|
would not have arisen or would have been reduced but for a failure or omission on the part of a Group Company concerned after Completion to make any claim or election, the making or claiming of which was taken into account in computing the provision or reserve for Taxation in the Completion Statement or Accounts but only to the extent that the relevant claim or election was identified in a disclosure specifically made against the Tax Warranties in paragraph 2 of this schedule;
|
|
(g)
|
arises or is increased by reason of or in consequence of:-
|
|
(i)
|
any claim, disclaimer, election or surrender made or notice or consent given or any other thing done by the Purchaser or a Group Company after Completion, including (without prejudice to the generality of the foregoing) any disclaimer of capital allowances, in circumstances where such claim, disclaimer, election, notice or consent was not taken into account in the preparation of the Accounts; or
|
|
(ii)
|
the amendment after Completion of any claim, disclaimer, election, surrender, notice or consent made or given on or before Completion;
|
|
(h)
|
arises or is increased as a result of the failure of the Purchaser to comply with the provisions of paragraph 9 (Claims Procedure), or paragraph 10 (Tax Returns);
|
|
(i)
|
to the extent that the Liability to Taxation has been satisfied, relieved or mitigated without cost or loss to the Purchaser or the Purchaser's Group or a Group Company including because the Warrantors have procured for no consideration the surrender of a Relief other than a Purchaser's Relief to the relevant Group Company;
|
|
(j)
|
arises on any income, profits or gains which were actually earned or received by or actually accrued to a Group Company that should have been but were not reflected in the Completion Statement;
|
|
(k)
|
is for interest or a penalty under the Corporation Tax (Instalment Payments) Regulations 1998 referable to any instalment payment due on or before Completion which would not have arisen but for the entering into of the Agreement or the income, profits or gains earned, accrued or received by a Group Company after Completion proving to be greater than the income, profits or gains expected to be earned, accrued or received by a Group Company after Completion;
|
|
(l)
|
the liability in question arises as a result of a Transfer Pricing Adjustment being made in respect of a Group Company and another Group Company is entitled to claim a Compensating Adjustment;
|
|
(m)
|
has been made good by insurers without cost to the Purchaser, the Purchaser's Group or a Group Company or otherwise compensated for without cost to the Purchaser, the Purchaser's Group or a Group Company; or
|
|
(n)
|
would not have arisen but for the winding up of, or the cessation of trade or business by, or a major change in the nature or conduct of the trade or business of any Group Company on or after Completion.
|
7
|
Repayment
|
7.1
|
If the Warrantors shall make, or shall be liable to make, any payment to the Purchaser in relation to any Tax Claim and the Purchaser or any Group Company subsequently receives or may become entitled to receive from any Tax Authority or any person (other than another Group Company) any amount referable to the subject matter of that Tax Claim (the "Recoverable Amount"), the Purchaser shall notify the Warrantors.
|
7.2
|
Subject to the Purchaser and/or the relevant Group Company being indemnified and secured to its reasonable satisfaction against any costs, losses or expenses incurred, the Purchaser shall or shall procure that the relevant Group Company or the relevant member of the Purchaser's Group shall take such action as the Warrantors shall reasonably request to, if not already recovered, recover the Recoverable Amount from the third party in question.
|
7.3
|
If the Purchaser or any Group Company has received an amount in respect of any Recoverable Amount it shall repay (after deducting any reasonably and properly incurred costs and expenses of the Purchaser or any Group Company incurred in recovering such amount) to the Warrantors either:-
|
|
(o)
|
a sum equal to such amount; or
|
|
(p)
|
if lesser a sum equal to the Tax Claim paid by the Warrantors to the Purchaser,
|
8
|
Reliefs
|
8.1
|
If on or before the seventh anniversary of Completion, if the Purchaser becomes aware or if the auditors for the time being of the relevant Group Company confirm in writing (at the request and expense of the Warrantors) that any Liability to Taxation which has resulted in a payment having been made or becoming due from the Warrantors under the Tax Covenant will give rise to a Relief for any Group Company (other than a Purchaser's Relief) which would not otherwise have arisen, then as and when such Relief reduces a liability to make an actual payment of Tax (other than a liability for which the Purchaser would be entitled to bring a Tax Claim), the amount of that reduction shall be dealt with in accordance with paragraph 8.2 below.
|
8.2
|
Where it is provided under paragraphs 8.1 that any amount (the "relevant amount") is to be dealt with in accordance with this sub-paragraph:
|
|
(q)
|
the relevant amount shall first be set-off against any payment then due from the Warrantors under the Tax Covenant;
|
|
(r)
|
to the extent that there is an excess, a refund shall be made to the Warrantors of any previous payment made by the Warrantors under the Tax Covenant (to the extent not previously refunded under this paragraph 8) up to the amount of such excess; and
|
|
(s)
|
to the extent that the excess referred to in paragraph 8.2(b) above is not exhausted under that paragraph, the remainder of the excess shall be carried forward and set off against any future payment or payments which become due from the Warrantors under the Tax Covenant.
