|
England and Wales
(State or other jurisdiction of Incorporation or organization) |
| |
2834
(Primary standard industrial classification code number) |
| |
Not applicable
(I.R.S. Employer Identification Number) |
|
|
Steven V. Bernard
Bradley L. Finkelstein Melissa Rick Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, California 94304-1050 (650) 493-9300 |
| |
Charles Waddell
Pinsent Masons LLP 30 Crown Place Earl Street London EC2A 4ES United Kingdom +44(0) 20 7418 7000 |
| |
Duncan Peyton
Chief Executive Officer 4D pharma plc 5th Floor, 9 Bond Court Leeds LS1 2JZ United Kingdom +44(0) 113 895 0130 |
| |
Matthew Chen
Longevity Acquisition Corporation Yongda International Tower No. 2277 Longyang Road, Pudong District, Shanghai People’s Republic of China (86) 21-60832028 |
| |
Arila Zhou
Joan Wu Hunter Taubman Fischer & Li LLC 800 Third Avenue, Suite 2800 New York, New York 10022 (212) 530-0000 |
|
| | ||||||||||||||||||||||||||||
Title Of Each Class Of Security To Be Registered
|
| | |
Amount To Be
Registered(1) |
| | |
Proposed Maximum
Offering Price Per Security(2) |
| | |
Proposed Maximum
Aggregate Offering Price(2) |
| | |
Amount of
Registration Fee |
| ||||||||||||
Ordinary Shares, nominal value £0.0025 per
share(3)(4) |
| | | | | 31,055,000 | | | | | | $ | 1.4539 | | | | | | $ | 45,150,865 | | | | | | $ | 4,926(5) | | |
| , 2021 | | | By Order of the Longevity Board | |
| | | |
/s/
Chairman of Longevity Board, Chief Financial Officer
|
|
|
Longevity Acquisition Corporation
Yongda International Tower No. 2277 Longyang Road, Pudong District, Shanghai People’s Republic of China |
| |
4D Pharma PLC
5th Floor, 9 Bond Court Leeds, LS1 2JZ United Kingdom ir@4dpharmaplc.com |
|
| | | | | 10 | | | |
| | | | | 12 | | | |
| | | | | 14 | | | |
| | | | | 19 | | | |
| | | | | 20 | | | |
| | | | | 32 | | | |
| | | | | 39 | | | |
| | | | | 40 | | | |
| | | | | 41 | | | |
| | | | | 100 | | | |
| | | | | 102 | | | |
| | | | | 103 | | | |
| | | | | 111 | | | |
| | | | | 115 | | | |
| | | | | 128 | | | |
| | | | | 141 | | | |
| | | | | 143 | | | |
| | | | | 144 | | | |
| | | | | 153 | | | |
| | | | | 154 | | | |
| | | | | 159 | | | |
| | | | | 165 | | | |
| | | | | 208 | | | |
| | | | | 225 | | | |
| | | | | 227 | | | |
| | | | | 235 | | | |
| | | | | 240 | | | |
| | | | | 250 | | | |
| | | | | 264 | | | |
| | | | | 277 | | | |
| | | | | 278 | | | |
| | | | | 279 | | | |
| | | | | 280 | | | |
| | | | | A-1 | | | |
| | | | | B-1 | | | |
| | | | | C-1 | | | |
| | | | | D-1 | | |
Month
|
| |
High
|
| |
Low
|
| ||||||
January 2021 (through January 25, 2021)
|
| | | | 1.3721 | | | | | | 1.3522 | | |
December 2020
|
| | | | 1.3662 | | | | | | 1.3197 | | |
November 2020
|
| | | | 1.3385 | | | | | | 1.2922 | | |
October 2020
|
| | | | 1.3143 | | | | | | 1.2890 | | |
September 2020 | | | | | 1.3416 | | | | | | 1.2706 | | |
August 2020
|
| | | | 1.3375 | | | | | | 1.3043 | | |
Year
|
| |
Average
Rate(1) |
| |||
2020 | | | | | 1.2923 | | |
2019
|
| | | | 1.2803 | | |
2018
|
| | | | 1.3309 | | |
2017
|
| | | | 1.3016 | | |
2016
|
| | | | 1.3444 | | |
|
Advantage Proxy, Inc.
P.O. Box 13581 Des Moines, WA 98198 Attn: Karen Smith Toll Free: (877) 870-8565 Collect: (206) 870-8565 |
| |
or
|
| |
Longevity
Acquisition Corporation Yongda International Tower No. 2277 Longyang Road, Pudong District, Shanghai People’s Republic of China (86) 21-60832028 |
|
U.S. dollars in thousands
|
| |
Nine months ended
November 30, 2020 |
| |
Six months ended
August 31, 2020 |
| |
Year Ended
February 29, 2020 |
| |||||||||
Operating costs
|
| | | $ | 567 | | | | | $ | 370 | | | | | $ | 1,079 | | |
Interest income
|
| | | | 47 | | | | | | 46 | | | | | | 788 | | |
Net Loss
|
| | | $ | (520) | | | | | $ | (324) | | | | | $ | (291) | | |
|
U.S. dollars in thousands
|
| |
As of
November 30, 2020 |
| |
As of
August 31, 2020 |
| |
As of
February 29, 2020 |
| |||||||||
Current Assets
|
| | | | 32 | | | | | | 32 | | | | | | 138 | | |
Marketable securities held in Trust Account
|
| | | | 14,608 | | | | | | 14,506 | | | | | | 42,413 | | |
Total assets
|
| | | | 14,640 | | | | | | 14,538 | | | | | | 42,551 | | |
Total liabilities
|
| | | | 3,440 | | | | | | 3,129 | | | | | | 2,762 | | |
Longevity Shares subject to possible Redemption
|
| | | | 6,200 | | | | | | 6,409 | | | | | | 34,789 | | |
Total shareholders’ equity
|
| | | | 5,000 | | | | | | 5,000 | | | | | | 5,000 | | |
| | |
Six Months Ended
June 30, (unaudited) |
| |
Year Ended
December 31, |
| ||||||||||||||||||
U.S. dollars in thousands, except share and per share data
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||
Revenues
|
| | | $ | 239 | | | | | $ | — | | | | | $ | 269 | | | | | $ | — | | |
Loss from operations
|
| | | | (17,272) | | | | | | (17,249) | | | | | | (40,261) | | | | | | (38,890) | | |
Net loss
|
| | | $ | (14,765) | | | | | $ | (14,698) | | | | | $ | (30,333) | | | | | $ | (32,601) | | |
Other comprehensive loss: | | | | | | | | | | | | | | | | | | | | | | | | | |
Foreign currency translation adjustment
|
| | | | (2,081) | | | | | | 111 | | | | | | 1,113 | | | | | | (3,995) | | |
Comprehensive loss
|
| | | $ | (16,846) | | | | | $ | (14,587) | | | | | $ | (29,220) | | | | | $ | (36,596) | | |
Basic and diluted net loss per common share
|
| | | $ | (0.15) | | | | | $ | (0.22) | | | | | $ | (0.46) | | | | | $ | (0.50) | | |
Weighted average common shares used in computing basic and diluted net loss per common share
|
| | | | 97,647,688 | | | | | | 65,493,842 | | | | | | 65,493,842 | | | | | | 65,493,842 | | |
|
U.S. dollars in thousands
|
| |
As of
June 30, 2020 (unaudited) |
| |
As of
December 31, 2019 |
| ||||||
Balance Sheet Data: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 12,413 | | | | | $ | 5,031 | | |
Total assets
|
| | | | 50,318 | | | | | | 40,826 | | |
Total liabilities
|
| | | | 9,439 | | | | | | 9,639 | | |
Accumulated deficit
|
| | | | (132,505) | | | | | | (117,740) | | |
Total stockholders’ equity
|
| | | | 40,879 | | | | | | 31,187 | | |
| | |
4D Pharma
|
| |
Longevity
|
| |
Pro Forma
Adjustments |
| |
Pro Forma
Combined |
| ||||||||||||
Cash and cash equivalents
|
| | | $ | 12,413 | | | | | $ | 7 | | | | | | 20,827 | | | | | $ | 33,247 | | |
Total assets
|
| | | $ | 50,318 | | | | | $ | 14,538 | | | | | | 6,321 | | | | | $ | 71,177 | | |
Total liabilities
|
| | | | 9,439 | | | | | | 3,129 | | | | | | (7) | | | | | | 12,561 | | |
Ordinary shares subject to possible redemption
|
| | | | — | | | | | | 6,409 | | | | | | (6,409) | | | | | | — | | |
Total stockholders’ equity
|
| | | | 40,879 | | | | | | 5,000 | | | | | | 12,737 | | | | | | 58,616 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 50,318 | | | | | $ | 14,538 | | | | | | 6,321 | | | | | $ | 71,177 | | |
U.S. dollars in thousands, except
share and per share data |
| |
Nine months ended
November 30, |
| |
Six months ended
August 31, |
| |
Year ended
February 29, |
| |
March 9, 2018
(inception) to February 28 |
| ||||||||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2020
|
| |
2019
|
| |
2020
|
| |
2019
|
| ||||||||||||||||||
Income Statement Data: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Operating costs
|
| | | $ | 567 | | | | | $ | 860 | | | | | $ | 370 | | | | | $ | 570 | | | | | $ | 1,079 | | | | | $ | 439 | | |
Interest income
|
| | | | 47 | | | | | | 635 | | | | | | 46 | | | | | | 455 | | | | | | 788 | | | | | | 430 | | |
Unrealized gain (loss)
|
| | | | — | | | | | | — | | | | | | — | | | | | | 6 | | | | | | — | | | | | | (5) | | |
Net Loss
|
| | | $ | (520) | | | | | | (225) | | | | | $ | (324) | | | | | $ | (109) | | | | | $ | (291) | | | | | $ | (14) | | |
Weighted average number of
Longevity Shares outstanding, basic and diluted |
| | | | 2,007,674(3) | | | | | | 1,833,297(3) | | | | | | 1,997,943(1) | | | | | | 1,809,240(1) | | | | | | 1,859,697(1) | | | | | | 1,522,527(1) | | |
Basic and diluted net loss per
Longevity Share |
| | | $ | 0.27(4) | | | | | $ | 0.41(4) | | | | | $ | (0.17)(2) | | | | | $ | (0.28)(2) | | | | | $ | (0.50)(2) | | | | | $ | (0.25)(2) | | |
U.S. dollars in thousands
|
| |
November 30,
2020 |
| |
August 31,
2020 |
| |
February 29,
2020 |
| |||||||||
Balance Sheet Data: | | | | | | | | | | | | | | | |||||
Current Assets
|
| | | $ | 32 | | | | | $ | 32 | | | | | $ | 138 | | |
Marketable securities held in Trust Account
|
| | | $ | 14,608 | | | | | | 14,506 | | | | | | 42,413 | | |
Total assets
|
| | | $ | 14,640 | | | | | | 14,538 | | | | | | 42,551 | | |
Longevity Shares subject to possible Redemption
|
| | | | 6,200 | | | | | | 6,409 | | | | | | 34,789 | | |
Total shareholders’ equity
|
| | | | 5,000 | | | | | | 5,000 | | | | | | 5,000 | | |
| | |
Six Months Ended
June 30, (unaudited) |
| |
Year Ended
December 31, |
| ||||||||||||||||||
U.S. dollars in thousands, except share and per share data
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||
Revenues
|
| | | $ | 239 | | | | | $ | — | | | | | $ | 269 | | | | | $ | — | | |
Operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | |
Research and development expenses
|
| | | | 13,493 | | | | | | 11,701 | | | | | | 29,193 | | | | | | 27,830 | | |
General and administrative expenses
|
| | | | 5,509 | | | | | | 5,400 | | | | | | 10,380 | | | | | | 11,294 | | |
Foreign currency losses (gains)
|
| | | | (1,491) | | | | | | 148 | | | | | | 957 | | | | | | (234) | | |
Total operating expenses
|
| | | | 17,511 | | | | | | 17,249 | | | | | | 40,530 | | | | | | 38,890 | | |
Loss from operations
|
| | | | (17,272) | | | | | | (17,249) | | | | | | (40,261) | | | | | | (38,890) | | |
Other income (expense), net:
|
| | | | | | | | | | | | | | | | | | | | | | | | |
Interest income
|
| | | | 6 | | | | | | 84 | | | | | | 78 | | | | | | 379 | | |
Interest expense
|
| | | | (1) | | | | | | (1) | | | | | | — | | | | | | (3) | | |
Other income
|
| | | | 2,502 | | | | | | 2,720 | | | | | | 6,883 | | | | | | 6,378 | | |
Change in fair value of contingent consideration payable
|
| | | | — | | | | | | (252) | | | | | | 2,967 | | | | | | (465) | | |
Total other income (expense), net
|
| | | | 2,507 | | | | | | 2,551 | | | | | | 9,928 | | | | | | 6,289 | | |
Net loss
|
| | | $ | (14,765) | | | | | $ | (14,698) | | | | | $ | (30,333) | | | | | $ | (32,601) | | |
Other comprehensive loss: | | | | | | | | | | | | | | | | | | | | | | | | | |
Foreign currency translation adjustment
|
| | | | (2,081) | | | | | | 111 | | | | | | 1,113 | | | | | | (3,995) | | |
Comprehensive loss
|
| | | $ | (16,846) | | | | | $ | (14,587) | | | | | $ | (29,220) | | | | | $ | (36,596) | | |
Basic and diluted net loss per common share
|
| | | $ | (0.15) | | | | | $ | (0.22) | | | | | $ | (0.46) | | | | | $ | (0.50) | | |
Weighted average common shares used in computing basic and diluted net loss per common share
|
| | | | 97,647,688 | | | | | | 65,493,842 | | | | | | 65,493,842 | | | | | | 65,493,842 | | |
|
U.S. dollars in thousands
|
| |
As of
June 30, 2020 (unaudited) |
| |
As of
December 31, 2019 |
| ||||||
Balance Sheet Data: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 12,413 | | | | | $ | 5,031 | | |
Total assets
|
| | | | 50,318 | | | | | | 40,826 | | |
Total liabilities
|
| | | | 9,439 | | | | | | 9,639 | | |
Accumulated deficit
|
| | | | (132,505) | | | | | | (117,740) | | |
Total stockholders’ equity
|
| | | | 40,879 | | | | | | 31,187 | | |
| | |
Historical
June 30, 2020 |
| |
Historical
August 31, 2020 |
| |
Pro
Forma Adjustments |
| | | | |
Pro
Forma Combined |
| ||||||||||||
| | |
4D Pharma
|
| |
Longevity
|
| |
Notes
|
| ||||||||||||||||||
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 12,413 | | | | | $ | 7 | | | | | | 20,827 | | | |
B, C, D, H, I, J
|
| | | $ | 33,247 | | |
Research and development tax credits receivable
|
| | | | 8,999 | | | | | | — | | | | | | — | | | | | | | | | 8,999 | | |
Prepaid expenses and other current assets
|
| | | | 4,208 | | | | | | 25 | | | | | | — | | | | | | | | | 4,233 | | |
Total current assets
|
| | | | 25,620 | | | | | | 32 | | | | | | 20,827 | | | | | | | | | 46,479 | | |
Cash and marketable securities held in Trust Account
|
| | | | — | | | | | | 14,506 | | | | | | (14,506) | | | |
I
|
| | | | — | | |
Property and equipment, net
|
| | | | 5,219 | | | | | | — | | | | | | — | | | | | | | | | 5,219 | | |
Right-of-use assets (operating leases)
|
| | | | 1,117 | | | | | | — | | | | | | — | | | | | | | | | 1,117 | | |
Intangible assets, net
|
| | | | 5,826 | | | | | | — | | | | | | — | | | | | | | | | 5,826 | | |
Goodwill
|
| | | | 12,300 | | | | | | — | | | | | | — | | | | | | | | | 12,300 | | |
Research and development tax credits receivable
|
| | | | 236 | | | | | | — | | | | | | — | | | | | | | | | 236 | | |
Total assets
|
| | | $ | 50,318 | | | | | $ | 14,538 | | | | | | 6,321 | | | | | | | | $ | 71,177 | | |
Liabilities and Stockholders’ Equity | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 4,012 | | | | | $ | 337 | | | | | | — | | | | | | | | $ | 4,349 | | |
Accrued expenses and other current
liabilities |
| | | | 2,160 | | | | | | — | | | | | | 2,785 | | | |
E, F, G, H
|
| | | | 4,945 | | |
Current portion of operating lease
liabilities |
| | | | 79 | | | | | | — | | | | | | — | | | | | | | | | 79 | | |
Deferred revenues, current
|
| | | | 1,252 | | | | | | — | | | | | | — | | | | | | | | | 1,252 | | |
Total current liabilities
|
| | | | 7,503 | | | | | | 337 | | | | | | 2,785 | | | | | | | | | 10,625 | | |
Convertible promissory notes – related
party |
| | | | — | | | | | | 1,792 | | | | | | (1,792) | | | |
B, C, J, K
|
| | | | — | | |
Long-term operating lease liabilities, net
|
| | | | 1,088 | | | | | | — | | | | | | — | | | | | | | | | 1,088 | | |
Deferred revenues, net
|
| | | | 644 | | | | | | — | | | | | | — | | | | | | | | | 644 | | |
Deferred tax
|
| | | | 32 | | | | | | — | | | | | | — | | | | | | | | | 32 | | |
Deferred underwriting fee payable
|
| | | | — | | | | | | 1,000 | | | | | | (1,000) | | | |
F
|
| | | | — | | |
Other liabilities
|
| | | | 172 | | | | | | — | | | | | | — | | | | | | | | | 172 | | |
Total liabilities
|
| | | | 9,439 | | | | | | 3,129 | | | | | | (7) | | | | | | | | | 12,561 | | |
Ordinary shares subject to possible redemption
|
| | | | — | | | | | | 6,409 | | | | | | (6,409) | | | |
A
|
| | | | — | | |
Stockholders’ equity: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Common stock
|
| | | | 405 | | | | | | 5,629 | | | | | | (5,453) | | | |
A, D, G, L, M
|
| | | | 581 | | |
Additional paid-in capital
|
| | | | 200,775 | | | | | | — | | | | | | 17,561 | | | |
D, E, G, K, M
|
| | | | 218,336 | | |
Accumulated other comprehensive loss
|
| | | | (27,796) | | | | | | — | | | | | | — | | | | | | | | | (27,796) | | |
Accumulated deficit
|
| | | | (132,505) | | | | | | (629) | | | | | | 629 | | | |
F, L
|
| | | | (132,505) | | |
Total stockholders’ equity
|
| | | | 40,879 | | | | | | 5,000 | | | | | | 12,737 | | | | | | | | | 58,616 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 50,318 | | | | | $ | 14,538 | | | | | | 6,321 | | | | | | | | $ | 71,177 | | |
| | |
Historical
June 30, 2020 |
| |
Historical
August 31, 2020 |
| |
Pro Forma
Adjustments |
| | | | |
Pro Forma
Combined |
| ||||||||||||
| | |
4D Pharma
|
| |
Longevity
|
| |
Notes
|
| ||||||||||||||||||
Revenues
|
| | | $ | 239 | | | | | $ | — | | | | | $ | — | | | | | | | | $ | 239 | | |
Operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Research and development
|
| | | | 13,493 | | | | | | — | | | | | | — | | | | | | | | | 13,493 | | |
General and administrative
|
| | | | 5,509 | | | | | | 370 | | | | | | | | | | | | | | | 5,879 | | |
Foreign currency gains, net
|
| | | | (1,491) | | | | | | — | | | | | | — | | | | | | | | | (1,491) | | |
Total operating expenses
|
| | | | 17,511 | | | | | | 370 | | | | | | | | | | | | | | | 17,881 | | |
Loss from operations
|
| | | | (17,272) | | | | | | (370) | | | | | | | | | | | | | | | (17,642) | | |
Other income (expense), net: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Interest income
|
| | | | 6 | | | | | | 46 | | | | | | — | | | | | | | | | 52 | | |
Interest expense
|
| | | | (1) | | | | | | — | | | | | | — | | | | | | | | | (1) | | |
Other income
|
| | | | 2,502 | | | | | | — | | | | | | — | | | | | | | | | 2,502 | | |
Total other income (expense), net
|
| | | | 2,507 | | | | | | 46 | | | | | | — | | | | | | | | | 2,553 | | |
Net loss
|
| | | $ | (14,765) | | | | | $ | (324) | | | | | $ | | | | | | | | $ | (15,089) | | | |
Net loss per share, basic and diluted
|
| | | $ | (0.15) | | | | | $ | (0.17) | | | | | | | | | | | | | | $ | (0.10) | | |
Weighted average common shares outstanding, basic and diluted
|
| | | | 97,647,688 | | | | | | 1,997,943 | | | | | | 50,960,024 | | | |
N
|
| | | | 150,605,655 | | |
| | |
Historical
December 31, 2019 |
| |
Historical
February 29, 2020 |
| |
Pro Forma
Adjustments |
| | | | |
Pro Forma
Combined |
| ||||||||||||
| | |
4D Pharma
|
| |
Longevity
|
| |
Notes
|
| ||||||||||||||||||
Revenues
|
| | | $ | 269 | | | | | $ | — | | | | | $ | — | | | | | | | | $ | 269 | | |
Operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Research and development
|
| | | | 29,193 | | | | | | — | | | | | | — | | | | | | | | | 29,193 | | |
General and administrative
|
| | | | 10,380 | | | | | | 1,079 | | | | | | — | | | | | | | | | 11,459 | | |
Foreign currency losses, net
|
| | | | 957 | | | | | | — | | | | | | — | | | | | | | | | 957 | | |
Total operating expenses
|
| | | | 40,530 | | | | | | 1,079 | | | | | | — | | | | | | | | | 41,609 | | |
Loss from operations
|
| | | | (40,261) | | | | | | (1,079) | | | | | | — | | | | | | | | | (41,340) | | |
Other income (expense), net: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Interest income
|
| | | | 78 | | | | | | 788 | | | | | | — | | | | | | | | | 866 | | |
Other income
|
| | | | 6,883 | | | | | | — | | | | | | — | | | | | | | | | 6,883 | | |
Change in fair value of contingent consideration payable
|
| | | | 2,967 | | | | | | — | | | | | | — | | | | | | | | | 2,967 | | |
Total other income (expense), net
|
| | | | 9,928 | | | | | | 788 | | | | | | — | | | | | | | | | 10,716 | | |
Net loss
|
| | | $ | (30,333) | | | | | $ | (291) | | | | | $ | — | | | | | | | | $ | (30,624) | | |
Net loss per share, basic and diluted
|
| | | $ | (0.46) | | | | | $ | (0.50) | | | | | | | | | | | | | | $ | (0.22) | | |
Weighted average common shares outstanding, basic and diluted
|
| | | | 65,493,842 | | | | | | 1,859,697 | | | | | | 70,031,052 | | | |
N
|
| | | | 137,384,591 | | |
| | |
Six Months
Ended June 30, 2020 |
| |
Year Ended
December 31, 2019 |
| ||||||
Basic and Diluted EPS: | | | | | | | | | | | | | |
As reported (4D Pharma)
|
| | | $ | (0.15) | | | | | $ | (0.46) | | |
As reported (Longevity)
|
| | | $ | (0.17) | | | | | $ | (0.50) | | |
Pro forma
|
| | | $ | (0.10) | | | | | $ | (0.22) | | |
Net loss (in thousands): | | | | | | | | | | | | | |
As reported (4D Pharma)
|
| | | $ | (14,765) | | | | | $ | (30,333) | | |
As reported (Longevity)
|
| | | $ | (324) | | | | | $ | (291) | | |
Pro forma
|
| | | $ | (15,089) | | | | | $ | (30,624) | | |
Basic and Diluted Weighted Average Shares: | | | | | | | | | | | | | |
As reported (4D Pharma)
|
| | | | 97,647,688 | | | | | | 65,493,842 | | |
As reported (Longevity)
|
| | | | 1,997,943 | | | | | | 1,859,697 | | |
Add: Application of the Exchange Ratio of 7.5315 to Longevity’s
weighted average common shares outstanding |
| | | | 13,049,564 | | | | | | 12,146,610 | | |
Add: Release of Longevity shares held for possible redemption at
Merger closing at Exchange Ratio |
| | | | 4,736,402 | | | | | | 24,710,384 | | |
Add: Issuance of ordinary shares at the Exchange Ratio for Longevity’s share rights outstanding
|
| | | | 3,253,608 | | | | | | 3,253,608 | | |
Add: Issuance of ordinary shares to Longevity backstop investors
at Merger closing at the Exchange Ratio |
| | | | 5,272,050 | | | | | | 5,272,050 | | |
Add: Issuance of ordinary shares for payment of banker’s fees at Merger Closing
|
| | | | 2,750,000 | | | | | | 2,750,000 | | |
Add: Issuance of ordinary shares in 4D Pharma’s offering after June 30, 2020
|
| | | | 21,898,400 | | | | | | 21,898,400 | | |
Pro forma
|
| | | | 150,605,655 | | | | | | 137,384,591 | | |
| | |
June 30, 2020
|
| |||
Payment of Longevity’s convertible promissory note (B)
|
| | | $ | (1,792) | | |
Record Longevity’s new promissory notes (C)
|
| | | | 2,360 | | |
Record 4D Pharma’s net proceeds from issuance of ordinary shares in July 2020(D)
|
| | | | 9,002 | | |
To reflect the payment of certain transaction costs at Merger closing (H)
|
| | | | (1,389) | | |
Release of marketable securities held in Trust Account to cash (I)
|
| | | | 14,506 | | |
Payment of one of Longevity’s new promissory notes at Merger closing (J)
|
| | | | (1,860) | | |
Total
|
| | | $ | 20,827 | | |
|
| | |
June 30, 2020
|
| |||
4D Pharma’s estimated stock issuance transaction costs (E)
|
| | | $ | 3,856 | | |
Longevity’s estimated transaction costs and reclass of deferred underwriting expenses (F)
|
| | | | 4,008 | | |
Payment of banker’s fee with ordinary shares at Merger closing (G)
|
| | | | (3,690) | | |
To reflect the payment of certain transaction costs at Merger closing (H)
|
| | | | (1,389) | | |
Total
|
| | | $ | 2,785 | | |
| | |
June 30, 2020
|
| |||
Payment of Longevity’s convertible promissory note (B)
|
| | | $ | (1,792) | | |
Record Longevity’s new promissory notes (C)
|
| | | | 2,360 | | |
Payment of one of Longevity’s new promissory notes at Merger closing (J)
|
| | | | (1,860) | | |
Payment of one of Longevity’s new promissory notes with issuance of ordinary shares at Merger closing (K)
|
| | | | (500) | | |
Total
|
| | | $ | (1,792) | | |
| | |
June 30, 2020
|
| |||
Conversion of Longevity’s shares subject to redemption to ordinary shares (A)
|
| | | $ | 6,409 | | |
Record 4D Pharma’s net proceeds from issuance of common stock in July 2020 (D)
|
| | | | 69 | | |
Payment of banker’s fee with ordinary shares at Merger closing (G)
|
| | | | 10 | | |
Eliminate Longevity’s pre-merger ordinary shares (L)
|
| | | | (12,038) | | |
To record the fair value of shares in the stock transaction (M)
|
| | | | 97 | | |
Total
|
| | | $ | (5,453) | | |
| | |
June 30, 2020
|
| |||
Record 4D Pharma’s net proceeds from issuance of ordinary shares in July 2020 (D)
|
| | | $ | 8,933 | | |
4D Pharma’s estimated stock issuance transaction costs (E)
|
| | | | (3,856) | | |
Payment of banker’s fee with ordinary shares at Merger closing (G)
|
| | | | 3,680 | | |
Payment of one of Longevity’s new promissory notes with issuance of ordinary shares at Merger closing (K)
|
| | | | 500 | | |
To record the issuance of shares in the stock transaction (M)
|
| | | | 8,304 | | |
Total
|
| | | $ | 17,561 | | |
| | |
June 30, 2020
|
| |||
Longevity’s estimated transaction costs (F)
|
| | | $ | (3,008) | | |
Eliminate Longevity’s pre-merger accumulated deficit balance (L)
|
| | | | 3,637 | | |
Total
|
| | | $ | 629 | | |
Target
|
| |
Business
|
| |
Reason for Termination
|
|
Company E | | | Steel smelting and new material manufacturing | | | Financial results were not consistent with forecasting | |
Company F | | | Non-ferrous metal recycling | | | Target decided to pursue capital markets other than in the U.S. | |
Company G | | | Co-working space | | | Target decided to pursue alternative funding strategies | |
Company H | | | Mobile phone distribution | | | Parties could not agree on valuation | |
Company I | | | Digital Marketing and Advertising | | | Longevity concluded that target would not meet listing qualifications for closing | |
Company J | | | Thermal energy storage (TES) clean-tech | | | Target’s financial statements did not meet the PCAOB audit requirement | |
Company K | | | New energy vehicle | | | Target decided to pursue alternative funding strategies | |
Company L | | | Automobile Manufacturing | | | Target decided to pursue alternative funding strategies | |
| | |
For the Six Months Ended
June 30, |
| |
For the Year Ended
December 31, |
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||
| | | | | | | | |
(in thousands)
|
| | | | | | | |||||||||
Contractual commitments
|
| | | $ | 7,630 | | | | | $ | 3,790 | | | | | $ | 15,282 | | | | | $ | 9,958 | | |
Staff costs
|
| | | | 3,118 | | | | | | 3,210 | | | | | | 6,414 | | | | | | 5,906 | | |
Depreciation and amortization
|
| | | | 589 | | | | | | 490 | | | | | | 1,171 | | | | | | 1,427 | | |
Other MRx research costs
|
| | | | 1,170 | | | | | | 1,589 | | | | | | 2,695 | | | | | | 6,796 | | |
Other MDx research costs
|
| | | | 490 | | | | | | 571 | | | | | | 671 | | | | | | 1,251 | | |
Other manufacturing research and development costs
|
| | | | 496 | | | | | | 2,051 | | | | | | 2,960 | | | | | | 2,492 | | |
Total
|
| | | $ | 13,493 | | | | | $ | 11,701 | | | | | $ | 29,193 | | | | | $ | 27,830 | | |
| | |
For the Six Months Ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
| | |
(in thousands)
|
| |||||||||
Revenues
|
| | | $ | 239 | | | | | $ | — | | |
Operating expenses: | | | | | | | | | | | | | |
Research and development
|
| | | | 13,493 | | | | | | 11,701 | | |
General and administrative expenses
|
| | | | 5,509 | | | | | | 5,400 | | |
Foreign currency losses (gains)
|
| | | | (1,491) | | | | | | 148 | | |
Total operating expenses
|
| | | | 17,511 | | | | | | 17,249 | | |
Operating loss
|
| | | | (17,272) | | | | | | (17,249) | | |
Other income (expense), net | | | | | | | | | | | | | |
Interest income
|
| | | | 6 | | | | | | 84 | | |
Interest expense
|
| | | | (1) | | | | | | (1) | | |
Other income
|
| | | | 2,502 | | | | | | 2,720 | | |
Change in fair value of contingent consideration payable
|
| | | | — | | | | | | (252) | | |
Total other income (expense), net
|
| | | | 2,507 | | | | | | 2,551 | | |
Net loss
|
| | | $ | (14,765) | | | | | $ | (14,698) | | |
| | |
For the Year Ended
December 31, |
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
| | |
(in thousands)
|
| |||||||||
Revenues
|
| | | $ | 269 | | | | | $ | — | | |
Operating expenses: | | | | | | | | | | | | | |
Research and development
|
| | | | 29,193 | | | | | | 27,830 | | |
General and administrative expenses
|
| | | | 10,380 | | | | | | 11,294 | | |
Foreign currency losses (gains)
|
| | | | 957 | | | | | | (234) | | |
Total operating expenses
|
| | | | 40,530 | | | | | | 38,890 | | |
Operating loss
|
| | | | (40,261) | | | | | | (38,890) | | |
Other income (expense), net | | | | | | | | | | | | | |
Interest income
|
| | | | 78 | | | | | | 379 | | |
Interest expense
|
| | | | — | | | | | | (3) | | |
Other income
|
| | | | 6,883 | | | | | | 6,378 | | |
Change in fair value of contingent consideration payable
|
| | | | 2,967 | | | | | | (465) | | |
Total other income (Expense), net
|
| | | | 9,928 | | | | | | 6,289 | | |
Net loss
|
| | | $ | (30,333) | | | | | $ | (32,601) | | |
| | |
For the Six Months Ended
June 30, |
| |
For the Year Ended
December 31, |
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||
| | |
(in thousands)
|
| |||||||||||||||||||||
Cash used in operating activities
|
| | | $ | (17,597) | | | | | $ | (17,011) | | | | | $ | (28,683) | | | | | $ | (30,158) | | |
Cash (used in) provided by investing activities
|
| | | | (221) | | | | | | 12,795 | | | | | | 12,283 | | | | | | 35,951 | | |
Cash provided by (used in) financing activities
|
| | | | 26,391 | | | | | | (6) | | | | | | (14) | | | | | | (13) | | |
Effect of exchange rate changes on cash and cash equivalents
|
| | | | (1,191) | | | | | | 147 | | | | | | 1,000 | | | | | | (1,386) | | |
Net increase (decrease) in cash and cash equivalents
|
| | | $ | 7,382 | | | | | | (4,075) | | | | | $ | (15,414) | | | | | $ | 4,394 | | |
| | |
Payments Due by Period
|
| |||||||||||||||||||||
Description
|
| |
Total
|
| |
Less Than
One Year |
| |
1 – 3
Years |
| |
3 – 5
Years |
| ||||||||||||
| | |
(in thousands)
|
| |||||||||||||||||||||
Operating lease obligations
|
| | | $ | 2,108 | | | | | $ | 299 | | | | | $ | 918 | | | | | $ | 891 | | |
Total
|
| | | $ | 2,108 | | | | | $ | 299 | | | | | $ | 918 | | | | | $ | 891 | | |
Name
|
| |
Age
|
| |
Position(s)
|
|
Executive Officers: | | | | | | | |
Duncan Peyton | | |
50
|
| | Chief Executive Officer, and Director | |
Alexander Stevenson | | |
49
|
| | Chief Scientific Officer, and Director | |
Richard Avison | | |
43
|
| | Group Finance Director | |
Non-Executive Directors: | | | | | | | |
Prof. Axel Glasmacher | | |
60
|
| | Non-Executive Director Chairman | |
Dr. Edgardo (Ed) Baracchini | | |
61
|
| | Non-Executive Director | |
Dr. Alexander (Sandy) Macrae | | |
58
|
| | Non-Executive Director | |
Dr. Katrin Rupalla | | |
53
|
| | Non-Executive Director | |
Name
|
| |
Base
Salary |
| |
Taxable
Benefits(1) |
| |
Pension(2)
|
| |
Total
|
| ||||||||||||
| | |
($ in thousands)
|
| |||||||||||||||||||||
Executive Officers: | | | | | | | | | | | | | | | | | | | | | | | | | |
Duncan Peyton(3)
|
| | | $ | 129.3 | | | | | $ | 2.9 | | | | | $ | — | | | | | $ | 132.2 | | |
Alexander Stevenson(4)
|
| | | | 129.3 | | | | | | 2.9 | | | | | | — | | | | | | 132.2 | | |
Non-Executive Directors: | | | | | | | | | | | | | | | | | | | | | | | | | |
Prof. Axel Glasmacher
|
| | | | 64.6 | | | | | | — | | | | | | — | | | | | | 64.6 | | |
Dr. Edgardo (Ed) Baracchini
|
| | | | 64.6 | | | | | | — | | | | | | — | | | | | | 64.6 | | |
Dr. Alexander (Sandy) Macrae
|
| | | | 64.6 | | | | | | — | | | | | | — | | | | | | 64.6 | | |
Dr. Katrin Rupalla(5)
|
| | | | 19.6 | | | | | | — | | | | | | — | | | | | | 19.6 | | |
David Norwood(6)
|
| | | | 10.6 | | | | | | — | | | | | | — | | | | | | 10.6 | | |
Thomas Engelen(7)
|
| | | | 12.2 | | | | | | — | | | | | | — | | | | | | 12.2 | | |
| | |
Amount and Nature of
Beneficial Ownership |
| |||||||||
Name of Beneficial Owner
|
| |
Number
of Shares |
| |
Percentage
Owned (%) |
| ||||||
Whale Management Corporation(2)(3)
|
| | | | 1,250,000 | | | | | | 47.6% | | |
Matthew Chen(2)(3)
|
| | | | 1,250,000 | | | | | | 47.6% | | |
Teddy Zheng(4)(5)
|
| | | | — | | | | | | *% | | |
Alex Lyamport(6)
|
| | | | — | | | | | | *% | | |
Nicholas H. Adler(7)
|
| | | | — | | | | | | *% | | |
Jerry L Hutter(8)
|
| | | | — | | | | | | *% | | |
Pai Liu(4)(9)
|
| | | | — | | | | | | *% | | |
Jun Liu(4)(10)
|
| | | | — | | | | | | *% | | |
Yukman Lau(4)(11)
|
| | | | — | | | | | | *% | | |
All directors and executive officers as a group
|
| | | | 1,250,000 | | | | | | 47.6% | | |
| | |
Amount and Nature of Beneficial Ownership
|
| |||||||||
Name of Beneficial Owner
|
| |
Number of
Shares |
| |
Percentage Owned (%)
|
| ||||||
Entities affiliated with Steven Olivera(1)
|
| | | | 20,132,188 | | | | | | 14.68% | | |
Merck & Co.(2)
|
| | | | 11,491,500 | | | | | | 8.49% | | |
Duncan Peyton(3)
|
| | | | 9,026,501 | | | | | | 6.83% | | |
Alexander Stevenson(4)
|
| | | | 8,984,562 | | | | | | 6.80% | | |
Axel Glasmacher(5)
|
| | | | 30,000 | | | | | | *% | | |
Richard Avison(6)
|
| | | | 838 | | | | | | *% | | |
Edgardo Baracchini
|
| | | | — | | | | | | *% | | |
Katrin Rupalla
|
| | | | — | | | | | | *% | | |
Sandy Macrae
|
| | | | — | | | | | | *% | | |
All directors and executive officers as a group (7 persons)(7)
|
| | | | 18,041,901 | | | | | | 13.59% | | |
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
| Voting Rights | | |||
| | | | Under English law, a shareholder who is present in person and entitled to vote at a shareholders’ meeting is entitled to one vote on a show of hands regardless of the number of shares he or she holds. Every proxy present who has been duly appointed by a shareholder entitled to vote on the resolution has one vote. | |
| Under Longevity’s memorandum and articles of association, subject to any rights or restrictions attached to any shares, at any meeting of shareholders on a show of hands every shareholder who is present in person (or, in the case of a shareholder being a corporation, by its duly authorized representative) or by proxy shall have one vote and on a poll every shareholder present in person (or, in the case of a shareholder being a corporation, by its duly appointed representative) or by proxy shall have one vote for each share which such shareholder is the holder. Voting at any meeting of the shareholders is by show of hands unless a poll is demanded. A poll may be required if the chairman of the meeting has any doubt as to its outcome or, if the chairman does not so require, a poll may be, demanded by a shareholder present in person or by proxy if the shareholder disputes the outcome of the vote | | |
Under English law, a vote by a poll may generally be demanded by (i) not less than five shareholders having the right to vote on the resolution; or (ii) any shareholder or shareholders representing at least 10% of the total voting rights of all the shareholders having the right to vote on the resolution; or (iii) any shareholder or shareholders, holding shares conferring a right to vote on the resolution, being shares on which the aggregate sum paid up is equal to not less than 10% of the total sum paid up on all the shares.