|
8.3
|
Where any written confirmation referred to in paragraphs 8.1 has been made, the Warrantors or the Purchaser or the relevant Group Company may request, at the sole expense of the party making the request, the auditors to review such written confirmation in the light of all relevant circumstances, including any facts which have become known only since such written confirmation, and to certify whether such written confirmation remains correct or whether the amount in such written confirmation should be amended.
|
8.4
|
If the auditors certify under paragraph 8.3 that an amount previously determined should be amended, that amended amount shall be substituted for the purposes of paragraph 8.2 as the relevant amount in respect of the written confirmation in question in place of the amount originally included, and such adjusting payment (if any) as may be required shall be made as soon as practicable by the Warrantors or (as the case may be) to the Warrantors to give effect to the revised amount.
|
8.5
|
In addition to the Consideration set out at Clause 3 of this Agreement, the Purchaser shall pay to the Vendors an amount equal to any Tax Saving (“Tax Saving Payment”) or any R&D Tax Repayment ("R&D Tax Repayment Payment").
|
8.6
|
Any Tax Saving Payment pursuant to paragraph 8.5 above, shall be paid on the date 12 months and ten Business Days after the date the tax computation for the period in which the set off occurs is agreed with HMRC or otherwise where HMRC's enquiry window has expired.
|
8.7
|
Any R&D Tax Repayment Payment shall be paid within ten Business Days following payment by HMRC to the relevant Group Company of such R&D Tax Repayment.
|
8.8
|
Any Tax Saving Payment or R&D Tax Repayment Payment owed to the Vendors pursuant to this paragraph shall be satisfied by the Purchaser making a direct payment into the Escrow Account (in which case the sum so paid shall be treated as an Escrow Amount for the purposes of this Agreement) and in circumstances where the Escrow Account is no longer open, shall be paid to Vendors' Solicitors who shall hold such sum on the Vendors' behalf.
|
9
|
Claims Procedure
|
9.1
|
On the Purchaser or any Group Company becoming aware of a Claim for Taxation which may result in a Tax Claim the Purchaser shall:
|
|
(t)
|
as soon as reasonably practicable (but not as a condition precedent to the making of a Tax Claim) give written notice of that Claim for Taxation to the Warrantors' Representative or, as the case may be, shall procure that the relevant Group Company forthwith give written notice of that Claim for Taxation to the Warrantors' Representative;
|
|
(u)
|
subject always to the terms of this paragraph 9 and the Warrantors:
|
|
(i)
|
securing the Purchaser and/or the relevant Group Company to its reasonable satisfaction against the Claim for Taxation in question (including interest and penalties on overdue Tax); and
|
|
(ii)
|
indemnifying and securing the Purchaser and/or the relevant Group Company to its reasonable satisfaction against all losses, costs, damages and expenses, which may reasonably and properly be incurred,
|
|
(v)
|
procure that the Warrantors' Representative is promptly provided with copies of any correspondence with the Tax Authority.
|
9.2
|
The Purchaser shall not be obliged to procure that the relevant Group Company appeals against any tax assessment if, the Warrantors' Representative having been given written notice of the receipt of that Claim for Taxation in accordance with paragraph 9.1 above, the Purchaser has not within 21 days (or, if there is a statutory time limit of not more than 30 days, within 14 days) thereafter received instructions promptly in writing from the Warrantors' Representative, in accordance with the preceding provisions of this paragraph 9, to make that appeal.
|
9.3
|
The Purchaser shall not be obliged to procure that any Group Company take any action under paragraph 9.1 above which involves contesting any matter with any Tax Authority (excluding the authority or body demanding the Tax in question) or any court or tribunal unless the Warrantors' Representative promptly furnishes the Purchaser with the written opinion of Tax Counsel to the effect that the appeal in question will have a reasonable chance of success. Such Tax Counsel shall be instructed by the Warrantors' Representative and at the Warrantors' expense but the Warrantors' Representative shall promptly provide the Purchaser with a copy of such instructions and give the Purchaser or its representative a reasonable opportunity to attend any conference with Tax Counsel.
|
9.4
|
The Purchaser shall not be required to take any action or procure that any Group Company take any action under this paragraph 9 if it reasonably determines that such action would have an adverse effect on the amount of tax payable by the Purchaser or any Group Company or would materially adversely affect the relationship of the Purchaser, any member of the Purchaser's Tax Group or any Group Company with any Tax Authority in respect of a period after Completion.
|
9.5
|
The Warrantors' rights under this paragraph 9 shall cease and the Purchaser shall have sole conduct of a Claim for Taxation which may result in a Tax Claim if:
|
|
(w)
|
the Warrantors' Representative fails to comply with any of its obligations under this paragraph 9;
|
|
(x)
|
the relevant Tax Authority alleges in writing that the Warrantors or any Group Company prior to Completion was involved in fraudulent conduct or wilful default in respect of the Liability to Taxation which is the subject matter of the Claim for Taxation and, following an initial written rebuttal by the Warrantors, the allegation by the relevant Tax Authority in respect of the fraudulent conduct or wilful default has not been withdrawn; or
|
|
(y)
|
all of the Warrantors:
|
|
(i)
|
have become insolvent or bankrupt;
|
|
(ii)
|
have entered into liquidation, administration, an individual voluntary arrangement, a scheme of arrangement or receivership;
|
|
(iii)
|
are deemed insolvent pursuant to section 123 or section 268, Insolvency Act 1986; or
|
|
(iv)
|
in the reasonable opinion of the Purchaser insolvency, bankruptcy, liquidation, administration, receivership or a scheme of arrangement is imminent for all of the Warrantors.
|
10
|
Tax Returns
|
10.1
|
The Warrantors (or their duly authorised agents) shall at the relevant Group Company's expense (to the extent provided for in the Accounts or the Completion Statement, otherwise at the Warrantors' sole expense) prepare the corporation tax returns (including all computations and the provision of financial information, together with all necessary claims, elections, surrenders and notices required for such returns) of each Group Company for the accounting periods ended on or before the Accounts Date to the extent that they have not been prepared prior to Completion.
|
10.2
|
The Purchaser shall procure that each Group Company shall cause the tax returns mentioned in paragraph 10.1 above to be authorised, signed and submitted to the relevant Tax Authority without amendment or with such amendments as the Warrantors shall reasonably agree provided that the Purchaser shall not be obliged to procure that any Group Company takes any such action as is mentioned in this paragraph 10 in relation to any tax return that is not true and accurate in all material respects.
|
10.3
|
The Warrantors (or their duly authorised agents) shall at the Warrantors' sole expense prepare all documentation and deal with all matters (including correspondence) relating to the tax returns of each Group Company for all accounting periods ended on or prior to the Accounts Date provided that the Warrantors' Representative shall provide the Purchaser with copies of any correspondence relating to such tax returns prior to their submission and copies of any correspondence from the relevant Tax Authority. The Warrantors shall give the Purchaser a reasonable opportunity to comment on such correspondence prior to submission and shall take account of the Purchaser's reasonable comments.
|
10.4
|
The provisions of paragraph 10.3 shall be without prejudice to the rights of the Purchaser and the relevant Group Company in relation to any audit or any enquiry resulting therefrom and if the Purchaser shall at any time become aware of a Claim for Taxation which may result in a Tax Claim, the Purchaser may at any time thereafter by notice in writing to the Warrantors' Representative require that the provisions of paragraph 10.3 shall lapse, in which case the provisions of paragraph 9 (Claims Procedure) shall come into operation in accordance with its terms.
|
10.5
|
The Purchaser shall provide the Warrantors' Representative with copies of all returns and documents which are relevant to each Group Company for the accounting period current at Completion at least 15 Business Days prior to the submission of any such returns and documents and shall take into account any reasonable comments made by the Warrantors' Representative.
|
1
|
On Completion the BPE Vendors shall deliver to the Purchaser stock transfer forms, duly completed and executed in favour of the Purchaser (or as it may direct) in respect of the Shares held by it together with the relevant share certificate(s) (or, where such certificate(s) have been lost or destroyed, an indemnity in a form satisfactory to the Purchaser in respect of such certificate(s))
|
2
|
On Completion the Vendors other than the BPE Vendors shall:
|
|
(a)
|
deliver (or procure the delivery of) to the Purchaser:
|
|
(i)
|
stock transfer forms, duly completed and executed by the registered holders, in favour of the Purchaser (or as it may direct) in respect of the Shares (including those shares held by the Other Shareholders) together with the relevant share certificate(s) (or, where such certificate(s) have been lost or destroyed, an indemnity in a form satisfactory to the Purchaser in respect of such certificate(s));
|
|
(ii)
|
stock transfer forms, duly completed and executed by the registered holders, in favour of the Company (or as the Purchaser may direct) of all the Subsidiary Shares which are not registered in the name of a Group Company together with the relevant share certificate(s) (or, where such certificate(s) have been lost or destroyed, an indemnity acceptable to the Purchaser in respect of such certificate(s));
|
|
(iii)
|
the Other Shareholders' SPA, duly executed by each of the Other Shareholders;
|
|
(iv)
|
each of the Legacy Shareholders SPAs duly executed by the relevant Legacy Shareholder;
|
|
(v)
|
deed(s) of release and/or letters of non crystallisation in the agreed form dated not earlier than the second Business Day immediately preceding Completion from the holders of all outstanding floating charges given by any Group Company;
|
|
(vi)
|
a redemption statement, drawn down to the date of Completion, in respect of the Bank Debt;
|
|
(vii)
|
the certificate of incorporation, any certificates of incorporation on change of name or re registration, the statutory books written up to date, share certificate books, minute books, share certificates and the common seal of each Group Company;
|
|
(viii)
|
to the extent that the same are not in the possession or under the control of the Company, all title deeds relating to the Properties including all documents relating to the Tenancies;
|
|
(ix)
|
to the extent that the same are not in the possession or under the control of the Company, all cheque books, credit and charge cards held for the account of each Group Company;
|
|
(x)
|
all other papers and documents relating to the Group which are in the possession of or under the control of any of the Vendors and not located at the Properties;
|
|
(xi)
|
letters of resignation in the agreed form from each of Roy Smith and Terry Watson as a director and (in the case of Roy Smith) company secretary of any Group Company;
|
|
(xii)
|
a statement of all overdraft and credit balances from the Group' bankers and other lenders as at the close of business on the day preceding Completion, together with a reconciliation statement;
|
|
(xiii)
|
evidence satisfactory to the Purchaser that the Vendors have repaid all monies then owing by them to any Group Company whether due and payable or not;
|
|
(xiv)
|
the Deed of Termination duly executed;
|
|
(xv)
|
the Disclosure Letter duly signed;
|
|
(xvi)
|
the Consultancy Agreement and the Compromise Agreement, each duly signed by Roy Smith;