4D Pharma’s articles of association provide that resolutions put to a vote at a shareholder meeting will be decided on a show of hands, unless a poll is demanded by:
(1)
the chairman of the meeting;
(2)
not less than five members present in person or by proxy and entitled to vote;
(3)
a member or members present in person or by proxy and representing in aggregate not less than one-tenth of the total voting rights of all the members having the right to vote; or
|
|
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
| | | |
(4)
a member or members present in person or by proxy and holding shares in 4D Pharma conferring a right to vote on the resolution, being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all the shares.
|
|
| | | | A demand for a poll may be withdrawn with the consent of the chairman of the meeting at any time before the close of the meeting or the taking of the poll, whichever is the earlier. A demand so withdrawn shall not invalidate the result of a show of hands declared before the demand was made. | |
| | | | Under English law an ordinary resolution means a resolution that is passed by a simple majority (i.e. not less than 50%) of those shareholders present at a general meeting in person or by proxy. A resolution passed at a meeting on a show of hands is passed by a simple majority if it is passed by a simple majority of the shareholders present in person or by proxy and entitled to vote on it. A resolution passed on a poll taken at a meeting is passed by a simple majority if it is passed by members representing a simple majority of the total voting rights of members who (being entitled to do so) vote in person or by proxy on the resolution. | |
|
There is no concept under BVI law of a “special resolution” and any resolution of shareholders may be passed by a simple majority of votes cast unless the memorandum and articles of association of a company specify a higher majority.
In relation to resolutions of shareholders, Longevity’s memorandum and articles provide that:
—
prior to the consummation of a business combination in relation to any resolution seeking to amend or vary the rights of the ordinary shares (unless such amendment or variation is for the purposes of approving, or in conjunction with, the consummation of a business combination), a resolution is passed by members holding at least 65% of the votes of the members who (being entitled to do so) vote; or
—
in all other cases, a resolution is passed by the affirmative vote of a majority of the votes of the shares being entitled to vote thereon.
|
| | Under English law a special resolution means a resolution passed by a majority of not less than 75% of those shareholders present at a general meeting in person or by proxy. A resolution passed at a meeting on a show of hands is passed by a majority of not less than 75% if it is passed by not less than 75% of the votes cast by shareholders present in person or by proxy and entitled to vote on it. A resolution passed on a poll taken at a meeting is passed by a majority of not less than 75% if it is passed by members representing not less than 75% of the total voting rights of the members who (being entitled to do so) vote in person or by proxy on the resolution. The resolution is not a special resolution unless the notice of the meeting included the text of the resolution and specified the intention to propose the resolution as a special resolution, and if the notice of the meeting so specified, the resolution may only be passed as a special resolution. | |
| Under BVI law, a shareholder entitled to attend and vote at a meeting is entitled to appoint a proxy to exercise all or any of his rights to attend, speak and vote at a meeting of shareholders of the company. | | | Under English law, any shareholder entitled to attend and vote at a meeting is entitled to appoint a proxy to exercise all or any of his rights to attend, speak and vote at a meeting of shareholders of the company. | |
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
| | ||
| Under BVI law, the quorum for a meeting of shareholders is that fixed by the memorandum and articles of the company or, if no such quorum is fixed, then shareholders (or their proxy) holding at least 50% of the votes constitutes a quorum for a meeting of members. Longevity’s memorandum and articles expressly adopt the basic statutory position such that a meeting of Longevity Shareholders is quorate if at the commencement of the meeting there are present in person or by proxy, shareholders entitled to exercise at least 50% of the votes. | | | Generally, under English law, two shareholders present in person or by proxy constitute a quorum for the purpose of a general meeting of shareholders, unless the company’s articles of association specify otherwise. 4D Pharma’s articles of association specify that two members present in person or by proxy and entitled to vote constitute a quorum for all purposes. | | | ||
| Shareholder Proposals and Shareholder Nominations of Directors | | | | | |||
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Under BVI law, the directors of a company are required to convene a shareholder meeting upon written request by shareholders entitled to exercise at least 30% of the voting rights in respect of the matter for which the meeting is requested, unless the memorandum and articles of the company specify a lesser percentage.
Longevity’s memorandum and articles follow the basic position and require that the directors of Longevity shall call convene a meeting of shareholders upon the written request of shareholders entitled to exercise 30% or more of the voting rights in respect of the matter for which the meeting is requested.
The directors convening a meeting of members must give not less than 10 and not more than 60 days’ written notice of such meeting to those members who are entitled to vote at the meeting.
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Under English law, shareholders may require the directors to call a general meeting of shareholders of the company and may specify the text of a resolution be voted on at that meeting if the request is made by either: (i) shareholders holding at least 5% of the total voting rights, or (ii) by at least 100 shareholders who have a relevant right to vote and hold shares in the company on which there has been paid up an average sum, per shareholder, of at least £100.
Shareholders may also require the company to circulate to members of the company entitled to receive notice of a general meeting, a statement of not more than 1,000 words with respect to (i) a matter referred to in a proposed resolution to be dealt with at that meeting, or (ii) other business to be deal with at that meeting. A company is required to circulate such a statement once it has received requests from shareholders (in line with the thresholds outlined above).
Resolutions to appoint directors to a public company such as 4D Pharma must be put to shareholders on the basis of one resolution for each nominated director. A single resolution to appoint two or more directors must not be proposed to be voted upon at a general meeting unless a resolution that it should be so made has first been agreed to by the general meeting without any vote being given against it.
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| Sources and Payment of Dividends | | | |||||
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Generally speaking, BVI law does not impose:
—
restrictions on the sources from which a company may pay a distribution; or
—
maintenance of capital rules,
similar to those under English law.
Subject to any additional restrictions in the memorandum and articles of a company, BVI law allows the directors of a company such as Longevity
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| | Generally speaking, and subject to the prior rights of holders of any preferred shares, under English law, a company may pay dividends on its ordinary shares only out of its distributable profits (defined as accumulated, realized profits not previously utilized by distribution or capitalization, less accumulated, realized losses so far as not previously written off in a reduction or reorganization) and not out of share capital, which includes share premiums | | |
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Current Rights of Longevity Shareholders
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Current Rights of 4D Shareholders
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to authorise and pay a dividend or other distribution subject only to them satisfied on reasonable grounds that the company will, immediately after the distribution is made, satisfy the following tests (the Solvency Test):
—
the value of its assets will exceed its liabilities; and
—
it will be able to pay its debts as they fall due.
Any dividend or other distribution paid or made at a time when a company did not, immediately after the dividend or other distribution, satisfy the solvency test may be subject to “claw-back” by the company. However, the company cannot recover such a dividend or other distribution if: (i) the shareholder received it in good faith and without knowledge of the company’s failure to satisfy the solvency test; (ii) the member has altered it position in reliance on the validity of the distributions; and (iii) it would be unfair to require repayment in full or at all.
Longevity’s memorandum and articles authorize the directors of the company to pay out distributions by way of a resolution of directors provided that immediately after the distribution is made, the Company satisfies the Solvency Test.
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(paid-in surplus).
Amounts credited to the share premium account (representing the excess of the consideration for the issue of shares over the aggregate nominal amount of such shares) may not be used to pay out cash dividends but may be used, among other things, to pay up unissued shares that may then be distributed to shareholders in proportion to their holdings as fully paid bonus shares.
In addition, under English law, 4D Pharma will not be permitted to make a distribution if, at the time, the amount of its net assets is less than the aggregate of its issued and paid-up share capital and undistributable reserves.
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| | | | If recommended by the 4D Pharma Board, 4D shareholders may, by ordinary resolution, declare final dividends, but no dividend may be declared in excess of the amount recommended by the 4D Pharma Board. The 4D Pharma Board has the power under 4D Pharma’s articles of association to pay interim dividends without the approval of shareholders to the extent the financial position of 4D Pharma justifies a dividend in the opinion of the 4D Pharma Board. | |
| Rights of Purchase and Redemption | | |||
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Under BVI law, a company may issue redeemable shares if specifically authorised to do so by its memorandum and articles, subject to any conditions stated therein. Furthermore, BVI law allows a company to purchase, redeem or otherwise acquire any of the company’s shares subject to the provisions of the memorandum and articles and, to the extent not dis-applied in the BVI Companies Act. Longevity’s memorandum and article confer the company’s ability to purchase or redeem its own ordinary shares from shareholders and the possibility for preferred shares to be issued with rights of redemption.
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Under English law, a company may issue redeemable shares if specifically authorized to do so by its articles of association, subject to any conditions stated therein. 4D Pharma’s articles of association permit the issuance of redeemable shares; however, 4D Pharma has not issued any redeemable shares.
Under English law, a company may purchase its own shares in certain specific instances, including if the purchase has first been approved by a special resolution of its shareholders. 4D Pharma’s articles of association authorize 4D Pharma to purchase its own shares. A resolution passed at 4D Pharma’s annual general meeting on 30 June 2020 provides the
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Current Rights of Longevity Shareholders
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Current Rights of 4D Shareholders
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Under BVI law and subject to the company’s memorandum, where a company seeks to purchase, redeem or otherwise acquire its own shares the director’s of the company must be satisfied that the company will pass the Solvency Test immediately after the purchase, redemption or acquisition — unless, amongst other exceptions, the shares are redeemed pursuant to a right of the holder to have his shares redeemed or shares are fully paid and surrendered for nil consideration.
Longevity is permitted by it memorandum and articles to purchase, redeem or otherwise acquire and hold its own shares provided consent from the members whose shares are being purchased, redeemed or otherwise acquired is obtained. In certain cases, Longevity is also positively required under its memorandum and articles to redeem certain of its shares at a set price.
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| | directors with authority to purchase up to 10% of the ordinary shares of the company in issue at the close of business on 4 June 2020, being the date of publication of the notice convening the annual general meeting. | |
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Under English law, a company may redeem or repurchase shares only if the shares are fully paid and, in the case of public companies, only out of (i) distributable profits, or (ii) the proceeds of a new issue of shares made for the purpose of the repurchase or redemption.
The U.K. Financial Conduct Authority requires that purchases of 15% or more of any class of a company’s share capital must be by way of a tender offer to all shareholders of that class and unless a tender offer is made to all holders of the class, purchases by a listed company of less than 15% of any class of its share capital pursuant to a general authority granted by its shareholders may only be made if the company complies with certain limits on the price paid for the shares.
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| Meetings of Shareholders | | |||
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Under BVI law, unless a company’s memorandum and articles prescribe a lower figure, a meeting of shareholders may be requisitioned by shareholders entitled to exercise at least 30% of the voting rights in respect of the matter for which the meeting is to be called.
Longevity’s memorandum and articles prescribe that a meeting of shareholders may be requisitioned by written request of shareholders entitled to exercise 30% or more of the voting rights.
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| | Under English law, a general meeting of shareholders may be called by the board of directors of a company. Shareholders holding at least 5% of the paid-up capital of the company carrying voting rights at general meetings of the company may require the directors to call a general meeting of the company. The notice requirements for general meetings of the company are as follows: (i) annual general meeting: at least 21 clear days’ notice; (ii) any other general meeting: at least 14 clear days’ notice. | |
| The directors convening a meeting of shareholders must give no less than 10 and no more than 60 days’ written notice of such meeting to those members who are entitled to vote at the meeting. A meeting of shareholders held in contravention of the | | | General meetings may be called upon shorter notice with the agreement of (i) in the case of an annual general meeting, all the shareholders who are permitted to attend and vote, or (ii) in the case of any other general meeting, a majority of the | |
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Current Rights of Longevity Shareholders
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Current Rights of 4D Shareholders
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| requirement to give notice can still be valid if members holding at least 90% of the total voting rights on all the matters to be considered at the meeting have waived notice of the meeting. | | | shareholders holding at least 95% by nominal value of the shares giving the right to attend and vote at the meeting. | |
| The inadvertent failure of a director who convenes a meeting to give notice of a meeting to a member or another director, or the fact that a member or another director has not received notice, does not invalidate the meeting. | | | “Clear days’ notice” means calendar days and excludes (i) the deemed date of receipt of the notice, and (ii) the date of the meeting itself. 4D Pharma’s articles of association provide that documents sent by first class post are deemed received 24 hours after mailing and, if not sent by first class post, 48 hours after mailing. | |
| Special Meetings of Shareholders | | |||
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There is no concept of a “special resolution” as such under BVI law and any resolution of shareholders may be passed by a simple majority (subject to limited exceptions) of votes cast unless the company’s memorandum and articles specify a higher majority.
As noted above, in relation to resolutions of shareholders, Longevity’s memorandum and articles provide that:
—
prior to the consummation of a business combination in relation to any resolution seeking to amend or vary the rights of the ordinary shares (unless such amendment or variation is for the purposes of approving, or in conjunction with, the consummation of a business combination), a resolution is passed by members holding at least 65% of the votes of the members who (being entitled to do so) vote; or
—
in all other cases, a resolution is passed by the affirmative vote of a majority of the votes of the shares being entitled to vote thereon.
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“Special resolutions” generally involve proposals to change the name of the company, alter its capital structure, change or amend the rights of shareholders, permit the company to issue new shares for cash without applying the shareholders’ pre-emptive rights, amend the company’s articles of association, or carry out other matters where either the company’s articles of association or the U.K. Companies Act prescribe that a “special resolution” is required.
Other proposals relating to the ordinary course of the company’s business, such as the election of directors, would generally be proposed as an ordinary resolution.
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| Pre-emptive Rights | | |||
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BVI law does not confer mandatory pre-emption rights on shareholders in relation to the issue of new shares unless these are expressly adopted by the memorandum and articles of the company.
Longevity’s memorandum and articles of association do not include or adopt pre-emptive rights provisions.
Under BVI law, there is no requirement for a company to hold an annual general meeting (AGM) although an AGM may be required under the company’s M&A.
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| | Under English law, the issuance for cash of (i) equity securities, being those shares in a company which, with respect to dividends or capital, carry a right to participate beyond a specified amount in a distribution, or (ii) rights to subscribe for or convert into equity securities, must be offered first to the existing equity shareholders in proportion to the respective nominal values of their holdings, unless a special resolution to the contrary has been passed by shareholders in a general meeting. | |
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Current Rights of Longevity Shareholders
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Current Rights of 4D Shareholders
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directors — provided that in no circumstances shall the directors have power to amend the memorandum or articles: (A) to restrict the rights or powers of the shareholders to amend the memorandum or articles; (B) to change the percentage of shareholders required to pass a resolution to amend the memorandum or articles; or (C) in circumstances where the memorandum or articles cannot be amended by the members.
Longevity’s memorandum of association allows amendments to the memorandum and articles to be made by a resolution of shareholders or by a resolution of directors, except that:
(a)
no amendment may be made by a resolution of directors in respect of: (i) any of the matters referred to at (A) through (C) above; (ii) any those provisions of the memorandum in respect of class rights; or (iii) those provisions of the articles of association of the company dealing with the date by which it must consummate its initial business combination and its obligation to redeem certain of the ordinary shares in respect therewith; and
(b)
no amendment at all may be made those provisions of the articles of association of the company dealing with the date by which it must consummate its initial business combination and its obligation to redeem certain of the ordinary shares in respect therewith unless the holders of the ordinary shares issued by Longevity in its initial public offering are given the opportunity to redeem their shares.
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English law, the board of directors is not authorized to change the articles of association. See “—Share Class Rights” below.
Amendments affecting the rights of the holders of any class of shares may, depending on the rights attached to the class and the nature of the amendments, also require approval by special resolution of the classes affected in separate class meetings. See “—Share Class Rights” below.
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| Preference Shares | | |||
| Longevity’s M&A provide that the directors have the authority and the power by resolution of directors to authorise and create additional classes of shares which such rights as they may determine. Longevity currently holds ordinary and preferred shares. | | | 4D Pharma’s articles of association provide that, subject to any rights attached to existing ordinary shares, any share may be issued with or have attached to it such rights and restrictions as the company may by ordinary resolution decide or, if no such resolution has been passed or so far as the resolution does not make specific provision, as the 4D Pharma Board may decide. 4D Pharma currently has ordinary and deferred shares (which have no rights) in issue. | |
| Share Class Rights | | |||
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Longevity’s M&A provide that:
(1)
unless the proposed variation of rights is for the purposes of approving, or in conjunction
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| | 4D Pharma’s articles of association provide that, subject to the provisions of the U.K. Companies Act: | |
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Current Rights of Longevity Shareholders
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Current Rights of 4D Shareholders
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with, the consummation of a business combination, prior to a business combination but subject always to a resolution of shareholders, the rights attached to ordinary shares may only be varied by a resolution passed at a meeting by the holders of at least 65% of the total number of ordinary shares that have voted and are entitled to vote unless otherwise provided by the terms of issue of such class;
(2)
in the case of a proposed variation that (i) is for the purposes of approving or in conjunction with, the consummation of a business combination; or (ii) is after the consummation of a business combination, the rights attached to the ordinary shares may only be varied by a resolution passed at a meeting by the holders of more than 50% of the ordinary shares present at a meeting of members which were present at the meeting and voted; and
(3)
the rights attached to any preferred shares in issue may only be varied by resolution passed at a meeting by the holder of more than 50% of the preferred shares of the same class present at a meeting of members holding preferred shares which were present at the meeting and voted.
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(1)
all or any rights of any class of shares may only be varied with the consent in writing of holders of 75% of the nominal value of the issued shares of that class or by a special resolution passed at a separate class meeting of the holders of shares of that class;
(2)
the quorum required for the separate class meetings is at least two persons who hold, or act as proxies for, at least one third of the nominal value of the issued shares of that class, except that at any adjourned meeting one shareholder or his proxy constitutes a quorum, regardless of the number of shares that person holds;
(3)
every holder of shares of that class present in person or by proxy and entitled to vote shall be entitled, on a poll, to one vote in respect of each share held; and
(4)
a poll may be demanded at a separate class meeting by any person present in person or by proxy and entitled to vote.
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| | | | Unless otherwise expressly provided by the terms of their issue, the special rights attached to any class of shares are not deemed to be varied by the creation or issue of further shares ranking equally with them. | |
| Shareholders’ Votes on Certain Transactions | | |||
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Subject to a company’s memorandum and articles, BVI law permits a company to merge with another company provided each BVI company involved in the merger has paid its annual government filing fee and is in good standing with the Registrar of Corporate Affairs in the BVI.
In general, the directors and members of each merging BVI company will need to approve the company’s entry into the merger, unless the merger is between a parent company and its subsidiary.
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The U.K. Companies Act only permits mergers in specified limited circumstances. However,
the U.K. Companies Act provides for schemes of arrangement which are arrangements or compromises between a company and any class of shareholders or creditors. Schemes of arrangement are used in certain types of restructurings, amalgamations, capital reorganizations and takeovers.
These arrangements require:
•
the approval at a shareholders’ or creditors’ meeting convened by order of the court, of a majority in number of shareholders or creditors representing 75% in value of the capital held by, or debt owed to, the class of shareholders or creditors, or class thereof present and voting, either in person or by proxy; and
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Current Rights of Longevity Shareholders
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Current Rights of 4D Shareholders
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•
the approval of the court.
Certain other types of extraordinary transactions such as certain capital reorganizations also require approval by shareholders (either by a majority or at least 75% of the votes cast in person or by proxy, depending on the type of transaction), while other types of transactions, including asset sales and tender offers, often do not require shareholder approval.
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| Rights of Inspection | | |||
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Under BVI law, shareholders have, subject to giving written notice to the company, the right to inspect:
•
the memorandum and articles;
•
the register of members and directors; and
•
minutes of meetings and resolutions of members and those classes of members of which he is a member.
Subject to the memorandum and articles, the directors may, if they are satisfied that it would be contrary the company’s interests to allow a member to inspect any document, or part of a document, refuse to permit the member to inspect the document or limited the inspection of the document, including limiting the making of copies or the taking of extracts from the records.
A company’s memorandum and articles must be registered at the BVI Registry of Corporate Affairs and no amendment thereto or restatement thereof is itself effective unless also so registered.
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Under the U.K. Companies Act shareholders have rights of inspection, including the right to:
•
inspect and obtain copies (for a fee) of the minutes of all general meetings of the company and all resolutions of members passed other than at a general meeting;
•
inspect copies of the register of members, register of directors, register of secretaries and other statutory registers maintained by the company;
•
receive copies of the company’s annual report and accounts for each financial year; and
•
receive notices of general meetings of the company.
A company’s articles of association must be registered at Companies House and are therefore open to public inspection.
4D Pharma’s shareholders do not have any right to inspect board minutes of the company.
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| Standard of Conduct for Directors | | |||
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BVI law states a director in exercising his powers or performing his duties shall act honestly and in good faith and in what the director believes to be in the best interests of the company.
However, BVI law also provides that:
—
a director of a company that is a wholly owned subsidiary may, when exercising powers or performing duties as a director, if expressly permitted to do so by the memorandum or articles of the company, act in a manner which he believes is the interests of its parent even if not in the best interests of the subsidiary; and
—
a director of a joint venture, when exercising powers or performing duties as a director, if expressly permitted to do so by the memorandum or articles of the company, to act in the best interests of a shareholder or
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Under English law, a director has a broad statutory duty to act in the way he or she considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole. In addition, there are specific obligations:
(1)
to avoid an actual or potential conflict between his duty to the company and duties to any other person or his or her own personal interests, and to declare any existing interests that may conflict with a proposed transaction or arrangement of the company;
(2)
not to accept a benefit from a third party conferred by reason of his being a director, or his doing (or not doing) anything as a director;
(3)
to act bona fide in what he or she considers is in the interests of the company as a whole, bearing in mind a number of different matters;
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Current Rights of Longevity Shareholders
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Current Rights of 4D Shareholders
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shareholders even if not in the best interests of the company.
Although not relevant in its present state, the articles of association of Longevity do permit its directors to regard to the interests of its holding company if it should ever become a wholly owned subsidiary.
BVI law further states that a director, when exercising powers or performing duties as a director, shall exercise the care, diligence and skill that a reasonable director would exercise in the same circumstances, taking into account, but without limitation:
—
the nature of the company;
—
the nature of the decision; and
—
the position of the director and the nature of the responsibilities undertaken by him.
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(4)
to exercise his or her powers only in accordance with the articles of association of the company;
(5)
to exercise independent judgment; and
(6)
to exercise reasonable care, skill and diligence. This test is both subjective (i.e., was the director’s conduct that of a reasonably diligent person who has the knowledge and experience of the director) and objective (i.e., was the director’s conduct that of a reasonably diligent person having the knowledge and experience that a director holding that position should have).
4D Pharma’s articles of association provide that the 4D Pharma Board may in specified circumstances authorize any matter that would otherwise involve a director breaching his duty under the U.K.
Companies Act to avoid a conflict of interest. The articles of association also provide that, subject to authorization of such conflict, a director may retain any benefit derived by reason of that interest.
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| Removal of Directors | | |||
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Under BVI law, unless the company’s memorandum and articles state otherwise, the shareholders have the right to remove directors by resolution of shareholders.
Longevity’s M&A provide that a director may be removed from office with or without cause by:
—
(following the consummation of the initial business combination but not at an any time before) a resolution of shareholders passed at a meeting of members called for the purposes of removing the director; or
—
(immediately prior to the consummation of the initial public offering), a resolution of directors.
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Under the U.K. Companies Act, a company may remove a director without cause by ordinary resolution, irrespective of anything in any agreement between the director and the company, provided that 28 clear days’ notice of the proposed resolution to remove the director is given to the company and certain other procedural requirements under the U.K. Companies Act are followed.
4D Pharma’s articles of association provide that in addition to any power of removal conferred by the U.K. Companies Act, the company may by special resolution (i.e. a resolution approved by 75% of the votes cast in person or by proxy) remove any director before the expiration of his period of office.
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| Vacancies on the Board of Directors | | |||
| Under Longevity’s memorandum and articles of association, Longevity may by a majority of the directors appoint a director to fill in any vacancy. Where the directors appoint a person as director to fill a vacancy, the term shall not exceed the term that remained when the person who ceased to be a director ceased to hold office. | | |
Under 4D Pharma’s articles of association, 4D Pharma may by ordinary resolution of its shareholders appoint a person to be a director:
(i)
to fill a casual vacancy; or
(ii)
to become an additional director,
subject to the requirement of the articles of association that there be no less than two and no more than ten directors at any time.
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Current Rights of Longevity Shareholders
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Current Rights of 4D Shareholders
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| Liability of Directors and Officers | | |||
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No provision in the memorandum or articles or in any agreement entered into by a company may relieve a director for a duty to act in accordance with his duties under the Companies Act, the memorandum and articles or from any personal liability arising from his management of the business and affairs of the company.
The Companies Act and the memorandum of articles of Longevity however allow for a director to be indemnified in respect of costs suffered in connection with proceedings relating to his position, provided that the director was acting honestly, in good faith and in the best interests of the company and, in the case of criminal proceedings, the director has no reasonable cause to believe that his conduct was unlawful.
Longevity’s memorandum and articles also permit the company to purchase and maintain insurance, purchase or furnish similar protection or make other arrangements against any liability asserted against the person and incurred by him in that capacity, whether or not the company has or would have had the power to indemnify him against the liability as provided in the memorandum and articles.
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Under the U.K. Companies Act, any provision (whether contained in a company’s articles of association or any contract or otherwise) that purports to exempt a director of a company (to any extent) from any liability that would otherwise attach to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company, is void.
Any provision by which a company directly or indirectly provides an indemnity (to any extent) for a director of the company or of an associated company against any liability attaching to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company of which he is a director, is also void except as permitted by the U.K. Companies, which provides exceptions for a company to (i) purchase and maintain insurance against such liability; (ii) provide a “qualifying third party indemnity” (being an indemnity against liability incurred by the director to a person other than the company or an associated company as long as he or she is successful in defending the claim or criminal proceedings); and (iii) provide a “qualifying pension scheme indemnity” (being an indemnity against liability incurred in connection with the company’s activities as trustee of an occupational pension plan).
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| | | | The U.K. Companies Act permits companies to purchase and maintain insurance for directors against any liability arising from negligence, default, breach of duty or breach of trust in relation to the company. 4D Pharma maintains directors’ and officers’ liability insurance. | |
| Disclosure of Interests | | |||
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Under BVI law, a director of a company has a duty to disclose any interest that he may have in a transaction. Failure to do so may render the transaction to be deemed void and the director fined. Having disclosed his interest permits the intended director to attend and vote on the approval of that transaction. A director however is not required to disclose such interest if:
—
the transaction is between the director and the company; and
—
the transaction is to be entered into in the ordinary course of the company’s business and on usual terms and conditions.
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| | The U.K. Disclosure Guidance and Transparency Rules provide that anyone who acquires a material interest, or becomes aware that he has acquired a material interest, in 3% or more of any class of shares of a public company’s issued share capital carrying rights to vote at general meetings of shareholder must notify that company in writing of his interest within two days. Thereafter, any increase or decrease of a whole percentage point and any decrease that reduces the interest to below 3% must be notified in writing to the company. This requirement applies to all 4D Pharma shareholders. | |
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Current Rights of Longevity Shareholders
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Current Rights of 4D Shareholders
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| Longevity’s memorandum and articles provide that so long as a director has disclosed his interest in the transaction, he may vote on a matter relation to the transaction. | | | 4D Pharma is required pursuant to the AIM Rules for Companies to disclose in its annual report and on its website the identity and share interests of its directors and any persons connected with them, as defined in the U.K. Companies Act, and of any person with an interest of 3% or more of 4D Pharma’s ordinary shares. | |
| | | | Pursuant to the Market Abuse Regulation (EU 596/2014), persons discharging managerial responsibilities (being directors and certain senior executives), and their connected persons, must notify a public company such as 4D Pharma in writing of the occurrence of all transactions conducted on their own account in the shares of the company, or derivatives or any other financial instruments relating to those shares within four business days of the day on which the transaction occurred. The notification must contain prescribed information, including the name of the person involved, the type of transaction, the date on which it occurred, and the price and volume of the transaction. The public company must notify a regulatory news service (which will make the information public) of any information notified to it in accordance with these provisions. The notification to a regulatory news service must be made as soon as possible and in any event by no later than the end of the business day following the receipt of the information by the company. | |
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December 31,
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2019
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2018
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ASSETS | | | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 5,031 | | | | | $ | 20,445 | | |
Short-term investments and other cash deposits
|
| | | | — | | | | | | 12,958 | | |
Research and development tax credits receivable
|
| | | | 7,049 | | | | | | 5,973 | | |
Prepayments and other current assets
|
| | | | 2,705 | | | | | | 2,854 | | |
Total current assets
|
| | | | 14,785 | | | | | | 42,230 | | |
Property and equipment, net
|
| | | | | | | | | | | | |
Owned assets
|
| | | | 5,596 | | | | | | 6,196 | | |
Right-of-use asset (operating leases)
|
| | | | 1,251 | | | | | | — | | |
Intangible assets, net
|
| | | | 6,296 | | | | | | 6,358 | | |
Goodwill
|
| | | | 12,651 | | | | | | 12,625 | | |
Research and development tax credits receivable, net
|
| | | | 247 | | | | | | 174 | | |
Total assets
|
| | | $ | 40,826 | | | | | $ | 67,583 | | |
LIABILITIES AND STOCKHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 1,641 | | | | | $ | 2,495 | | |
Accrued expenses and other current liabilities
|
| | | | 4,235 | | | | | | 2,008 | | |
Current portion of operating lease liabilities
|
| | | | 75 | | | | | | — | | |
Contingent consideration, current
|
| | | | — | | | | | | 2,090 | | |
Deferred revenues, current
|
| | | | 538 | | | | | | — | | |
Total current liabilities
|
| | | | 6,489 | | | | | | 6,593 | | |
Long term operating lease liabilities, net
|
| | | | 1,229 | | | | | | — | | |
Contingent consideration, net
|
| | | | — | | | | | | 871 | | |
Deferred revenues, net
|
| | | | 1,720 | | | | | | — | | |
Deferred tax
|
| | | | 31 | | | | | | 33 | | |
Other liabilities
|
| | | | 170 | | | | | | 19 | | |
Total liabilities
|
| | | | 9,639 | | | | | | 7,516 | | |
Commitments and Contingencies (Note 8) | | | | | | | | | | | | | |
Stockholders’ equity: | | | | | | | | | | | | | |
Common Stock, $0.003 par value, 87,325,042 authorized; 65,493,842 shares outstanding at December 31, 2019 and 2018
|
| | | | 266 | | | | | | 266 | | |
Additional paid in capital
|
| | | | 174,376 | | | | | | 174,036 | | |
Accumulated other comprehensive loss
|
| | | | (25,715) | | | | | | (26,828) | | |
Accumulated deficit
|
| | | | (117,740) | | | | | | (87,407) | | |
Total stockholders’ equity
|
| | | $ | 31,187 | | | | | $ | 60,067 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 40,826 | | | | | $ | 67,583 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Revenues
|
| | | $ | 269 | | | | | $ | — | | |
Operating expenses: | | | | | | | | | | | | | |
Research and development
|
| | | | 29,193 | | | | | | 27,830 | | |
General and administrative expenses
|