|
|
(xvii)
|
the Letters of Waiver;
|
|
(xviii)
|
the EST Termination Arrangements (duly executed as appropriate) to the extent available and if not available the provisions of Clause 8.5 shall apply;
|
|
(xix)
|
evidence that Praxis Trustees Limited has retired as trustee of the EBT and is replaced by Andrew Tiplady and Peter McQuilkin and if not available to provisions of Clause 8.6 shall apply;
|
|
(xx)
|
a letter of opinion in the agreed form from the Vendors' Solicitors addressed to the Purchaser regarding, amongst other things, the due existence and good standing of the Company and the enforceability of this Agreement;
|
|
(xxi)
|
a certified copy of each power of attorney under which any document (including this Agreement) to be delivered to the Purchaser by any Vendor has been executed or, where relevant, a certified copy of the minutes of the meeting(s) of the board of directors of any corporate Vendor authorising the execution by it of this Agreement;
|
|
(xxii)
|
minutes in the agreed form of the meeting(s) of the board of directors of each Group Company duly held pursuant to paragraph 2 dealing with the matters set out in that paragraph, together with certified copies of all shareholder resolutions and all other consents or approvals (if any) referred to in such minutes;
|
|
(xxiii)
|
the Wesley Coe Agreement duly executed;
|
|
(xxiv)
|
the Warrant Surrender Deed duly executed.
|
|
(b)
|
procure that a duly convened and quorate board meeting of each Group Company is held at which:
|
|
(i)
|
the stock transfer forms referred to in sub paragraphs (a)(a)(i) and (a)(ii) as appropriate are approved and (subject to them being appropriately stamped) registered in the relevant Group Company's books;
|
|
(ii)
|
each director and/or the secretary of each such Group Company who has resigned in accordance with sub-paragraph 1(h) ceases to be an officer with immediate effect;
|
|
(iii)
|
the persons nominated by the Purchaser are appointed as directors or secretary (as applicable) of each such Group Company;
|
|
(iv)
|
in the case of the Company, the Consultancy Agreement and Compromise Agreement is approved;
|
|
(v)
|
in the case of the Company, the Deed of Termination is approved;
|
|
(vi)
|
in the case of the Company, the EST Termination Arrangements are approved; and
|
|
(vii)
|
the mandates given by each such Group Company to its bankers are revoked or revised as the Purchaser may require.
|
EXECUTED as a Deed
(but not delivered until dated) by
CLINK STREET NOMINEES LIMITED
by its attorney
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
|
)
)
)
)
)
)
|
|
EXECUTED as a Deed
(but not delivered until dated) by
EUROVENT SOCIETE CIVILE
by its attorney
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
|
)
)
)
)
)
)
|
EXECUTED as a Deed
(but not delivered until dated) by
BARCLAYS PRIVATE EQUITY EUROPEAN FUND A
by its attorney
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
|
)
)
)
)
)
)
|
|
EXECUTED as a Deed
(but not delivered until dated) by
BARCLAYS PRIVATE EQUITY EUROPEAN FUND B by its attorney
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
|
)
)
)
)
)
)
|
EXECUTED as a Deed
(but not delivered until dated) by
BARCLAYS PRIVATE EQUITY EUROPEAN FUND C by its attorney
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
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)
)
)
)
)
)
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EXECUTED as a Deed
(but not delivered until dated) by
BARCLAYS PRIVATE EQUITY EUROPEAN FUND D by its attorney
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
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)
)
)
)
)
)
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EXECUTED as a Deed
(but not delivered until dated) by
BARCLAYS PRIVATE EQUITY PVLP LIMITED PARTNERSHIP by its attorney
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
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)
)
)
)
)
)
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EXECUTED as a Deed
(but not delivered until dated) by
BARCLAYS INDUSTRIAL INVESTMENTS LIMITED by its attorney
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
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)
)
)
)
)
)
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EXECUTED as a Deed
(but not delivered until dated) by
BARCLAYS PRIVATE EQUITY EUROPEAN FUND GMBH & CO KG by its attorney
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
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)
)
)
)
)
)
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EXECUTED as a Deed
(but not delivered until dated) by
BPE EUROPEAN PARTNER LP by its attorney
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
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)
)
)
)
)
)
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EXECUTED as a Deed
(but not delivered until dated) by
PARALLEL VENTURE NOMINEES NO. 2 LIMITED by its attorney
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
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)
)
)
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)
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SIGNED as a Deed
(but not delivered until dated) by
ADAM PETER MCQUILKIN
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
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)
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SIGNED as a Deed
(but not delivered until dated) by
ROY SMITH
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
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)
)
)
)
)
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SIGNED as a Deed
(but not delivered until dated) by
JOHN ANTHONY WILLIS
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
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)
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SIGNED as a Deed
(but not delivered until dated) by
TERENCE WATSON
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
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EXECUTED as a Deed
(but not delivered until dated) by
UTAH MEDICAL PRODUCTS, INC.