| | | | 10,380 | | | | | | 11,294 | | |
Foreign currency losses (gains)
|
| | | | 957 | | | | | | (234) | | |
Total operating expenses
|
| | | | 40,530 | | | | | | 38,890 | | |
Loss from operations
|
| | | | (40,261) | | | | | | (38,890) | | |
Other income (expense), net: | | | | | | | | | | | | | |
Interest income
|
| | | | 78 | | | | | | 379 | | |
Interest expense
|
| | | | — | | | | | | (3) | | |
Other income
|
| | | | 6,883 | | | | | | 6,378 | | |
Change in fair value of contingent consideration payable
|
| | | | 2,967 | | | | | | (465) | | |
Total other income (expense), net
|
| | | | 9,928 | | | | | | 6,289 | | |
Net loss
|
| | | | (30,333) | | | | | | (32,601) | | |
Other comprehensive income (loss) | | | | | | | | | | | | | |
Foreign currency translation adjustment
|
| | | | 1,113 | | | | | | (3,995) | | |
Comprehensive loss
|
| | | $ | (29,220) | | | | | $ | (36,596) | | |
Net loss per common share, basic and diluted
|
| | | $ | (0.46) | | | | | $ | (0.50) | | |
Weighted-average number of common shares used in computing basic and diluted net loss per common share
|
| | | | 65,493,842 | | | | | | 65,493,842 | | |
| | |
Common stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
Other Comprehensive Loss |
| |
Accumulated
Deficit |
| |
Total
Stockholders’ Equity |
| |||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance, December 31, 2017
|
| | | | 65,493,842 | | | | | $ | 266 | | | | | $ | 173,673 | | | | | $ | (22,833) | | | | | $ | (54,806) | | | | | $ | 96,300 | | |
Other comprehensive loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | (3,995) | | | | | | | | | | | | (3,995) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (32,601) | | | | | | (32,601) | | |
Share-based compensation
|
| | | | — | | | | | | — | | | | | | 363 | | | | | | — | | | | | | — | | | | | | 363 | | |
Balance, December 31, 2018
|
| | | | 65,493,842 | | | | | | 266 | | | | | | 174,036 | | | | | | (26,828) | | | | | | (87,407) | | | | | | 60,067 | | |
Other comprehensive income
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1,113 | | | | | | — | | | | | | 1,113 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (30,333) | | | | | | (30,333) | | |
Share-based compensation
|
| | | | — | | | | | | — | | | | | | 340 | | | | | | — | | | | | | — | | | | | | 340 | | |
Balance, December 31, 2019
|
| | | | 65,493,842 | | | | | $ | 266 | | | | | $ | 174,376 | | | | | $ | (25,715) | | | | | $ | (117,740) | | | | | $ | 31,187 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Cash Flows from Operating Activities: | | | | | | | | | | | | | |
Net loss
|
| | | $ | (30,333) | | | | | $ | (32,601) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 1,644 | | | | | | 1,614 | | |
Stock based compensation
|
| | | | 340 | | | | | | 363 | | |
Change in fair value of contingent consideration
|
| | | | (2,967) | | | | | | 465 | | |
Other non-cash expenses
|
| | | | 74 | | | | | | 1 | | |
Changes in assets and liabilities: | | | | | | | | | | | | | |
Prepayments and other current assets
|
| | | | 168 | | | | | | 2,735 | | |
Research and development tax credits receivable
|
| | | | (939) | | | | | | (1,678) | | |
Accounts payable
|
| | | | (903) | | | | | | 163 | | |
Deferred revenues
|
| | | | 2,197 | | | | | | — | | |
Operating lease obligations
|
| | | | (148) | | | | | | — | | |
Other liabilities and accrued expenses
|
| | | | 2,184 | | | | | | (1,220) | | |
Net cash used in operating activities
|
| | | | (28,683) | | | | | | (30,158) | | |
Cash Flows from Investing Activities: | | | | | | | | | | | | | |
Purchase of software and intangibles
|
| | | | (73) | | | | | | (5) | | |
Purchase of property and equipment
|
| | | | (681) | | | | | | (721) | | |
Acquisition of subsidiary net of cash acquired
|
| | | | — | | | | | | (887) | | |
Proceeds on disposal of assets
|
| | | | 55 | | | | | | — | | |
Maturities of short-term investments
|
| | | | 12,982 | | | | | | 37,564 | | |
Net cash provided by investing activities
|
| | | | 12,283 | | | | | | 35,951 | | |
Cash Flows from Financing Activities: | | | | | | | | | | | | | |
Lease liability payments
|
| | | | (14) | | | | | | (13) | | |
Net cash used in financing activities
|
| | | | (14) | | | | | | (13) | | |
Effect of exchange rate changes on cash and cash equivalents
|
| | | | 1,000 | | | | | | (1,386) | | |
Change in cash and cash equivalents
|
| | | | (15,414) | | | | | | 4,394 | | |
Cash and cash equivalents at beginning of year
|
| | | | 20,445 | | | | | | 16,051 | | |
Cash and cash equivalents at end of year
|
| | | $ | 5,031 | | | | | $ | 20,445 | | |
Supplemental disclosures of non-cash investing and financing activities | | | | | | | | | | | | | |
Cash paid for interest
|
| | | $ | 230 | | | | | $ | 1 | | |
Lease liabilities from obtaining right-of-use assets
|
| | | $ | 1,446 | | | | | $ | — | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Prepayments
|
| | | $ | 1,465 | | | | | $ | 1,590 | | |
VAT receivables
|
| | | | 980 | | | | | | 895 | | |
Other assets — goods to be consumed in R&D activities
|
| | | | 260 | | | | | | 369 | | |
| | | | $ | 2,705 | | | | | $ | 2,854 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Cost
|
| | | | | | | | | | | | |
Property and machinery
|
| | | $ | 7,852 | | | | | $ | 7,361 | | |
Fixtures, fittings and office equipment
|
| | | | 282 | | | | | | 274 | | |
Land and buildings
|
| | | | 2,983 | | | | | | 1,462 | | |
Total cost
|
| | | | 11,117 | | | | | | 9,097 | | |
Accumulated depreciation
|
| | | | 4,270 | | | | | | 2,901 | | |
Total property and equipment, net
|
| | | $ | 6,847 | | | | | $ | 6,196 | | |
|
Balance at January 1, 2018
|
| | | $ | 13,325 | | |
|
Translation differences
|
| | | | (700) | | |
|
Balance at December 31, 2018
|
| | | | 12,625 | | |
|
Translation differences
|
| | | | 26 | | |
|
Balance at December 31, 2019
|
| | | $ | 12,651 | | |
|
| | |
December 31, 2019
|
| |||||||||||||||||||||
| | |
Software
|
| |
Patents
|
| |
Intellectual
Property |
| |
Total
|
| ||||||||||||
Gross amount beginning of period
|
| | | $ | 428 | | | | | $ | 1,377 | | | | | $ | 5,740 | | | | | $ | 7,545 | | |
Additions
|
| | | | 75 | | | | | | — | | | | | | — | | | | | | 75 | | |
Translation differences
|
| | | | 6 | | | | | | 41 | | | | | | 170 | | | | | | 217 | | |
Gross amount end of period
|
| | | | 509 | | | | | | 1,418 | | | | | | 5,910 | | | | | | 7,837 | | |
Disposals
|
| | | | (144) | | | | | | | | | | | | | | | | | | (144) | | |
Accumulated amortization
|
| | | | (232) | | | | | | (1,165) | | | | | | — | | | | | | (1,397) | | |
Net Book value
|
| | | $ | 133 | | | | | $ | 253 | | | | | $ | 5,910 | | | | | $ | 6,296 | | |
|
| | |
December 31, 2018
|
| |||||||||||||||||||||
| | |
Software
|
| |
Patents
|
| |
Intellectual
Property |
| |
Total
|
| ||||||||||||
Gross amount beginning of period
|
| | | $ | 448 | | | | | $ | 1,462 | | | | | $ | 6,097 | | | | | $ | 8,007 | | |
Additions
|
| | | | 5 | | | | | | — | | | | | | — | | | | | | 5 | | |
Translation differences
|
| | | | (25) | | | | | | (85) | | | | | | (357) | | | | | | (467) | | |
Gross amount end of period
|
| | | | 428 | | | | | | 1,377 | | | | | | 5,740 | | | | | | 7,545 | | |
Accumulated amortization
|
| | | | (224) | | | | | | (963) | | | | | | — | | | | | | (1,187) | | |
Net Book value
|
| | | $ | 204 | | | | | $ | 414 | | | | | $ | 5,740 | | | | | $ | 6,358 | | |
Year
|
| | | | | | |
2020
|
| | | $ | 261 | | |
2021
|
| | | | 109 | | |
2022
|
| | | | 16 | | |
Total
|
| | | $ | 386 | | |
| | |
December 31,
2019 |
| |||
Assets | | | | | | | |
Land and Buildings
|
| | | $ | 1,251 | | |
Liabilities
|
| | | | | | |
Current portion of operating lease liabilities
|
| | | | 75 | | |
Long term operating lease liabilities, net
|
| | | | 1,229 | | |
| | | | $ | 1,304 | | |
Weighted-average remaining lease term (years)
|
| | | | 7 | | |
Weighted-average discount rate
|
| | | | 13.6% | | |
| | |
December 31,
2019 |
| |||
2020
|
| | | $ | 299 | | |
2021
|
| | | | 300 | | |
2022
|
| | | | 301 | | |
2023
|
| | | | 317 | | |
2024
|
| | | | 319 | | |
Thereafter
|
| | | | 572 | | |
Total lease payments
|
| | | | 2,108 | | |
Less: Imputed interest
|
| | | | (804) | | |
| | | | $ | 1,304 | | |
|
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Clinical trials accrued expenses
|
| | | $ | 2,561 | | | | | $ | 635 | | |
Patents and other research accruals
|
| | | | 428 | | | | | | 360 | | |
Accrued payroll expenses
|
| | | | 161 | | | | | | 124 | | |
Building and office accruals
|
| | | | 273 | | | | | | 208 | | |
Tax accruals
|
| | | | 334 | | | | | | 354 | | |
Deferred grant income
|
| | | | 52 | | | | | | — | | |
Short-term finance lease
|
| | | | 14 | | | | | | 14 | | |
Other accrued expenses
|
| | | | 412 | | | | | | 313 | | |
| | | | $ | 4,235 | | | | | $ | 2,008 | | |
| | |
Number of
Options |
| |
Weighted
Average Exercise Price |
| |
Non-Vested
Options |
| |
Weighted
Average Grant date Fair Value |
| | ||||||||||||||
Outstanding at December 31, 2017
|
| | | | 341,462 | | | | | $ | 0.0033 | | | | | | 341,462 | | | | | $ | 6.29 | | | | | |
Granted
|
| | | | 746,779 | | | | | | 0.0033 | | | | | | 746,779 | | | | | | 4.15 | | | | | |
Exercised
|
| | | | — | | | | | | 0.0033 | | | | | | — | | | | | | | | | | | |
Expired/cancelled
|
| | | | (40,909) | | | | | | 0.0033 | | | | | | (40,909) | | | | | | 11.63 | | | | ||
Outstanding at December 31, 2018
|
| | | | 1,047,332 | | | | | | 0.0033 | | | | | | 1,047,332 | | | | | | 2.88 | | | | | |
Granted
|
| | | | 538,596 | | | | | | 0.0033 | | | | | | 538,596 | | | | | | 1.16 | | | | ||
Exercised
|
| | | | — | | | | | | 0.0033 | | | | | | — | | | | | | — | | | | ||
Vested
|
| | | | — | | | | | | 0.0033 | | | | | | (9,686) | | | | | | 11.18 | | | | ||
Expired/cancelled
|
| | | | (660,340) | | | | | | 0.0033 | | | | | | (660,340) | | | | | | 3.01 | | | | ||
Outstanding at December 31, 2019
|
| | | | 925,588 | | | | | $ | 0.0033 | | | | | | 915,902 | | | | | | 1.68 | | | | | |
Options exercisable
|
| | | | 9,686 | | | | | $ | 0.0033 | | | | | | | | | | | | | | | | ||
Options vested
|
| | | | 9,686 | | | | | $ | 0.0033 | | | | | | | | | | | | | | | | | |
Options expected to vest
|
| | | | 73,540 | | | | | $ | 0.0033 | | | | | | | | | | | | | | | | | |
| | |
December 31,
|
| |||
| | |
2019
|
| |
2018
|
|
Risk-free interest rate
|
| |
0.57%
|
| |
0.72%
|
|
Expected volatility
|
| |
69.62%
|
| |
54.95%
|
|
Expected dividend yield
|
| |
0.00%
|
| |
0.00%
|
|
Expected term (in years)
|
| |
3 years
|
| |
3 years
|
|
| | |
Current
Portion |
| |
Long-term
Portion |
| |
Total Contingent
Consideration |
| |||||||||
Balance, January 1, 2018
|
| | | $ | — | | | | | $ | 2,677 | | | | | $ | 2,677 | | |
Change in fair value
|
| | | | 2,205 | | | | | | (1,740) | | | | | | 465 | | |
Translation differences
|
| | | | (115) | | | | | | (66) | | | | | | (181) | | |
Balance, December 31, 2018
|
| | | $ | 2,090 | | | | | $ | 871 | | | | | $ | 2,961 | | |
Change in fair value
|
| | | | (2,094) | | | | | | (873) | | | | | | (2,967) | | |
Translation differences
|
| | | | 4 | | | | | | 2 | | | | | | 6 | | |
Balance, December 31, 2019
|
| | | $ | — | | | | | $ | — | | | | | $ | — | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Loss before income taxes arising in UK
|
| | | $ | 27,751 | | | | | $ | 30,364 | | |
Loss before income taxes arising in Ireland
|
| | | | 1,539 | | | | | | 1,693 | | |
Loss/(profit) before income taxes arising in Spain
|
| | | | 1,043 | | | | | | 544 | | |
Loss before income taxes arising in United States
|
| | | | — | | | | | | — | | |
Total loss before income tax
|
| | | $ | 30,333 | | | | | $ | 32,601 | | |
| | |
December 31,
|
| |||||||||||||||||||||
| | |
2019
|
| |
2018
|
| ||||||||||||||||||
Loss before income taxes
|
| | | $ | (30,333) | | | | | | % | | | | | $ | (32,601) | | | | | | % | | |
Expected tax benefit
|
| | | | (5,785) | | | | | | (19.1)% | | | | | | (6,087) | | | | | | (18.7)% | | |
Foreign tax differential
|
| | | | (69) | | | | | | (0.2)% | | | | | | 4 | | | | | | 0.0% | | |
Change in valuation allowance
|
| | | | 5,784 | | | | | | 19.1% | | | | | | 6,057 | | | | | | 18.6% | | |
Other
|
| | | | 70 | | | | | | 0.2% | | | | | | 26 | | | | | | 0.1% | | |
Actual income tax benefit
|
| | | $ | — | | | | | | 0% | | | | | $ | — | | | | | | 0% | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Net operating tax loss carried forwards
|
| | | $ | 59,566 | | | | | $ | 40,711 | | |
Fair value adjustment on acquisitions
|
| | | | (119) | | | | | | (116) | | |
Valuation allowance
|
| | | | (59,478) | | | | | | (40,628) | | |
Net deferred tax liability
|
| | | $ | (31) | | | | | $ | (33) | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
UK research and development tax credits
|
| | | $ | 6,565 | | | | | $ | 6,173 | | |
Irish research and development tax credits
|
| | | | 373 | | | | | | 306 | | |
Translation differences
|
| | | | 358 | | | | | | (332) | | |
Total
|
| | | | 7,296 | | | | | | 6,147 | | |
Less: current portion
|
| | | | (7,049) | | | | | | (5,973) | | |
Research and development tax credits receivable, net
|
| | | $ | 247 | | | | | $ | 174 | | |
|
| | |
June 30, 2020
|
| |
December 31, 2019
|
| ||||||
| | |
(unaudited)
|
| | | | | | | |||
ASSETS | | | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 12,413 | | | | | $ | 5,031 | | |
Research and development tax credits receivable
|
| | | | 8,999 | | | | | | 7,049 | | |
Prepayments and other current assets
|
| | | | 4,208 | | | | | | 2,705 | | |
Total current assets
|
| | | | 25,620 | | | | | | 14,785 | | |
Property and equipment, net
|
| | | | | | | | | | | | |
Owned assets
|
| | | | 5,219 | | | | | | 5,596 | | |
Right-of-use asset (operating leases)
|
| | | | 1,117 | | | | | | 1,251 | | |
Intangible assets, net
|
| | | | 5,826 | | | | | | 6,296 | | |
Goodwill
|
| | | | 12,300 | | | | | | 12,651 | | |
Research and development tax credits receivable, net
|
| | | | 236 | | | | | | 247 | | |
Total assets
|
| | | $ | 50,318 | | | | | $ | 40,826 | | |
LIABILITIES AND STOCKHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 4,012 | | | | | $ | 1,641 | | |
Accrued expenses and other current liabilities
|
| | | | 2,160 | | | | | | 4,235 | | |
Current portion of operating lease liabilities
|
| | | | 79 | | | | | | 75 | | |
Deferred revenues, current
|
| | | | 1,252 | | | | | | 538 | | |
Total current liabilities
|
| | | | 7,503 | | | | | | 6,489 | | |
Long term operating lease liabilities, net
|
| | | | 1,088 | | | | | | 1,229 | | |
Deferred revenues, net
|
| | | | 644 | | | | | | 1,720 | | |
Deferred tax
|
| | | | 32 | | | | | | 31 | | |
Other liabilities
|
| | | | 172 | | | | | | 170 | | |
Total liabilities
|
| | | | 9,439 | | | | | | 9,639 | | |
Commitments and Contingencies (Note 8) | | | | | | | | | | | | | |
Stockholders’ equity: | | | | | | | | | | | | | |
Common Stock, $0.003 par value, 167,991,442 authorized; 109,493,842 and
65,493,842 shares outstanding at June 30, 2020 and December 31, 2019, respectively |
| | | | 405 | | | | | | 266 | | |
Additional paid in capital
|
| | | | 200,775 | | | | | | 174,376 | | |
Accumulated other comprehensive loss
|
| | | | (27,796) | | | | | | (25,715) | | |
Accumulated deficit
|
| | | | (132,505) | | | | | | (117,740) | | |
Total stockholders’ equity
|
| | | $ | 40,879 | | | | | $ | 31,187 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 50,318 | | | | | $ | 40,826 | | |
|
| | |
For the Six Months Ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Revenues
|
| | | $ | 239 | | | | | $ | — | | |
Operating expenses: | | | | | | | | | | | | | |
Research and development
|
| | | | 13,493 | | | | | | 11,701 | | |
General and administrative expenses
|
| | | | 5,509 | | | | | | 5,400 | | |
Foreign currency losses (gains)
|
| | | | (1,491) | | | | | | 148 | | |
Total operating expenses
|
| | | | 17,511 | | | | | | 17,249 | | |
Loss from operations
|
| | | | (17,272) | | | | | | (17,249) | | |
Other income (expense), net: | | | | | | | | | | | | | |
Interest income
|
| | | | 6 | | | | | | 84 | | |
Interest expense
|
| | | | (1) | | | | | | (1) | | |
Other income
|
| | | | 2,502 | | | | | | 2,720 | | |
Change in fair value of contingent consideration payable
|
| | | | — | | | | | | (252) | | |
Total other income (expense), net
|
| | | | 2,507 | | | | | | 2,551 | | |
Net loss
|
| | | | (14,765) | | | | | | (14,698) | | |
Other comprehensive income (loss) | | | | | | | | | | | | | |
Foreign currency translation adjustment
|
| | | | (2,081) | | | | | | 111 | | |
Comprehensive loss
|
| | | $ | (16,846) | | | | | $ | (14,587) | | |
Net loss per common share, basic and diluted
|
| | | $ | (0.15) | | | | | $ | (0.22) | | |
Weighted-average number of common shares used in computing basic and diluted net loss per common share
|
| | | | 97,647,688 | | | | | | 65,493,842 | | |
| | |
Common stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
Other Comprehensive Loss |
| |
Accumulated
Deficit |
| |
Total
Stockholders’ Equity |
| |||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance, January 1, 2020
|
| | | | 65,493,842 | | | | | $ | 266 | | | | | $ | 174,376 | | | | | $ | (25,715) | | | | | $ | (117,740) | | | | | $ | 31,187 | | |
Issuance of common stock, net
|
| | | | 44,000,000 | | | | | | 139 | | | | | | 22,990 | | | | | | — | | | | | | — | | | | | | 23,129 | | |
Issuance of warrants
|
| | | | — | | | | | | — | | | | | | 3,270 | | | | | | — | | | | | | — | | | | | | 3,270 | | |
Other comprehensive loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | (2,081) | | | | | | — | | | | | | (2,081) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (14,765) | | | | | | (14,765) | | |
Share-based compensation
|
| | | | — | | | | | | — | | | | | | 139 | | | | | | — | | | | | | — | | | | | | 139 | | |
Balance, June 30, 2020
|
| | | | 109,493,842 | | | | | $ | 405 | | | | | $ | 200,775 | | | | | $ | (27,796) | | | | | $ | (132,505) | | | | | $ | 40,879 | | |
|
| | |
Common stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
Other Comprehensive Loss |
| |
Accumulated
Deficit |
| |
Total
Stockholders’ Equity |
| |||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance, January 1, 2019
|
| | | | 65,493,842 | | | | | $ | 266 | | | | | $ | 174,036 | | | | | $ | (26,828) | | | | | $ | (87,407) | | | | | $ | 60,067 | | |
Other comprehensive loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | 111 | | | | | | — | | | | | | 111 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (14,698) | | | | | | (14,698) | | |
Share-based compensation
|
| | | | — | | | | | | — | | | | | | 696 | | | | | | — | | | | | | — | | | | | | 696 | | |
Balance, June 30, 2019
|
| | | | 65,493,842 | | | | | $ | 266 | | | | | $ | 174,732 | | | | | $ | (26,717) | | | | | $ | (102,105) | | | | | $ | 46,176 | | |
| | |
For the Six Months Ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Cash Flows from Operating Activities: | | | | | | | | | | | | | |
Net loss
|
| | | $ | (14,765) | | | | | $ | (14,698) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 784 | | | | | | 879 | | |
Stock based compensation
|
| | | | 139 | | | | | | 696 | | |
Change in fair value of contingent consideration
|
| | | | — | | | | | | 252 | | |
Other non-cash expenses
|
| | | | 15 | | | | | | 88 | | |
Changes in assets and liabilities: | | | | | | | | | | | | | |
Prepayments and other current assets
|
| | | | (1,685) | | | | | | (789) | | |
Research and development tax credits receivable
|
| | | | (2,392) | | | | | | (2,699) | | |
Accounts payable
|
| | | | 2,509 | | | | | | (519) | | |
Deferred revenues
|
| | | | (240) | | | | | | — | | |
Operating lease obligations
|
| | | | (91) | | | | | | (61) | | |
Other liabilities and accrued expenses
|
| | | | (1,871) | | | | | | (160) | | |
Net cash used in operating activities
|
| | | | (17,597) | | | | | | (17,011) | | |
Cash Flows from Investing Activities: | | | | | | | | | | | | | |
Purchase of software and intangibles
|
| | | | (19) | | | | | | (23) | | |
Purchase of property and equipment
|
| | | | (202) | | | | | | (345) | | |
Maturities of short-term investments
|
| | | | — | | | | | | 13,163 | | |
Net cash (used in) provided by investing activities
|
| | | | (221) | | | | | | 12,795 | | |
Cash Flows from Financing Activities: | | | | | | | | | | | | | |
Net proceeds from issuance of common stock
|
| | | | 23,129 | | | | | | — | | |
Issuance of warrants
|
| | | | 3,270 | | | | | | — | | |
Lease liability payments
|
| | | | (8) | | | | | | (6) | | |
Net cash provided by (used in) financing activities
|
| | | | 26,391 | | | | | | (6) | | |
Effect of exchange rate changes on cash and cash equivalents
|
| | | | (1,191) | | | | | | 147 | | |
Change in cash and cash equivalents
|
| | | | 7,382 | | | | | | (4,075) | | |
Cash and cash equivalents at beginning of year
|
| | | | 5,031 | | | | | | 20,445 | | |
Cash and cash equivalents at end of year
|
| | | $ | 12,413 | | | | | $ | 16,370 | | |
Supplemental disclosures of non-cash investing and financing activities | | | | | | | | | | | | | |
Cash paid for interest
|
| | | $ | 110 | | | | | $ | 117 | | |
Lease liabilities from obtaining right-of-use assets
|
| | | $ | — | | | | | $ | 1,466 | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
Prepayments
|
| | | $ | 2,533 | | | | | $ | 1,465 | | |
VAT receivables
|
| | | | 1,187 | | | | | | 980 | | |
Other assets — goods to be consumed in R&D activities
|
| | | | 488 | | | | | | 260 | | |
| | | | $ | 4,208 | | | | | $ | 2,705 | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
Cost
|
| | | | | | | | | | | | |
Property and machinery
|
| | | $ | 7,990 | | | | | $ | 7,852 | | |
Fixtures, fittings and office equipment
|
| | | | 267 | | | | | | 282 | | |
Land and buildings
|
| | | | 2,919 | | | | | | 2,983 | | |
Total cost
|
| | | | 11,176 | | | | | | 11,117 | | |
Accumulated depreciation
|
| | | | 4,840 | | | | | | 4,270 | | |
Total property and equipment, net
|
| | | $ | 6,336 | | | | | $ | 6,847 | | |
|
|
Balance at January 1, 2019
|
| | | $ | 12,625 | | |
|
Translation differences
|
| | | | 26 | | |
|
Balance at December 31, 2019
|
| | | | 12,651 | | |
|
Translation differences
|
| | | | (351) | | |
|
Balance at June 30, 2020
|
| | | $ | 12,300 | | |
| | |
June 30, 2020
|
| |||||||||||||||||||||
| | |
Software
|
| |
Patents
|
| |
Intellectual
Property |
| |
Total
|
| ||||||||||||
Gross Amount beginning of period
|
| | | $ | 365 | | | | | $ | 1,418 | | | | | $ | 5,910 | | | | | $ | 7,693 | | |
Additions
|
| | | | 18 | | | | | | — | | | | | | — | | | | | | 18 | | |
Translation differences
|
| | | | (20) | | | | | | (80) | | | | | | (330) | | | | | | (430) | | |
Gross Amount end of period
|
| | | | 363 | | | | | | 1,338 | | | | | | 5,580 | | | | | | 7,281 | | |
Accumulated amortization
|
| | | | (274) | | | | | | (1,181) | | | | | | — | | | | | | (1,455) | | |
Net Book value
|
| | | $ | 89 | | | | | $ | 157 | | | | | $ | 5,580 | | | | | $ | 5,826 | | |
|
| | |
December 31, 2019
|
| |||||||||||||||||||||
| | |
Software
|
| |
Patents
|
| |
Intellectual
Property |
| |
Total
|
| ||||||||||||
Gross Amount beginning of period
|
| | | $ | 428 | | | | | $ | 1,377 | | | | | $ | 5,740 | | | | | $ | 7,545 | | |
Additions
|
| | | | 75 | | | | | | — | | | | | | — | | | | | | 75 | | |
Translation differences
|
| | | | 6 | | | | | | 41 | | | | | | 170 | | | | | | 217 | | |
Gross Amount end of period
|
| | | | 509 | | | | | | 1,418 | | | | | | 5,910 | | | | | | 7,837 | | |
Disposals
|
| | | | (144) | | | | | | — | | | | | | — | | | | | | (144) | | |
Accumulated amortization
|
| | | | (232) | | | | | | (1,165) | | | | | | — | | | | | | (1,397) | | |
Net Book value
|
| | | $ | 133 | | | | | $ | 253 | | | | | $ | 5,910 | | | | | $ | 6,296 | | |
Year
|
| | | | | | |
Remaining 2020
|
| | | $ | 121 | | |
2021
|
| | | | 109 | | |
2022
|
| | | | 16 | | |
Total
|
| | | $ | 246 | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
UK research and development tax credits
|
| | | $ | 8,855 | | | | | $ | 6,565 | | |
Irish research and development tax credits
|
| | | | 409 | | | | | | 373 | | |
Translation differences
|
| | | | (29) | | | | | | 358 | | |
Total
|
| | | | 9,235 | | | | | | 7,296 | | |
Less: current portion
|
| | | | (8,999) | | | | | | (7,049) | | |
Research and development tax credits receivable, net
|
| | | $ | 236 | | | | | $ | 247 | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
Clinical trials accrued expenses
|
| | | $ | 749 | | | | | $ | 2,561 | | |
Patents and other research accruals
|
| | | | 212 | | | | | | 428 | | |
Accrued payroll expenses
|
| | | | 247 | | | | | | 161 | | |
Building and office accruals
|
| | | | 358 | | | | | | 273 | | |
Tax accruals
|
| | | | 298 | | | | | | 334 | | |
Deferred grant income
|
| | | | 32 | | | | | | 52 | | |
Short-term finance lease
|
| | | | 11 | | | | | | 14 | | |
Other accrued expenses
|
| | | | 253 | | | | | | 412 | | |
| | | | $ | 2,160 | | | | | $ | 4,235 | | |
| | |
Amount
|
| |||
Remaining 2020
|
| | | $ | 144 | | |
2021
|
| | | | 290 | | |
2022
|
| | | | 291 | | |
2023
|
| | | | 306 | | |
2024
|
| | | | 308 | | |
Thereafter
|
| | | | 547 | | |
Total remaining lease payments
|
| | | | 1,886 | | |
Less: Imputed interest
|
| | | | (719) | | |
Total lease liabilities
|
| | | $ | 1,167 | | |
| | |
Current
Portion |
| |
Long-term
Portion |
| |
Total Contingent
Consideration |
| |||||||||
Balance, January 1, 2019
|
| | | $ | 2,090 | | | | | $ | 871 | | | | | $ | 2,961 | | |
Change in fair value
|
| | | | 178 | | | | | | 74 | | | | | | 252 | | |
Translation differences
|
| | | | (10) | | | | | | (4) | | | | | | (14) | | |
Balance, June 30, 2019
|
| | | $ | 2,258 | | | | | $ | 941 | | | | | $ | 3,199 | | |
Change in fair value
|
| | | | (2,271) | | | | | | (948) | | | | | | (3,219) | | |
Translation differences
|
| | | | 13 | | | | | | 7 | | | | | | 20 | | |
Balance, December 31, 2019
|
| | | $ | — | | | | | $ | — | | | | | $ | — | | |
| | |
November 30,
2020 |
| |
February 29,
2020 |
| ||||||
| | |
(unaudited)
|
| | | | | | | |||
ASSETS | | | | | | | | | | | | | |
Current Assets | | | | | | | | | | | | | |
Cash
|
| | | $ | 19,330 | | | | | $ | 26,294 | | |
Prepaid expenses and other current assets
|
| | | | 12,445 | | | | | | 112,195 | | |
Total Current Assets
|
| | | | 31,775 | | | | | | 138,489 | | |
Marketable securities held in Trust Account
|
| | | | 14,607,845 | | | | | | 42,412,991 | | |
Total Assets
|
| | | $ | 14,639,620 | | | | | $ | 42,551,480 | | |
LIABILITIES AND SHAREHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current Liabilities | | | | | | | | | | | | | |
Account payable and accrued expenses
|
| | | $ | 405,372 | | | | | $ | 262,877 | | |
Due to shareholders
|
| | | | 12,919 | | | | | | — | | |
Total Current Liabilities
|
| | | | 418,291 | | | | | | 262,877 | | |
Promissory note
|
| | | | 1,619,122 | | | | | | — | | |
Convertible promissory note – related party
|
| | | | 402,576 | | | | | | 1,500,000 | | |
Deferred underwriting fee payable
|
| | | | 1,000,000 | | | | | | 1,000,000 | | |
Total Liabilities
|
| | | | 3,439,989 | | | | | | 2,762,877 | | |
Commitments | | | | | | | | | | | | | |
Ordinary shares subject to possible redemption, 575,331 and 3,280,938 shares
at redemption value at November 30, 2020 and February 29, 2020, respectively |
| | | | 6,199,623 | | | | | | 34,788,598 | | |
Shareholders’ Equity | | | | | | | | | | | | | |
Preferred shares, no par value; unlimited shares authorized, none issued and outstanding
|
| | | | — | | | | | | — | | |
Ordinary shares, no par value; unlimited shares authorized; 2,050,291 and 1,989,062 shares issued and outstanding (excluding 575,331 and 3,280,938 shares subject to possible redemption) at November 30, 2020 and February 29, 2020, respectively
|
| | | | 5,825,598 | | | | | | 5,305,335 | | |
Accumulated deficit
|
| | | | (825,590) | | | | | | (305,330) | | |
Total Shareholders’ Equity
|
| | | | 5,000,008 | | | | | | 5,000,005 | | |
Total Liabilities and Shareholders’ Equity
|
| | | $ | 14,639,620 | | | | | $ | 42,551,480 | | |
| | |
Three Months Ended
November 30, |
| |
Nine Months Ended
November 30, |
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2020
|
| |
2019
|
| ||||||||||||
Operating costs
|
| | | $ | 196,646 | | | | | $ | 289,884 | | | | | $ | 566,963 | | | | | $ | 860,442 | | |
Loss from operations
|
| | | | (196,646) | | | | | | (289,884) | | | | | | (566,963) | | | | | | (860,442) | | |
Other income: | | | | | | | | | | | | | | | | | | | | | | | | | |
Interest income
|
| | | | 363 | | | | | | 180,135 | | | | | | 46,703 | | | | | | 635,133 | | |
Unrealized gain
|
| | | | — | | | | | | (6,374) | | | | | | — | | | | | | — | | |
Other income
|
| | | | 363 | | | | | | 173,761 | | | | | | 46,703 | | | | | | 635,133 | | |
Net Loss
|
| | | $ | (196,283) | | | | | $ | (116,123) | | | | | $ | (520,260) | | | | | $ | (225,309) | | |
Weighted average ordinary shares outstanding, basic
and diluted(1) |
| | | | 2,027,351 | | | | | | 1,881,942 | | | | | | 2,007,674 | | | | | | 1,833,297 | | |
Basic and diluted net loss per ordinary share(2)
|
| | | $ | (0.10) | | | | | $ | (0.14) | | | | | $ | (0.27) | | | | | $ | (0.41) | | |
| | |
Ordinary Shares
|
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Equity |
| |||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||
Balance – March 1, 2020
|
| | | | 1,989,062 | | | | | $ | 5,305,335 | | | | | $ | (305,330) | | | | | $ | 5,000,005 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 17,762 | | | | | | 123,843 | | | | | | — | | | | | | 123,843 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (123,839) | | | | | | (123,839) | | |
Balance – May 31, 2020
|
| | | | 2,006,824 | | | | | | 5,429,178 | | | | | | (429,169) | | | | | | 5,000,009 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 20,527 | | | | | | 200,139 | | | | | | — | | | | | | 200,139 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (200,138) | | | | | | (200,138) | | |
Balance – August 31, 2020
|
| | | | 2,027,351 | | | | | | 5,629,317 | | | | | | (629,307) | | | | | | 5,000,010 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 22,940 | | | | | | 196,281 | | | | | | — | | | | | | 196,281 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (196,283) | | | | | | (196,283) | | |
Balance – November 30, 2020
|
| | | | 2,050,291 | | | | | $ | 5,825,598 | | | | | $ | (825,590) | | | | | $ | 5,000,008 | | |
| | |
Ordinary Shares
|
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Equity |
| |||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||
Balance – March 1, 2019
|
| | | | 1,798,946 | | | | | $ | 5,014,272 | | | | | $ | (14,269) | | | | | $ | 5,000,003 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 20,587 | | | | | | (9,573) | | | | | | — | | | | | | (9,573) | | |
Net income
|
| | | | — | | | | | | — | | | | | | 9,571 | | | | | | 9,571 | | |
Balance – May 31, 2019
|
| | | | 1,819,533 | | | | | | 5,004,699 | | | | | | (4,698) | | | | | | 5,000,001 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 62,409 | | | | | | 118,765 | | | | | | — | | | | | | 118,765 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (118,757) | | | | | | (118,757) | | |
Balance – August 31, 2019
|
| | | | 1,881,942 | | | | | | 5,123,464 | | | | | | (123,455) | | | | | | 5,000,009 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 57,534 | | | | | | 116,117 | | | | | | — | | | | | | 116,117 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (116,123) | | | | | | (116,123) | | |
Balance – November 30, 2019
|
| | | | 1,939,476 | | | | | $ | 5,239,581 | | | | | $ | (239,578) | | | | | $ | 5,000,003 | | |
| | |
Nine Months Ended
November 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Cash Flows from Operating Activities: | | | | | | | | | | | | | |
Net loss
|
| | | $ | (520,260) | | | | | $ | (225,309) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Interest earned on securities held in Trust Account
|
| | | | (46,703) | | | | | | (635,133) | | |
Unrealized gain on securities held in Trust Account
|
| | | | — | | | | | | — | | |
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | |
Prepaid expenses and other current assets
|
| | | | 99,750 | | | | | | (48,282) | | |
Accounts payable and accrued expenses
|
| | | | 142,495 | | | | | | 61,353 | | |
Net cash used in operating activities
|
| | | | (324,718) | | | | | | (847,371) | | |
Cash Flows from Investing Activities: | | | | | | | | | | | | | |
Investment of cash into Trust Account
|
| | | | (203,944) | | | | | | (800,000) | | |
Cash withdrawn from Trust Account for redemption
|
| | | | 28,055,793 | | | | | | — | | |
Net cash provided by (used in) investing activities
|
| | | | 27,851,849 | | | | | | (800,000) | | |
Cash Flows from Financing Activities: | | | | | | | | | | | | | |
Proceeds from promissory notes
|
| | | | 1,619,122 | | | | | | — | | |
Proceeds from convertible promissory notes – related party
|
| | | | 482,576 | | | | | | 1,100,000 | | |
Repayment of convertible promissory notes – related party
|
| | | | (1,580,000) | | | | | | — | | |
Redemption of ordinary shares
|
| | | | (28,055,793) | | | | | | — | | |
Net cash (used in) provided by financing activities
|
| | | | (27,534,095) | | | | | | 1,100,000 | | |
Net Change in Cash
|
| | | | (6,964) | | | | | | (547,371) | | |
Cash – Beginning
|
| | | | 26,294 | | | | | | 639,102 | | |
Cash – Ending | | | | $ | 19,330 | | | | | $ | 91,731 | | |
Non-Cash investing and financing activities: | | | | | | | | | | | | | |
Change in value of ordinary shares subject to possible redemption
|
| | | $ | (533,182) | | | | | $ | (225,309) | | |
Due to shareholders for redemption of common stock
|
| | | $ | 12,919 | | | | | $ | (225,309) | | |
| | |
Three Months Ended
November 30, |
| |
Nine Months Ended
November 30, |
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2020
|
| |
2019
|
| ||||||||||||
Net loss
|
| | | $ | (196,283) | | | | | $ | (116,123) | | | | | $ | (520,260) | | | | | $ | (225,309) | | |
Less: Income attributable to ordinary shares subject to possible redemption
|
| | | | (154) | | | | | | (144,673) | | | | | | (19,821) | | | | | | (528,812) | | |
Adjusted net loss
|
| | | $ | (196,437) | | | | | $ | (260,796) | | | | | $ | (540,081) | | | | | $ | (754,121) | | |
Weighted average shares outstanding, basic and diluted
|
| | | | 2,027,351 | | | | | | 1,881,942 | | | | | | 2,007,674 | | | | | | 1,833,297 | | |
Basic and diluted net loss per ordinary share
|
| | | $ | (0.10) | | | | | $ | (0.14) | | | | | $ | (0.27) | | | | | $ | (0.41) | | |
Description
|
| |
Level
|
| |
November 30,
2020 |
| |
February 29,
2020 |
| |||||||||
Assets: | | | | | | | | | | | | | | | | | | | |
Marketable securities held in Trust Account
|
| | | | 1 | | | | | $ | 14,607,845 | | | | | $ | 42,412,991 | | |
| Financial Statements: | | | | | | | |
| | | | | F-64 | | | |
| | | | | F-65 | | | |
| | | | | F-67 | | | |
| | | | | F-68 | | |
| | |
August 31,
2020 |
| |
February 29,
2020 |
| ||||||
| | |
(unaudited)
|
| | | | | | | |||
ASSETS | | | | | | | | | | | | | |
Current Assets | | | | | | | | | | | | | |
Cash
|
| | | $ | 6,607 | | | | | $ | 26,294 | | |
Prepaid expenses and other current assets
|
| | | | 25,695 | | | | | | 112,195 | | |
Total Current Assets
|
| | | | 32,302 | | | | | | 138,489 | | |
Marketable securities held in Trust Account
|
| | | | 14,505,510 | | | | | | 42,412,991 | | |
Total Assets
|
| | | $ | 14,537,812 | | | | | $ | 42,551,480 | | |
LIABILITIES AND SHAREHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current Liabilities | | | | | | | | | | | | | |
Account payable and accrued expenses
|
| | | $ | 337,007 | | | | | $ | 262,877 | | |
Total Current Liabilities
|
| | | | 337,007 | | | | | | 262,877 | | |
Convertible promissory note – related party
|
| | | | 1,791,972 | | | | | | 1,500,000 | | |
Deferred underwriting fee payable
|
| | | | 1,000,000 | | | | | | 1,000,000 | | |
Total Liabilities
|
| | | | 3,128,979 | | | | | | 2,762,877 | | |
Commitments | | | | | | | | | | | | | |
Ordinary shares subject to possible redemption, 599,471 and 3,280,938 shares at redemption value at August 31, 2020 and February 29, 2020, respectively
|
| | | | 6,408,823 | | | | | | 34,788,598 | | |
Shareholders’ Equity | | | | | | | | | | | | | |
Preferred shares, no par value; unlimited shares authorized, none issued and outstanding
|
| | | | — | | | | | | — | | |
Ordinary shares, no par value; unlimited shares authorized; 2,027,351 and 1,989,062 shares issued and outstanding (excluding 599,471 and 3,280,938 shares subject to possible redemption) at August 31, 2020 and February 29, 2020, respectively
|
| | | | 5,629,317 | | | | | | 5,305,335 | | |
Accumulated deficit
|
| | | | (629,307) | | | | | | (305,330) | | |
Total Shareholders’ Equity
|
| | | | 5,000,010 | | | | | | 5,000,005 | | |
Total Liabilities and Shareholders’ Equity
|
| | | $ | 14,537,812 | | | | | $ | 42,551,480 | | |
| | |
Three Months Ended August 31,
|
| |
Six Months Ended August 31,
|
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2020
|
| |
2019
|
| ||||||||||||
Operating costs
|
| | | $ | 201,425 | | | | | $ | 327,835 | | | | | $ | 370,317 | | | | | $ | 570,558 | | |
Loss from operations
|
| | | | (201,425) | | | | | | (327,835) | | | | | | (370,317) | | | | | | (570,558) | | |
Other income: | | | | | | | | | | | | | | | | | | | | | | | | | |
Interest income
|
| | | | 1,287 | | | | | | 209,002 | | | | | | 46,340 | | | | | | 454,998 | | |
Unrealized gain
|
| | | | — | | | | | | 76 | | | | | | — | | | | | | 6,374 | | |
Other income
|
| | | | 1,287 | | | | | | 209,078 | | | | | | 46,340 | | | | | | 461,372 | | |
Net Loss
|
| | | $ | (200,138) | | | | | $ | (118,757) | | | | | $ | (323,977) | | | | | $ | (109,186) | | |
Weighted average ordinary shares outstanding, basic
and diluted(1) |
| | | | 2,006,824 | | | | | | 1,819,533 | | | | | | 1,997,943 | | | | | | 1,809,240 | | |
Basic and diluted net loss per ordinary share(2)
|
| | | $ | (0.10) | | | | | $ | (0.16) | | | | | $ | (0.17) | | | | | $ | (0.28) | | |
| | |
Ordinary Shares
|
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Equity |
| |||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||
Balance – March 1, 2020
|
| | | | 1,989,062 | | | | | $ | 5,305,335 | | | | | $ | (305,330) | | | | | $ | 5,000,005 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 17,762 | | | | | | 123,843 | | | | | | — | | | | | | 123,843 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (123,839) | | | | | | (123,839) | | |
Balance – May 31, 2020
|
| | | | 2,006,824 | | | | | | 5,429,178 | | | | | | (429,169) | | | | | | 5,000,009 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 20,527 | | | | | | 200,139 | | | | | | — | | | | | | 200,139 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (200,138) | | | | | | (200,138) | | |
Balance – August 31, 2020
|
| | | | 2,027,351 | | | | | $ | 5,629,317 | | | | | $ | (629,307) | | | | | $ | 5,000,010 | | |
| | |
Ordinary Shares
|
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Equity |
| |||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||
Balance – March 1, 2019
|
| | | | 1,798,946 | | | | | $ | 5,014,272 | | | | | $ | (14,269) | | | | | $ | 5,000,003 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 20,587 | | | | | | (9,573) | | | | | | — | | | | | | (9,573) | | |
Net income
|
| | | | — | | | | | | — | | | | | | 9,571 | | | | | | 9,571 | | |
Balance – May 31, 2019
|
| | | | 1,819,533 | | | | | | 5,004,699 | | | | | | (4,698) | | | | | | 5,000,001 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 62,409 | | | | | | 118,765 | | | | | | — | | | | | | 118,765 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (118,757) | | | | | | (118,757) | | |
Balance – August 31, 2019
|
| | | | 1,881,942 | | | | | $ | 5,123,464 | | | | | $ | (123,455) | | | | | $ | 5,000,009 | | |
| | |
Six Months Ended August 31,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Cash Flows from Operating Activities: | | | | | | | | | | | | | |
Net loss
|
| | | $ | (323,977) | | | | | $ | (109,186) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Interest earned on securities held in Trust Account
|
| | | | (46,340) | | | | | | (454,998) | | |
Unrealized gain on securities held in Trust Account
|
| | | | — | | | | | | (6,374) | | |
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | |
Prepaid expenses and other current assets
|
| | | | 86,500 | | | | | | 49,551 | | |
Accounts payable and accrued expenses
|
| | | | 74,130 | | | | | | 21,660 | | |
Net cash used in operating activities
|
| | | | (209,687) | | | | | | (499,347) | | |
Cash Flows from Investing Activities: | | | | | | | | | | | | | |
Investment of cash into Trust Account
|
| | | | (101,972) | | | | | | (400,000) | | |
Cash withdrawn from Trust Account for redemption
|
| | | | 28,055,793 | | | | | | — | | |
Net cash provided by (used in) investing activities
|
| | | | 27,953,821 | | | | | | (400,000) | | |
Cash Flows from Financing Activities: | | | | | | | | | | | | | |
Proceeds from promissory notes – related party
|
| | | | — | | | | | | 400,000 | | |
Proceeds from convertible promissory notes – related party
|
| | | | 291,972 | | | | | | — | | |
Redemption of ordinary shares
|
| | | | (28,055,793) | | | | | | — | | |
Net cash (used in) provided by financing activities
|
| | | | (27,763,821) | | | | | | 400,000 | | |
Net Change in Cash
|
| | | | (19,687) | | | | | | (499,347) | | |
Cash – Beginning
|
| | | | 26,294 | | | | | | 639,102 | | |
Cash – Ending | | | | $ | 6,607 | | | | | $ | 139,755 | | |
Non-Cash investing and financing activities: | | | | | | | | | | | | | |
Change in value of ordinary shares subject to possible redemption
|
| | | $ | (323,982) | | | | | $ | (109,192) | | |
| | |
Three Months Ended
August 31, |
| |
Six Months Ended
August 31, |
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2020
|
| |
2019
|
| ||||||||||||
Net loss
|
| | | $ | (200,138) | | | | | $ | (118,757) | | | | | $ | (323,977) | | | | | $ | (109,186) | | |
Less: Income attributable to ordinary shares subject to possible redemption
|
| | | | (474) | | | | | | (177,089) | | | | | | (17,076) | | | | | | (390,782) | | |
Adjusted net loss
|
| | | $ | (200,612) | | | | | $ | (295,846) | | | | | $ | (341,053) | | | | | $ | (499,968) | | |
Weighted average shares outstanding, basic and diluted
|
| | | | 2,006,824 | | | | | | 1,819,533 | | | | | | 1,997,943 | | | | | | 1,809,240 | | |
Basic and diluted net loss per ordinary share
|
| | | $ | (0.10) | | | | | $ | (0.16) | | | | | $ | (0.17) | | | | | $ | (0.28) | | |
Description
|
| |
Level
|
| |
August 31,
2020 |
| |
February 29,
2020 |
| |||||||||
Assets: | | | | | | | | | | | | | | | | | | | |
Marketable securities held in Trust Account
|
| | | | 1 | | | | | $ | 14,505,510 | | | | | $ | 42,412,991 | | |
| | | | | F-83 | | | |
| Financial Statements: | | | | | | | |
| | | | | F-84 | | | |
| | | | | F-85 | | | |
| | | | | F-86 | | | |
| | | | | F-87 | | | |
| | | | | F-88 | | |
| | |
February 29,
2020 |
| |
February 28,
2019 |
| ||||||
ASSETS | | | | | | | | | | | | | |
Current Assets | | | | | | | | | | | | | |
Cash
|
| | | $ | 26,294 | | | | | $ | 639,102 | | |
Prepaid expenses and other current assets
|
| | | | 112,195 | | | | | | 64,079 | | |
Total Current Assets
|
| | | | 138,489 | | | | | | 703,181 | | |
Marketable securities held in Trust Account
|
| | | | 42,412,991 | | | | | | 40,425,370 | | |
Total Assets
|
| | | $ | 42,551,480 | | | | | $ | 41,128,551 | | |
LIABILITIES AND SHAREHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current Liabilities | | | | | | | | | | | | | |
Account payable and accrued expenses
|
| | | $ | 262,877 | | | | | $ | 48,887 | | |
Total Current Liabilities
|
| | | | 262,877 | | | | | | 48,887 | | |
Convertible promissory notes – related party
|
| | | | 1,500,000 | | | | | | — | | |
Deferred underwriting fee payable
|
| | | | 1,000,000 | | | | | | 1,000,000 | | |
Total Liabilities
|
| | | | 2,762,877 | | | | | | 1,048,887 | | |
Commitments | | | | | | | | | | | | | |
Ordinary shares subject to possible redemption, 3,280,938 and 3,471,054 shares at redemption value at February 29, 2020 and February 28, 2019, respectively
|
| | | | 34,788,598 | | | | | | 35,079,661 | | |
Shareholders’ Equity | | | | | | | | | | | | | |
Preferred shares, no par value; unlimited shares authorized, none issued and outstanding
|
| | | | — | | | | | | — | | |
Ordinary shares, no par value; unlimited shares authorized; 1,989,062 and 1,798,946 shares issued and outstanding (excluding 3,280,938 and 3,471,054 shares subject to possible redemption) at February 29, 2020 and February 28, 2019, respectively
|
| | | | 5,305,335 | | | | | | 5,014,272 | | |
Accumulated deficit
|
| | | | (305,330) | | | | | | (14,269) | | |
Total Shareholders’ Equity
|
| | | | 5,000,005 | | | | | | 5,000,003 | | |
Total Liabilities and Shareholders’ Equity
|
| | | $ | 42,551,480 | | | | | $ | 41,128,551 | | |
| | |
Year Ended
February 29, 2020 |
| |
For the Period from
March 9, 2018 (inception) through February 28, 2019 |
| ||||||
Operating and formation costs
|
| | | $ | 1,078,682 | | | | | $ | 439,639 | | |
Loss from operations
|
| | | | (1,078,682) | | | | | | (439,639) | | |
Other income: | | | | | | | | | | | | | |
Interest income
|
| | | | 787,621 | | | | | | 430,130 | | |
Unrealized loss
|
| | | | — | | | | | | (4,760) | | |
Other income, net
|
| | | | 787,621 | | | | | | 425,370 | | |
Net Loss
|
| | | $ | (291,061) | | | | | $ | (14,269) | | |
Weighted average ordinary shares outstanding, basic and diluted(1)
|
| | | | 1,859,697 | | | | | | 1,522,527 | | |
Basic and diluted net loss per ordinary share(2)
|
| | | $ | (0.50) | | | | | $ | (0.25) | | |
| | |
Ordinary Shares
|
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Equity |
| |||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||
Balance – March 9, 2018 (inception)
|
| | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Issuance of founder shares to Sponsor
|
| | | | 1,150,000 | | | | | | 25,000 | | | | | | — | | | | | | 25,000 | | |
Forfeiture of founder shares
|
| | | | (150,000) | | | | | | — | | | | | | — | | | | | | — | | |
Sale of 4,000,000 Units, net of underwriting discounts and offering expenses
|
| | | | 4,000,000 | | | | | | 37,368,833 | | | | | | — | | | | | | 37,368,833 | | |
Sale of 270,000 Private Units
|
| | | | 270,000 | | | | | | 2,700,000 | | | | | | — | | | | | | 2,700,000 | | |
Proceeds from the sale of unit purchase option
|
| | | | — | | | | | | 100 | | | | | | — | | | | | | 100 | | |
Ordinary shares subject to possible
redemption |
| | | | (3,471,054) | | | | | | (35,079,661) | | | | | | — | | | | | | (35,079,661) | | |
Net loss
|
| | |
|
—
|
| | | |
|
—
|
| | | | | (14,269) | | | | | | (14,269) | | |
Balance – February 28, 2019
|
| | | | 1,798,946 | | | | | | 5,014,272 | | | | | | (14,269) | | | | | | 5,000,003 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 190,116 | | | | | | 291,063 | | | | | | — | | | | | | 291,063 | | |
Net loss
|
| | |
|
—
|
| | | |
|
—
|
| | | | | (291,061) | | | | | | (291,061) | | |
Balance – February 29, 2020
|
| | | | 1,989,062 | | | | | $ | 5,305,335 | | | | | $ | (305,330) | | | | | $ | 5,000,005 | | |
| | |
Year Ended
February 29, 2020 |
| |
For the Period from
March 9, 2018 (Inception) Through February 28, 2019 |
| ||||||
Cash Flows from Operating Activities: | | | | | | | | | | | | | |
Net loss
|
| | | $ | (291,061) | | | | | $ | (14,269) | | |
Adjustments to reconcile net loss to net cash used in operating activities:
|
| | | | | | | | | | | | |
Interest earned on securities held in Trust Account
|
| | | | (787,621) | | | | | | (430,130) | | |
Unrealized loss on securities held in Trust Account
|
| | | | — | | | | | | 4,760 | | |
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | |
Prepaid expenses and other current assets
|
| | | | (48,116) | | | | | | (64,079) | | |
Accounts payable and accrued expenses
|
| | | | 213,990 | | | | | | 48,887 | | |
Net cash used in operating activities
|
| | | | (912,808) | | | | | | (454,831) | | |
Cash Flows from Investing Activities: | | | | | | | | | | | | | |
Investment of cash into Trust Account
|
| | | | (1,200,000) | | | | | | (40,000,000) | | |
Net cash used in investing activities
|
| | | | (1,200,000) | | | | | | (40,000,000) | | |
Cash Flows from Financing Activities: | | | | | | | | | | | | | |
Proceeds from issuance of founder shares to Sponsor
|
| | | | — | | | | | | 25,000 | | |
Proceeds from sale of Units, net of underwriting discounts paid
|
| | | | — | | | | | | 38,800,000 | | |
Proceeds from sale of Private Units
|
| | | | — | | | | | | 2,700,000 | | |
Proceeds from sale of unit purchase option
|
| | | | — | | | | | | 100 | | |
Payment of offering costs
|
| | | | — | | | | | | (431,167) | | |
Proceeds from convertible promissory notes – related party
|
| | | | 1,500,000 | | | | | | 202,415 | | |
Repayment of promissory note – related party
|
| | | | — | | | | | | (202,415) | | |
Net cash provided by financing activities
|
| | | | 1,500,000 | | | | | | 41,093,933 | | |
Net Change in Cash
|
| | | | (612,808) | | | | | | 639,102 | | |
Cash – Beginning
|
| | | | 639,102 | | | | | | — | | |
Cash – Ending | | | | $ | 26,294 | | | | | $ | 639,102 | | |
Non-Cash investing and financing activities: | | | | | | | | | | | | | |
Initial classification of ordinary shares subject to possible redemption
|
| | | $ | — | | | | | $ | 35,086,980 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | $ | (291,063) | | | | | $ | (7,319) | | |
Deferred underwriting fee payable
|
| | | $ | — | | | | | $ | 1,000,000 | | |
| | |
Year Ended
February 29, 2020 |
| |
For the Period
from March 9, 2018 (inception) through February 28, 2019 |
| ||||||
Net loss
|
| | | $ | (291,061) | | | | | $ | (14,269) | | |
Less: Income attributable to ordinary shares subject to possible redemption
|
| | | | (646,007) | | | | | | (369,136) | | |
Adjusted net loss
|
| | | $ | (937,068) | | | | | $ | (383,405) | | |
Weighted average shares outstanding, basic and diluted
|
| | | | 1,859,697 | | | | | | 1,522,527 | | |
Basic and diluted net loss per ordinary share
|
| | | $ | (0.50) | | | | | $ | (0.25) | | |
Description
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| |
Level
|
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February 29,
2020 |
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February 28,
2019 |
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Assets: | | | | | | | | | | | | | | | | | | | |
Marketable securities held in Trust Account
|
| | | | 1 | | | | | $ | 42,412,991 | | | | | $ | 40,425,370 | | |
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| | | | | A-49 | | |
| Parent: | | |
4D PHARMA PLC
|
|
| | | |
By:
/s/ Duncan Peyton
Name: Duncan Peyton
Title: Chief Executive Officer |
|
| Merger Sub: | | |
DOLPHIN MERGER SUB LIMITED
|
|
| | | |
By:
/s/ Duncan Peyton
Name: Duncan Peyton
Title: Director |
|
| the Company: | | |
LONGEVITY ACQUISITION CORPORATION
|
|
| | | |
By:
/s/ Matthew Chen
Name: Matthew Chen
Title: Chairman and Chief Executive Officer |
|
| | | | 4D PHARMA PLC | |
| | | |
By:
/s/ Duncan Peyton
Name: Duncan Peyton
Title: Chief Executive Officer |
|
| | | | WHALE MANAGEMENT CORPORATION | |
| | | |
By:
/s/ Matthew Chen
Name: Matthew Chen
Title: Managing Member |
|
| | | | 4D PHARMA PLC | |
| | | |
By:
Name:
Title: |
|
| | | | LONGEVITY ACQUISITION CORPORATION | |
| | | |
By:
Name:
Title: |
|
| | | | WHALE MANAGEMENT CORPORATION | |
| | | |
By:
Name:
Title: |
|
| | | | [BUYER] | |
| | | |
By:
Name:
Title: |
|
|
SIGNED on behalf of
|
| | ) | |
|
LONGEVITY ACQUISITION CORPORATION
|
| | ) | |
| | | | ) | |
| Surviving Company | | | ||
|
SIGNED on behalf of
|
| | ) | |
|
DOLPHIN MERGER SUB LIMITED
|
| | ) | |
| | | | ) | |
Exhibit
Number |
| |
Exhibit Description
|
| |
Included
herein |
| |
Form
|
| |
Filing
Date |
| ||||
| | | | | | | Accounting Firm | | | | | | | | | | |
| | 23 | .3 | | | | Consent of Pinsent Masons (included in Exhibit 5.1 and incorporated herein by reference) | | |
x
|
| | | | | | |
| | 24 | .1 | | | | Powers of Attorney for 4D pharma plc (included on the signature page to this registration statement) | | | | | | F-4 | | | 11/25/2020 | |
| | 99 | .1* | | | | Form of Proxy for Longevity Corporation | | | | | | | | | | |
Exhibit 3.1
L.:IE:....x:....h:....ib:....it:....3.....:.2:....._ ---· COMPANY NUMBER 8840579 THE COMPANIES ACT 2006 A PUBLIC COMPANY LIMITED BY SHARES ARTICLES OF ASSOCIATION OF 4D PHARMA PLC Adopted by special resolution passed on 5 February 2014 1111•R3117701So•11 RM07/02/2014#2 COMPANIES HOUSE Schofield Sweeney LLP Spnngfield House 76 Wellington Street Leeds LS1 2AY Tel 0113 26670 (Ref LSD/3368 43) |
Contents Clause Page 1Exclus1on of default or model art1cles.1 2 Defimbons and 1nterpretat1on1 3 L1m1ted L1ab1hty4 4Shares w1th spec1al nghts 4 5 Uncertlficated shares 4 6 Consohdat1on,convers1on and sub-d1v1S10n5 7 Allotment 6 8 Comm1ss1ons6 9 Renunc1abon6 10Interests and trusts 6 11Vanatlon of class nghts 7 12Form of transfers 8 13Refusal to reg1ster a transfer .8 14Retention of transfers 9 15Further prov1s1ons relabng to transfers 9 16Destruction of documents 9 17Transm1ss1on10 18Elect1on of persons entitled by transm1ss1on11 19R1ghts of persons entitled by transm1ss1on11 20Disenfranchisement11 21Serv1ce of not1ces on non-members 13 22Cessat1on of d1senfranch1sement13 23Convers1on of uncert1ficated shares 13 24Sect1on 794and 795of the 2006Act13 25Annual generalmeetmgs 14 26Other general meetmgs 14 27Separate general meet1ngs14 28General meetmgs at more than one place 14 29Other arrangements for v1ew1ng/heanng proceedmgs 15 30Arrangements regardmg level of attendance 15 31Change m place and/or t1me of meetmg 15 32Secunty 16 33Rec1p1ents of nobce 16 34Penod of not1ce16 35Contents of not1ce16 36Quorum 17 37Chairman 17 38Adjournments 17 39Place and bme of adjourned meet1ngs18 40 Directors' entitlement to attend and speak 18 41Resolutions and amendments 18 42Methods of votmg and demand for a poll 19 43 Conduct of poll and declaration of result 19 |
44 Continuance of meebng 20 45Voting nghts 20 46Corporations acbng by representatives 21 47Votes of JOint holders 21 48Members mcapable of managmg !herr affarrs 21 49Calls rn arrears 21 50ObJections to votmg 21 51Failure to vote rn accordance wrth Instructions 22 52Apporntment and form of proxy 22 53Deposit of proxy 22 54Termrnabon of authonty of proxy 25 55Number of drrectors 25 56Drrectors sharehold1ng quahficat1on25 57Ehgrbrhty for electron 25 58Apporntment by ordmary resolution or by directors 26 59 Separate resolu!Jons for apporntment of each drrector 26 60Retrrement of drrectors by rotation 26 61Selectron of drrectors to ret1re26 62 When drrectors deemed to be re-appornted 27 63Addrtronal powers of the Company 27 64 Drsquahficatron of a drrector 27 65Executive office 28 66Power to appornt alternate drrectors 28 67 Formalities for apporntment and term1natron28 68Alternate to recerve nottces 29 69Alternate may be pard expenses but not remuneration 29 70Alternate not an agent of apporntor 29 71Drrectors' fees 30 72Dlfectors' remuneration 30 73Expenses 30 74Pensrons and other benefits 30 75Busrness to be managed by the drrectors 31 76Provrsron for employees 31 77 Local boards 31 78Powers of attorney and agents 31 79Srgnature on cheques,etc 32 80Director may have rnterests 32 81Power of the board to authonse conflicts of 1nterest32 82Declaration of rnterests 33 83Entrtlement to keep rnformatron confidential 34 84 Avordrng conflrcts of rnterest 35 85Ovemd1ng pnncrples 35 86Drrectors'powers to vote 35 87 Relaxation of provrsrons37 88 Board meetmgs 37 89Quorum, competence and voting 38 |
90 Power of drrectors rf number falls below mrnrmum 38 91Charrman 38 92 Resolutions 1n wntrng 38 93 Delegatron of powers 39 94 Proceedtngs of committees 39 95Valtdtty of proceedrngs 1n sprte of formal defect 39 96General power to borrow 40 97 Maxtmum hmrt on borrowrngs 40 98 Interpretation of art1cles 97to 10240 99 Fluctuattng rates of exchange 45 100Changes 1n legtslatron 45 101Valtdtty of borrowrng arrangements 45 102Certtficatton of audttors 45 103Secretary 46 104Seals 46 105M1nutes and books 46 106Declaration of dtvtdends 47 107lntenm d1vrdends47 108Calculation and currency of d1v1dends47 109D1v1dends not to bear 1nterest48 110Permitted deductions 48 111Warver of d1vtdends48 112Manner of payment of d1v1dends48 113Rtsk and d1scharge of Company 49 114Rece1pts of JOtnt holders 49 115Scnp dlvtdends 49 116Retentron and forfetture of dtv1dends51 117Drvrdends rn specre 51 118Ftxmg of record dates 52 119Capttaltsatron of reserves 52 120Issue of share certrficates 53 121Cancellatron and replacement of certificates 54 122Power to make calls .54 123Trme when call made 54 124Ltabrltty of and recetpts by JOtnt holders 54 125Fatlure to pay call 54 126Other sums due on shares 55 127Power to dtfferentrate 55 128Payments of calls m advance 55 129Notice on farlure to pay a call 55 130Forfetture for non-compliance56 131Nottce of forferture 56 132Annulment of forferture 56 133Dtsposal of forferted shares 56 134Extrnctron of nghts 57 135Lten on partly pard shares 57 |
136Enforcement of hen by sale 57 137Applicat1on of proceeds of sale 57 138Evidence of forfeiture or hen 57 139Power to dispose of shares of untraced members58 140Sale procedure and apphcat1on of proceeds59 141Accounts59 142Summary of financ1al statements59 143Validity of acts of auditors59 144Not1ces 1n wntmg 60 145Method of g1vmg notice to members 60 146Notice by members 62 147Notice to JOint holders 62 148Notice to persons entitled by transm1ss•on 62 149D1srupt1on of postalserv1ces 63 150Deemed not1ce63 151Successors 1n t1tle bound by notice to predecessor63 152Reference to nobces are to not1f1catJons63 153Statutory requ1rements 63 154Record date for delivery63 155Liquidator may d1stnbute m spec1e64 156Prov1s1on for employees 64 157Indemnity 64 158Insurance65 |
Prelimmary Exclusion of default or model articles No default or model art1cles or regulations which may apply to compan1es under the Statutes (tnclud1ng, w1thout hm1tallon, the regulations 1n Table A 1n the Compantes (Tables A to F) Regulat1ons 1985 (as amended) and the model articles 1n the Compan1es (Model Articles) Regulations 2008) shall apply to the Company unless expressly tncluded 1n these art1cles 2 Definitions and interpretation 2 1 In these art1cles (1f not 1ncons1stent w1th the subJect or context) 2 1 1the words 1n the first column of the table below have the meantngs set out oppos1te to them AIM means the market of that name operated by the London Stock Exchange, these articles means these articles of assoc1abon, as from t1me to t1me altered, auditors means the aud1tors for the t1me being of the Company, board means the board of directors for the lime be1ng of the Company or the d rectors present at a duly convened meet1ng of the d1rectors at wh1ch a quorum IS present, Company means 4d pharma pic {Company number 8840579), Director means a director for the time be1ng of the Company, employees' share scheme means employees' share scheme as defined 1n secbon 1166 of the 2006 Act, holder means 1n relation to any shares, the member whose name IS entered 1n the register as the holder of those shares, London Stock Exchange means London Stock Exchange pic, Month means calendar month, Office means the reg1stered office for the t1me betng of the Company, paid means pa1d or cred1ted as pa1d, parent undertaking means parent undertaktng as defined 1n sectton 1162 of the 2006 Act, |
--------------market nominee means a recognised cleanng house or a nom1nee of a recogn1sed cleanng house or of a recognised mvestment exchange w1thm the mean1ng of sect1on 769(2), 776(3) and 778(1) of the 2006 Act, register means the reg1ster of members to be kept under sect1on 113 of the 2006 Act and regulat1on 20 of the Uncerbficated Secuntles Regulations 2001, seal means any common or offic1al seal that the Company may be perrmtted to have under the Statutes, secretary means the secretary of the Company or (where there are JOint secretanes) any of the jOint secretanes, and mcludes any deputy secretary, ass1stance secretary and any other person appointed by the board to perform any of the dut1es of the secretary, securities seal means an offiCial seal kept by the Company by v1rtue of section 50 of the 2006 Act, the 2006 Act means the Compames Act 2006, the Statutes means the 2006 Act, the Uncert1ficated Secunbes Regulations and every other act, statute, statutory mstrument, regulation or order for the t1me bemg m force concemmg compan1es and affectmg the Company, transmission event means death, bankruptcy or any other event g1vmg nse to the transm1ss1on of a person's entitlement to a share by operation of law, Uncertlficated Securities Regulations means the Uncert1f1cated Secunbes Regulat1ons 2001 as amended from ttme to t1me and any Statutes wh1ch supplement or replace such Regulations, undertaking means undertaking as defined 1n section 1161 of the 2006 Act. the United Kingdom means Great Bnta1n and Northern Ireland, working day means work1ng day as defined m sect1on 1173 of the 2006 Act. and year means calendar year, 2 1 2 any reference to an uncertlflcated share, or to a share be1ng held m uncertlficated form shall (subJect to regulatJOn 42(11)(a) of the Uncert1ficated Secunbes Regulations) mean a share m the cap1tal of the Company wh1ch IS for the ttme bemg recorded on the Operator Reg1ster of Members (as defined 1n regulation 20(1) of the Uncerllficated SecuntJes RegulatJons) and any reference to a certificated share, or to a share bemg held 1n certificated form, shall mean any share other than an uncert1ficated share, |
2 1 3 the express1on member present m person shall be deemed to mclude a member present by proxy or, 1n the case of a corporate member, by a duly authonsed representative and cognate express1ons shall be construed accordmgly, 2 1 4 any reference to days of notice shall be construed as meamng clear days, 2 1 5 words denot1ng the s1ngular shall mclude the plural and v1ce versa, words denot1ng one gender shall mclude the other gender and words denot1ng persons shall be construed as mclud1ng bod1es corporate and umncorporated assoc1at1ons, 2 1 6 any other words or express1ons defined m the 2006 Act or the Uncertlficated Secunt1es Regulations or,1f not defined m that Act or those Regulations, m any other Statute (m each case as 1n force on the date of the adopt1on of these articles or any part of these art1cles), shall bear the same meamng m these articles or that part (as the case may be) except that the word company mcludes any body corporate, 2 1 7 subJect to art1cle 21 6, references to any prov1s1on of any enactment or of any subordmate leg1slat1on (as defined by sect1on 21(1)of the Interpretation Act 1978) Include any mod1ficabon or re-enactment of that proviSion for the bme be1ng 1n force, 2 1 8 any reference to 2 1 8 1 a document Includes reference to an electronic commumcabon. 2182 2183 2184 2185 an electronic communicat1onmeans an electron1c commumcat1on (as defined 1n the Electronic Communications Act 2000) compns1ng wnt1ng, a document bemg executed mcludes references to 1t bemg executed under hand or seal or, 1n the case of an electronic commumcat1on, by electronic s1gnature or such other means of venfymg the authenticity of the commun1cabon that the board may from t1me to t1me approve, an Instrument means a wntten document havmg tangible fonn (e g on paper) and not compnsed 1n an electronic commumcatlon, m wr1tmg and written means the representation or reproduction of words, numbers or symbols m a legible and non-trans1tory form by any method or combmatlon of methods whether compnsed m an electronic commun1cabon or otherwise and 1ncludmg (without hm1tatlon) by telex, telegram, facs1m11e and e-mail, |
2 1 8.6 address m relation to electronic communtcat1ons, Includes any number or address (tnclud1ng, 1n the case of any Uncert1ficated Proxy Instruction pennttted by art1cle 53 2, an 1denbficatton number or a part1c1pant 1n the relevant system concerned) used for the purposes of such communications, 2 1 9 references to a meeting shall not be taken as requ1nng more than one person to be present 1f any quorum requirement can be sat1sfied by one person, 2 1 10 1n relat1on to a share, any reference to a relevant system IS a reference to the relevant system 1n wh1ch that share 1s a part1c1patmg secunty 2 2 A spec1al resolution shall be effect1ve for any purpose for wh1ch an ordmary resolution 1s expressed to be requtred under these articles 2 3 Head1ngs are mserted for conven1ence only and shall not affect construction of these articles 3 limited Liability The 1tab11tty of the members IS 1tm1ted to the amount, 1f any, unpa1d on the shares held by them Share Capital 4 Shares with special nghts Subject to the Statutes and w1thout prejudice to any nghts attached to any ex1strng shares any shares may be 1ssued WJth such nghts or restnct1ons as the Company may by ordinary resolution determ1ne (or, 1f no such resolution 1s m effect or so far as 1t does not make spec1fic prov1s1on, as the board may determine), and, subject to the Statutes, shares may be ISSued on the terms that they are, or are to be !table, to be redeemed at the optton of the Company or the holder 5 Uncertlf1cated shares 5 1 Subject to the Statutes, the board may perm1t any class or classes of shares to be held and transferred 1n uncert1ficated form by means of a relevant system and may determine that any class of shares shall cease to be held and transferred 1n th1s way 5 2 In relat1on to any share which IS for the t1me bemg held 1n uncert1ficated form 5 2 1 the Company may uttltse the relevant system m wh1ch 1t IS held to the fullest extent possible from t1me to t1me m the exerc1se of any of 1ts powers or funct1ons under the Statutes or these art1cles or otherwise 1n effecttng any acttons and the board may from t1me to tJme determine the manner tn wh1ch such powers,functions and act1ons shall be so exerc1sed or effected, 5 2 2 any prov1s1on m these articles wh1ch IS 1ncons1stent w1th |
5221 the holdmg of and transfer of t1tle to that share m uncertlficated form by means of a relevant system, 5222 the exercise of any powers or functions by the Company or the effectmg by the Company of any act1ons by means of a relevant system, or 5223any other prov1s1ons of the Statutes relatmg to the shares held m uncert1ficated form shall not apply 5 3 Where any share IS for the t1me be1ng held 1n uncertlficated form and the Company IS entitled under the Statutes or these articles to sell, transfer or otherw1se d1spose of. reallot, accept the surrender of. forfeit, or enforce a hen over that share, the Company shall be entitled, subject to the Statutes, these articles and the tac1hbes and reqwements of the relevant system 5 3 1 to requ1re the holder of that share by not1ce to convert that share mto certificated form w1th1n the penod spec1fied 1n the notice and to hold that share m certificated form so long as reqUired by the Company, 5 3 2 to requ1re the Operator to convert that share mto certificated form 1n accordance With regulanon 32(2)(c) of the Uncert.tf1cated Secunbes Regulations, 5 3 3 to reqUire the holder of that share by nobce to g1ve any 1nstruct1ons necessary to transfer tttle to that share by means of the relevant system w1thm the penod spec1fied tn the not1ce, 5 3 4 to requ1re the holder of that share by notice to appornt any person to take any step, mclud1ng Without hm1tatton the g1v1ng of any 1nstructtons by means of the relevant system, necessary to transfer that share WJthtn the penod spectfied tn the nobce,and 5 3 5 to take any other action that the board considers necessary or expedient to achieve the sale, transfer, disposal, reallotment, forfe1ture or surrender of that share or otherw1se to enforce a hen m respect of that share 5 4 Subject to the Statutes, for the purpose of effecting any action by the Company, the board may determme that shares held by a person 1n uncert1ficated form shall be treated as a separate holdmg from shares held by that person 1n certificated form 6 Consolidation, conversion and sub.<flvision 6 1 All new shares created by any 1ncrease 1n the Company's share cap1tal, any sub.<fiVISion or consohdat1on and diVISIOn of 1ts share cap1tal or any conversion of stock mto pa1d up shares shall be subject to the prov1s1ons of the Statutes and of these articles, mcludmg those relating to payment of calls, hen, transfer, transmiSSIOn and forfeiture Such new |
- - ----·------- .. shares shall be unclassified unless otherw1se prov1ded by theses articles, by the resolution creating the shares or by the terms of allotment of the shares 6 2 If as a result of a consolidation or sub-diVISIOn of shares any members would become entitled to fractions of a share, the board may on behalf of those members deal wtth the fractions as they th1nk fit In particular, Without hm1tabon, the board may aggregate and sell the shares representing the fract1ons to any person (1nclud1ng, subJect to the prov1s1ons of the Statutes, the Company) and d•stnbute the net proceeds of sale m due proportion among those members (except that any proceeds tn respect of any holdmg less than a sum fixed by the board may be reta1ned for the benefit of the Company) For the purposes of any such sale, the board may appomt some person to transfer the shares to, or 1n accordance w1th the d1rect1ons of, the buyer The buyer shall not be bound to see to the application of the purchase moneys and hiS title to the shares shall not be affected by any 1rregulanty 1n, or mvahdlty of, the proceedtngs m relat1on to the sale Shares 7 Allotment Subject to the Statutes relatmg to authonty, pre-empt1on nghts and otherwise, these articles and any resolution of the Company, the board may allot (w1th or wtthout confernng a nght of renunciation), grant opbons over or otherwise deal wtth or d1spose of shares 1n the cap1tal of the Company to such persons, at such ttmes and on such terms as the board maydec1de 8 Commissions The Company may exerc1se all powers of paytng comm1ss1on and brokerage conferred by the Statutes or otherWise vested 1n the Company Any such commiSSion may be pa1d tn cash or tn fully or partly pa1d shares of the Company, or partly 1n one way and partly tn another 9 Renunciation The board may at any t1me after the allotment of any share but before any person has been entered 1n the reg1ster as the holder, recogn1se a renunc1atJon of that share by the allottee 1n favour of some other person and may accord to any allottee of a share a nght to effect such renunciation upon and subject to such terms and cond11Jons as the board may thtnk fit 10 Interests and trusts 10 1 Except as required by law or by these articles, the Company shall not be bound by or compelled •n any way to recogn1se (even when hav1ng notJce of 1t) any Interest tn or tn respect of any share, or any other nght tn respect of any share,except an absolute nght to the entriety of that share 1n the holder |
10 2 The Company shall be entitled, but except as requ1red by law shall not be bound, to recogn1se m such manner and to such extent as 1t may think fit any trusts 1n respect of any of the shares of the Company Notw1thstandmg any such recogmtlon, the Company shall not be bound to see to the execubon, adm1n1strat1on or observance of any trust, whether express, 1mpl1ed or constructive, 1n respect of any shares of the Company and shall be entitled to recogmse and g1ve effect to the acts and deeds of the holders of such shares as 1f they were the absolute owners of those shares For these purposes. trust Includes any nght 1n respect of any share other than an absolute nght to that share vested 1n the holder of 1t for the t1me be1ng or any other nght 1n case of a transmiSSIOn of that share as are ment1oned 1n these art1cles 11 Varlat1on of class rights 11 1 Whenever the share cap1tal of the Company IS d1v1ded mto different classes of shares, all or any of the nghts attached to any class may, subject to the provts1ons of the Statutes, be vaned or abrogated tn such manner as those nghts may prov1de for or (1f no such prov1s1on IS made) etther w1th 11 1 1 11 1 2 the consent of the holders of not less than three-quarters m nommal value of the tssued shares of that class and such consent shall be by one or more Instruments, or w1th the authonty of a spectal resolutton passed at a separate meetmg of the holders of the shares of the class (but not otherw1se) and may be so vaned or abrogated e1ther whilst the Company IS a gotng concern or dunng or tn contemplation of a wmdmg up 11 2 All the prov1s1ons of these arttcles relattng to general meet1ngs of the Company and to the proceedings at those meet1ngs shall apply, mutat1s mutandiS, to every such separate generalmeettng except that 11 2 1 11 2 2 11 2 3 11 2 4 11 2 5 the quorum at any such meetmg shall be two persons holdmg or represent1ng by proxy at least one-thtrd 1n nomtnal value of the ISSued shares of the class, for the purposes of art1cle 11 2 1 any person present by proxy IS treated as holdtng or presenting only those shares m respect of wh1ch the proxy IS authonsed to exerc1se voting nghts, at any adjourned meet1ng any one holder of shares of the class present 1n person shall be a quorum, any holder of shares of the class present 1n person may demand a poll, and every such holder shall on a poll have one vote for every share of the class held by h1m |
Article 11 1 shall apply to the vanat1on or abrogation of the speetal nghts attached to some only of the shares of any class as 1f the shares concerned and the remam1ng shares of such class formed separate classes Unless otherwtse expressly provtded by the nghts attached to any class of shares those nghts shall not be deemed to be vaned by the creation or tssue of further shares rankmg equally w1th, or subsequent to, that class of shares or by the purchase or redemption by the Company of any of 1ts own shares Transfer of Shares 12 Form of transfers 12 1 Subject to the restnctlons 10 these articles, a member may transfer all or any of h1s shares m any manner whtch 1s perm1tted by the Statutes and IS from bme to t1me approved by the board 12 2 All transfers of uncertlficated shares shall be effected m accordance wtth the Statutes and the facthttes and reqUirements of the relevant system and otherwtse 1n accordance w1th any arrangements made by the dtrectors under arttcle 5 12 3 All transfers of certificated shares shall be effected by 1nstrument 10 any usual or common form, or 1n any other form acceptable to the board The mstrument of transfer shall be executed by or on behalf of, the transferor and (except tn the case of fully patd shares) by or on behalf of the transferee 13 Refusalto register a transfer 13 1The board may. 10 1ts absolute dtscretton, refuse to regtster 13 1 1 any transfer of a certificated share whtch IS not a fully pa1d share,and 13 1 2 any transfer of a share on whtch the Company has a hen provtded that 1n the case of any class of shares whtch IS admttted to tradmg on AIM the refusal does not prevent dealings 1n those shares from takmg place on an open and proper baSIS 13 2 The board may, m 1ts absolute dtscretton, decline to regtster the transfer of a certificated share unless the Instrument of transfer 13 2 1 IS 1n respect of only one class of share. 13 2 2 1s duly stamped, or adJudged or cert1fied as not chargeable to stamp duty, and IS depos1ted at the office, or at such other place as the board may from ttme to t1me deterrnme, and 13 2 3 (except where the shares are regtstered m the name of a market nomtnee and no certificate has been tssued for them) IS accompanted by the relevant share certtficate(s) and such other evtdence as the board may reasonably reqUire to |
show the nght of the transferor to make the transfer (and, 1f the mstrument of transfer 1s executed by some other person on h1s behalf, the authonty of that person so to do) 14 Retention of transfers All mstruments of transfer wh1ch are reg1stered may be reta1ned by the Company, but any Instrument of transfer wh1ch the board refuse to reg1ster shall (except 1n any case where fraud or any other cnme 1nvolvmg dishonesty 1s suspected) be returned to the person lodg1ng 1! 15 Further provisions relating to transfers 15 1 No fee will be charged by the Company for the reg1strat1on of any 1nstrument of transfer or other document or mstruc!lon relatmg to or affect1ng the t1tle to any shares or otherw1se for mak1ng any entry 1n the reg1ster affecting the tttle to any shares 15 2 The transferor shall be deemed to remam the holder of the shares concerned unt1l the name of the transferee 1s entered m the reg1ster m respect of them 15 3 Nothmg 1n these art1des shall preclude the board from recogms1ng a renunciation of the allotment of any share by the allottee 1n favour of some other person 15 4 Unless otherw1se agreed by the board 1n any part1cular case, the max1mum number of persons that may be entered on the reg1ster as JOint holders of a share IS four Destruction of Documents 16 Destruction of documents 16 1 Subject to compl1ance w1th any requ1rements of the Uncert1ficated Secunt1es Regulations m the case of uncert1ficated shares, the board may arrange the destruction of the followmg documents held by the Company 16 1 1 all share certificates wh1ch have been cancelled at any ttme after the exp1rabon of one year from the date of such cancellation, 16 1 2 all notifications of change of name and address and all d1v1dend mandates wh1ch have been cancelled or have ceased to have effect at any lime after the expuat10n of two years from the date of the recordmg them or. as the case may be, the date of such cancellation or cessation, 16 1 3 all mstruments of transfer of shares and all other documents representmg or purport1ng to represent the nght to be reg1stered as the holder of shares on the bas1s of wh1ch entnes have been made m the reg1ster at any t1me after the exp1rat1on of SIX years from the date of the entry on the reg1ster, 16 1 4 all pa1d d1v1dend warrants and cheques at any t1me after the exp1rat1on of two years from the date of actual payment, |
16 1 5 161 6 all appomtments (or records of appomtment) of proxy wh1ch have been used for the purpose of a poll at any lime after the exptralton of one year from the date of use, all appointments (or records of appomtment) of proxy whtch have not been used for the purpose of a poll at any lime after one month from the end of the meetmg to wh1ch the appomtment of proxy relates and at wh1ch no poll was demanded 16 2 It shall conclusively be presumed 1n favour of the Company that 16 2 1 16 2 2 16 2 3 16 2 4 16 2 5 every entry 1n the reg1ster purportmg to have been made on the basrs of an Instrument of transfer or other document so destroyed was duly and property made, every mstrument of transfer so destroyed was a vahd and effective Instrument duly and property registered, every share certificate so destroyed was a vahd cerllficate duly and property cancelled, every pard d1v1dend warrant and cheque so destroyed was duly pa1d, and every other document mentioned 1n article 16 1 so destroyed was a valid and effective document 1n accordance w1th the recorded particulars of rt 1n the books or records of the Company provtded that thts arbcle shall apply only to the destruction of a document 1n good fa1th and w1thout express nottce of any cla1m {regardless of the parttes to 1!) to whtch the document m1ght be relevant 16 3 Nothtng 1n thts art1cle shall be construed as tmposmg upon the Company or the board any habthty m respect of the destructJon of any such document earlier than stated 1n article 16 1, or 1n any other ctrcumstances, whtch would not attach to the Company or the board m the absence of th1s arttcle 16 4 References m th1s arttcle to the destruct1on of any document mclude references to 1ts dtsposalm any manner Transmission of Shares 17 Transmission If a member dtes, the surv1vors or surv1vor where the deceased was a JOint holder, or the personal representatives of the deceased where he was a sole or only survtvmg holder, shall be the only persons recogntsed by the Company as hav1ng any Iitie to h1s shares, but nothmg m these art1cles shall release the estate of a deceased holder (whether sole or JOint) from any hab1hty 1n respect of any share held by htm solely or JOintly |
18 Election of persons entitled by transmission 18 1 Any person becommg entitled to a share m consequence of a transmiSSIOn event may, on produc1ng such ev1dence as may be requ1red by the board (and subject to the following prov•s•ons of th1s art1cle), elect e1ther to be reg1stered as the holder of the share or to have another person nom1nated by h1m reg1stered as the holder of the share 18 2 If a person becom1ng entitled by transm1ss1on to a share elects to be registered as the holder he shall g1ve notice to the Company to that effect If he elects to have another person reg1stered and the share IS a cert1ficated share, he shall execute an 1nstrument of transfer of the share to that person If he elects to have h1mself or another person reg1stered and the share IS an uncert1f1cated share, he shall take any action the board may requ1re (mclud1ng w1thout llm1tat1on the execution of any document and the g1v1ng of any mstructson by means of a relevant system) to enable himself or that person to be registered as the holder of the share 18 3 All the hm1tatJons, restnct1ons and prov1s1ons of these art1cles relatmg to the nght to transfer and the reg1strat1on of transfers of shares shall apply to any such not1ce or transfer or other act1on as 1f 1t were a transfer effected by the person from whom the t1tle by transmiSSion 1s denved and as 1f the transmiSSIOn event had not occurred 19 Rights of persons entitled by transmission 19 1 Save as otherw1se prov1ded by or m accordance wtth these art1cles, a person becommg entitled to a registered share 1n consequence of a transmiSSIOn event (upon supplymg to the Company such ev1dence as the board may reasonably requ1re to show h1s t1tle to the share) shall be ent1tled to the same d1v1dends and other advantages as those to wh1ch he would be entitled 1f he were the holder of the share That person may g1ve a d1scharge for all d1v1dends and other moneys payable 1n respect of the share, but he shall not, before bemg reg1stered as the holder of the share, be entitled to attend or vote at meetmgs of the Company or to exerc1se any other nghts or pnv1leges of a member 1n relation to meetmgs of the Company, unless and unt1l he shall have become a member 1n respect of the share 19 2 The board may at any time g1ve notice requmng a person becoming ent1tled to a share on a transmiSSIOn event to elect to be reg1stered himself or to transfer the share and, 1f the notice 1s not complied w1th w1thm s1xty days, the board may w1thhold payment of all d1v1dends and other moneys payable 1n respect of the share until the reqUirements of the not1ce have been compiled w1th D1sclosure of Interests in Shares 20 Disenfranchisement 20 1 If the holder of, or any other person appeanng to be Interested m, any share has been g1ven not1ce under sect1on 793 of the 2006 Act (a section 793 notice) and has failed 1n relat1on to that share (the default share) to g1ve the Company the mformallon requ1red by that notice w1thm the prescnbed penod from the date of serv1ce of the not1ce, the |
restnctlons referred to below shall apply (provtded that the board may watve those restnctlons tn whole or tn part at any time) 20 2 If,whtle any of the restnctlons referred to below apply to a share.another share ts allotted tn nght of tt (or tn nght of any share to whtch thts arbcle apphes), the same restncbons shall apply to that other share as tf 1t were a default share 20 3 The restncltons referred to above are as follows 20 31 the holder of the default shares shall not be entttled tn respect of those shares to attend or vote at any general meetmg or at any separate meeting of the holders of that class of shares or on a poll, 20 32 m addttJon, where the default shares tn whtch any one person IS mterested or appears to the Company to be mterested represent 0 25 per cent or more m nomtnal value of the tssued shares of thetr class 20 321 any d1v1dend or other money whtch would otherwise be payable m respect of the default shares shall be retamed by the Company w1thout any hab1hty to pay Interest on 1t when such dtvtdend or other money IS finally patd to the member and the member shall not be entitled to rece1ve shares 1n heu of any dtvtdend, 20 3 2 2 no transfer of any shares held by the member shall be regtstered unless (a) the holder ts not himself 1n default as regards supplymg the tnformatton requtred and the holder prov1des evtdence to the sattsfactlon of the board that no person 1n default as regards supplymg such mformabon IS mterested tn any of the shares whtch are the subject of the transfer, or (b) the transfer 1s an approved transfer, or (c) registration of the transfer IS requtred by the Uncert1ficated Secunbes Regulations 20 4 For the purposes of th1s art1cle 20 41 a person other than the member holdmg a share shall be treated as appeanng to be mterested 1n that share 1f the member has Informed the Company that the person IS,or may be, so mterested, or 1f the Company (after tak1ng account of any mforrnat1on obtamed under any sect1on 793 not1ce and any other relevant mformat1on) knows or has reasonable cause to believe that the person 1s, or may be, so mterested, 20 4 2 an approved transfer 1n relatton to any shares IS a transfer under 204 21 a takeover offer (w1thm the meantng of sectton 974 of the 2006 Act) which relates to the share,or 20 4 2 2 a sale made through a recogmsed 1nvestment exchange (as defined m sect1on 285 of the Fmanc1al Serv1ces and Markets Act |
2000) or any other stock exchange or market outstde the Untied Ktngdom on whtch shares of that class are normally traded, or 204 2 3 a bona fide sale of the whole of the benefic1al mterest 1n the shares to a person whom the board 1s satisfied IS unconnected w1th the member or w1th any other person appeanng to be mterested 1n the share, 204 3 the percentage of 1ssued shares of a class represented by a part1cular holdtng shall be calculated by reference to the shares 1n 1ssue at the ttme that the section 793 not1ce IS served 21 Service of not1ces on non-members If a secbon 793 notice 1s g1ven by the Company to a person appeanng to be Interested 1n any share, a copy of the nottce shall be gtven to the holder at the same bme,but the fatlure or om1ss1on to do so, or the non-rece1pt by that person of the copy, shall not prejUdtce the operation of th1s article 22 Cessation of disenfranchisement 22 1 The sanctions under art1cle 20 shall have effect for the penod detenn1ned by the board betng not more than seven days after the earlier of 22 2 the Company bemg notified that the default shares have been transferred under an approved transfer or otherw1se 10 accordance w1th arttcle 20 3 2 2, or 22 3 the 1nfonnat1on requ1red by the section 793 notice has been rece1ved m wnt1ng by the Company to the sattsfactton of the board at the address supphed by the Company m the sect1on 793 not1ce or otherwtse expressly supplied by the Company for the purpose of rece1v1ng such 1nformat1on 22 4 If any dtvtdend or other dtstnbutton IS Withheld under arttcle 20 3 2 1 above, the member shall be entitled to rece1ve 1t as soon as practicable after the sanct1on ceases to apply 23 Conversion of uncertificated shares The Company may exerc1se any of 1ts powers under art1cle 5 3 m respect of any default share that 1s held m uncert1ficated form 24 Section 794 and 795 of the 2006 Act The provtstons of arttcles 20 to 23 are Without prejudice to the provtstons of section 794 and 795 of the 2006 Act, and tn parttcular the Company may apply to the Court under sect1on 794{1) of the 2006 Act whether or not these prov1S1ons apply or have been applied |
General Meetings 25 Annual general meetings The board shall convene and the Company shall hold annual general meetmgs m accordance wtth the Statutes 26 Other general meetings The board may convene other general meetmgs whenever tt thmks fit Other general meebngs shall also be convened by the board on a requtstlton by members tn accordance With the Statutes. or m default may be convened by such requ1stttomsts m accordance w1th the Statutes Other general meetmgs may also be convened m accordance Wtth arttcle 90 27 Separate general meetings SubJect to these arttcles and to any nghts for the ttme betng attached to any class of shares 1n the Company, the prov1s1ons of these arttcles relatmg to general meetmgs of the Company (tncludtng, wtthout ltmttat1on, provtstons relatmg to the proceedmgs at general meebngs or to the nghts of any person to attend or vote or be represented at general meebngs or to any restnctlons on these nghts) shall apply,w1th any necessary changes. tn relatton to every separate general meebng of the holders of any class of shares tn the Company 28 General meetings at more than one place 28 1A general meettng may be held at more than one place 1f 28 11 the nottce convemng the meettng spectfies that tlshall be held at more than one place, or 281 2 the board resolves, after the nottce conventng the meeting has been g1ven, that the meetmg shall be held at more than one place, or 28 1 3 tt appears to the chatrman of the meebng that the place of the meettng spectfied tn the nobce conventng the meeting IS tnadequate to accommodate all persons entttled and w1sh1ng to attend 28 2 A general meeting held at more than one place shalf be duly constituted and tis proceedings valtd 1f (1n addtt1on to the other prov1s1ons 1n these art1cles relatmg to meetmgs) the chairman of the meeting IS sattsfied that adequate fac11tt1es are ava1lable throughout the meettng to ensure that each person present at each place IS able to 28 21parttc1pate tn the busmess for which the meetmg has been convened. 28 2 2 hear and see all persons who speak (by the use of microphones, loudspeakers. audto-vtsual commumcat1ons equtpment or otherwise, whether such equ1pment IS m use when these articles are adopted or developed |