acting by a duly authorised representative
in the presence of:-
Signature of witness:
Name of witness: Tin Lee
Address: 7043 South 300 West, Midvale Utah 84047, USA
Occupation: Supervisor
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/s/ Kevin L. Cornwell
Chairman & CEO
/s/ Tin Lee
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Short form agreement
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|||
Relating to the sale and purchase of part of the issued share capital of Femcare Group Limited
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(1)
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Gilbert Marcus Filshie
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(2)
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Utah Medical Products, Inc.
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Dated
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18 March 2011
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Osborne Clarke
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Apex Plaza
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Forbury Road
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Reading
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RG1 1AX
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1.
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Definitions and interpretation
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1
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2.
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Sale and purchase
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3
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3.
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Consideration
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4
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4.
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Leakage
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4
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5.
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Completion
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5
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6.
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Limitation
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5
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7.
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Announcements
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5
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8.
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Post Completion matters
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6
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9.
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Protection of goodwill
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7
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10.
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Costs
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8
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11.
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General
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8
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12.
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Governing law and jurisdiction
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9
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(1)
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Gilbert Marcus Filshie of The End House, Pembroke Drive, Mapperley Park, Nottingham NG35 BG (the "Legacy Vendor"); and
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(2)
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Utah Medical Products, Inc. whose registered office is at 7043 South 300 West, Midvale, Utah 84047 USA (the "Purchaser").
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1.
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Definitions and interpretation
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1.1
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In this Agreement, unless the context otherwise requires, the following definitions shall apply:
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(a)
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all accrued interest due and payable on the fixed rate unsecured loans notes held by the Legacy Vendor; or
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(b)
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all royalty payments due to the Legacy Vendor under the terms of a royalty agreement entered into between the Legacy Vendor and Femcare-Nikomed Limited on 21 May 2004 as amended on 27 August 2004;
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(a)
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any dividend or distribution, in each case declared, paid or made by any Group Company other than to another Group Company;
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(b)
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any other payment in respect of any share capital or other securities of any Group Company other than to another Group Company;
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(c)
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any fees and expenses incurred or to be incurred by any Group Company in connection with the transactions contemplated by this Agreement;
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(d)
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any payments made or future benefits granted by any Group Company to the Legacy Vendor or any Vendor Associate (including any related tax or national insurance contributions for which any Group Company is liable to account);
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(e)
|
any assets transferred to, or liabilities assumed, indemnified or incurred for the benefit of, the Legacy Vendor or any Vendor Associate;
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(f)
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any waiver of all or any part of any debt or liability amount owed to any Group Company by the Legacy Vendor or any Vendor Associate;
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(g)
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any gratuitous or discretionary payment (including but not limited to any sale bonuses) in connection with the sale of the Shares) to the Legacy Vendor or any Vendor Associate by any Group Company;
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(h)
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any transaction or agreement entered into by any Group Company with or for the benefit of the Legacy Vendor;
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(i)
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any liabilities incurred for (including any guarantees given in relation to the liabilities of) the Legacy Vendor; or
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(j)
|
any agreement to do any of the matters referred to in any of (a) to (i) above,
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1.2
|
In this Agreement, unless the context otherwise requires:
|
|
(a)
|
words in the singular include the plural and vice versa and words in one gender include any other gender;
|
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(b)
|
references to clauses and schedules are to clauses and schedules of this Agreement and references to sub-clauses and paragraphs are references to sub-clauses and paragraphs of the clause or schedule in which they appear;
|
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(c)
|
"sterling" and the sign "£" means pounds sterling in the currency of the United Kingdom; and
|
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(d)
|
headings are for convenience only and shall not affect the construction of this Agreement.
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2.
|
Sale and purchase
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2.1
|
Subject to the terms of this Agreement, the Legacy Vendor shall sell and the Purchaser shall purchase, with effect from the date of this Agreement, the Shares.
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2.2
|
The Legacy Vendor waives all rights of pre-emption over any of the Shares or any other shares in the capital of the Company conferred on him by the Articles of Association of the Company or in any other way and undertakes to take all steps necessary to waive all rights of pre-emption over any of the Shares or any other shares in the capital of the Company.
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2.3
|
Subject to clause 2.5, the Legacy Vendor irrevocably and unconditionally waives all and any claims he has against the Company as at Completion other than in respect of his claim for royalties for the period from 1st January 2011 to Completion (and whether due before, at or after Completion) pursuant to a royalty agreement ("Royalty Agreement") entered into between the Legacy Vendor and Femcare-Nikomed Limited on 21 May 2004 as amended on 27 August 2004 ("Royalties") and shall indemnify and keep indemnified the Company in respect of all and any other claims that he may have against the Company as at Completion.
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2.4
|
Notwithstanding the generality of clause 2.3, but subject to clause 2.5, the Legacy Vendor confirms that the performance of any Vendor Agreement by a Group Company at any time prior to the date of the agreement is or was in accordance with its terms and no act or omission of a Group Company has caused it to be in default of any Vendor Agreement.
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2.5
|
Notwithstanding clauses 2.3 and 2.4 for the avoidance of any doubt, the Legacy Vendor does not waive any claims he may have against the Company in respect of royalties for the period from Completion and which are due to him pursuant to the Royalty Agreement.
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2.6
|
The Legacy Vendor covenants to the Purchaser that:
|
|
(a)
|
the Shares are fully paid up (or credited as fully paid);
|
|
(b)
|
he is the sole legal and beneficial owner of the Shares and that he has and shall have pursuant to this Agreement the right to transfer the legal and beneficial title to the Shares on the terms of this Agreement and without the consent of any third party and that they are transferred free from any Encumbrance;
|
|
(c)
|
he has the full power and authority to enter into and perform this Agreement and each of the documents to be executed by it and delivered pursuant to this Agreement, each of which shall constitute valid and binding obligations on it; and
|
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(d)
|
he is not bankrupt, has not proposed a voluntary arrangement nor has made or proposed any arrangement or composition with his creditors or any class of his creditors.
|
2.7
|
The Purchaser shall not be obliged to complete the purchase of any of the Shares unless the sale and purchase of all the shares in the capital of the Company (including the Shares) is completed simultaneously.
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3.
|
Consideration
|
3.1
|
The Consideration is the payment by the Purchaser to the Legacy Vendor of the sum of £57,212.41, of which £50,000 will be paid into the Escrow Account and the remainder shall be payable in cash at Completion in accordance with clause 5.
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3.2
|
The £50,000 paid into the Escrow Account pursuant to clause 3.1 above shall be form part of the Escrow Amount and be dealt with in the manner set out in the Main SPA including, without limitation, the provisions of clause 6 of the Main SPA.
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3.3
|
Save in the case of fraud on the part of the Legacy Shareholder, the Legacy Shareholder's entitlement to sums released from the Escrow Account for the benefit of the Shareholders pursuant to the provisions of clause 6 of the Main SPA is 2.5% of the total amount released.
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3.4
|
The gross amount payable by the Company to repay or redeem (as the case may be) the Legacy Vendor’s Loan Notes is £458,066.96 and the net amount payable by the Company to the Legacy Vendor to repay or redeem (as the case may be) after deduction of the withholding tax is £432,453.57.
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4.
|
Leakage
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4.1
|
The Legacy Vendor undertakes to the Purchaser to pay to the relevant Group Company immediately on demand an amount equal to the Value of any Leakage received by him or any of his Vendor Associates where such payment is made for his benefit.
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4.2
|
The Legacy Vendor undertakes to pay to the Purchaser on demand a sum equal to all reasonable costs (including all reasonably and properly incurred legal costs), reasonable expenses or other reasonable liabilities which the Purchaser may reasonably and properly incur either before or after the commencement of any action in connection with:
|
|
(a)
|
any Leakage received by him or any of his Vendor Associates where such payment is made for his benefit;
|
|
(b)
|
any legal proceedings (including, but not limited to, litigation and arbitration) including any application, in respect of any claim made against him pursuant to clause 4.1 above in which a judgment, decision or order is made in favour of the Purchaser; or
|
|
(c)
|
the enforcement of any such settlement or judgment.
|
4.3
|
If, in respect of or in connection with any claim made against the Legacy Vendor pursuant to clause 4.1, any amount payable to the Purchaser by a Vendor is subject to Taxation, the amount to be paid to the Purchaser by the Legacy Vendor shall be such as to ensure that the net amount retained by the Purchaser after such Taxation has been taken into account is equal to the full amount which would be payable to the Purchaser had the amount not been subject to Taxation.
|
4.4
|
Any payment pursuant to this clause shall (to the extent possible) be treated as a reduction of the Consideration.
|
5.
|
Completion
|
5.1
|
Completion shall take place at the offices of the Purchaser's Solicitors immediately following the signing of this Agreement.
|
5.2
|
On Completion, the Legacy Vendor shall deliver to the Purchaser stock transfer forms, duly completed and executed by the registered holders, in favour of the Purchaser or as it may direct, in respect of the Shares, together with the relevant share certificates (or indemnities in relation to the same if such certificates have been lost or destroyed).
|
5.3
|
As soon as the Legacy Vendor has complied with the provisions of sub-clause 5.2 the Purchaser shall pay the Consideration to the Legacy Vendor at the same time and in the manner as the Initial Cash Consideration is paid to the Vendors pursuant to the terms of the Main SPA and the Purchaser shall procure that at the same time as the Consideration is paid to the Legacy Vendor in accordance with this clause 5.3 the Company shall repay or redeem (as applicable) in full the Legacy Vendor’s Loan Notes and pay the net amount stated in clause 3.4 to the Legacy Vendor for the repayment or redemption of the Legacy Vendor’s Loan Notes.