subsequently) rn each meeting place, and be heard and seen by all other persons so present rn the same way, 282 3have access to all documents wh1ch are requ1red by the Statutes or these art1cles to be made available at the meetmg, and 2824(1n accordance With h1s nghts under the Statutes and these articles) vote on a show of hands and on a poll and be represented by a proxy 28 3The meetmg shall be deemed to take place at the place at wh1ch the chairman 1s present (the principalvenue) 28 4 Article 38 shall apply to any mterruptlon or adjournment of a meetmg wh1ch IS bemg held 1n more than one place 28 5 Each person present 1n person at each meeting place shall be counted 1n the quorum for, and be ent1tled to vote at. the general meet1ng 29 Other arrangements for viewing/hearing proceedings The board may make arrangements for persons entitled to attend a general meetmg or an adjourned general meeting to be able to v1ew and hear the proceedings of, and to speak at, that meet1ng (1n the manner set out m art1cle 28) from a locat1on wh1ch IS not class1fied as a meeting place The persons attendmg at any such location shall not be regarded as present at the general meetmg or adjourned general meetmg and shall not be entitled to vote at the meeting The 1nab1hty for any reason of any person present at such a location to v1ew or hear all or any of the proceedmgs of, or to speak at, the meeting shall not affect the vahd1ty of the proceedrngs of the meetrng 30 Arrangements regarding levelof attendance The board may from t1me to time make such arrangements for hm1t1ng the level of attendance at any locat1on for wh1ch arrangements have been made under articles 28 and 29 as 1t cons1ders appropnate These arrangements may rnclude the 1ssue of t1ckets (on a bas1s Intended to afford all members and prox1es ent1tled to attend the meetmg an equal opportunity of bemg adm1tted to any spec1fic venue) or the Imposition of some random means of selection for adm1ss1on to that venue In this case, the arrangements must allow any members and prox1es excluded from attendance at the pnnc1pal venue to attend at one of the other venues 31 Change in place and/or time of meeting 31 1 If, after the g1v1ng of not1ce of a meetmg but before the meet1ng IS held. or after the adjournment of a meet1ng but before the adjourned meehng IS held (whether or not not1ce of the adJourned meet1ng IS requ1red), the board decides that 1t IS 1mpract1cable or unreasonable for reasons beyond 1ts control to hold the meetmg at the declared place (or any of the declared places, rn the case of a meetmg to which art1cle 28 apphes) and/or |
ttme, 1t may change the place (or as appropnate any of the places) and/or postpone the bme at wh1ch the meebng IS to be held 31 2 If such a dec1s1on IS made, the board may then change the place (or as appropnate any of the places) and/or postpone the lime aga1n 1f they dec1de that 1t IS reasonable to do so 31 3In either case 31 31 no new notice of the meeting need be g1ven,but the board shall, 1f practicable. advert1se the new place. date and/or bme of the meeting 1n at least one leadmg nat•onal datly newspaper and shall make arrangements for not1ces of the change of place and/or postponement to appear at the ongmal place and/or at the ong1nal t1me, and 31 3 2 notw1thstandmg article 53, an appOintment of proxy m relation to the meetmg may be deposited or delivered 1n any manner perrmtted by art1cle 53 11 or 53 1 2 at any t•me not less than 48 hours before any new t1me fixed for hold1ng the meetmg In calculating the 48 hour penod, the board may dec1de not to take account of any part of a day that 1s not a work1ng day 32 Securtiy The board and, at any general meeting, the cha1rman may make any arrangement and 1mpose any reqUirement or restnct1on 1t or he cons1ders appropnate to ensure the secunty of a meetmg mclud1ng, w1thout hm1tat1on, reqUirements for ev1dence of 1denhty to be produced by any person attendmg the meetmg, the search1ng of the1r personal property and the restncllon of 1tems that may be taken 1nto the meetmg place A d1rector or the secretary may refuse entry to a person who refuses to comply w1th these arrangements, reqUirements or restnct1ons They may also arrange for persons to be removed from a meeting Notci e of GeneralMeeti ngs 33 Rec1p1ents of notice Not1ce of a general meeting shall be g1ven to all members (other than any who, under these art1cles or the terms of ISSue of the shares they hold, are not ent1tled to rece1ve such notice from the Company), and to each of the d1rectors and to the aud1tors 34 Period of notice Save as permitted or requ1red by the Statutes, an annual general meet1ng shall be called by not less than 21 days' not1ce, and any other general meetmg by 14 days' not1ce 35 Contents of notice In add1tlon to the prov1s1ons of the Statutes relatmg to the contents of the not1ce of general meetmg (mclud1ng.m relat1on to the place of the meet1ng, by 1denbfymg the pnnc1pal venue and any other place at wh1ch the meetmg IS to be held under article 28), the not1ce shall |
1nclude deta1ls of any arrangements made for the purpose of art1cle 29 (makmg clear that part1c1pabon 1n these arrangements w111 not amount to attendance at the meetmg to wh1ch the notice relates) Proceedings at GeneralMeetings 36 Quorum 36 1 No bus1ness other than the appomtment of a cha1rman shall be transacted at any general meebng unless a quorum IS present at the t1me when the meet1ng proceeds to busmess and dunng the transaction of busmess Two persons entitled to vote upon the bus1ness to be transacted, each bemg a member, the proxy of a member or a duly authonsed representative of a corporat1on wh1ch 1s a member, shall be a quorum 36 2 If w1thm 15 mmutes from the bme fixed for a general meetmg (or such longer t1me as the chairman of the meetmg may th1nk fit to allow) a quorum IS not present, or 1f dunng the meebng a quorum ceases to be present, the meetmg, tf convened on the requ1S1tlon of members,shall be dissolved In any other case, the meetmg shall stand adjourned to such day, place and bme as may have been specified for the purpose m the not1ce conven1ng the meetmg or (1f not so specified) as the cha1rman may determ1ne 36 3 If at such adjourned meet1ng a quorum IS not present W1th1n 15 mmutes from the lime fixed for holdmg the meebng, the meet1ng shall be dissolved 37 Chairman 37 1 The cha1rman of the board (1f any), fallmg whom a deputy chairman (1f any), shall pres1de as cha1rman at a general meeting If there IS no such cha1rman or deputy cha1rman or 1f at any meeting ne1ther 1s present and w1lhng to act w1thm 15 mmutes after the t1me fixed for hold1ng the meebng, the directors present shall choose one of the1r number (or, 1f no director IS present and w1ll1ng to act, the members present and entitled to vote shall choose one of the1r number) to be cha1rman of the meeting 37 2 The cha1rman of the meetmg can take any act1on he cons1ders appropnate for the proper and orderly conduct of the busmess to be earned out at the general meetmg The chairman's dec1s1on on matters of procedure or ansmg rnc1dentally from thP. husrnP.ss of the meet1ng (mclud1ng whether or not a matter falls m these categones) shall be final 38 Adjournments 38 1 The cha1rman of any general meet1ng at wh1ch a quorum 1s present may w1th the consent of the meet1ng (and shall 1f so dtrected by the meebng) adjourn the meeting from t1me to t1me (or for an 1ndefimte penod) and from place to place, but no busmess shall be transacted at any adjourned meeting except busmess wh1ch m1ght lawfully have been transacted at the meeting from wh1ch the adJournment took place 38 2 In add1t1on, the cha1rman may w1thout such consent adjourn the meetmg to another t1me and/or place 1f 1n h1s opm1on |
36 21 3622 382 3 38 2 4 1t 1s or 1s likely to be 1mpracbcable to hold or continue the meetmg because of the number of members WIShing to attend, or the conduct of any persons attending the meetmg prevents or IS likely to prevent the orderly conduct of the bus1ness of the meetmg, or (where a generalmeetmg 1s bemg held at more than one place) the fac1htJes at any such place have become madequate for the purposes referred to 1n arbela 26 2, or adjournment IS otherw1se necessary so that the bus1ness of the meet1ng may be properly conducted 36 3 Noth1ng m this art1cle shall lim1t any other power vested m the cha'"nan to adjourn the meetmg 39 Place and time of adjourned meetings If a meeting 1s adjourned for 30 days or more, or for an mdefimte penod, at least seven days' not1ce shall be g1ven spec1fy1ng the bme and place (or places, m the case of a meebng to wh1ch art1cle 28 applies) of the adjourned meebng and the generalnature of the bus1ness to be transacted Otherwise 1t shalt not be necessary to g1ve any notice of an adjournment or of the bus1ness to be transacted at an adjourned meet1ng 40 Directors' entitlement to attend and speak A d1rector shalt be ent1tled to attend and speak at any general meet1ng or class meeting of the Company notw1thstandmg that he 1s not a member of the Company 41 Resolutions and amendments 41 1 Subject to the Statutes, a resolution may only be put to the vote at a general meetmg 1f the chairman of the meetmg 1n h1s absolute d1scretton dec1des that the resoluhon may properly be regarded as w1th1n the scope of the meeting 41 2 No amendment to a resolution to be proposed as an ord1nary resolution may be considered or voted on (other than a mere clencal amendment to correct a patent error) unless e1ther 41 2 1 41 2 2 at least 46 hours before the t1me f1xed for the meet1ng or adjourned meeting at wh1ch the ordmary resolution 1s to be considered, not1oe of the terms of the amendment and the Intention to move 11has been delivered by means of an Instrument to the office or such other place as may be spec1f1ed by or on behalf of the Company for that purpose, or reoe1ved tn an electrontc communication at such address (1f any) for the t1me betng not1fied by or on behalf of the Company for that purpose, or the chairman 1n h1s absolute d1scret1on dec1des that the amendment may be considered and voted on |
41 3 In the case of a resolut1on to be proposed as a spec1al resolution no amendment may be considered or voted upon, except an amendment to correct a patent error or as may otherw1se be perm1tted by law 41 4 If the chairman rules an amendment to any resolution admiSSible or out of order (as the case may be). the proceed1ngs on the resolution shall not be Invalidated by any error m h1s ruling Any ruling by the cha1rman 1n relation to a resolution or an amendment to a resolution shall be final and conclus1ve 41 5 W1th the consent of the chairman, a person who proposes an amendment to a resolution may w1thdraw 1t before 1t1s put to the vote 42 Methods of vot1ng and demand for a poll 42 1 At any general meet1ng a resolution put to the vote of the meeting shall be dec1ded on a show of hands unless a poll IS (before or 1mmed1ately after the declaration of the result of the show of hands or on the withdrawal of any other demand for a poll) demanded by 42 11the cha1rman of the meet1ng. or 42 1 2 not less than five members present m person havmg the nght to vote on the resolut1on, or 421 3 a member or members present 1n person representing 1n aggregate not less than one tenth of the total votmg nghts of all the members havmg the nght to vote at the meet1ng,or 4214a member or members present m person holding shares tn the Company confernng a nght to vote at the meetmg, betng shares on wh1ch an aggregate sum has been pa1d up equal to not less than one tenth of the total sum pa1d up on all the shares confernng that nght 42 2 The appointment of a proxy to vote on a matter g1ves the proxy the authonty to demand or JOin 1n demandmg a poll on that matter In applymg the prov1s1on of thiS arbela, a demand by a proxy counts for the purposes of art1cle 42 1 2 as a demand by the member, for the purposes of art1cle 42 1 3 as a demand by a member representmg the vot1ng nghts that the proxy IS authonsed to exerc1se, and for the purposes of art1cle 42 1 4 as a demand by a member holding the shares to wh1ch those nghts are attached 43 Conduct of poll and declaration of result 43 1 If a poll 1s demanded before the declaration of the result of a show of hands and the demand IS duly Withdrawn, the meet1ng shall cont1nue as 1f the demand had not been made A demand for a poll may be Withdrawn w1th the consent of the chairman at any lime before the poll IS taken 43 2 Unless a poll IS demanded (and the demand 1s not Withdrawn) a declaration by the cha1rman that a resolut1on has been earned, or earned unammously, or by a particular maJonty, or lost and an entry to that effect m the m1nutes of the meet1ng shall be conclusive |
ev1dence of that fact wrthout proof of the number or proportion of the votes recorded for or agamst the resolution 43 3 If a poll IS demanded (and the demand rs not wrthdrawn), rt shall be taken m such manner as the charrman may drrect A poll demanded on the electiOn of a charrman or on a questron of adjournment shall be taken rmmedrately A poll demanded on any other questton shall be taken erther tmmedrately or at such subsequent trme (betng not more than 30 days after the date of the meebng at whtch the poll was demanded) and place as the charrman may drrect No nobce need be grven of a poll whether taken at or after the meeting at whtch 1t was demanded The result of a poll shall be deemed to be the resolut1on of the meetrng at whrch the poll was demanded 43 4 The charrman may appomt scrutrneers (who need not be members) 43 5 On a poll votes may be grven erther personally or by proxy or (rf the member rs a corporat1on) by the authonsed representative and a person entitled to more than one vote need not use all hrs votes or cast all the votes he used rn the same way 44 Continuance of meeting The demand for a poll shall not prevent the contrnuance of a meetmg for the transact1on of any busrness other than the questron on wh1ch the poll has been demanded Votes of Members 45 Voting rights 45 1 Subject to these art1cles and to any spec1al nghts or restnct1ons as to votmg for the ttme bemg attached to any class of shares tn the Company, on a vote on a resolutton (whether on a show of hands or on a poll) members, therr duly appo1nted proxres and duly authonsed representatives of corporate members shall have voting nghts as prov1ded 1n the Statutes, except that on a vote on a resolut1on on a show of hands at a meetmg a proxy has one vote for and one vote agatnst the resolutton tf the proxy has been duly appotnted by more than one member entttled to vote on the resolution and etther 451 1 the proxy has been mstructed by one or more of those members to vote tn one way and has been rnstructed by one or more other of those members to vote m the other way, or 45 1 2 the proxy has been rnstructed by one or more of those members to vote tn one way and IS g1ven d1scret1on as to how to vote by one or more other of those members and w1shes to use that dtscretton to vote tn the other way 45 2 Noth1ng 1n these artrcles shall have the effect of permrtttng votes to be cast m advance on any resolution on a poll taken at a meetmg 45 3 For the avo1dance of doubt (and w1thout hm1t1ng arttcle 46), arttcle 2 1 3 shall apply to thts arttcle and a member present by proxy shall be deemed to be present tn person |
46 Corporations actmg by representatt ves Any corporation which ts a member of the Company may (by resolution of tis board or other govem1ng body) authonse any person or persons to act as tis representative or representattves at any meebng of the Company, or at any separate meebng of the holders of any class of shares tn accordance w1th the Statutes The board or any director or the secretary may (but shall not be bound to) requtre evtdence of the authonty of any representattve 47 Votes of JOint holders In the case of JOint holders of a share the vote of the sentor who tenders a vote shall be accepted to the excluston of the votes of the other JOtnt holders and for tht s purpose sentonty shall be detemmned by the order tn whtch the names stand 1n the regtster tn respect of the relevant share 48 Members incapable of managtng their affairs A member who tS a patient for any purpose of any statute relatJng to mental health or tn respect of whom an order has been made by any court havtng Junsdtctton (anywhere 1n the world) 1n matters concemtng the protection or management of the affatrs of persons mcapable of managtng thetr own affairs, may vote, whether on a show of hands or on a poll, by h1s committee,rece1ver, curator bonts or other person tn the nature of a committee, recetver or curator bonts appotnted by that court, and any such commrttee, recetver, curator bonts or other person may, on a show of hands or on a poll, vote by proxy Evrdence to the sabsfact1on of the board of the authortty of the person clatmtng the nght to vote shall be depostted at the office, or at such other place (tf any) as ts spectfied for the delivery or recerpt of appotntments of a proxy tn accordance wtlh these arttcles, not later than the last trme by wh1ch the appotntment of a proxy must be delivered or recetved 1n order to be vahd for use at the meet1ng or adjourned meettng or on the hold1ng of the poll at or on wh1ch the person proposes to vote and tn default the nght shall not be exerctsable 49 Calls In arrears Unless the board otherw1se determmes, a member shall not be entttled to vote at a general meebng etther personally or by proxy or (tf the member IS a corporatton) by authonsed representative tn respect of any share held by htm or to exerctse any other nght conferred by membershtp 1n relatton to meettngs of the Company 1f any call or other sum presently payable by htm to the Company 1n respect of that share rematns unpaid 50 Objections to votmg No obJecbon shall be ra1sed as to the qualtflcabon of any person to vote or as to the adm1ss1b1hty of (or excluston of) any vote except at the meettng or adjourned meettng or poll at whrch that vote tS g1ven or tendered Any objection shall be referred 1n due ttme to the chatrman of the meettng and shall only vttJate the dec1ston of the meettng or poll on any resolution 1f the chatrman dectdes that the same may have affected that dec1s1on The deCISIOn of the chatrman on such matters shall be final and conclustve |
! 51 Failure to vote In accordance with Instructions The Company shall have no obligation to enqu1re whether a proxy or corporate representative has voted m accordance with 1nstruct1ons g1ven to h1m by the member or members he represents Any fa1lure by a proxy or corporate representa!tve to vote m accordance w1th mstruct1ons shall not affect the vahd1ty of the vote Proxies 52 Appomtment and form of proxy 52 1 A proxy need not be a member of the Company 52 2 The appointment of a proxy shall not preclude a member from attending and voting m person at the meet1ng or on the poll concerned 52 3 An appomtment of proxy shall be 52 31 by means of an mstrument or contamed 1n an electromc commumcat1on, 52 3 2 in any usual or common form or 1n any other form wh1ch the board may from t1me to t1me approve, and 52 33 be executed by the appomtor or h1s agent or,1f the appo1ntor IS a corporat1on of a duly authonsed officer, attorney or other authonsed person or under 1ts common seal For the purpose of thts art1cle and art1cle 53 an electromc commun1cat10n which contams a proxy appotntment need not compnse wntmg 1f the board so determmes and m such case, 1f the board so determmes, the appointment need not be executed but shall Instead be subject to such cond1tJons as the board may approve 52 4 The board may, 1f 1t thmks f1t,but subject to the StaMes, at the Company's expense send forms of proxy for use at the meetmg and tssue 1nv1tat1ons contamed 1n electromc commumcat1ons to appomt a proxy m relat1on to the meetmg m such form as the board may approve 52 5 A member may appoint more than one proxy m relabon to a meeting, provtded that no more than one proxy IS appomted per share The member must specify the number of shares 1n respect of wh1ch each proxy IS entitled to exerc1se nghts 53 Depos1t of proxy 53 1 Without prejud•ce to art1cle 31 3 the appo1ntment of a proxy shall 53111n the case of an mstrument, be delivered personally or by post to the office or such other place w1thm the Umted Kmgdom as may be spec1fied by or on behalf of the Company for that purpose 53 1 1 1 m the nobce convemng the meetmg, or 22 ---------- |
5311 2 H) any fonn of proxy sent by or on behalf of the Company 1n relabon to the meet1ng, at least 48 hours before the t1me fixed for holding the meeting at wh1ch the person named m the appomtment proposes to vote, or 5312 531 3 5314 10 the case of an appointment contained m an electromc commumcatlon, where an address has been spec1fied by or on behalf of the Company for the purpose of rece1vmg electromc commun1cabons 531 21 m the nobce conven1ng the meetmg, 531 2 2 m any fonn of proxy sent by or on behalf of the Company 1n relation to the meet1ng,or 531 2 3 m any mv1tat1on contamed 1n an electronic commumcat1on to appomt a proxy 1ssued by or on behalf of the Company m relation to the meetmg, be rece1ved at that address not less than 48 hours before the time appomted for holdmg the meetmg at wh1ch the person named m the appomtment proposes to vote, or m either case, where a poll IS taken more than 48 hours after 1t 1s demanded, or m the case of an adJourned meebng to be held more than 48 hours after the t1me fixed for the ong1nal meetmg, be delivered or rece1ved as set out 1n article 53 1 1 or 53 1 2 after the poll has been demanded or meet1ng adjourned at least 24 hours before the t1me appo1nted tor the takmg of the poll or (as the case may be) takmg the meetmg, or 10 the case of an mstrument. where a poll1s not taken at the meeting at wh1ch 1t IS demanded but 1s taken 48 hours or less after 1t was demanded. or m the case of an adJOUrned meetmg to be held 48 hours or less after the t1me fixed for the ongmal meetmg, be delivered at the meetmg at wh1ch the poll was demanded or (as the case may be) delivered at the ongmal meetmg to the cha1rman or to the secretary or to any director or as directed at the meetmg by the cha1nnan, but the board may dec1de to treat a proxy as vahd notw1thstandmg that 11 has not been rece1ved 1n accordance w1th th1s prov1s1on In calculatmg the penods mentioned m thiS art1cle 53 1, the board may dec1de not to take account of any part of a day that 1s not a work1ng day 53 2 Without llm1t1ng articles 52 or 53 1, m relat1on to any shares wh1ch are held 1n uncert1ficated form, the board may from time to time penn1t appointments of a proxy to be made by means of an electromc commumcat1on m the form an Uncert1ficated Proxy Instruction The board may 1n a s1m1lar manner perm1t supplements to,or amendments or revocat1ons of, any such Uncert1ficated Proxy Instruction to be made by hke means The board may 1n |
add1t1on prescnbe the method of determ1mng the t1me at wh1ch any such properly authenticated dematenahsed Instruction (and/or other mstruct1on or notification) IS to be treated as rece1ved by the Company or such participant Notw1thstandmg any other prov1s1on 1n these articles, the board may treat any such UncertJficated Proxy Instruction wh1ch purports to be or 1s expressed to be sent on behalf of a holder of a share as suffic1ent evidence of the authonty of the person sendmg that 1nstruct1on to send 1t on behalf of the holder For the purpose of th1s art1cle. Uncertlficated Proxy Instruction means a properly authenticated dematenalised 1nstruct1on and/or other 1nstruct1on or notification, wh1ch 1s sent by means of the relevant system concerned and rece1ved by such part1c1pant m that system act1ng on behalf of the Company as the board may prescnbe, m such form and subject to such terms and cond1t1ons as may from t1me to t1me be prescnbed by the board (subject always to the fac11it1es and reqUirements of the relevant system concerned) 53 3 In the case of an appointment executed by an agent of a member who IS not a corporation, there shall also be delivered or rece1ved, m the manner set out rn art1cle 53 1, the authonty under wh1ch the appomtment 1s executed or an office copy of 1t or a copy of 1t certified 1n accordance w1th sect1on 3 of the Powers of Attorney Act 1971 In the case of an appOintment s1gned by an officer or other agent of a corporation, the board may also reqUire there to be delivered or rece1ved, m the manner set out m art1cle 53 1, the authonty under wh1ch the appointment IS s1gned, or a notanally certified copy of 1t, or such other authontles or documents as shall be spec1fied m the nobce of the relevant meebng or m any appomtment of proxy 1ssued by the Company 1n connect1on w1th the relevant meetmg 53 4 If the appomtment of proxy 1s not delivered or rece1ved 1n the manner reqUired above, the appointment shall not be treated as vahd and the person named 1n the appomtment of proxy shall not be entitled to vote 1n respect of the shares m question 53 5 No appointment of proxy shall be valrd after the exp1rat1on oif 12 months from the date stated m 1t as the date of 1ts execution, except a power of attorney conta1n1ng a power to act and vote for a member at meetmgs of the Company, and such a power,1f duly notified to the Company once, shall not need to be delivered to or rece1ved by the Company agam 53 6 If two or more valid appo1ntments of proxy are rece1ved m respect of the same share for use at the same meet1ng or on the same poll, the one wh1ch was executed last shall be treated as replacing and revokmg the others, 1f the Company IS unable to determme wh1ch was executed last, none of them shall be treated as valrd 1n respect of that share 53 7 An appomtment of a proxy shall, unless the contrary IS stated on the proxy, be valid as well for any adjournment of the meetmg as for the meetmg to wh1ch 1t relates An appomtment relat1ng to more than one meeting (1ncludmg any adjournment of a meetmg) hav1ng been duly delivered for the purposes of any meeting shall not reqUJre to be delivered aga1n m relat1on to any subsequent meetmgs to wh1ch 1t relates 53 8 An appointment of proxy shall be deemed to mclude the nght to demand or JOin m demanding a poll and to vote on any amendment of a resolution put to the meeting for |
whtch 1t 1s gtven as the proxy thmks fit and to exerctse the nghts to speak at the meetmg of the member or members he represents 54 Termination of authority of proxy A vote gtven or poll demanded by proxy or by an authonsed representative of a corporation shall be vahd notwtthstandtng the prevtous termtnabon of the authonty of the person vottng or demandtng a poll or (until entered 1n the regtster) the transfer of the share 1n respect of whtch the appotntment of the relevant person was made unless notice of the termtnatton or transfer shall have been rece1ved as mentioned 1n the next sentence at least 24 hours before the time fixed for the meetmg or adjourned meeting or (m the case of a poll not taken on the same day as the meet1ng or adjourned meet1ng) the time fixed for the takmg of the poll at whtch the vote IS cast Such notice of termtnatlon shall be e1ther by means of an Instrument delivered to the office or to such other place w1thm the Un1ted K1ngdom as may be specified by or on behalf of the Company 1n accordance w1th arbela 53 1 or contained 1n an electronic communtcabon rece1ved at the address (1f any) specified by or on behalf of the Company m accordance w1th arttcle 53 2 regardless of whether any relevant proxy appointment was effected by means of an Instrument or conta1ned 1n an electronic communication For the purpose of thts art1cle, an electronic commun1cat1on wh1ch conta1ns such nottce of determ1nat1on need not compnse wntmg 1f the board has determmed that the electroniC commun1cat1on whtch conta1ns the relevant proxy appotntment need not compnse wntmg In calculatmg the penod mentioned 1n th1s art1cle 54, the board may dectde not to take account of any part of a day that 1s not a workmg day D1rectors 55 Number of directors The number of dtrectors (other than alternate directors) shall not be less than two or more than 10 The Company may, by ordmary resolutton, from t1me to t1me vary the mm1mum and/or maxtmum number of dtrectors 56 Directors shareholding qualification A dtrector shall not be reqwed to hold any shares of the Company by way of qualificatiOn Appointment and Retirement of Directors 57 Eligibility for election No person other than a dtrector retmng at the meet1ng shall be eligible for appointment as a dtrector at any general meeting unless he IS recommended by the board for election, or unless not less than seven nor more than 42 days before the day appointed for the meetmg there shall have been g1ven to the Company notice, executed by a member (other than the person to be proposed) entitled to attend and vote at the meet1ng, of h1s 1ntenbon to propose such person for appomtment, and also notice 1n wnt1ng s1gned by the person to be proposed of hts Willingness to be elected The nottce to be lodged by the proposmg |
member shall state the parttculars of the nomtnee whtch would, If he were appotnted, be requtred to be mcluded tn the Company's regtster of dtrectors 58 Appointment by ordinary resolution or by directors Subject to these articles, the Company may by ordtnary resolubon appotnt any person to be a dtrector etther to fill a casual vacancy or as an addttlonal dtrector In addttlon, the board may at any bme appotnt any person to be a dtrector etther to fill a casual vacancy or as an addtttonal dtrector In etther case, the total number of dtrectors shall not at any ttme exceed the maxtmum number {tf any) fixed by, or tn accordance w1th, these arttcles Any person so appo1nted by the board shall hold office only unttl the next annual general meetmg and shall then be ehgtble for election, but shall not be taken tnto account tn determ1nmg the number of d1rectors who are to rettre by rotation at such meebng 59 Separate resolutions for appomtment of each director A resolutton of a general meebng for the appomtment of a dtrector shall relate to one named person,a stngle resolutton for the appomtment of two or more persons as dtrectors shall be votd, unless a resolutton that tt shall be so proposed has ftrst been agreed to by the meeting wtthout any vote betng gtven agatnst tt 60 Retirement of dtrectors by rotation At each annual general meettng at least one-thtrd of the dtrectors excludmg those reqUired to retire at that annual general meeting under article 58 or, tf thetr number ts not three or an mtegral multiple of three,the number nearest to but not exceedtng one-th1rd, shall rettre from office 61 Selection of dtrectors to retire 61 1 Subject to the Statutes and these arttcles, the directors to rettre by rotatton shall mclude (so far as necessary to obtam the number requtred) any dtrector who wtshes to retire and not to offer htmself for re-appomtment Any further directors to rettre by rotatton shall be those of the other dtrectors who have been longest tn office smce thetr last appotntment or re-appointment,but as between persons who were last appomted or re-appotnted dtrectors on the same day, those to rettre shall (unless they otherwtse agree among themselves) be determmed by lot 61 2 The dtrectors to ret1re on each occaston shall be determtned by the compostlton of the board at the date of the notice convenmg the annual general meetmg and no dtrector shall be requtred to retire, or be relteved from ret1nng, by reason of any change tn the number or tdenbty of the dtrectors after the date of such nottce but before the close of the meetmg The names of the dtrectors to rettre by rotatton shall be stated tn the nottce of the annual general meetmg or tn any document accompanymg 1t 61 3 A dtrector retmng under arttcle 58 or article 60 shall be ehgtble for re-appomtment |
62 When directors deemed to be re-appointed The Company may at the meeting at wh1ch a d1rector retires under any prov1s1on of these art1cles, by ord1nary resolut1on fill the office bemg vacated by electmg to that office the rebnng d rector or some other person ehg1ble for appomtment In the absence of such a resolution, the rehnng d rector shall, 1f wtlhng to act, be deemed to have been re-appomted unless at the meetmg 1t IS resolved not to fill the vacancy or a resolution for the re appointment of the d rector IS put to the meetmg and lost If the d rector IS not re-appomted or deemed to have been re-appointed, he shall retam office unt1l the meetmg resolves to appo1nt another person m h1s place or not to fill the vacancy, or the resolution to appomt h1m IS put to the meetmg and lost, or otherw1se unt1l the end of the meetmg 63 Additionalpowers of the Company The Company may by spec1al resolution, or by ordinary resolution of wh1ch spec1al not1ce has been g1ven m accordance With the Statutes, remove any director from office notw1thstand1ng any prov1s1on of these art1cles or of any contract between the Company and such d rector (but w1thout preJUdice to any clatm he may have for damages for breach of any such contract) and by ordmary resolution appomt another person 1n place of a director so removed from office, and any person so appomted shall be treated, for the purpose of determmmg the t1me at wh1ch he or any other director IS to retire by rotation, as 1f he had become a d rector on the day on wh1ch the d rector m whose place he IS appomted was last elected a d1rector In default of such appomtment. the vacancy ans1ng upon the removalof a director from office may be filled as a casual vacancy 64 Disqualification of a director The office of director shall be vacated m any of the followmg Circumstances 64 1 he IS removed or proh1b1ted from bemg a d rector under any proviSions of the Statutes or these art1cles. 64 2 he g1ves to the Company notice executed by h1m of h1s w1sh to res1gn, 1n wh1ch event he shall vacate that office on the delivery of that not1ce to the Company or at such later t1me as 1s specified m the notice, 64 3 tf he becomes bankrupt, msolvent or makes any arrangement or compos1tton With h1s cred1tors generally or shall apply to the court for an 1ntenm order under sect1on 253 of the Insolvency Act 1986 m connection w1th a voluntary arrangement under that Act,or 64 4 1f he IS, or may be, suffenng from mental d1sorder and/or e1ther he IS admitted to hospital for treatment, or an order IS made by a court (whether 1n the Un1ted K1ngdom or elsewhere) havmg Junsd1ctton 1n matters concernmg mental disorder for h1s detention or for the appomtment of a recetver, curator bon1s or other person to exerctse powers With respect to h1s property or affa1rs and,1n e1ther case,the board resolves that h1s office be vacated, or 64 5 hav1ng been appomted for a fixed term, the term exp res or h1s office as a d rector IS vacated under article 58, or 27 |
64 6 he 1s absent from meetmgs of the board for SIX consecut1ve months w1thout leave and h1s alternate d1rector (1f any) has not. dunng such penod. attended 10 hiS place and the board resolves that h1s office be vacated, or 64 7 he IS removed from office by not1ce g1ven to h1m and executed by all of h1s co-directors (or the1r alternates), but so that 1n the case of a director hold1ng an executive office wh1ch automatically deterrrunes on h1s ceasmg to be a director such removal shall be deemed an act of the Company and shall have effect w1thout prejudice to any cla1m for damages 1n respect of the consequent termmat1on of h1s executive office 65 Executive office 65 1 The board may appo1nt one or more d1rectors to hold any execulive office (mcludmg the office of cha1rman, manag1ng d1rector or ch1ef execut1ve) on such terms and for such penod (subject to the Statutes) as 1t may determme and may at any t1me revoke or term1nate any such appointment. w1thout preJUdice to any cia1m under any contract entered mto m any particular case 65 2 The appmntment of any d1rector to any execut1ve office specifically referred to m art1cle 65 1 shall automatically determine tf he ceases to be a d1rector but w1thout preJUdice to any cla1m for damages for breach of any contract of serv1ce between h1m and the Company The appointment of any d1rector to any other execut1ve office shall not automatically determme 1f he ceases to be a director, unless the contract or resolut1on under wh1ch he holds or IS removed from off1ce shall expressly state that 1t shall, m wh1ch event that cessation shall be w1thout preJUdice to any cla1m for damages for breach of any contract of serv1ce between h1m and the Company Alternate Otrectors 66 Power to appomt altemate directors Any d1rector (other than an alternate d1rector) may appo1nt any person (mcludmg another director) to be h1s alternate d rector, and may remove h1m from that off1ceThe appomtment as an alternate d1rector of any person who IS not himself a director shall be subject to the approval of the maJonty of the other directors or a resolution of the board Any of the directors may appomt the same alternate drrector 67 Formalities for appointment and termination 67 1 Every appointment and removal of an alternate director shall be made by not1ce to the Company executed by the director mak1ng the appointment or removal (or 1n any other manner approved by the board) and shall, be effect1ve (subJect to art1cle 66) on rece1pt of such notice by the Company wh1ch shall, 1n the case of a not1ce conta1ned rn an mstrument. be at the office or at a board meet1ng or m the case of a notice contamed m an electronrc communrcatron be at such address (1f any) for the t1me be1ng not1fied by or on behalf of the Company for the purpose |
67 2 The appomtment of an alternate director shall determine on the happenmg of any event wh1ch, 1f he were a d1rector, would cause h1m to vacate such office or 1f h1s appomtor ceases to be a d1rector (otherw1se than by ret1rement by rotation or otheiWise at a general meebng at wh1ch he IS re-appointed or deemed to be re-appomted) or 1f the approvalof the d rectors to h1s appointment IS Withdrawn 67 3 An alternate director may, by g1vmg notice to the Company, executed by h1m, res1gn such appointment 68 Alternate to receive notices An alternate director shall be entitled to rece1ve not1ces of board meetmgs and of all meetmgs of comm1ttees of wh1ch the director appo1nbng h1m IS a member to the same extent as the d rector appo1ntmg h1m and shall be entitled to attend and vote as a director and be counted for the purposes of a quorum at any such meetmg at wh1ch the d rector appomtlng h1m IS not personally present, and generally at such meetmg, to exerc1se and discharge all the funct1ons, powers and duties of h1s app01ntor as a directorFor the purposes of the proceedings at such meet1ng, these art1cles shall apply as 1f he (mstead of h1s appomtor) were a d rector If he shall h1mself be a director, or shall attend any such meeting as an alternate for more than one director, h1s voting nghts shall be cumulative but he shall count as only one for the purpose of determ1n1ng whether a quorum IS present If h1s appointor IS for the time be1ng absent from the Umted Kmgdom, or temporanly unable to act through Ill-health or d1sab1hty, h1s s1gnature to any resolution 1n wntlng of the d1rectors shall be as effect1ve as the s1gnature of h1s appointor An alternate d1rector shall not (save as aforesaid) have power to act as a d1rector nor shall he be deemed to be a d1rector for the purposes of these art1cles 69 Alternate may be paid expenses but not remuneration An alternate director shall be entitled to be repaid expenses, and to be mdemmfied, by the Company to the same extent as 1f he were a director, but he shall not be entitled to rece1ve from the Company any remuneration 1n respect of h1s serv1ces as an alternate director, except such proportion (1f any) of the remuneration otherw1se payable to h1s appomtor as such appo1ntor may by nobce to the Company from time to t1me d1rect 70 Alternate not an agent of appointor Except as otherw1se expressly prov1ded m these articles, an alternate director shall be subJect m all respects to these articles relatmg to directors Accordmgly, except where the context otherwise requ1res, a reference to a d1rector shall be deemed to mclude a reference to an alternate director An alternate d1rector shall be responsible to the Company for h1s own acts and defaults and he shall not be deemed to be the agent of the d1rector appomt1ng h1m |
Remuneration, Expenses and Pensions 71 Directors' fees The fees of the directors for the1r serv1ces as d1rectors shall not exceed 1n aggregate £200,000 1n any financ1al year (or such higher amount as the Company may from to t1me by ordtnary resolutton determtne) Subject to th1s ltm1 t each d1rector who does not hold an execut1ve office or employment wtth the Company or a subs1d1ary of the Company shall be pa1d a fee (to accrue from day to day) at such rate as IS from t1me to t1me determtned by the board Any fee payable under th1s article 71 shall be d1stmct from any remuneration payable by the Company to executtve drrectors under serv1ce agreements or other amounts payable to a d1rector under other prov1s1ons of these artrcles 72 Directors' remuneration Any director who holds any executive office (lncludtng for th1s purpose the office of cha1rman or deputy chairman whether or not such office IS held 1n an execut1ve capactty) or who serves on any comm1ttee or who acts as trustee of a retirement benefits scheme or employees' share scheme or who otherwise performs serv1ces wh1ch. 1n the op1nton of the board are beyond the ordinary duties of a d1rector may be pa1d such extra remuneration by way of salary, comm1ss1on or otherw1se as the board may determtne Any payment of a k1nd descnbed tn th1s art1cle 72 shall not be regarded as a fee falling w1thtn the prov1s1ons of art1cle 71 73 Expenses The Company w1ll pay to any d1rector all proper and reasonable expenses mcurred by h1m m attendmg and return1ng from meet1ngs of the d1rectors or of any committee or general meetings or otherw1se 1n connection w1th the busmess of the Company or 1n the performance of hts dulles as a d1rector 74 Pensions and other benefits The board shall have power to pay, provide or procure the grant of retirement, death or d1sab1hty benefits, annu1!1es or other allowances, emoluments,benefits or gratwttes to any person who IS or has been at any t1me d1rector of, or 1n the employment or serv1ce of, the Company or of any other undertakmg wh1ch ts or was at some 11me 74 1the parent undertakmg of the Company, or 74 2 a subs1d1ary undertaktng of the Company or of such parent undertaking, or 74 3 otherw1se assoc1ated wtth the Company or any such parent or subs1d1ary undertakmg, or of the predecessors 1n bustness of the Company or of any such parent or subs1d1ary undertaking or assoctate and to the famthes and other relatives or dependants of any such person For that purpose the board may establish and ma1nta1n or part1c1pate 1n or contnbute to any trust, scheme, assoc1at1on, arrangement or fund or pay prem1ums |