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5.4
|
The Purchaser shall procure that the Company shall pay all the withholding tax in respect of the repayment or redemption (as the case may be) of the Legacy Vendor’s Loan Notes to HM Revenue and Customs as soon as that sum is due and payable to it and the Purchaser shall indemnify the Legacy Vendor against any and all liabilities for the withholding tax and any and all liabilities in respect of costs, expense, interest, fines, and all other payments that may become due and payable by reason of the non payment of the full amount of the withholding tax to HM Revenue and Customs by the due date for payment.
|
5.4
|
Each party to this Agreement undertakes to indemnify and keep indemnified the others in respect of any document which such indemnifying party is obliged to deliver under this Agreement being unauthorised, invalid or for any other reason ineffective.
|
6.
|
Limitation
|
7.
|
Announcements
|
7.1
|
Except as provided for in clauses 7.2 and clause 7.3, no announcement concerning the terms of this Agreement shall be made by or on behalf of either party without the prior written consent of the other party.
|
7.2
|
Any announcement, circular or other communication made or issued by or on behalf of any party which is required by law or the rules of any regulatory or governmental body to which such party is subject, including, without limitation, any stock exchange on which any securities of such party are listed, may be made or issued by or on behalf of that party without the consent of the other party.
|
7.3
|
Nothing in this clause 7 (Announcements) shall restrict the Purchaser or any other Purchaser Group Company from:
|
|
(a)
|
disclosing any and all required details of:
|
|
(i)
|
the transactions contemplated by this Agreement or any Agreed Form document;
|
|
(ii)
|
the Company or any Group Company; and/or
|
|
(iii)
|
the terms of this Agreement (including making a public filing of this Agreement),
|
|
(b)
|
providing information regarding the acquisition of the Group to its shareholders, provided that any such information does not contain any statement of fact, opinion, belief or otherwise which is intended to adversely affect the reputation or prospects of the Legacy Vendor; or
|
|
(c)
|
informing customers or suppliers of the acquisition of the Company by the Purchaser after Completion, provided that any such information does not contain any statement of fact, opinion, belief or otherwise which is intended to adversely affect the reputation or prospects of the Legacy Vendor; or
|
|
(d)
|
otherwise making any announcement that has been approved in accordance with the terms of the Main SPA,
|
8.
|
Post Completion matters
|
8.1
|
The Legacy Vendor irrevocably undertakes to the Purchaser that, for as long as he remains the registered holder of the Shares after Completion, he shall:
|
|
(a)
|
hold the Shares and any dividends and other moneys or assets paid or distributed in respect of them and all rights arising out of or in connection with them from Completion in trust for the Purchaser; and
|
|
(b)
|
deal with the Shares and all such dividends, distributions and rights as the Purchaser may direct from Completion until the date on which the Purchaser or its nominee is entered in the register of members of the Company as the holder of the Shares.
|
8.2
|
The Legacy Vendor irrevocably and unconditionally appoints the Purchaser as his attorney to do and perform any acts and things which the Purchaser in its absolute discretion considers necessary or desirable in connection with the Shares from Completion until the date on which the Purchaser or its nominee is entered in the register of members of the Company as the holder of the Shares, including (without prejudice to the generality of the foregoing):
|
(a)
|
exercising any rights, privileges or duties attaching to the Shares including, without limitation, receiving notices of, and attending and voting at, all meetings of the shareholders of the Company and meetings of the members of any particular class of the Shares and all or any adjournment of such meetings; and
|
|
(b)
|
completing and delivering any consents, proxies or resolution and any other documents required to be signed by a Vendor as a member of the Company from Completion until the date on which the Purchaser or its nominee is entered in the register of members of the Company as the holder of the Shares,
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8.3
|
For the purpose of sub clause 8.2 (Post Completion matters), the Legacy Vendor irrevocably and unconditionally authorises the Company from Completion to send any notices in respect of its shareholding to the Purchaser and the Company shall not be required also to send such notices the relevant Legacy Vendor.
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8.4
|
The Purchaser undertakes to procure that the stock transfer form effecting the sale of the Shares to the Purchaser is duly stamped and that the transfer to which it relates is duly registered in the statutory books of the Company showing the Purchaser as the legal owner of the Shares as soon as practicable following Completion.
|
9.