General Powers of Directors 75 Business to be managed by the directors The busmess and affairs of the Company shall be managed by the board whtch, subject to the Statutes, these arttcles and any dtrectlons gtven by ordmary resolution, may exerctse all the powers of the Company No alteration of these arttcles and no such resolution shall tnvahdate any pnor act of the board wh1ch would have been vahd tf that alteration had not been made or that resolution had not been passed The general powers g1ven by lhts arttcle shall not be hm1ted by any speCial authonty or power gtven to the board by these articles or any resolution of the Company 76 Provtsion for employees The board may exerctse any of the powers conferred by the Statutes to make prov1s1on for the benefit of any persons employed or formerly employed by the Company or any of 1ts substdlanes m connection w1th the cessation or the transfer to any person of the whole or part of the undertakmg of the Company or any of tis substdlanes 77 Localboards 77 1 The board may make such arrangements as they thmk fit for the management and transaction of the Company's affairs m any spectfied locality, whether tn the Umted Kingdom or elsewhere, and, Without prejudice to the generality of the foregomg, may 7711establish any d1v1s1onal or local boards, commtttees or agenc1es for manag1ng any of the affairs of the Company and may appomt any one or more of the directors, or any other persons, to be members of such boards, commtttees, or agenc1es, or to be managers or agents.and may fix the1r remuneratiOn, 771 2 delegate to any dtvtstonal or localboard or commtttee, manager or agent any of tis powers, authontles and dtscrettons (wtth power to sub-delegate), 771 3 authonse the members of any dtVIStonal or localboards or commtttees or any of them to fill any vacanctes 1n them,and to act nolwtlhstandmg vacanc1es 77 2 Any such appotntment or delegatton may be made upon such terms and subject to such condthons as the board thtnks fit, and the board may remove any person so appomted, and may revoke or vary any such delegatton,but no person dealing 1n good fatth shall be affected by the revocatton or vanatlon 78 Powers of attorney and agents The board may, by power of attorney or otherwise, appotnt any person to be the agent of the Company for such purposes and w1th such powers, authont1es and d1screttons (not exceeding those vested m the board) and on such terms as the board determines and may delegate to any person so appotnted any of tts powers, authonttes and dtscrehons (wtlh power to sub-delegate) Any such appotntment may conta1n such provtslons for the protection and convemence of persons dealtng wtth any such attorney as the board may |
·----------------.-th1nk fit The board may revoke or vary such appomtment, but no person dealing m good fa1th shall be affected by the revocation or vanat1on 79Signature on cheques, etc All cheques, prom1ssory notes, drafts, b1lls of exchange, and other negobable or transferable Instruments, and all receipts for moneys pa1d to the Company, shall be s1gned, drawn, accepted, endorsed, or otherw1se executed, as the case may be, m such manner as the board (or any duly authonse<l comm1ttee of the board) shall from time to time determme Directors' Interests 80Director may have mterests 80 1 For the purpose only of articles 81 to 87 below 80 1 1 a conf11ct of 1nterest 1ncludes a conflict of 1nterest and duty and a conflict of duties, 801 2 an mterest means a d1rect or an 1nd1rect mterest, 801 3 an 1nterest, transaction or arrangement of wh1ch a d1rector IS aware mcludes an mterest, transaction or arrangement of wh1ch that d1rector ought reasonably to be aware 81 Power of the board to authorise conflicts of mterest 81 1The board may authonse any matter proposed to It 1n accordance With these articles whtch would, 1f not so authonsed, 1nvolve a breach by a dtrector of h1s duty to avo1d conflicts of 1nterest under the Statutes, 1nclud1ng, Without 1tm1tat1on, any matter wh1ch relates to a s1tuat1on (a relevant situation) 1n which a d1rector has, or can have, an mterest whtch confl1cts, or poss1bly may conflict, w1th the mterest of the Company or the explo1tat1on of any property, 1nformatton or opportunity, whether or not the Company could take advantage of 1t, but excludmg any Interest wh1ch cannot reasonably be regarded as likely to g1ve nse to a conflict of mterest The prov1s1ons of th1s art1cie do not apply to a conflict of mterest ansmg m relat1on to a transaction or arrangement wtth the Company 81 2 Any such authonsat1on w1ll be effect1ve only 1f 81 21 any reqwement as to quorum at the meetmg at whtch the matter IS considered IS met Without countmg the dtrector m quesbon or any other mterested director, and 81 2 2 the matter was agreed to Without thetr vot1ng or would have been agreed to 1f the1r votes had not been counted |
81 3 The board may (whether at the t1me of the g1v1ng of the authonsatiOn or subsequently) make any such authonsatlon subject to any hm1ts or cond1t1ons It expressly Imposes but such authonsatlon IS otherw1se g1ven to the fullest extent perm1tted 81 4 The board may vary or termmate any such authonsabon at any t1me 81 5 Prov1ded that art1cle 82 IS complied w1th, a director, notw1thstand1ng h1s office 81 51 may be a party to or otherw1se be Interested 1n any transaction or arrangement w1th the Company or 1n which the Company 1s otherwise Interested, 81 52 may hold any other office or place of profit under the Company (except that of aud1tor or of aud1tor of a subs1d1ary of the Company) m conjunction w1th the office of director and may act by himself or through h1s firm m a profess1onal capac1ty for the Company, and m any such case on such terms as to remuneration and otherw1se as the board may arrange, e1ther m add1t1on to or m lieu of any remuneration prov1ded for by any other art1cle, and 81 53 may be a director or other officer of, or employed by, or a party to any transaction or arrangement w1th or otherw1se mterested 1n, any company promoted by the Company or 1n wh1ch the Company IS otherw1se mterested or as regards wh1ch the Company has any powers of appomtment 81 6 The board may cause the votmg nghts conferred by the shares m any company held or owned by the Company to be exerc1sed 1n such manner 1n all respects as they th1nk fit (1nclud1ng Without hm1tat1on the exerc1se of that power m favour of any resolution appomtmg the directors or any of them as d1rectors or officers of (or 1n any other pos1t1on m) such company, or votmg or prov1dmg for the payment of any benefit to the d1rectors or officers of,or holders of any other pos1t1on 1n, such company) 81 7 Prov1ded the acceptance, entry mto or ex1stence of 1t has been approved by the board under art1cle 81 1 or 1t comes w1thm art1cle 81 5, a director, notw1thstand1ng h1s office, shall not be hable to account to the Company for any profit, remuneration or other benefit realised by any office or employment or from any transaction or arrangement or from any Interest 1n any body corporate, no such transactiOn or arrangement shall be liable to be avo1ded on the grounds of any such mterest or benefit nor shall the rece1pt of any such profit, remuneration or any other benefit const1tute a breach of h1s duty under the Statutes not to accept benefits from third part1es 82 Declaration of mterests 82 1 A d1rector shall declare the nature and extent of h1s mterest 1n a relevant s1tuat1on Within art1cle 81 1 to the other directors 82 2 A director who 1s aware that he 1s m any way Interested 1n a proposed transact1on or arrangement w1th the Company must declare the nature and extent of h1s mterest to the other d rectors |
82 3 A director who 1s aware that he IS 1n any way mterested m a transaction or arrangement that has been entered 1nto by the Company must declare the nature and extent of h1s mterest to the other d1rectors, unless the Interest has already been declared under art1cle 82 2 82 4 The declaration of mterest must (m the case of art1cle 82 3) and may, but need not (m the case of art1cle 82 1 or 82 2), be made 82 41 at a meetmg of the directors, or 824 2 by generalor spec1fic notice to the d1rectors m accordance w1th the Statutes 82 5 If a declaration of mterest proves to be, or becomes, maccurate or mcomplete, a further disclosure must be made 82 6 Any declaration of mterest reqUired by article 82 1 above must be made as soon as reasonably practicable Failure to comply w1th th1s requirement does not affect the underlying duty to make the declaration of 1nterest 82 7 Any declaration of Interest requ1red by art1cle 82 2 above must be made before the Company enters 1nto the transaction or arrangement 82 8 Any declarat1on of mterest reqUired by art1cle 82 3 above must be made as soon as reasonably practicable 82 9 For the purposes of art1cles 82 2 and 82 3 and, 10 the case of art1cle 82 9 1 only, art1cle 82 1, a director need not declare an 1nterest 82 91 1f 1t cannot reasonably be regarded as likely to g1ve nse to a conflict of 10terest. 82 92 1f,or to the extent that, the other directors are already aware of 1t. or 82 931f, or to the extent that, 1t concerns terms of h1s serv1ce contract that have been or are to be considered 82 9 3 1by a meetmg of the directors, or 82 9 3 2 by a comm1ttee of the d1rectors appomted for the purpose under these art1cles 83 Entitlement to keep information confidential 83 1 A d1rector shall be under no duty to the Company with respect to any 1nformat1on wh1ch he obta1ns or has obtamed otherw1se than as a d1rector of the Company and 10 respect of wh1ch he has a duty of confidentiality to another person However, to the extent that h1s relat1onsh1p w1th that other person g1ves nse to a confl1ct of 1nterest or possible conflict of 10terest, th1s article applies only 1f the ex1stence of that relat1onsh1p has been approved by the board pursuant to art1cle 81 1 In part1cular, the d1rector shall not be 10 breach of the general dut1es he owes to the Company under the Statutes because he falls |
83 11 83 1 2 to dtsclose any such tnformatton to the board or to any dtrector or other offtcer or employee of the Company, and/or to use or apply any such mformatton m performtng hts duttes as a dtrector of the Company 84 Avoiding conflicts of interest 84 1 Where the existence of a director's relatJonshtp w1th another person has been approved by the board pursuant to arttcle 81 1 and hts relationship wtth that person gtves nse to a conf11ct of Interest or possible conflict of mterest, the director shall not be m breach of the general duttes he owes to the Company under the Statutes because he 84 11 84 1 2 absents htmself from meettngs of the board at wh1ch any matter relattng to the conf11ct of Interest or possible confltct of mterest Wlll or may be d1scussed or from the dtscuss1on of any such matter at a meet1ng or otherw1se, and/or makes arrangements not to rece1ve documents and mformatton relatmg to any matter whtch gtves nse to the confltct of 1nterest or poss1ble conflict of mterest sent or supplied by the Company and/or for such documents and mformatlon to be recetved and read by a professtonal advtser, for so long as he reasonably believes such conflict of tnterest or posstble confltct of mterest subststs 85 Overriding principles 85 1 The prov1s1ons of articles 83 and 84 are w1thout preJUdice to any equitable pnnctple or rule of law wh1ch may excuse the director from 85 11 85 1 2 dtsclosmg tnformatton 1n ctrcumstances where disclosure would otherwtse be requ1red under these articles, or attendtng meet1ngs or dtscusstons or rece1vmg documents and mformat1on as referred to 1n article 82, 1n Circumstances where such attendance or recetvmg such documents and 1nformat1on would otherwtse be required under these arttcles 86 Directors' powers to vote 86 1 A dtrector shall not vote {or be counted 1n the quorum at a meettng) 1n respect of any resolutiOn concemtng hts own appomtment (tncludmg fix1ng or varymg the terms of appomtment), or the termmabon of the appotntment, or as the holder of any office or place of profit wtth the Company or any undertaking 1n whtch the Company IS Interested Where proposals for such resolutions relate to two or more directors, those proposals may be d1v1ded and a resolubon may be put m relation to each dtrector separately and 1n such case each of the dtrectors concerned (1f not otherwtse debarred from voting) shall be entttled to vote {and be counted m the quorum) 1n respect of each resolutton, except that concem1ng htm |
86 2 W1thout hm1bng article 86 1 (and save as provided 1n art1cle 86 4},a d1rector shall not vote (or be counted 1n the quorum} rn respect of any contract or arrangement or any other proposal rn wh1ch he has an Interest wh1ch (together w1th any 1nterest of any person connected w1th h1m} IS to h1s knowledge a matenal mterest otherw se than by v1rtue of h1s rnterests 1n shares or debentures or other secuntres of, or otherwise rn or through, the Company 86 3 If any quest1on anses at any meet1ng as to the matenahty of a director's Interest, or as to the entitlement of any director to vote, and such question IS not resolved by hiS voluntanly agree1ng to abstain from vot1ng, such question shall be referred to the cha1rrnan of the meet1ng (or, 1f the d1rector concerned IS the cha1rman, to the other directors at the meeting} and h1s ruling m relat1on to any d1rector other than h1mself (or, as the case may be, the ruhng of the maJonty of the other d1rectors m relation to the cha1rman) shall be final and conclusive, except 1n a case where the nature or extent of the mterests of the director concerned, so far as known to h1m,has not been fa1rly disclosed 86 4 The proh1b1l10n 1n art1cles 86 1 and 86 2 shall not apply and a d1rector may (m the absence of some other materral Interest) vote and be counted 1n the quorum m respect of any resolution concem1ng any of the followmg matters 8641 864 2 864 3 864 4 the g1vmg of any guarantee. securrty or 1ndemnrty 1n respect of 86 41 1 money lent or obligations 1ncurred by him or by any other person at the request of, or for the benefit of, the Company or any of 1ts subs1d1ary undertakmgs, 86 41 2 a debt or obhgat1on of the Company or any of 1ts subs1d1ary undertakings for wh1ch he himself has assumed responsibility (1n whole or rn part and whether alone or JOmtly w1th others} under a guarantee or rndemnrty or by the g1v1ng of secunty, any contract concernmg the subscnpt1on or purchase by h1m of shares, debentures or other secunt1es of the Company under an offer or 1nv1tabon to members or debenture holders of the Company, or any class of them, or to the public or any sect1on of them, any contract concernmg any 1ssue or offer of shares or debentures or other secuntles of or by the Company or any of 1ts subs1d1ary undertakrngs for subscnpt1on or purchase, 1n respect of wh1ch he IS or may be entitled to part1e pate 1n h1s capac1ty as a holder of any such secunbes or as an underwnter or sub-underwrrter, any contract concern1ng another company 1n wh1ch he IS mterested, d1rectly or md1rectly, and whether as an officer or member or otherw1se, prov1ded that he does not hold an rnterest (as the term IS used 1n Part 22 of the 2006 Act) representing one per cent or more of any class of the equ1ty share cap1tal of such company (or of any th1rd company through which h1s rnterest IS denved |
and calculated exclus1ve of any shares of that class m that company held as treasury shares) or of the voting nghts available to members of the relevant company (any such 1nterest bemg deemed for the purposes of th1s art1cle to be a matenal1nterest m all Circumstances), 8645any contract for the benefit of employees of the Company or of any of 1ts subs1d1ary undertakmgs wh1ch does not accord to h1m any pnv1lege or benefit not generally accorded to the employees to whom the contract or arrangement relates, 8646any contract concernmg the purchase or maintenance of msurance e1ther for or for the benefit of any d1rector or for persons who 1nclude directors, 864 7 any proposal for the Company (1) to prov1de h1m w1th an 1ndemmty perm1tted by the Statutes, (2) to prov1de h1m w1th funds m Circumstances perm1tted by the Statutes to meet h1s defence expenditure m respect of any CIVIl or cnmmat proceed1ngs or regulatory mvest1ga!Jon or other regulatory act1on or 1n connect1on w1th any application for any category of relief perm1tted by the Statutes, or (3) to do anythmg to enable h1m to avo1d mcurnng any such expenditure 87 Relaxation of provisions Subject to the Statutes, the Company may by ordmary resolution suspend or relax the proviSions of art1cles 80 to 86 to any extent or ratify any transact1on not duly authonsed by reason of a contravention of these art1cles Proceedings of the Board 88 Board meetings 88 1 SubJeCt to the proviSions of these articles, the board may meet for the despatch of business, adjourn and otherw1se regulate 1ts mee!Jngs as 1t th1nks fit A director may, and the secretary at the request of a director shall, at any time summon a board meeting 88 2 Not1ce of a board meetmg shall be deemed to be properly g1ven to a director 1f 1t IS g1ven to h1m personally or by word of mouth or sent by 1nstrument to h1m at h1s last known address or any other address g1ven by h1m to the Company for thiS purpose or g1ven usmg electromc commun1cat1ons to such address (1f any) for the t1me bemg notified by h1m or on h1s behalf to the Company for that purpose A director absent or mtend1ng to be absent from the Umted K1ngdom may request that not1ces of board meetings shall, dunng h1s absence, be sent by mstrument or us1ng electronic commun1cat1on to h1m at an address g1ven by h1m to the Company for th1s purpose but, m the absence of any such request, 1t shall not be necessary to g1ve not1ce of a board meetmg to any d1rector for the t1me be1ng absent from the Umted K1ngdom A d1rector may wa1ve not1ce of any meetmg e1ther prospectively or retrospectively |
88 3 W1thout hm1tmg the first sentence of art1cle 88 1, a board meetmg of the d1rectors may cons1st of a conference between directors who are not allm one place, prov1ded that each director who part1c1pates 1s able, directly or by telephoniC or other communication (whether m use when these articles are adopted or developed subsequently), to speak to each of the others and to be heard by each of the others Simultaneously A d1rector takrng part m such a conference shall be deemed to be present m person at the meeting and shall be entitled to vote or be counted 1n a quorum accordingly Such a meet1ng shall be deemed to take place where the largest group of those part1c1patmg 1n the conference 1s assembled, or, 1f there IS no such group, at the place from where the cha1rman of the meeting part1c1pates 89 Quorum, competence and voting The quorum necessary for the transaction of the busmess of the board may be fixed by the board and, unless so fixed at any other number, shall be two A board meetmg at wh1ch a quorum IS present shall be competent to exerc1se all powers and d1scre1Jons for the time bemg vested m or exercisable by the board Questions ans1ng at any meetmg shall be determmed by a majonty of votes In case of an equality of votes,the cha1rman of the meet1ng shall have a second or cast1ng vote 90 Power of directors If number falls below minimum The continUing directors or director at any t1me may act notw1thstandmg any vacanc1es 1n the1r number, but 1f, and so long as, the number of directors IS less than the number fixed as the necessary quorum for board meetings, the conbnUJng d1rectors or director may act for the purpose of filling up such vacanc1es or calhng general meet1ngs of the Company, but not for any other purpose If there are no directors or d1rector able or w1lllng to act. then any two members may call a general meetmg for the purpose of appointing d1rectors 91 Cha1rman The board may appo1nt a cha1rman and one or more deputy cha1rmen and determine the penod for which each IS to hold off1ce The board may also revoke any such appo1ntment The chairman or, m h1s absence, any deputy chairman (determined as between the deputy cha1rmen present (1f more than one) by semonty m length of appointment or otherwise as resolved by the board) shall pres1de at board meetings If no cha1rman or deputy cha1rman shall have been appOinted, or 1f at any meeting none of them be present w1thm five mmutes after the lime fixed for hold1ng the meet1ng or IS w1111ng to act as chairman of the meetmg, the directors present may choose one of their number to be cha1rman of the meeting 92 Resolutions in writing A resolution m wntmg, executed by all the directors entitled to not1ce of and to vote at a board meetmg (provided that the1r number 1s suffic1ent to const1tute a quorum) shall be as valid and effective as a resolution passed at a board meet1ng duly convened and held For th1s purpose |
92 1 a resolutton may be by means of an mstrument or contatned 1n an electrontc commun1cat1on sent to such address (If any) for the t1me be1ng notified by the Company for that purpose, 92 2 a resolubon may cons1st of several 1nstruments or several electromc communications, each executed by one or more d1rectors, or a comb1nallon of both. 92 3 a resolution executed by an alternate director need not also be executed by h1s appomtor, and 92 4 a resolution executed by a dtrector who has appointed an alternate director need not also be executed by the alternate director 1n that capac1ty 93 Delegation of powers 93 1 The board may entrust to and confer upon any d1rector any of 1ts powers, authonlles and d1screttons (w1th power to sub-delegate) on such terms and cond1t1ons and w1th such restncttons as 1t thinks f1t,and e1ther collaterally w1th, or to the exclus1on of,1ts own powers, and may revoke, Withdraw or vary all or any of such powers 93 2 Without hmttlng article 93 1, the board may delegate any of 1ts powers, authont1es or d1scret1ons to a comm1ttee Any such comm1ttee shall, unless the board otherwise resolves, have power to sub-delegate to any sub omm1ttees any of the powers or d1scret1ons delegated to 11 Any such comm1ttee or sub-committee shall cons1st of one or more of the d1rectors and (1f thought fit, and subject to arttcle 93 3) one or more other persons co-opted to the comm1ttee or sub mm1ttee Any such delegation shall be made on such terms and cond1t1ons as the board thinks f1t,and may be revoked or altered 93 3 Any committee or sub-comm1ttee so formed shall, m the exerctse of the powers so delegated, conform to any regulations wh1ch may be Imposed on 11by the board Any such regulations may prov1de for, or authonse, the co-opbon to the comm1ttee or sub omm1ttee of persons other than d1rectors and for such co-opted members to have voting nghts as members of the comm1ttee or sukomm1ttee prov1ded that the maJonty of the members of the committee or sub mm1ttee are directors, and no resoluhon of the comm1ttee or sub committee shall be effective unless a majonty of the members of the comm1ttee or sub committee present at the meetmg are directors or alternates of dtrectors 04 Proceedings of committees The meetings and proceedings of any such committee or sub-committee Wlth two or more members shall be governed by any regulations made by the board under article 93 3 and (subject to any such regulations) the proviSIOns of these art1cles regulating the meetmgs and proceedmgs of the board so far as the same are applicable 95 Validity of proceedings in spite of formaldefect All acts done by a meetmg of the board or of any comm1ttee or sub omm1ttee or by a person acbng as a dtrector or a member of a comm1ttee or sub-committee shall,as regards |
all persons dealing m good fa1th w1th the Company, notw1thstandmg that there was some defect 1n the appotntment or contmuance tn office of any member of the board or comm1ttee or sub-comm1ttee or person so actmg, or that they or any of them were d1squahfied or had vacated office. or were not ent1tfed to vote, be as vahd as tf every such person had been duly appointed and was qualified to be, and had continued to be, a d1rector or member of the committee or sub-comm11tee and had been enbtled to vote Borrowing Powers 96 Generalpower to borrow Subject as provtded m th1s article, the board may exerc1se all the powers of the Company to borrow money and to mortgage or charge all or any part of tts undertaking, property, assets (present and future) and uncalled cap1tal and, subject to and 1n accordance w1th the Statutes, to 1ssue debentures and other secunt1es, whether outnght or as collateral securtty for any guarantee, debt. hab1hty or obhgatton of the Company or of any th1rd party 97 Maximum limit on borrowmgs The board shall restnct the borrowtngs of the Company and exerc1se all voting and other nghts or powers of control exercisable by the Company rn relatron to r ts subsrdrary undertakings (rf any) so as to secure (but as regards substd1ary undertakrngs only so far as by such exercrse rt can secure) that the aggregate pnncrpal amount of all borrowrngs by the Group outstandmg at any t1me (exclusrve of any borrowrngs whrch are owed by any Group company to another Group company and subject to artrcles 98 2 and 98 5 below) shall not Without the prevrous sanct1on of an ordmary resolution of the Company exceed an amount equal to three trmes the Adjusted Cap1tal and Reserves 98 Interpretation of articles 97 to 102 98 1 For the purposes of the prov1s1ons of these art1cles relating to borrowtng powers 98 11 Adjusted Capital and Reserves shall mean the aggregate of 981 1 1 the amount pa1d up or cred1ted as pa1d up on the Issued share cap1tal of the Company and on any share caprtal that has been uncondlttonally allotted but not tssued,and 9811 2 the amounts stand1ng to the credit of the reserves of the Group (tncludtng any share prem1um account, cap1tal redemption reserve and revaluatron reserve) after add1ng any credrt balance or deductrng any debrt balance on the profit and Joss account, as shown tn the Latest Accounts but after 9811 3 maktng such adjustments as may be appropnate to reflect any vanaltons s1nce the date of the Latest Accounts rn such share caprtal or reserves and so that for th1s purpose 1f the Company proposes to 1ssue or has 1ssued any shares for cash and the 1ssue |
has been underwntten or agreed to be subscnbed or taken up then these shares shall be deemed to have been allotted and the amount (mcludmg any prem1um) of the subscnptlon moneys or consideration payable (not be1ng moneys payable later than s1x months after the date of allotment) shall be deemed to have been pa1d up on the date when the 1ssue of such shares was underwntten or agreed to be subscnbed or taken (or 1f such underwnbng or subscnptlon or purchase was conditional, on the date when 1t becomes uncond1t1onal), 981 1 4 98 11 5 98 1 1 6 98 1 1 7 makmg such adjustments as may be appropnate to reflect any vanabons smce the date of the Latest Accounts 1n the mterests of the Company m 1ts subs1d1ary undertakmgs (mcludmg any undertakmg wh1ch was not a subs1d1ary undertakmg at that date but wh1ch 1s so as at the relevant lime) and any undertakmg wh1ch was a subs1d1ary undertakmg at the date of the latest accounts but wh1ch IS no longer so at the relevant t1me and any vanabons as a result of the transaction 1n relation to wh1ch the calculation falls to be made, excludmg any sums attnbutable to outside 1nterests m any subs1d1ary undertakmg, deductmg any d1stnbutlons declared, recommended or made by a Group company (to a person other than another Group company) out of profits earned up to and mcludmg the date of the Latest Accounts (to the extent that any such d1stnbut1ons are not provided form such Accounts), mak1ng such other adjustments (1f any) as the aud1tors may consider appropnate, 98 1 2 borrowings shall, subJect to articles 98 1 2 8 to 98 1 2 12 be deemed to Include the follow1ng 981 2 1 98 1 2 2 the pnnc1pal amount for the t1me bemg outstanding and owmg by a Group company 1n respect of any debenture whether 1ssued for cash or otherw1se other than a debenture for the t1me bemg owned by a Group company, the pnnc1pal amount ra1sed by tho Group company by acceptances under any acceptance cred1t opened on 1ts behalf and m 1ts favour by any bank or acceptmg house (not bemg acceptances m respect of the purchase or sale of goods or the prov1s1on of serv1ces 1n the ordmary course of bus1ness wh1ch are outstandmg for s1x months or less), |
98 1 2 3 9812 4 981 2 5 981 2 6 981 2 7 the nomtnal amount of any share capttal and the pnnctpal amount of any debenture or borrowmgs of any person to the extent that the payment or redemption or repayment IS the subject of a guarantee or tndemmty or secunty g1ven by a Group company or which any Group company may be requtred to purchase but excludmg any such share cap1tal wh1ch IS for the t1me be1ng beneficially owned by, and any such borrowtngs wh1ch are for the t1me be1ng owed to, a Group company, the nomtnal amount of any share cap1tal (other than equrty share cap1tal) of any subs1d1ary undertaking owned otherw1se than by any Group company, any fixed or m1n1mum prem1um payable on final redemption or repayment of any debentures, share capttal or other borrowtng or deemed borrowtngs falling to be taken mto account, any amount m respect of a finance lease payable by a Group company whtch would be shown as bemg so payable m a balance sheet prepared m accordance wtth the accounting pnnc1ples used 1n the preparation of the Latest Accounts, and any part of the purchase pnce of any asset acqurred by any Group company, the payment of wh1ch IS deferred beyond the date of completion of the conveyance, assignment or transfer of the legal t1tle to such assets, or, 1f no such conveyance, ass1gnment or transfer IS to take place w1thm stx months after the date on wh1ch the contract for such purchase 1s entered 1nto or (1f later) becomes uncond1tronal, beyond that date, but to exclude the follow1ng 981 28 98 1 2 9 borrowmgs by a Group company to f1nance any contract 1n respect of wh1ch any part of the pnce rece1vable under the contract by that or any other Group company IS guaranteed or Insured by any government, governmental agency or body or by a person (not bemg a Group company) carrymg on the busmess of prov1d1ng cred1t msurance, up to an amount equal to that part of the pnce rece1vable under the contract wh1ch IS so guaranteed or Insured, borrowings by a Group company before. and outstanding after, 1t becomes a subs1d1ary undertakmg of the Company and amounts secured on an asset before, and rema1nmg so secured after, 1t IS acqUired by a Group company unt1l SIX months after the undertakmg becomes a subs1d1ary undertakmg or the asset 1s acqurred,as the case may be, |
98 1 2 10 any guarantee or mdemmty g1ven by any Group company m respect of any amount or obligation deemed not to be moneys borrowe.d under th1s art1cle, 98 1 2 11 any amount payable under any h1re purchase agreement, cred1t sale agreement, operating lease or Similar agreement wh1ch ts not a finance lease for the purposes of art1cle 98 1 2 6 above,and 98 1 2 12 borrowings mcurred by a Group company for the purposes of repaymg w1th1n s1x months of the borrowmg all or any part of any borrow1ng made by 11 or another Group company, pendmg the1r applicatiOn for that purpose dunng the penod, 981 3 981 4 981 5 981 6 981 7 Excepted Foreign Currency Borrowmgs means borrowmgs denominated or repayable 1n a currency other than ster11ng wh1ch have the benefit of an HM Treasury exchange cover scheme, forward currency contract, currency option, back-to-back loan, swap or other arrangement taken out or entered mto to reduce the nsks assoc1ated w1th fluctuabons m the exchange rates, Group means the Company and 1ts subs1d1ary undertakmgs from t1me to time and Group company means any undertakmg 1n the Group, Latest Accounts means 981 51 the latest aud1ted balance sheet of the Company, or 981 52 (where the Company prepares an aud1ted consolidated balance sheet 1n respect of the Group), the latest audited consolidated balance sheet of the Group together, m e1ther case, w1th the latest aud1ted balance sheet of any subs1d1ary undertaking of the Company wh1ch 1s not Included above, 1f the Company prepares 1ts mam aud1ted consolidated balance sheet 1n accordance w1 th one accounting convention and a supplementary balance sheet 1n accordance w1th another convent1on the mam one shall be taken as the aud1ted consolidated balance sheet, outs1de Interests means the proport1on of the nommal amount of the 1ssued eqUJty share cap1tal of a partly owned subs1d1ary undertak1ng which IS not attnbutable, directly or 1nd1rectly, to the Company, subsidiary undertaking means a subs1d1ary undertakmg of the Company 98 2 For the purposes of any calculation under th1s article 98 2 1 borrowmgs by a partly owned substdtary undertakmg and not ow1ng to another Group company shall (notwtthstandmg art1cle 98 1 2 of thts arttcle) be taken mto account subJect to the excluston of a proportionate amount of such borrowmgs correspondmg to the outs1de mterests, |
982 2 borrowings ow1ng to a partly owned subs1d1ary undertakmg by another Group company shall (subject to art1cle 98 1 2 of th1s art1cle and art1cle 98 2 3 below) be taken mto account to the extent of the proportionate amount of such borrow1ngs correspondmg to the outs1de 1nterests, 9823 m the case of borrowings and moneys ow1ng to a partly owned subs1d1ary undertak1ng by another partly owned subs1d1ary undertakmg, the proportion which would otherwise be taken 1nto account under art1cle 98 2 2 above shall be reduced by the exclus1on of a proport1onate amount of such borrow1ngs correspondmg to the outs1de mterests m the borrow1ng subs1d1ary undertakmg, 9824no amount shall be taken 1nto account more than once 1n any calculation of moneys borrowed, and 982 5 any borrowtng denommated or repayable, or any cash depos1ted, tn a currency other than sterling shall 98 2 51 982 52 w1th the except1on of Excepted Fore1gn Currency Borrowmgs, be translated 1nto sterl1ng at the rate of exchange m London at the close of business on the last bus1ness day before the date on wh1ch the calculation 1s made or,1f 11 would result m a lower figure, at the rate of exchange m London at the close of bustness on the date of the Latest Accounts and so that, for these purposes, the rate of exchange 1n London shall be taken as the spot rate quoted by a London cleanng bank selected by the board for the purchase by the Company of the currency and amount tn quest1on for sterl1ng, and tn the case of any Excepted Fore1gn Currency Borrowtngs, at the rate of exchange applicable to such borrow1ngs on thetr repayment to the extent that such rate IS fixed under the scheme or other arrangement 1n connection w1th wh1ch the borrowmg anses, prov1ded that, where tt 1s not poss1ble to determine such rate, the borrowmg shall be translated mto sterling on such basts as may be agreed wrth, or determrned by, the aud1tors or otherw1se 1n accordance wrth the prov1s1ons of art1cle 98 2 5 1 98 3 In deterrmnmg the amount of any borrowrngs or debentures or of any share caprtal for the purpose of th1s art1cle there shall be taken rnto account the nom1nal or pnnc1pal amount thereof (or, m the case of partly-pa1d debentures or shares, the amount for the t1me berng pa1d up thereon) together w1th any fixed or m1mmum prem1um payable on f1nal repayment or redemption 98 4 If moneys are borrowed or debentures or shares are 1ssued on terms that they may be repayable or redeemable (or that any Group company may be reqUJred to purchase them) earher than the1r final malunty date (whether by exerc1se of an opt1on on the part of the 1ssuer or the cred1tor (or a trustee for the creditor) or the member, by reason of a default or |
for any other reason) at a prem1um or d1scount to the1r nom1nal or pnnc1pal amount then there shall be taken mto account the amount (or the greater or greatest of two or more alternative amounts) whrch would, 1f those Circumstances occurred, be payable on such repayment, redemption or purchase at the date as at wh1ch the calculation IS bemg made 98 5 There shall be offset aga1nst the amount of the borrowmgs any amounts benefiCJally owned by a Group company wh1ch represent the value of cash deposited and wh1ch would be shown as a current asset m a balance sheet prepared 1n accordance w1th the accounting pnnc1ples used 1n the preparatron of the Latest Accounts, subJect, m the case of any such 1tems wh1ch are beneficially owned by a partly owned subs1d1ary undertaking, to the exclUSIOn of a proportionate amount of those 1tems correspondmg to outs1de 1nterests 1n that subsrdrary undertakmg For these purposes, cash deposrted means an amount equal to the aggregate for the t1me bemg of all cash depos1ts With any bank or other person (not bemg a Group company), the realisable value of any certificates 1ssued by governments and companies and other read1ly realisable depos1ts 99 Fluctuating rates of exchange The Company shall not be 1n breach of the borrowing hm1t under th1s article by reason of the hm1t bemg exceeded as a result only of any fluctuation m rates of exchange prov1ded that w1th1n s1x months of the board becommg aware of any such fluctuation or change wh1ch would but for th1s prov1s1on have caused such a breach, the aggregate pnnc1pal amount of all borrowmgs by the Group m accordance With th1s art1cle IS reduced to an amount not exceedmg the sa1d hm1t 100 Changes in legislation If as a result of any change 1n feg1slat1on relating to or affecting taxation matters, any amount payable by a Group company m respect of any finance lease shall mcrease and, 1f 1n consequence the borrow1ng hm1t under th1s artrcle 1s exceeded, an amount of moneys borrowed equal to the excess may be disregarded until the exp1ratron of s1x months after the date on wh1ch the board becomes aware that such a srtuat1on has ansen 101 Validity of borrowing arrangements No person dealing w1th the Company or any of 1ts subs1d1ary undertakings shall be concerned to see or 1nqU1re whether the hm1t rmposed under art1cle 97 IS observed, and no debt rncurred or secunty g1ven rn excess of such hm1t shall be vord or vo1dable at the rnstance of the Company or any other Group company unless the lender or the recrprent of the secunty had,at the trme when the debt was mcurred or securrty g1ven, express notrce that the hm1t had been or would thereby be exceeded 102 Certificatron of auditors A certificate or report by the audrtors as to the amount of AdJusted Cap1tal and Reserves or the amount of borrowmgs or to the effect that the hmrt rmposed by thrs article has or has not been or will or w1ll not be exceeded at any partrcular t1me or times shall be conclusrve evrdence of the amount or of that fact |
Secretary 103 Secretary The secretary shall be appornted by the board on such terms and for such penod as rt thrnks fit Any secretary so appornted may be removed from office by the board at any trme, but Without preJUdice to any cla1m for damages for breach of any contract between h1m and the Company If thought fit, the board may app01nt two or more persons as JOint secretanes. and may also appomt one or more deputy and/or ass1stant secretanes. m each case on such terms as 1t thinks fit Seals 104 Seals 104 1 The board shall prov1de for the safe custody of the seal and any secunt1es seal and ne1ther shall be used w1thout the authonty of the board 104 2 The board may determme who shall s1gn any rnstrument to which the seal1s affixed, e1ther generally or 1n relat1on to a particular 1nstrument or type of 1nstrument, and may also determ1ne, e1ther generally or 10 any part1cular case, that such s1gnatures shall be d1spensed w1th 104 3 Unless otherwise dec1ded by the board 104 31 certificates for shares, debentures or other secunt1es of the Company 1ssued under seal need not be s1gned, and 104 32 every other mstrument to wh1ch a seal IS affixed shall be s1gned autographically or manually on behalf of the Company by two of the directors, or by a d1rector and the secretary or by a d1rector 10 the presence of a Witness who attests the s1gnature 104 4 Any document may be executed under the seal by rmpressrng the seal by mechanrcal means or by pnntrng the seal or a facs1mrle of 11on the document or by apply10g the sealor a facs1m1le of 11by any other means to the document 104 5 A document s1gned, wllh the authonty of the board, by a drrector and the secretary, by two directors or by one d1rector rn the presence of a w1tness who attests the s1gnature and expressed to be executed by the Company shall have the same effect as 1f executed under seal Minutes and Books 105 Mrnutes and books 105 1The board shall cause mrnutes to be made 1n books kept for the purpose 105 1 1 of all appOintments of officers made by the board, |
105 1 2 of the names of the directors (or the1r alternates) and any other persons present at each meeting of the board and of any comm1ttee formed under article 93, and 105 1 3 of all resolubons and proceedings at all meetings of the Company and of any class of members of the Company and of the board and of any committees formed under article 93 105 2 Any such mmutes shall be conc!us1ve ev1dence of any such proceed1ngs 1f s•gned by the cha1rman of the meetmg at wh1ch the proceedings were held or by the cha rman of the next succeeding meet1ng Dividends 106 Declaration of dividends The Company may, by ordmary resolution, declare d1v1dends m accordance w1th the respecbve nghts of the members, and may fix the lime for payment of such d1v1dends, but no diVIdend shall exceed the amount recommended by the d1rectors 107 Interim dividends The board may pay mtenm d1v1dlends (1ncludmg any d1v1dend payable at a fixed rate) 1f 11 appears to the board that they are JUStified by the financ1al pos1t1on of the Company If at any time the share cap1tal of the Company IS diVIded mto different classes, the board may pay 1ntenm d1v1dends on shares wh1ch rank after shares confernng preferred nghts w1th regard to dtv1dends as well as on shares With preferred nghts unless at the t1me of a payment a preferential d1v1dend IS m arrears If the board acts tn good fa1th, none of the d1rectors shall 1ncur any hab1hty to the holders of any shares for any loss they may suffer by the lawful payment of any dtvtdend on any shares w1th nghts rank1ng after or pan passu w1th those shares 108 Calculation and currency of dividends 108 1 Unless and to the extent that the nghts attached to, or the terms of tssue of, any share otherwise prov1de 10811all dtvtdends shall (as regards any shares not fully pa1d throughout the penod m respect of wh1ch the d1v1dend IS pa1d) be apportioned and pa1d pro rata accordmg to the amounts pa1d on the shares dunng any portion or port1ons of the penod m respect of whrch the d1v1dend IS pard {provrded that, rn accordance w1th art1cle 128, no amount pard on a share rn advance of calls shall be treated as paid on that share), and 108 1 2 d1v1dends may be declared or pa1d tn any currency 108 2 The board may agree wrth any member that drv1dends which may at any time or from trme to t•me be declared or become dlue on hts share m one currency shall be patd or sattsfied 1n another, and may agree the basrs for conversron to be applied and how and when the |
amount to be pa1d m the other currency shall be calculated and pa1d and for the Company or any other person to bear any costs mvolved 109 Dividends not to bear Interest No d1v1dend or other moneys payable by the Company on or 1n respect of a share shall bear mterest as agamst the Company unless otherwtse provtded by the nghts attached to the share 110 Permttted deductions The board may deduct from any d1v1dend or other moneys payable to any member (e1ther alone or JOtntly w1th another) on or m respect of a share all such sums (1f any) presently payable by h1m (either alone or JOintly w1th another) to the Company on account of calls or otherwtse m relat1on to shares of the Company 111 Waiver of dividends The wa1ver, m whole or m part, of any d1v1dend on any share by any document shall be effective only 1f such document IS executed by the holder (or the person entitled to the share tn consequence of a transm•ss1on event) and delivered to the Company and 1f, or to the extent that, the same ts accepted as such or acted upon by the Company 112 Manner of payment of dividends 112 1 Any d1v1dend or other moneys poyoble m respect of o share may be pa1d to the member or, where perm1tted by the Company 10 relation to art1cle 112 1 3, to such other person as the member (or, 10 the case of JOint holders of a share, all of them) may d1rect by not1ce g1ven to the Company Such dividend or other moneys may be pa1d 112 1 1 by cheque or warrant made payable to the payee or (where there IS more than one payee) to any one of them, or 112 1 2 by any dtrect deb1t, bank or other funds transfer system (mcludmg, Without limitation, payment through a relevant system) to such account as the payee or payees shall direct by nobce g1ven to the Company,or 112 1 3 10 respect of shares rn uncert1ficated form, where the Company 1s authonsed to do so by or on behalf of the member, by means of a relevant system (subject always to the fac1hlles and reqUirements of that relevant system), 1121 4 by any other method approved by the board and agreed by the member (or, tn the case of JOtnt holders of a share, all of them) 112 2 A cheque or warrant may be sent by post 112 2 1 to the registered address of the holder of the share or, m the case of JOint holders, to the registered address of the person whose name stands first 1n the reg1ster, or |