|
Protection of goodwill
|
9.1
|
In order to assure to the Purchaser the full benefit of the business and goodwill of the Group, the Legacy Vendor undertakes that he shall not directly or indirectly (whether as principal, shareholder, partner, employee, agent or otherwise), whether on his own account or in conjunction with or on behalf of any other person, do any of the following things:
|
|
(a)
|
during the Restricted Period carry on or be engaged, concerned or interested in (except as the holder of shares in a company whose shares are listed on a recognised investment exchange or overseas investment exchange (as such terms are defined in Sections 285 and 313, Financial Services and Markets Act 2000) which confer not more than 1% of the votes which could normally be cast at a general meeting of that company) any business which is involved with the Restricted Business within the Territory; or
|
|
(b)
|
during the Restricted Period canvass or solicit or seek to entice away the custom of any Client or Prospective Client for the purposes of providing Restricted Business within the Territory; or
|
|
(c)
|
during the Restricted Period accept orders for the provision of Restricted Business within the Territory in respect of any Client or Prospective Client; or
|
|
(d)
|
during the Restricted Period endeavour to entice away from any Group Company or encourage to terminate his employment with any Group Company (whether or not such termination would be a breach of his contract of employment) any Senior Employee; or
|
|
(e)
|
during the Restricted Period employ or otherwise engage any Senior Employee; or
|
|
(f)
|
save as required by law, during the Restricted Period do or say anything calculated to lead any person to withdraw from or cease to continue offering to any Group Company any rights (whether of purchase, sale, import, distribution, agency or otherwise) then enjoyed by it or in any other way to cease to do business or reduce the amount of business it transacts with any Group Company; or
|
|
(g)
|
save in the circumstances referred to in sub clause 15.10 of the Main SPA (Confidentiality), disclose to any other person any information which is secret or confidential to the business or affairs of the Group or any Purchaser Group Company or use any such information to the detriment of the business of the Group or any Purchaser Group Company for so long as that information remains secret or confidential; or
|
|
(h)
|
in relation to a business which is competitive or reasonably likely to be competitive with the Restricted Business, use any trade or business name or distinctive mark, style or logo used by or in the business of any Group Company at Completion or anything intended or likely to be confused with it.
|
9.2
|
Each undertaking contained in this clause 9 (Protection of goodwill) shall be construed as a separate and independent undertaking and, while the restrictions set out in this clause are considered by the parties to be reasonable in all the circumstances, it is agreed that if any one or more of such restrictions shall, either taken by itself or themselves together, be adjudged to go beyond what is reasonable in all the circumstances for the protection of the Purchaser's legitimate interests but would be adjudged reasonable if any particular restriction or restrictions were deleted or any part or parts of the wording thereof were deleted, restricted or limited in any particular manner (including without limitation any reduction in their duration or geographical scope) then the said restrictions shall apply with such deletions, restrictions or limitation as the case may be.
|
9.3
|
The Legacy Vendor agrees that, having regard to the facts and matters set out above and having taken professional advice, the restrictions contained in this clause 9 (Protection of goodwill) are reasonable and necessary for the protection of the legitimate business interests of the Purchaser.
|
9.4
|
Nothing in this Clause 9 shall prevent the Legacy Vendor from carrying on or being engaged, concerned or interested (whether directly or indirectly) in any business which is involved in Transostial Occlusive Permanent Sterilisation devices (including, without limitation, the sale and marketing of such devices) or seeking the custom of any Client or Prospective Client in respect of any such devices or accepting orders for any such devices (whether directly or indirectly) in respect of any Client or Prospective Client.
|
10.
|
Costs
|
10.1
|
Except as set out in clause 10.2, each party shall bear its own costs and expenses incurred in the preparation, execution and implementation of this Agreement.
|
10.2
|
The Purchaser shall pay all stamp and other transfer duties and registration fees applicable to any document to which it is a party and which arise as a result of or in consequence of this Agreement.
|
11.
|
General
|
11.1
|
Entire agreement
|
|
(a)
|
This Agreement and the provisions of the Main SPA incorporated into this Agreement set out the entire agreement and understanding between the parties in respect of the subject matter of this Agreement.
|
|
(b)
|
The Purchaser acknowledges that it has entered into this Agreement in reliance only upon the representations, warranties and promises specifically contained or incorporated in this Agreement and, save as expressly set out in this Agreement, the Vendor shall have no liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
|
11.2
|
Variation
|
11.3
|
Counterparts
|
|
(a)
|
This Agreement may be executed in any number of counterparts and by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart; and
|
|
(b)
|
Each counterpart, when executed, shall be an original of this Agreement and all counterparts shall together constitute one instrument.
|
11.4
|
Further assurance
|
11.5
|
Contracts (Rights of Third Parties) Act 1999
|
12.
|
Governing law and jurisdiction
|
12.1
|
This Agreement and any dispute, claim or obligation (whether contractual or non-contractual) arising out of or in connection with it, its subject matter or formation shall be governed by English law.
|
12.2
|
The parties irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) arising out of or in connection with this Agreement, its subject matter or formation.
|
SIGNED as a Deed
(but not delivered until dated) by
GILBERT MARCUS FILSHIE
in the presence of:-
Signature of witness:
Name of witness:
Address:
Occupation:
|
)
)
)
)
|
EXECUTED as a Deed
(but not delivered until dated) by
UTAH MEDICAL PRODUCTS, INC.
acting by a duly authorised representative
in the presence of:-
Signature of witness:
Name of witness: Tin Lee
Address: 7043 South 300 West
Midvale, Utah 84047 USA
Occupation: Supervisor
|
)
)
)
)
)
)
|
/s/ Kevin L. Cornwell
Chairman & CEO
/s/ Tin Lee
|