112 2 2 rf a person IS entrtled by transmrssron to the share. as 1f 1t were a not1ce to be grven under artrcle 148, or 112 2 31n any case, to such person and to such address as the holder or JOint holders may drrect by notrce g1ven to the Company 112 3 Wrthout hmrhng artrcle 112 1 3, payment by means of a relevant system may rnclude the Company, or any person on 1ts behalf, send1ng an mstructron to the Operator of the relevant system to credrt the cash memorandum account of the holder or JOint holders or, rf perm1tted by the Company, of such person as the holder or JOint holders may drrect 1n wnt1ngIn th1s artrcle 112 3, "cash memorandum account' means an account so designated by the Operator of the relevant system 113 Risk and discharge of Company Every cheque or warrant sent 1n accordance wrth these artrcles shall be sent at nsk of the holder or person entitled The Company shall have no responsrbd1ty for any sums lost or delayed 1n the course of payment by any method used by the Company 1n accordance w1th artrcle 112 Payment of a cheque or warrant by the bank on wh1ch 1t was drawn or the transfer of funds by a bank or other funds transfer system or, m respect of shares rn uncertrficated form, the mak1ng of payment 1n accordance wrth the facrhtles and requrrements of the relevant system shall be a good drscharge to the Company 114 Receipts of joint holders Any person regrstered as a JOint holder of any share or who rs entitled JOintly to a share rn consequence of a transm1ss1on event may grve an effect1ve recerpt for any drvrdend or other moneys payable or property d1stnbutable m respect of the share 115 Scrip dividends 115 1 The board may, wrth the authonty of an ordrnary resolution of the Company, offer any holders of ordmary shares the nght to elect to recerve further ord1nary shares, credrted as fully pard, rnstead of cash 1n respect of all (or some part) of any drvrdend specrfied by the ordrnary resolution (a scrip dividend) 1n accordance wrth the followrng provrsrons of thrs artrcle 115 2 The ord1nary resolution may specrfy a part1cular drvrdend (whether or not declared) or may spec1fy all or any d1vrdends payable w1th1n a specrfied penod exp1nng no later than frve years after the date of the ordinary resolutron Any such offer shall, where practicable, be made pnor to or contemporaneously w1th the announcement of the d1v1dend 1n question and any related mformatmn as to the Company's profits for the relevant financ1al penod or part of 1t 115 3 The basrs of allotment shall be determmed by the board so that, as nearly as possible, the value of the further ordinary shares (tncludmg any fractional entitlement) rs equal to the amount of the cash d1v1dend whtch would otherwtse have been pard (d1sregard1ng any assocrated tax credrt) |
115 4 For such purpose the value of the further ordtnary shares shall be the average of the mtddle market quotattons of a share of that class denved from the AIM sect1on of the Da1ty Offictal Ltst of the London Stock Exchange on each of the first five consecut1ve bus10ess days on whtch such shares are quoted "ex d1v1dend" or shall be calculated 1n such other manner as may be deterrmned by the ord10ary resolution 115 5 The board shall, after determtmng the basts of allotment, gtve notice to the members of the nght of electton accorded to them and shall spectfy the procedure to be followed tn order to make the electton The board 1s not reqUired to gtve nottce to a member who has prevtously made, and has not revoked, an earlier etect1on to recetve ordtnary shares 1n lteu of all future dtvtdends, but Instead shall send htm a remtnder that he has made such an electton, 1nd1cat1ng how that electton may be revoked m t1me for the d1v1dend then proposed to be patd 115 6 The dtvtdend (or that part of 1t) m respect of whtch an election for a scnp d1v1dend has been made shall not be patd and mstead further ordtnary shares shall be allotted tn accordance w1th the election, for such purpose the board shall cap1tahse a sum equal to the aggregate nommal amount of the shares to be allotted out of such sums as are available for the purpose as the board may cons1der appropnate and shall apply the same tn paymg up 1n full the shares for such allotment 115 7 The further ordtnary shares so allotted shall rank pan passu m all respects wtth the fully pa1d ordtnary shares then 1n tssue, save only as regards parttc1patton m the relevant dtvtdend 115 8 The board may do all acts and th1ngs as tt cons1ders necessary or expedient to gtve effect to any such cap1tahsatton, wtth full power to the board to make such prov1s1ons as 1t th10ks fit m the case of shares becommg d1stnbutable 10 fractions (mcludtng prov1stons whereby, 1n whole or tn part, fractional entitlements are dtsregarded or rounded up or the benefit of fractional entttlements accrues to the Company rather than to the members concerned) The board may authonse any person to enter mto,on behalf of all the members Interested, an agreement wtth the Company prov1d1ng for such cap1ta1tsatJon and tnctdental matters and any agreement made under such authonty shall be effecbve and btndtng on all concerned 115 9 To the extent that the entitlement of the holder of ordtnary shares tn respect of any dtvtdend ts less than the value of one new ordmary share (as determtned for the basts of any scnp d1v1dend) the board may also from time to t1me establish or vary a procedure for such entitlement to be accrued and aggregated w1th any s1m1lar entttlement for the purposes of any subsequent scnp diVIdend 115 10 Notwtthstandmg the foregmng, the board may at any ttme pnor to payment of any specrfic dtvtdend determme that the dtvtdend shall be payable wholly 1n cash after all and that all elections made m respect of that d1v1dend shall be drsregarded The dtvtdend shall be payable wholly 10 cash tf the ordtnary share cap1tal of the Company ceases to be adm1tted to AIM at any ttme pnor to the due date of 1ssue of the add1t1onal shares or tf the listing 1s 50 ---------------- - - |
suspended and not reanstated by the date 1mmedaately precedang the due date of such ISSUe 115 11 The board may determine that the nght of elect1on shall not be made available to any members w1th reg1stered addresses many temtory where, m the opm1on of the board, th1s would be unlawful or compliance w1th local laws or regulat1ons would be unduly onerous 116 Retention and forfeiture of dividends 116 1 The board may reta1n any davadend or other moneys payable on or m respect of a share on wh1ch the Company has a hen, and may apply the same 1n or towards satisfaction of the debts, liab11it1es or other obligations an respect of wh1ch the hen ex1sts 116 2 The board may reta1n d1v1dends payable upon shares an respect of which any person 1s, under the prov1s1ons as to the transm1ss1on of shares conta1ned above, ent1tled to become a member, or whtch any person rs under those prov1s1ons entrtled to transfer, unttl such person shall become a member an respect of such shares or shall transfer the same 116 3 Wtthout prejudace to artrcle 116 5, all unclaamed drvadends or other moneys payable on, or m respect of, a share may be mvested or otherwrse made use of by the board for the benefit of the Company unttl clatmed The payment of any uncla1med davadend or other moneys payable on, or an respect of, a share mto a separate account shall not constitute the Company a trustee 1n respect of at 116 4 The Company shall not be obliged to send any davadends or other sums payable m respect of a share to the holder of that share 1f such a payment sent by the Company to that person tn accordance With art1cle 112 IS returned undelivered or left uncashed or, 1f sent by means of electronrc payment. has faaled (whether by way of a funds transfer system or otherw1se) tn each case on at least two consecutive occastons, or, followmg one such occasron, tf reasonable enqumes have fa1led to establish the new address for that person or, w1th respect to a payment to be made by a funds transfer system, a new account for that purpose The entatlement conferred on the Company by thts art1cle an respect of any member shall cease 1f the member notifies the Company of an address or, where payment IS to be made by a funds transfer system, deta1ls of the account, to be used for that purpose 116 5 Any d1vrdends unclatmed after a penod of 12 years from the date when 1t became due for payment shall, tf the board so resolves, be forfe1ted and shall cease to remaan owmg by the Company 117 Dividends m specie 117 1 The Company may, upon the recommendation of the board, by ordanary resolution dtrect that payment of a d1v1dend may be sat1sfied wholly or rn part by the dtstnbutton of specrfic assets (and rn part1cular of pard up shares or debentures of any other company) 117 2 Where any difficulty anses wrth respect to such dastnbutlon, the board may settle the same as at thanks fit and, rn partacular. may |
117 2 1 117 2 2 117 2 3 117 2 4 Record Dates 1ssue fractional cert1ficates or may appo1nt any person to sell and transfer any fractions or disregard fracbons altogether, fix the value for d1stnbut1on of such spec1fic assets or any part of them, determ1ne that cash payments shall be made to any members on the bas1s of the value so fixed m order to ensure equality of d1stnbubon, and vest any such specific assets m trustees on such trusts for the persons ent1tled to the d1v1dend as the board may thmk fit 118 Fixing of record dates 118 1Notw1thstandmg any other of these articles, but Without preJUdice to any nghts attached to any shares, the Company or the board may by resolution spec1fy a date (the record date) as the date at the close of busmess by reference to wh1ch a d1v1dend w1ll be declared or pa1d or a d1stnbut1on, allotment or 1ssue made, and that date may be before. on or after the date on wh1ch the d1v1dend, d1stnbut1on, allotment or 1ssue IS declared, pa1d or made 118 2 In the absence of a record date be1ng fixed, entitlement to any dividend, d1stnbutJon, allotment or 1ssue shall be determmed by reference to the date on wh1ch the d1v1dend IS declared or the d1stnbut1on,allotment or 1ssue IS made Capitalisation of Profits and Reserves 119 Capitalisation of reserves 119 1 The board may, w1th the authonty of an ordmary resolution of the Company 119 1 1 119 1 2 resolve to capitalise any sum stand1ng to the cred1t of any reserve or other fund of the Company (mcludmg share prem1um account and cap1tal redempt1on reserve) or any sum standmg to the credit of the profit and loss account not requ1red for paYJng any preferential d1v1dend (whether or not 1t IS ava1lable for drstnbullon). appropnate the sum resolved to be capttahsed to the members 1n proportron to the nomrnal amounts of the shares (whether or not fully pard) held by them respectively wh1ch would ent1tle them to part1c1pate m a drstnbutron of that sum rf the shares were fully pard and the sum were then drstnbutable and were d1stnbuted by way of d1v1dend and apply such sum on the1r behalf e1ther rn or towards paymg up the amounts, 1f any, for the trme bemg unpa1d on any shares held by them respectively, or m pay1ng up 1n full umssued shares or debentures of the Company of a nom1nal amount equal to that sum, and allot the shares or debentures credited as fully pard to those members or as they may drrect, rn those proportrons,or partly rn one way and partly rn the other, or otherwrse deal With such sum as drrected by the resolution, provrded that the share prem1um account, the caprtal redemption reserve and any sum not |
avarlable for drstnbutlon m accordance wrth the Statutes may only be apphed rn payrng up unrssued shares to be allotted credrted as fully pard,and 1191 3 resolve that any shares so allotted to any member rn respect of a holdmg by hrm of any partly pard shares shall, so long as such shares remarn partly pard, rank for drvrdend only to the extent that the latter shares rank for drv1dend 119 2 The board may do all acts and thrngs 1t cons1ders necessary or expedrent to g1ve effect to such caprtahsatron Where any drffrculty anses 1n respect of any drstnbut1on of any caprtalrsed reserve or other sum, the board may settle the d1fficulty as 1t thrnks fit and rn partrcular may make such provrsrons as 1t th1nks fit rn the case of shares or debentures becom1ng d1strrbutable 1n fract1ons (1ncludrng prov1srons for payment 1n cash or otherwrse or whereby fractronal entitlements are disregarded or under whrch the benefit of fractional entitlements accrues to the Company rather than the member concerned) 119 3 The board may also authonse any person to srgn, on behalf of all the persons entitled to share rn the d1stnbutron, an agreement wrth the Company provrdrng for such cap1tahsat1on and any matters rnc1dental to rt. and any such agreement shall be brndrng on all such persons Certificates 120 Issue of share certificates 120 1 Except as prov1ded rn artrcle 120 3, every person whose name IS entered rn the reg1ster as the holder of any certrficated shares shall be entrtled, wrthout payment, to one certificate for all the certificated shares of each class held by hrm and, 1f he transfers a part of hrs holdrng of the shares represented by a certrficate, or elects to hold part m uncertrfrcated form, to a certificate for the balance of hrs hold1ng of certrficated shares 120 2 Every share certificate shall be 1ssued by the Company 1n such manner as the board may decrde (whrch may rnclude use of the seal or secunt1es seal or, rn the case of shares on a branch regrster, an offic1al seal for use 1n the relevant terntory and/or facs1m1le srgnatures by one or more drrectors or the secretary or other person authansed to srgn the certrficate on behalf of the Company) Each certificate shall specrfy the number, class and drst1ngursh1ng numbers (rf any) of the shares to wh1ch 1t relates and the amount or respecbve amounts pard up on the shares No certrficate shall be 1ssued representrng shares of more than one class 120 3 The Company shall not be bound to 1ssue more than one certrficate for shares held JOintly by more than one person and delivery of a cert1ficate to one JOint holder shall be a sufficrent dehvery to all of them No certrficate shall be rssued rn respect of any shares held by a market nomrnee |
121 Cancellation and replacement of certificates 121 1 Any two or more certificates represent1ng shares of any one class held by any member may, at h1s request. be cancelled and a s1ngle new certificate for all such shares Issued 1n lteu wtthout charge 121 2 If any member shall surrender a share certificate representing shares held by h1m for cancellation and request the Company to 1ssue 1n lteu two or more certificates representing such shares tn such proportions as he may specify, the board may,1f 1t thmks fit, comply w1th such request on payment of such fee (1f any) as the board may dec1de 121 3 If a share certificate 1s damaged,defaced, worn out, or alleged to have been lost, stolen or destroyed, a new certificate representing the same shares may be 1ssued to the holder on request subject to delivery up of the old certificate or (1f alleged to have been lost, stolen or destroyed) compliance w1th such conditions (if any) as to ev1dence, tndemmty and secunty for such 1ndemn1ty, and the payment of any expenses of the Company 1n conneclton w1th the request. as the board th1nks fit 121 4 In the case of JOint holders of a share any such request may be made by any one of the jOint holders Calls on Shares 122 Power to make calls The board may, from t1me to ttme, make calls upon the members 1n respect of any moneys unpaid on their shares, whether tn respect of the nomtnal value of the shares or any prem1um (subject always to the terms of allotment of those shares) Each member shall (subject to betng gtven at least 14 days' not1ce spec1fy1ng the hme or t1mes and place of payment) pay to the Company, the amount called on h1s shares as reqUired by the nottce A call may be reqUired to be pa1d tn tnstalments and may be revoked or postponed by the board tn whole or 1n part at any t1me before receipt by the Company of the payment due under 1t A person upon whom a call 1s made shall remam !table for 1t notwtthstandtng the subsequent transfer of the share tn respect of wh1ch the call was made 123 Time when call made A call shall be deemed to have been made at the time when the resoluhon of the board authonsmg that call IS passed 124 L1ab1hty of and receipts by joint holders The JOtnt holders of a share shall be JOtntly and severally !table to pay all calls 1n respect of that share 125 Failure to pay call 125 1 If a sum called 1n respect of a share IS not pa1d before or on the due date for payment, the person from whom the sum IS due shall pay 1nterest on the sum from the due date for |
payment to the date of actual payment at the rate fixed by the terms of the allotment of the share or, 1f no rate IS fixed, the rate determined by the board, not exceed1ng 15 per cent per annum or, 1f higher, the appropnate rate (as defined m the 2006 Act), and all expenses mcurred by the Company by reason of such non-payment, but the board may, 1n any case or cases, wa1ve payment of such Interest and expenses, wholly or 1n part 125 2 No d1v1dend, or other payment or d1stnbubon, m respect of any such share shall be pa1d or d1stnbuted and no other nghts, which would otherw1se normally be exercisable 1n accordance w1th these art1cles by a holder of fully pa1d shares, may be exerc1sed by the holder of any share so long as any such amount, or any 1nterest, costs, charges or expenses payable 1n accordance w1th th1s arbela 125 1n relabon thereto, remams unpaid 126 Other sums due on shares Any sum which by the terms of allotment of a share becomes payable upon allotment or at any fixed date shall, for the purposes of these articles, be deemed to be a call duly made and payable on the date fixed for payment In the case of non-payment, the prov1s1ons of these art1cles as to payment of Interest and expenses, forfe1ture or otherw1se shall apply as 1f such sum had become due and payable by v1rtue of a call 127 Power to differentiate On any 1ssue of shares the board may make arrangements to differentiate between the holders of the shares as to the amount of calls to be pa1d and the times of payment 128 Payments of calls In advance The board may, 1f 1t thmks fit, rece1ve from any member Willing to advance the same all or any part of the moneys uncalled and unpa1d on the shares held by h1m, and such payment m advance of calls shall extJngu1sh pro tanto the hab1hty upon the shares m respect of wh1ch 1t 1s made The Company may pay 1nterest upon the moneys so rece1ved (unt1l they would but for such advance become payable) at such rate as may be agreed between the member paymg such sum and the board No sum pa1d up m advance of calls shall entitle the holder of the share 1n respect of wh1ch that sum has been paid to any port1on of a d1v1dend, or other payment or d1stnbut1on, declared m respect of any penod pnor to the date upon wh1ch such sum would, but for such payment, become payable Forfeiture,Surrender and Lien 129 Notice on failure to pay a call 1291If the whole or any part of any call or mstalment of a call remams unpa1d after the due date for payment, the board may g1ve not1ce to the person from whom 1t IS due requmng payment of so much of the call or mstalment as 1s unpaid together w1th any 1nterest whrch may have accrued on 1t and any costs, charges and expenses tncurred by the Company by reason of such non-payment |
------129 2 The notice shall name a further day (not bemg less than 14 days from the date of servtce of the notice) on or before whtch, and the place where, the payment requtred by the nobce ts to be made and shall state that, tn the event of non-payment tn accordance wtth the nottce, the share on whtch the can was made or mstalment ts payable wtll be liable to be forfeited 130 Forfetture for non-compliance 130 1 If a nottce gtven under arttcle 129 1s not compiled wtth, any share to whtch that not1ce relates may, at any t1me before the payment requ1red by that notice has been made. be forferted by a resolution of the board The forfetture shall mclude all dtvtdends and other payments or d1stnbut1ons declared tn respect of the forfetted share and not actually patd or dtstnbuted before forfetture The board may accept a surrender of any share liable to be forfetted 130 2 A person all or any of whose shares have been forfetted or surrendered shall cease to be a member tn respect of those shares and shall surrender any certtficate for those shares to the Company for cancellation 131 Nottce offorfeiture When any share has been forfetted, notice of the forfe1ture shall be gtven to the holder of the share or,as the case may be, the person entttled to the share by transmtsston,and an entry of such nottce havmg been gtven, and of the date of the forfeiture, shall be made m the regtster but no forfetture shall be mvahdated by any omtsston to gtve such notice or to make such entry 132 Annulment of forfetture The board may, at any ttme before the forfeited or surrendered share has been sold, re allotted or otherwtse dtsposed of, annul the forfetture or surrender upon the terms of payment of all calls and mterest due upon and expenses mcurred tn connectton wtth the call and forfetture proceedmgs and upon any further terms 1t may thmk fit 133 Disposalof forfetted shares A share so forfetted or surrendered shall become the property of the Company and may (subject to the Statutes) be sold, re-allotted or otherwtse dtsposed of, etther to the person who was before such forfetture or surrender the holder of the share or to any other person upon such terms and tn such manner as the board shall thmk fit and whether wtth or wtthout all or any part of the amount prevtously patd on the share bemg credtted as patd Where,for the purposes of tis dtsposal, a forfetted or surrendered share held tn certtficated form 1s to be transferred to any person, the board may appomt any person to execute an tnstrument of transfer of the share to or m accordance wtth the dtrecttons of that person Where, for the purpose of tis dtsposal, a forfetted or surrendered share held tn uncerttficated form ts to be transferred to any person, the board may exerctse any of the Company's powers under artJcle 5 3 The Company may recetve the conSideration g1ven for the share on tis dtsposal |
134 Extmctlon of rights A person any of whose shares have been forfeited or surrendered shall rema1n liable to pay to the Company all moneys wh1ch, at the date of forfeiture or surrender. were presently payable by h1m to the Company m respect of the shares, w1th 1nterest on such moneys on the rate at wh1ch Interest was payable on those moneys before the forfe1ture or surrender or, 1f no 1nterest was payable, at the rate deterrmned by the board, not exceed1ng 15 per cent per annum or, 1f h1gher, the appropnate rate (as defined m the 2006 Act), from the date of forfe1ture or surrender unt1l payment The board may at the1r absolute d1scret1on enforce payment Without any allowance for the value of the shares at the t1me of forfeiture or surrender or for any cons1derat10n rece1ved on the1r disposal or wa1ve payment 1n whole or m part 135 Lien on partly paid shares The Company shall have a f1rst and paramount hen on every share (not be1ng a fully pa1d share) for all moneys payable (whether or not due) 1n respect of that share The hen shall extend to all d1v1dends and other payments or d1stnbut1ons payable or d1stnbutable 1n respect of the relevant share The board may watve any hen wh1ch has ansen and may declare any share to be exempt,wholly or partially, from the prov1s1ons of th1s art1cle 136 Enforcement of lien by sale 136 1 The Company may sell any share on wh1ch 1t has a hen m such manner as the board th1nks fit, but no sale shall be made unless an amount payable on the share 1n respect of which the hen ex1sts IS presently payable,nor until the exp1rat1on of 14 days after a not1ce demandmg payment of the amount presently payable, and g1v1ng not1ce of the 1ntent1on to sell m default, has been g1ven to the holder for the t1me bemg of the share or the person ent1tled to 1!by reason of a transm1ss1on event 136 2 To g1ve effect to that sale the board may appomt any person to transfer the share sold to, or 1n accordance w1th the d1rect1ons of, the buyer 137 Application of proceeds of sale The net proceeds of the sale, after payment of the Company's costs assoc1ated w1th the sale, shall be applied 1n or towards sat1sfact1on of the amount 1n respect of wh1ch the hen ex1sts, and any res1due shall (subject to a like hen for debts or hab•ht1es not presently payable but wh1ch ex1sted on the share pnor to the sale) on surrender to the Company for cancellation of the certificate (1f any) m respect of the share sold, be pa1d to the person entitled to the share 1mmed1ately before the sale 138 Ev1dence of forfeiture or hen A statutory declaration by a d1rector or the secretary of the Company and that a share has been forfe1ted or surrendered or sold to satisfy a hen of the Company on a date stated m the declaration shall be conclus1ve ev1dence of the facts stated 1n the declaration as aga1nst all persons cla1mmg to be entitled to the share The declaration shall (subject 1f |
necessary to the relevant transfer bemg made) constitute a good title to the share and the person to whom the share IS sold, re-allotted or d1sposed of shall be reg1stered as the holder of the share, and shall not be bound to see to the apphcat1on of the purchase money (1f any), nor shall h1s btle to the share be affected by any 1rregulanty or mvahdrty m the proceedings relating to the forfe1ture, surrender, sale, re-allotment or disposal of the share The remedy of any person aggneved 1n respect of the proceed1ngs shall be m damages only and agamst the Company exclusively Untraceable Members 139 Power to dispose of shares of untraced members 139 1 The Company may sell, m such manner as the board sees fit and at the best pnce reasonably obtamable, any share held by a member or to wh1ch a person 1s ent1tled by transrmss1on 1f 139 1 1 1391 2 139 1 3 1391 4 the share has been 1n 1ssue for at least the prev1ous 12 years and dunng that penod at least three cash d1v1dends have become payable m respect of the share and have been sent by the Company m a manner authonsed by these articles, dunng that penod of 12 years no cash d1v1dend payable m respect of the share has been claimed, no cheque or warrant or other payment for an amount payable m respect of the share has been cashed or otherw1se pa1d and no communtcatton has been recetved by the Company from the member or person, the Company has, after the exptrallon of that penod, publtshed advertisements 1n at least one leadmg national newspaper and one newspaper ctrculattng tn the area tn wh1ch the last known address of the member (or person entitled by transmiSSIOn to the share) or the address at wh1ch notices may be g1ven under these articles 1s located, 1n each case g1v1ng nottce of 1ts tntentiOn to sell the share, and the Company has not, dunng a further penod of three months after the publication of those advertisements and pnor to the sale of the share, rece1ved any commun1cat1on m respect of the share from the member or person ent1tled by transm1ss1on 139 2 The Company shall also be entttled to sell, tn the manner prov1ded form article 139 1, any share (additional share) 1ssued on or before the date of publicatiOn of the first of any advertisements under article 139 1 m nght of any share to wh1ch that art1cle applies (or 1n nght of any share to wh1ch th1s article 139 2 applies) tf the cond1ttons tn art1cles 139 1 2 to 139 1 4 are satisfied 1n relat1on to the add1t1onal share (but as tf references to a penod of 12 years were references to a penod begmnmg on the date of allotment of the share and end1ng on the date of pubhcatton of the first advertisements referred to above) 139 3To g1ve effect to any sates under th1s article the board may |
139 3 1 where the shares are held m certificated form, appomt any person to execute, as transferor, an 1nstrument of transfer of the shares to, or 1n accordance w1th the d1recbons of, the buyer, 139 3 2 where the shares are held m uncert1ficated form, do all acts and th1ngs 1t considers necessary or exped1ent to effect the transfer of the shares to or rn accordance WJth the drrect1ons of the buyer 139 4 The buyer shall not be bound to see the appl1cat1on of the purchase money, nor shall the t1tle of the new holder to the shares be affected by any 1rregulanty m, or rnvahdrty of, the proceedrngs relatmg to the sale 140 Sale procedure and application of proceeds 140 1 The Company shall be mdebted to the person ent1tled to the share at the date of sale for an amount equal to the net proceeds of sale, but no trust shall be created and no Interest shall be payable 1n respect of the proceeds of sale pendmg payment of the net proceeds of sale to such person, and the proceeds may be used 1n the Company's busrness or rnvested 1n such a way as the board may from t1me to t1me thmk frt 140 2 No Interest shall be payable m respect of the net proceeds and the Company shall not be reqUired to account for any money earned on the net proceeds Accounts 141 Accounts Accountrng records sufficient to show and explam the Company's transactions and otherw1se complying w1th the Statutes shall be kept at the office or. subject to the Statutes. at such other place or places as the board thrnks fit and shall always be open to the rnspect1on by the Company's officers No member (as such) shall have any nght of mspect1ng any account or book or document of the Company except as conferred by law or ordered by a court of competent junsd1ct1on or authonsed by the board 142 Summary of financialstatements Where penn1tted by the Statu1es. the Company may send a summary fmanaal statement m the fonn speafied by the Statutes to the persons who would otherwise be entitled to be sent a copy of the Company's full annual accounts and reports Auditors 143 Validity of acts of auditors Subject to the prov1s1ons of the Statutes, all acts done by any person acbng as an aud1tor shall, as regards all persons dealing m good fa1th wtth the Company, be valid notwtthstandrng that there was some defect rn hiS appotntment or that he was at the t1me of h1s appomtment not qualified for appotntment or subsequently became disqualified |
Service of Notices and Other Documents 144 Notices In writing Any not1ce to be g1ven to or by any person under these articles (other than a notice calling a meeting of the board) shall be m wnbng, except where otherwise expressly stated Any such notice may be g1ven us1ng electronic commun1cat1ons prov1ded sent to such address (1f any) for the t1me be1ng nobfied for that purpose to the person sendmg the not1ce by or on behalf of the person to whom the nobce IS sent and m the case of commumcat1ons between the Company and 1ts members, 1n accordance w1th the follow1ng art1cles 145 and 146 145 Method of glvmg not1ce to members 145 1 The Company shall g1ve any notice or other document under these art1cles to a member by whichever of the followmg methods 1t may 1n 1ts absolute d1scret10n determme 14511 personally, or 1451 2 by post1ng the not1ce or other document m a prepaid envelope addressed, m the case of a member, to h1s reg1stered address, or 1n any other case, to the person's usual address. or 1451 3 by leavmg the not1ce or other document at that address, or 1451 4 by send1ng the notice or other document usmg electronic commumcat1ons to such address (1f any) for the t1me bemg nollfied to the Company by or on behalf of the member for that purpose, or 1451 5 m accordance w1th art1cle 145 2, or 1451 6 by any other method approved by the board 145 2 A member whose reg1stered address IS not wtthm the Umted Kmgdom and who g1ves to the Company an address w1thm the Umted Kmgdom at which not1ces may be g1ven to htm or an address to wh1ch not1ces may be sent usmg electronic commun1callons shall be ent1tled to rece1ve notices and other documents from the Company at that address, but, unless he does so, shall not be entitled to rece1ve any not1ce from the Company Without hm1tmg the prev1ous sentence, any nottce of a general meetmg of the Company wh1ch IS tn fact sent or purports to be sent to such address shall be 1gnored for the purposes of determ1nmg the validity of proceedings at such meet1ng 145 3 Subject to the Statutes the Company may also g1ve any not1ce or other document under these art1cles to a member by pubhsh1ng that not1ce or other document on a webs1te where 145 31the Company and the member have agreed to the member havmg access to the not1ce or document on a webs1te (tnstead of 1t betng sent to h1m), |
145 3 2 145 3 3 145 34 the not1ce or document IS one to wh1ch that agreement applies, the member IS notified, m a manner for the tume be1ng agreed between h1m and the Company for the purpose, of 145 3 3 1 the publication of the notice or document on a webs1te. 145 3 3 2 the address of that webs1te, and 145 3 3 3 the place on that website where the not1ce or document may be accessed, and how 1t may be accessed, and the not1ce of document 1s published on that webs1te throughout the publication penod and (1f applicable) contmues to be so published unt1l the conclus1on of the meetmg (and any adjourned meetmg), provided that, 1f the notice or document 1s published on that webs1te for a part, but not all of, such penod, the notice or document shall be treated as bemg published throughout that penod 1f the fa1lure to publish that not1ce or document throughout that penod IS wholly attnbutable to circumstances wh1ch 1t would be reasonable to have expected the Company to prevent or avo1d 145 4 In art1cle 145 3 publication penod means 145 41 145 4 2 1n the case of a not1ce of an adjourned meeting under art1cle 39 of not less than seven clear days before the date of the adjourned meetmg, begmmng on the day follow1ng that on wh1ch the nobce referr,ed to m art1cle 145 3 2 IS sent or (1f later) IS deemed g1ven, and m any other case, a penod of not less than 21 days, begmnmg on the day followmg that on wh1ch the notificatiOn referred to 1n art1cle 145 3 2 IS sent or (1f later) IS deemed g1ven 145 5 The board may from t1me to t1me 1ssue, endorse or adopt terms and cond1t10ns relatmg to the use of electromc commun1cat1ons for the g1vmg of notices, other documents and proxy appomtments by the Company to members or persons entitled by transm1ss1on and by members or persons enbtled by transmiSSIOn to the Company 145 6 Proof that an envelope conta1mng a not1ce or other document was proper1y addressed, prepa1d and posted shall be conclusive ev1dence that the not1ce or document was g1ven Proof that a not1ce or other document contamed m an electronic commun1cat1on was sent or g1ven m accordance w1th gu1dance 1ssued by the lnst1tute of Chartered Secretanes and Adm1n1strators current at the date of adopt1on of these art1cles. or, 1f the board so resolves, any subsequent gu1dance so 1ssued, shall be conclus1ve ev1dence that the nobce or document was sent or g1venA notice or other document sent by the Company to a member by post shall be deemed to be g1ven or delivered 145 611f sent by first class post or spec1al dehvery post from an address 1n the Un1ted K1ngdom to another address m the Un1ted K1ngdom, or by a postal serv1ce |
- - --· ---s1m1lar to first class post or spec1al delivery post from an address 1n another country to another address m that other country, on the day followmg that on wh1ch the envelope contammg 11 was posted, 145 6 2 1f sent by a1rma1l from an address m the Un1ted K1ngdom to an address outs1de the Umted K1ngdom, or from an address 1n another country to an address outs1de that country (1nclud1ng w1thout hm1tat1on an address 1n the Un1ted Kmgdom), on the th1rd day followmg that on wh1ch the envelope contam1ng 11 was posted, 145 6 3 m any other case, on the second day followmg that on wh1ch the envelope conta1nmg 1t was posted 145 7 A notice or other document sent by the Company to a member contamed 1n an electromc commumcat1on shall be deemed g1ven to the member on the day followmg that on wh1ch the electronic communication was sent to the member Such a notice or other document shall be deemed g1ven by the Company to the member on that day notw1thstandmg that the Company becomes aware that the member has failed to rece1ve the relevant not1ce or other document for any reason and notw1thstandmg that the Company subsequently sends a copy of such notice or other document by post to the member 146 Notice by members Unless otherwise prov1ded by these artrcles, a member or a person ent1tled by transm1ss1on to a share shall g1ve any notice or other document under these articles to the Company by whichever of the followmg methods he may 1n h1s absolute d1scretron determ1ne 146 1by posttng the notice or other document 1n a prepa1d envelope addressed to the office, or 146 2 by leavrng the nollce or other document at the office, or 146 3 by send1ng the notice or other document usmg electronrc communrcabons to such address (1f any) for the t1me bemg notified by or on behalf of the Company for that purpose 147 Notice to joint holders In the case of JOint holdmgs, all notices and other documents shall be giVen or sent to the JOint holder whose name appears first m the reg1ster and th1s shall be suffic1ent delivery to all the JOint holders m the1r capacity as such For such purpose a JOint holder havmg no reg1stered address 10 the Unrted Kmgdom and not havmg g1ven an address w1thrn the Un1ted K1ngdom at which not1ces may be g1ven to h1m or an address to which not1ces may be sent us1ng electronrc communrcatlons shall be disregarded 148 Not1ce to persons entitled by transmission A not1ce may be giVen by the Company to the persons entitled to a share m consequence of the death or bankruptcy of a member by send1ng or dehvenng 1t. 1n any manner authonsed by these art1cles for the g1v1ng of not1ce to a member, addressed to them by |
name, or by the title of representatives of the deceased, or trustee of the bankrupt or by any hke descnpt1on at the address, 1f any, w1th1n the Umted K1ngdom supplied for that purpose by the persons cla1m1ng to be so entitled Unbl such an address has been supplied, a not1ce may be g1ven 1n any manner m wh1ch 1t m1ght have been g1ven 1f the death or bankruptcy had not occurred whether or not the Company has notice of the transmiSSIOn event 149 Disruption of postalservices If at any t1me by reason of the suspenSIOn or curtailment of postal serv ces w1thm the Un1ted Kmgdom, the Company IS unable effectively to convene a general meetmg by notiCes sent through the post, a general meetmg may be convened by a not1ce advertised 1n at least one lead1ng national dally newspaper and such not1ce shall be deemed to have been g1ven to all members and other persons entitled to rece1ve 11 on the day when the advertisement appears (or f1rst appears) In any such case the Company shall send confinmatory cop1es of the not1ce by post 1f at least seven days pnor to the meet1ng the posting of notices to addresses throughout the Un1ted Kmgdom aga1n becomes practicable 150 Deemed notice A member present 1n person at any meeting of the Company or of the holders of any class of shares shall be deemed to have rece1ved notice of the meetmg and, where requ1s1te, of the purposes for wh1ch 1t was called 151 Successors In title bound by notice to predecessor Every person who becomes entttled to a share shall be bound by any notice (other than a nollce g1ven under sect1on 793 of the 2006 Act) 1n respect of that share wh1ch, before h1s name IS entered 1n the reg1ster, was g1ven to the person from whom he denves h1s t1tle 152 Reference to notices are to notifications Except when the subject or context otherw1se requ1res, 1n art1cles 1451, 145 2, 145 5, 145 6, 146 and 147 references to a not1ce mclude Without hm1tat10n references to any not1ficat1on reqUired by the Statutes or these art1cles m relation to the publication of any not1ces or other documents on a webs1te 153 Statutory requirements Nothmg m these art1cles shall affect any reqUirement of the Statutes that any particular offer, not1ce or other document be served 1n any part1cular manner 154 Record date for delivery 154 1 For the purposes of g1v1ng not1ces of meetings or other documents, whether under these art1cles or under section 310(1) of the 2006 Act, any other Statute or any other statutory Instrument. the Company may detenm1ne that persons entitled to rece1ve such notices or |
, ' other documents are those persons entered on the reg1ster at the close of bus1ness on a day deterrmned by 11 154 2 The day determ1ned by the Company under article 154 1 may not be more that 21 days before the day that the not1ce of the meetmg or other document IS sent 154 3 For the purposes of determmmg wh1ch persons are entitled to attend and/or vote at a meebng, and how many votes such persons may cast, the Oompany may spec1fy m the not1ce of the meebng a time, not more than 48 hours before the t1me fixed for the meeting, by wh1ch a person must be entered on the register m order to have the nght to attend and/or vote at the meet1ng In calculating the penod ment1oned m th1s art1cle 154 3, no account shall be taken of any part of a day that IS not a wor1<mg day Winding Up 155 Liquidator may distribute 1n spec1e lf the Company JS bemg wound up {whether the hquJdatJon Js voluntary, under superviSIOn or by the Court) the hqu1dator may, w1th the authonty of a spec1al resolutiOn and any other sanct1on reqUJred by the Statutes 155 1 d1v1de among the members m spec1e the whole or any part of the assets of the Company (whether they shall cons1st of property of the same kmd or not) and may for that purpose value any assets and determme how such diVISion shall be earned,out as between the members or different classes of members, and/or 155 2 vest the whole or any part of the assets m trustees upon such trusts for the benefit of members as the liquidator, With the hke authonty, shall th1nk fit but so that no member shall be compelled to accept any assets 1n respect of wh1ch there IS any hab1hty Provisions for Employees 156 Provision for employees The board may, by resolution, exerc1se any power conferred by the Statutes to make prov1s1on for the benefit of persons employed or formerly employed by the Company or any of Jts subs1d1ary undertakmgs m connection With the cessa!Jon, or the transfer to any person, of the whole, or part of, the undertaking of the Company or that subs1d1ary undertakmg Indemnity 157 Indemnity Subject to the proviSIOns of and so far as may be cons1stent w1th the Statutes, every d1rector or other officer of the Company shall be mdemmfied out of the funds of the Company agamst all costs, charges, losses, expenses and hab•hl1es Incurred by h1m for negligence. default, breach of duty or breach of trust or otherw1se m relatJon to the affairs of the Company or of an assoc1ated company, or 1n connect1on w1th the act•v•t•es of the |
I I Company, or of an assoc1ated company, as a trustee of an occupational pens1on scheme (as defined m section 235(6) of the 2006 Act) 158 Insurance 158 1 W1thout preJUdice to art.1cle 157 the board shall have the power to purchase and mamta1n Insurance for or for the benefit of any person who IS or was at any time 1581 1 a d1rector or other officer of any Relevant Company (as defined m art1cle 158 2 below), or 1581 2 a trustee of any pens1on fund or retirement, death or d1sab1l1ty scheme for the benefit of any employee of any Relevant Company or employees' share scheme m wh1ch employees of any Relevant Company are mterested, mcludmg (without hm1tabon) msurance aga1nst any llab1hty w1thm art1cle 157 1ncurred by h1m m relat1on to any Relevant Company, or any such pens1on fund, ret1rement or other scheme or employees' share scheme 158 2 For these purposes Relevant Company shall mean the Company or any other undertakmg wh1ch IS or was at some t1me 158 2 1 the parent undertakmg of the Company, or 158 2 2 a subs1d1ary undertakmg of the Company or of such parent undertaking, or 1582 3 otherw1se associated w1th the Company or any such parent or subs1d1ary undertak1ng or the predecessors 1n busmess of the Company or of any such parent or subs1d1ary undertakmg or associate |
Exhibit 3.2
Company Number 8840579
THE Companies Act 2006
A PUBLIC Company Limited by Shares
Articles of Association
of
4D PHARMA PLC
Incorporated on 10 January 2014
Adopted by special resolution on [•] 2021
Contents
Clause | Page |
1 | Exclusion of default or model articles | 1 |
2 | Definitions and interpretation | 1 |
3 | Limited Liability | 4 |
4 | Shares with special rights | 5 |
5 | Uncertificated shares | 5 |
6 | Consolidation, conversion and sub-division | 6 |
7 | Allotment | 6 |
8 | Commissions | 7 |
9 | Renunciation | 7 |
10 | Interests and trusts | 7 |
11 | Variation of class rights | 7 |
12 | Form of transfers | 8 |
13 | Refusal to register a transfer | 9 |
14 | Retention of transfers | 9 |
15 | Further provisions relating to transfers | 9 |
16 | Destruction of documents | 10 |
17 | Transmission | 11 |
18 | Election of persons entitled by transmission | 11 |
19 | Rights of persons entitled by transmission | 12 |
20 | Disenfranchisement | 12 |
21 | Service of notices on non-members and Depositaries | 13 |
22 | Cessation of disenfranchisement | 14 |
23 | Conversion of uncertificated shares | 14 |
24 | Section 794 and 795 of the 2006 Act | 14 |
25 | Annual general meetings | 14 |
26 | Other general meetings | 14 |
27 | Separate general meetings | 14 |
28 | General meetings at more than one place | 15 |
29 | Electronic General Meetings | 15 |
30 | Meaning of Participate | 16 |
31 | Security at Electronic General Meetings | 16 |
32 | Other arrangements for viewing/hearing proceedings | 16 |
33 | Arrangements regarding level of attendance | 16 |
34 | Change in place and/or time of meeting | 17 |
35 | Security | 17 |
36 | Recipients of notice | 17 |
37 | Period of notice | 18 |
38 | Contents of notice | 18 |
39 | Quorum | 18 |
40 | Chair | 18 |
41 | Adjournments | 19 |
42 | Place and time of adjourned meetings | 19 |
43 | Directors’ entitlement to attend and speak | 19 |
44 | Resolutions and amendments | 19 |
45 | Methods of voting and demand for a poll | 20 |
46 | Conduct of poll and declaration of result | 21 |
47 | Continuance of meeting | 21 |
48 | Voting rights | 21 |
49 | Corporations acting by representatives | 22 |
50 | Votes of joint holders | 22 |
51 | Members incapable of managing their affairs | 22 |
52 | Calls in arrears | 23 |
53 | Objections to voting | 23 |
54 | Failure to vote in accordance with instructions | 23 |
55 | Appointment and form of proxy | 23 |
56 | Deposit of proxy | 24 |
57 | Termination of authority of proxy | 26 |
58 | Number of directors | 27 |
59 | Directors shareholding qualification | 27 |
60 | Eligibility for election | 27 |
61 | Appointment by ordinary resolution or by directors | 27 |
62 | Separate resolutions for appointment of each director | 27 |
63 | Retirement of directors by rotation | 27 |
64 | Selection of directors to retire | 28 |
65 | When directors deemed to be re-appointed | 28 |
66 | Additional powers of the Company | 28 |
67 | Disqualification of a director | 29 |
68 | Executive office | 29 |
69 | Power to appoint alternate directors | 30 |
70 | Formalities for appointment and termination | 30 |
71 | Alternate to receive notices | 30 |
72 | Alternate may be paid expenses but not remuneration | 31 |
73 | Alternate not an agent of appointor | 31 |
74 | Directors’ fees | 31 |
75 | Directors’ remuneration | 31 |
76 | Expenses | 32 |
77 | Pensions and other benefits | 32 |
78 | Business to be managed by the directors | 32 |
79 | Provision for employees | 32 |
80 | Local boards | 32 |
81 | Powers of attorney and agents | 33 |
82 | Signature on cheques, etc | 33 |
83 | Director may have interests | 33 |
84 | Power of the board to authorise conflicts of interest | 34 |
85 | Declaration of interests | 35 |
86 | Entitlement to keep information confidential | 36 |
87 | Avoiding conflicts of interest | 36 |
88 | Overriding principles | 37 |
89 | Directors’ powers to vote | 37 |
90 | Relaxation of provisions | 39 |
91 | Board meetings | 39 |
92 | Quorum, competence and voting | 39 |
93 | Power of directors if number falls below minimum | 40 |
94 | Chair | 40 |
95 | Resolutions in writing | 40 |
96 | Delegation of powers | 40 |
97 | Proceedings of committees | 41 |
98 | Validity of proceedings in spite of formal defect | 41 |
99 | General power to borrow | 41 |
100 | Maximum limit on borrowings | 41 |
101 | Interpretation of articles 100 to 105 | 42 |
102 | Fluctuating rates of exchange | 46 |
103 | Changes in legislation | 47 |
104 | Validity of borrowing arrangements | 47 |
105 | Certification of Auditor | 47 |
106 | Secretary | 47 |
107 | Seals | 47 |
108 | Minutes and books | 48 |
109 | Declaration of dividends | 48 |
110 | Interim dividends | 49 |
111 | Calculation and currency of dividends | 49 |
112 | Dividends not to bear interest | 49 |
113 | Permitted deductions | 49 |
114 | Waiver of dividends | 49 |
115 | Manner of payment of dividends | 50 |
116 | Risk and discharge of Company | 50 |
117 | Receipts of joint holders | 51 |
118 | Scrip dividends | 51 |
119 | Retention and forfeiture of dividends | 52 |
120 | Dividends in specie | 53 |
121 | Fixing of record dates | 53 |
122 | Capitalisation of reserves | 54 |
123 | Issue of share certificates | 55 |
124 | Cancellation and replacement of share certificates | 55 |
125 | Power to make calls | 56 |
126 | Time when call made | 56 |
127 | Liability of and receipts by joint holders | 56 |
128 | Failure to pay call | 56 |
129 | Other sums due on shares | 56 |
130 | Power to differentiate | 57 |
131 | Payments of calls in advance | 57 |
132 | Notice on failure to pay a call | 57 |
133 | Forfeiture for non-compliance | 57 |
134 | Notice of forfeiture | 58 |
135 | Annulment of forfeiture | 58 |
136 | Disposal of forfeited shares | 58 |
137 | Extinction of rights | 58 |
138 | Lien on partly paid shares | 58 |
139 | Enforcement of lien by sale | 59 |
140 | Application of proceeds of sale | 59 |
141 | Evidence of forfeiture or lien | 59 |
142 | Power to dispose of shares of untraced members | 59 |
143 | Sale procedure and application of proceeds | 60 |
144 | Accounts | 61 |
145 | Summary of financial statements | 61 |
146 | Validity of acts of Auditor | 61 |
147 | Notices in writing | 61 |
148 | Method of giving notice to members | 61 |
149 | Notice by members | 64 |
150 | Notice to joint holders | 64 |
151 | Notice to persons entitled by transmission | 64 |
152 | Disruption of postal services | 65 |
153 | Deemed notice | 65 |
154 | Successors in title bound by notice to predecessor | 65 |
155 | Reference to notices are to notifications | 65 |
156 | Statutory requirements | 65 |
157 | Record date for delivery | 65 |
158 | Liquidator may distribute in specie | 66 |
159 | Provision for employees | 66 |
160 | Indemnity | 66 |
161 | Insurance | 66 |
162 | Forum Selection | 67 |
Preliminary
1 | Exclusion of default or model articles |
No default or model articles or regulations which may apply to companies under the Statutes (including, without limitation, the regulations in Table A in the Companies (Tables A to F) Regulations 1985 (as amended) and the model articles in the Companies (Model Articles) Regulations 2008) shall apply to the Company unless expressly included in these articles.
2 | Definitions and interpretation |
2.1 | In these articles (if not inconsistent with the subject or context): |
2.1.1 | the words in the first column of the table below have the meanings set out opposite to them: |
2006 Act means the Companies Act 2006;
AIM means the market of that name operated by the London Stock Exchange;
AIM Rules means, together, the AIM Rules for Companies (including any Notes (as defined in the AIM Rules for Companies)) and the AIM Rules for Nominated Advisers, published by the London Stock Exchange from time to time
these articles means these articles of association, as from time to time altered;
Auditor means the auditor for the time being of the Company;
board means the board of directors for the time being of the Company or the directors present at a duly convened meeting of the directors at which a quorum is present;
clear days means in relation to the period of a notice that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect
Company means 4d pharma plc (Company number 8840579);
“Depositary” means the holder of a share for the time being held on behalf of another person on the terms of a depositary agreement or a depositary receipt or a similar document;
Director means a director for the time being of the Company;
electronic form and electronic means have the meanings given in section 1168 of the 2006 Act
1 |
electronic general meeting means a general meeting hosted on an electronic platform
electronic platform includes, but is not limited to, website addresses, telephone conference and video call systems
employees’ share scheme means employees’ share scheme as defined in section 1166 of the 2006 Act;
holder means in relation to any shares, the member whose name is entered in the register as the holder of those shares;
London Stock Exchange means London Stock Exchange plc;
market nominee means a recognised clearing house or a nominee of a recognised clearing house or of a recognised investment exchange within the meaning of section 769(2), 776(3) and 778(1) of the 2006 Act;
Month means calendar month;
Nasdaq means the market known as Nasdaq operated by The Nasdaq OMX Group, Inc.;
Nasdaq Rules means the rules of Nasdaq;
Office means the registered office for the time being of the Company;
paid means paid or credited as paid;
parent undertaking means parent undertaking as defined in section 1162 of the 2006 Act;
register means the register of members to be kept under section 113 of the 2006 Act and regulation 20 of the Uncertificated Securities Regulations 2001;
seal means any common or official seal that the Company may be permitted to have under the Statutes;
secretary means the secretary of the Company or (where there are joint secretaries) any of the joint secretaries, and includes any deputy secretary, assistance secretary and any other person appointed by the board to perform any of the duties of the secretary;
securities seal means an official seal kept by the Company by virtue of section 50 of the 2006 Act;
the 2006 Act means the Companies Act 2006;
the Statutes means the 2006 Act, the Uncertificated Securities Regulations and every other act, statute, statutory instrument, regulation or order for the time being in force concerning companies and affecting the Company;
2 |
transmission event means death, bankruptcy or any other event giving rise to the transmission of a person’s entitlement to a share by operation of law;
Uncertificated Securities Regulations means the Uncertificated Securities Regulations 2001 as amended from time to time and any Statutes which supplement or replace such Regulations;
undertaking means undertaking as defined in section 1161 of the 2006 Act;
the United Kingdom means Great Britain and Northern Ireland;
working day means working day as defined in section 1173 of the 2006 Act; and
year means calendar year;
2.1.2 | any reference to an uncertificated share, or to a share being held in uncertificated form shall (subject to regulation 42(11)(a) of the Uncertificated Securities Regulations) mean a share in the capital of the Company which is for the time being recorded on the Operator Register of Members (as defined in regulation 20(1) of the Uncertificated Securities Regulations) and any reference to a certificated share, or to a share being held in certificated form, shall mean any share other than an uncertificated share; |
2.1.3 | the expression member present in person shall be deemed to include a member present by proxy or, in the case of a corporate member, by a duly authorised representative and cognate expressions shall be construed accordingly; |
2.1.4 | any reference to days of notice shall be construed as meaning clear days; |
2.1.5 | words denoting the singular shall include the plural and vice versa, words denoting one gender shall include the other gender and words denoting persons shall be construed as including bodies corporate and unincorporated associations; |
2.1.6 | any other words or expressions defined in the 2006 Act or the Uncertificated Securities Regulations or, if not defined in that Act or those Regulations, in any other Statute (in each case as in force on the date of the adoption of these articles or any part of these articles), shall bear the same meaning in these articles or that part (as the case may be) except that the word company includes any body corporate; |
2.1.7 | subject to article 2.1.6, references to any provision of any enactment or of any subordinate legislation (as defined by section 21(1) of the Interpretation Act 1978) include any modification or re-enactment of that provision for the time being in force; |
2.1.8 | any reference to: |
3 |
2.1.8.1 | a document includes reference to an electronic communication; |
2.1.8.2 | a document being executed includes references to it being executed under hand or seal or, in the case of an electronic communication, by electronic signature (including by way of an electronic signature platform, such as DocuSign) or such other means of verifying the authenticity of the communication that the board may from time to time approve; |
2.1.8.3 | an instrument means a written document having tangible form (e.g. on paper) and not comprised in an electronic communication; |
2.1.8.4 | in writing and written means the representation or reproduction of words, numbers or symbols in a legible and non-transitory form by any method or combination of methods whether comprised in an electronic communication or otherwise and including (without limitation) by e-mail; |
2.1.8.5 | address in relation to electronic communications, includes any number or address (including, in the case of any Uncertificated Proxy Instruction permitted by article 56.2, an identification number or a participant in the relevant system concerned) used for the purposes of such communications; |
2.1.8.6 | present means, for the purposes of physical general meetings, present in person, or, for the purposes of electronic general meetings, present by electronic means (and references to persons attending by electronic means is defined as attendance at electronic general meetings via the electronic platform(s) stated in the notice of such meeting); |
2.1.9 | references to a meeting shall not be taken as requiring more than one person to be present if any quorum requirement can be satisfied by one person; |
2.1.10 | in relation to a share, any reference to a relevant system is a reference to the relevant system in which that share is a participating security. |
2.2 | A special resolution shall be effective for any purpose for which an ordinary resolution is expressed to be required under these articles. |
2.3 | Headings are inserted for convenience only and shall not affect construction of these articles. |
3 | Limited Liability |
The liability of the members is limited to the amount, if any, unpaid on the shares held by them.
4 |
Share Capital
4 | Shares with special rights |
Subject to the Statutes and without prejudice to any rights attached to any existing shares any shares may be issued with such rights or restrictions as the Company may by ordinary resolution determine (or, if no such resolution is in effect or so far as it does not make specific provision, as the board may determine), and, subject to the Statutes, shares may be issued on the terms that they are, or are to be liable, to be redeemed at the option of the Company or the holder.
5 | Uncertificated shares |
5.1 | Subject to the Statutes, the board may permit any class or classes of shares to be held and transferred in uncertificated form by means of a relevant system and may determine that any class of shares shall cease to be held and transferred in this way. |
5.2 | In relation to any share which is for the time being held in uncertificated form: |
5.2.1 | the Company may utilise the relevant system in which it is held to the fullest extent possible from time to time in the exercise of any of its powers or functions under the Statutes or these articles or others in effecting any actions and the board may from time to time determine the manner in which such powers, functions and actions shall be so exercised or effected; |
5.2.2 | any provision in these articles which is inconsistent with: |
5.2.2.1 | the holding of and transfer of title to that share in uncertificated form by means of a relevant system; |
5.2.2.2 | the exercise of any powers or functions by the Company or the effecting by the Company of any actions by means of a relevant system; or |
5.2.2.3 | any other provisions of the Statutes relating to the shares held in uncertificated form |
shall not apply
5.3 | Where any share is for the time being held in uncertificated form and the Company is entitled under the Statutes or these articles to sell, transfer or otherwise dispose of, reallot, accept the surrender of, forfeit, or enforce a lien over that share, the Company shall be entitled, subject to the Statutes, these articles and the facilities and requirements of the relevant system: |
5.3.1 | to require the holder of that share by notice to convert that share into certificated form within the period specified in the notice and to hold that share in certificated form so long as required by the Company; |
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5.3.2 | to require the Operator to convert that share into certificated form in accordance with regulation 32(2)(c) of the Uncertificated Securities Regulations; |
5.3.3 | to require the holder of that share by notice to give any instructions necessary to transfer title to that share by means of the relevant system within the period specified in the notice; |
5.3.4 | to require the holder of that share by notice to appoint any person to take any step, including without limitation the giving of any instructions by means of the relevant system, necessary to transfer that share within the period specified in the notice; and |
5.3.5 | to take any other action that the board considers necessary or expedient to achieve the sale, transfer, disposal, reallotment, forfeiture or surrender of that share or otherwise to enforce a lien in respect of that share. |
5.4 | Subject to the Statutes, for the purpose of effecting any action by the Company, the board may determine that shares held by a person in uncertificated form shall be treated as a separate holding from shares held by that person in certificated form. |
6 | Consolidation, conversion and sub-division |
6.1 | All new shares created by any increase in the Company’s share capital, any sub-division or consolidation and division of its share capital or any conversion of stock into paid up shares shall be subject to the provisions of the Statutes and of these articles, including those relating to payment of calls, lien, transfer, transmission and forfeiture. Such new shares shall be unclassified unless otherwise provided by theses articles, by the resolution creating the shares or by the terms of allotment of the shares. |
6.2 | If as a result of a consolidation or sub-division of shares any members would become entitled to fractions of a share, the board may on behalf of those members deal with the fractions as they think fit. In particular, without limitation, the board may aggregate and sell the shares representing the fractions to any person (including, subject to the provisions of the Statutes, the Company) and distribute the net proceeds of sale in due proportion among those members (except that any proceeds in respect of any holding less than a sum fixed by the board may be retained for the benefit of the Company). For the purposes of any such sale, the board may appoint some person to transfer the shares to, or in accordance with the directions of, the buyer. The buyer shall not be bound to see to the application of the purchase moneys and his title to the shares shall not be affected by any irregularity in, or invalidity of, the proceedings in relation to the sale. |
Shares
7 | Allotment |
Subject to the Statutes relating to authority, pre-emption rights and otherwise, these articles and any resolution of the Company, the board may allot (with or without conferring a right of renunciation), grant options over or otherwise deal with or dispose of shares in the capital of the Company to such persons, at such times and on such terms as the board may decide.
6 |
8 | Commissions |
The Company may exercise all powers of paying commission and brokerage conferred by the Statutes or otherwise vested in the Company. Subject to the provisions of 2006 Act, the AIM Rules and any other rules made by the Financial Conduct Authority, the London Stock Exchange or any recognised investment exchange (within the meaning of FSMA), in each case, to the extent applicable to the Company from time to time, any such commission may be paid in cash or in fully or partly paid shares of the Company, or partly in one way and partly in another, as the Directors see fit.
9 | Renunciation |
The board may at any time after the allotment of any share but before any person has been entered in the register as the holder, recognise a renunciation of that share by the allottee in favour of some other person and may accord to any allottee of a share a right to effect such renunciation upon and subject to such terms and conditions as the board may think fit.
10 | Interests and trusts |
10.1 | Except as required by law or by these articles, the Company shall not be bound by or compelled in any way to recognise (even when having notice of it) any interest in or in respect of any share, or any other right in respect of any share, except an absolute right to the entirety of that share in the holder. |
10.2 | The Company shall be entitled, but except as required by law shall not be bound, to recognise in such manner and to such extent as it may think fit any trusts in respect of any of the shares of the Company. Notwithstanding any such recognition, the Company shall not be bound to see to the execution, administration or observance of any trust, whether express, implied or constructive, in respect of any shares of the Company and shall be entitled to recognise and give effect to the acts and deeds of the holders of such shares as if they were the absolute owners of those shares. For these purposes, trust includes any right in respect of any share other than an absolute right to that share vested in the holder of it for the time being or any other right in case of a transmission of that share as are mentioned in these articles. |
11 | Variation of class rights |
11.1 | Whenever the share capital of the Company is divided into different classes of shares, all or any of the rights attached to any class may, subject to the provisions of the Statutes, be varied or abrogated in such manner as those rights may provide for or (if no such provision is made) either with: |
11.1.1 | the consent of the holders of not less than three-quarters in nominal value of the issued shares of that class and such consent shall be by one or more instruments; or |
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11.1.2 | with the authority of a special resolution passed at a separate meeting of the holders of the shares of the class (but not otherwise) and may be so varied or abrogated either whilst the Company is a going concern or during or in contemplation of a winding up. |
11.2 | All the provisions of these articles relating to general meetings of the Company and to the proceedings at those meetings shall apply, mutatis mutandis, to every such separate general meeting except that: |
11.2.1 | the quorum at any such meeting shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class; |
11.2.2 | for the purposes of article 11.2.1 any person present by proxy is treated as holding or presenting only those shares in respect of which the proxy is authorised to exercise voting rights; |
11.2.3 | at any adjourned meeting any one holder of shares of the class present in person shall be a quorum; |
11.2.4 | any holder of shares of the class present in person may demand a poll; and |
11.2.5 | every such holder shall on a poll have one vote for every share of the class held by him. |
Article 11.1 shall apply to the variation or abrogation of the special rights attached to some only of the shares of any class as if the shares concerned and the remaining shares of such class formed separate classes.
Unless otherwise expressly provided by the rights attached to any class of shares those rights shall not be deemed to be varied by the creation or issue of further shares ranking equally with, or subsequent to, that class of shares or by the purchase or redemption by the Company of any of its own shares.
Transfer of Shares
12 | Form of transfers |
12.1 | Subject to the restrictions in these articles, a member may transfer all or any of his shares in any manner which is permitted by the Statutes and is from time to time approved by the board. |
12.2 | All transfers of uncertificated shares shall be effected in accordance with the Statutes and the facilities and requirements of the relevant system and otherwise in accordance with any arrangements made by the directors under article 5. |
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12.3 | All transfers of certificated shares shall be effected by instrument in any usual or common form, or in any other form acceptable to the board. The instrument of transfer shall be executed by or on behalf of, the transferor and (except in the case of fully paid shares) by or on behalf of the transferee. |
13 | Refusal to register a transfer |
13.1 | The board may, in its absolute discretion, refuse to register: |
13.1.1 | any transfer of a certificated share which is not a fully paid share; and |
13.1.2 | any transfer of a share on which the Company has a lien |
provided that in the case of any class of shares which is admitted to trading on AIM (or, in the case of any American Depositary Shares which are admitted to Nasdaq, from time to time) the refusal does not prevent dealings in those shares from taking place on an open and proper basis.
13.2 | The board may, in its absolute discretion, decline to register the transfer of a certificated share unless the instrument of transfer: |
13.2.1 | is in respect of only one class of share; |
13.2.2 | is duly stamped, or adjudged or certified as not chargeable to stamp duty, and is deposited at the office, or at such other place as the board may from time to time determine; and |
13.2.3 | (except where the shares are registered in the name of a market nominee and no certificate has been issued for them) is accompanied by the relevant share certificate(s) and such other evidence as the board may reasonably require to show the right of the transferor to make the transfer (and, if the instrument of transfer is executed by some other person on his behalf, the authority of that person so to do). |
14 | Retention of transfers |
All instruments of transfer which are registered may be retained by the Company, but any instrument of transfer which the board refuse to register shall (except in any case where fraud or any other crime involving dishonesty is suspected) be returned to the person lodging it.
15 | Further provisions relating to transfers |
15.1 | No fee will be charged by the Company for the registration of any instrument of transfer or other document or instruction relating to or affecting the title to any shares or otherwise for making any entry in the register affecting the title to any shares. |
15.2 | The transferor shall be deemed to remain the holder of the shares concerned until the name of the transferee is entered in the register in respect of them. |
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15.3 | Nothing in these articles shall preclude the board from recognising a renunciation of the allotment of any share by the allottee in favour of some other person. |
15.4 | Unless otherwise agreed by the board in any particular case, the maximum number of persons that may be entered on the register as joint holders of a share is four. |
Destruction of Documents
16 | Destruction of documents |
16.1 | Subject to compliance with any requirements of the Uncertificated Securities Regulations in the case of uncertificated shares, the board may arrange the destruction of the following documents held by the Company: |
16.1.1 | all share certificates which have been cancelled at any time after the expiration of one year from the date of such cancellation; |
16.1.2 | all notifications of change of name and address and all dividend mandates which have been cancelled or have ceased to have effect at any time after the expiration of two years from the date of the recording them or, as the case may be, the date of such cancellation or cessation; |
16.1.3 | all instruments of transfer of shares and all other documents representing or purporting to represent the right to be registered as the holder of shares on the basis of which entries have been made in the register at any time after the expiration of six years from the date of the entry on the register; |
16.1.4 | all paid dividend warrants and cheques at any time after the expiration of two years from the date of actual payment; |
16.1.5 | all appointments (or records of appointment) of proxy which have been used for the purpose of a poll at any time after the expiration of one year from the date of use; |
16.1.6 | all appointments (or records of appointment) of proxy which have not been used for the purpose of a poll at any time after one month from the end of the meeting to which the appointment of proxy relates and at which no poll was demanded. |
16.2 | It shall conclusively be presumed in favour of the Company that: |
16.2.1 | every entry in the register purporting to have been made on the basis of an instrument of transfer or other document so destroyed was duly and properly made; |
16.2.2 | every instrument of transfer so destroyed was a valid and effective instrument duly and properly registered; |
16.2.3 | every share certificate so destroyed was a valid certificate duly and properly cancelled; |
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16.2.4 | every paid dividend warrant and cheque so destroyed was duly paid; and |
16.2.5 | every other document mentioned in article 16.1 so destroyed was a valid and effective document in accordance with the recorded particulars of it in the books or records of the Company |
provided that this article shall apply only to the destruction of a document in good faith and without express notice of any claim (regardless of the parties to it) to which the document might be relevant.
16.3 | Nothing in this article shall be construed as imposing upon the Company or the board any liability in respect of the destruction of any such document earlier than stated in article 16.1, or in any other circumstances, which would not attach to the Company or the board in the absence of this article. |
16.4 | References in this article to the destruction of any document include references to its disposal in any manner. |
Transmission of Shares
17 | Transmission |
If a member dies, the survivors or survivor where the deceased was a joint holder, or the personal representatives of the deceased where he was a sole or only surviving holder, shall be the only persons recognised by the Company as having any title to his shares, but nothing in these articles shall release the estate of a deceased holder (whether sole or joint) from any liability in respect of any share held by him solely or jointly.
18 | Election of persons entitled by transmission |
18.1 | Any person becoming entitled to a share in consequence of a transmission event may, on producing such evidence as may be required by the board (and subject to the following provisions of this article), elect either to be registered as the holder of the share or to have another person nominated by him registered as the holder of the share. |
18.2 | If a person becoming entitled by transmission to a share elects to be registered as the holder he shall give notice to the Company to that effect. If he elects to have another person registered and the share is a certificated share, he shall execute an instrument of transfer of the share to that person. If he elects to have himself or another person registered and the share is an uncertificated share, he shall take any action the board may require (including without limitation the execution of any document and the giving of any instruction by means of a relevant system) to enable himself or that person to be registered as the holder of the share. |
18.3 | All the limitations, restrictions and provisions of these articles relating to the right to transfer and the registration of transfers of shares shall apply to any such notice or transfer or other action as if it were a transfer effected by the person from whom the title by transmission is derived and as if the transmission event had not occurred. |
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19 | Rights of persons entitled by transmission |
19.1 | Save as otherwise provided by or in accordance with these articles, a person becoming entitled to a registered share in consequence of a transmission event (upon supplying to the Company such evidence as the board may reasonably require to show his title to the share) shall be entitled to the same dividends and rights as those to which he would be entitled if he were the holder of the share. That person may give a discharge for all dividends and other moneys payable in respect of the share, but he shall not, before being registered as the holder of the share, be entitled to attend or vote at meetings of the Company or to exercise any other rights or privileges of a member in relation to meetings of the Company, unless and until he shall have become a member in respect of the share. |
19.2 | The board may at any time give notice requiring a person becoming entitled to a share on a transmission event to elect to be registered himself or to transfer the share and, if the notice is not complied with within sixty days, the board may withhold payment of all dividends and other moneys payable in respect of the share until the requirements of the notice have been complied with. |
Disclosure of Interests in Shares
20 | Disenfranchisement |
20.1 | If the holder of, or any other person appearing to be interested in, any share has been given notice under section 793 of the 2006 Act (a section 793 notice) and has failed in relation to that share (the default share) to give the Company the information required by that notice within the prescribed period from the date of service of the notice, the restrictions referred to below shall apply (provided that the board may waive those restrictions in whole or in part at any time). |
20.2 | If, while any of the restrictions referred to below apply to a share, another share is allotted in right of it (or in right of any share to which this article applies), the same restrictions shall apply to that other share as if it were a default share. |
20.3 | The restrictions referred to above are as follows: |
20.3.1 | the holder of the default shares shall not be entitled in respect of those shares to attend or vote at any general meeting or at any separate meeting of the holders of that class of shares or on a poll; |
20.3.2 | in addition, where the default shares in which any one person is interested or appears to the Company to be interested represent 0.25 per cent or more in nominal value of the issued shares of their class: |
20.3.2.1 | any dividend or other money which would otherwise be payable in respect of the default shares shall be retained by the Company without any liability to pay interest on it when such dividend or other money is finally paid to the member and the member shall not be entitled to receive shares in lieu of any dividend; |
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20.3.2.2 | no transfer of any shares held by the member shall be registered unless: (a) the holder is not himself in default as regards supplying the information required and the holder provides evidence to the satisfaction of the board that no person in default as regards supplying such information is interested in any of the shares which are the subject of the transfer, or (b) the transfer is an approved transfer, or (c) registration of the transfer is required by the Uncertificated Securities Regulations. |
20.4 | For the purposes of this article: |
20.4.1 | a person other than the member holding a share shall be treated as appearing to be interested in that share if the member has informed the Company that the person is, or may be, so interested, or if the Company (after taking account of any information obtained under any section 793 notice and any other relevant information) knows or has reasonable cause to believe that the person is, or may be, so interested; |
20.4.2 | an approved transfer in relation to any shares is a transfer under: |
20.4.2.1 | a takeover offer (within the meaning of section 974 of the 2006 Act) which relates to the share; or |
20.4.2.2 | a sale made through a recognised investment exchange (as defined in section 285 of the Financial Services and Markets Act 2000) or any other stock exchange or market outside the United Kingdom on which shares of that class are normally traded; or |
20.4.2.3 | a bona fide sale of the whole of the beneficial interest in the shares to a person whom the board is satisfied is unconnected with the member or with any other person appearing to be interested in the share; |
20.4.3 | the percentage of issued shares of a class represented by a particular holding shall be calculated by reference to the shares in issue at the time that the section 793 notice is served. |
21 | Service of notices on non-members and Depositaries |
21.1 | If a section 793 notice is given by the Company to a person appearing to be interested in any share, a copy of the notice shall be given to the holder at the same time, but the failure or omission to do so, or the non-receipt by that person of the copy, shall not prejudice the operation of this article. |
21.2 | Where default shares in which a person appears to be interested are held by a Depositary, the provisions of this Article 20 shall be treated as applying only to those shares held by the Depositary in which such person appears to be interested and not (insofar as such person’s apparent interest is concerned) to any other shares held by the Depositary. |
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22 | Cessation of disenfranchisement |
22.1 | The sanctions under article 20 shall have effect for the period determined by the board being not more than seven days after the earlier of: |
22.2 | the Company being notified that the default shares have been transferred under an approved transfer or otherwise in accordance with article 20.3.2.2; or |
22.3 | the information required by the section 793 notice has been received in writing by the Company to the satisfaction of the board at the address supplied by the Company in the section 793 notice or otherwise expressly supplied by the Company for the purpose of receiving such information. |
22.4 | If any dividend or other distribution is withheld under article 20.3.2.1 above, the member shall be entitled to receive it as soon as practicable after the sanction ceases to apply. |
23 | Conversion of uncertificated shares |
The Company may exercise any of its powers under article 5.3 in respect of any default share that is held in uncertificated form.
24 | Section 794 and 795 of the 2006 Act |
The provisions of articles 20 to 23 are without prejudice to the provisions of section 794 and 795 of the 2006 Act, and in particular the Company may apply to the Court under section 794(1) of the 2006 Act whether or not these provisions apply or have been applied.
General Meetings
25 | Annual general meetings |
The board shall convene and the Company shall hold annual general meetings in accordance with the Statutes.
26 | Other general meetings |
The board may convene other general meetings whenever it thinks fit. Other general meetings shall also be convened by the board on a requisition by members in accordance with the Statutes, or in default may be convened by such requisitionists in accordance with the Statutes. Other general meetings may also be convened in accordance with article 93.
27 | Separate general meetings |
Subject to these articles and to any rights for the time being attached to any class of shares in the Company, the provisions of these articles relating to general meetings of the Company (including, without limitation, provisions relating to the proceedings at general meetings or to the rights of any person to attend or vote or be represented at general meetings or to any restrictions on these rights) shall apply, with any necessary changes, in relation to every separate general meeting of the holders of any class of shares in the Company.
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28 | General meetings at more than one place |
28.1 | A general meeting may be held at more than one place if: |
28.1.1 | the notice convening the meeting specifies that it shall be held at more than one place; or |
28.1.2 | the board resolves, after the notice convening the meeting has been given, that the meeting shall be held at more than one place; or |
28.1.3 | it appears to the chair of the meeting that the place of the meeting specified in the notice convening the meeting is inadequate to accommodate all persons entitled and wishing to attend. |
28.2 | A general meeting held at more than one place shall be duly constituted and its proceedings valid if (in addition to the other provisions in these articles relating to meetings) the chair of the meeting is satisfied that adequate facilities are available throughout the meeting to ensure that each person present at each place is able to: |
28.2.1 | participate in the business for which the meeting has been convened; |
28.2.2 | hear and see all persons who speak (by the use of microphones, loudspeakers, audio-visual communications equipment or otherwise, whether such equipment is in use when these articles are adopted or developed subsequently) in each meeting place, and be heard and seen by all other persons so present in the same way; |
28.2.3 | have access to all documents which are required by the Statutes or these articles to be made available at the meeting; and |
28.2.4 | (in accordance with his rights under the Statutes and these articles) vote on a show of hands and on a poll and be represented by a proxy. |
28.3 | The meeting shall be deemed to take place at the place at which the chair is present (the principal venue). |
28.4 | Article 41 shall apply to any interruption or adjournment of a meeting which is being held in more than one place. |
28.5 | Each person present in person at each meeting place shall be counted in the quorum for, and be entitled to vote at, the general meeting. |
29 | Electronic General Meetings |
29.1 | The board may resolve to enable persons entitled to attend a general meeting hosted on an electronic platform to do so by simultaneous attendance by electronic means with no member necessarily in physical attendance at the electronic general meeting. The members or their proxies present shall be counted in the quorum for, and entitled to vote at, the general meeting in question, and that meeting shall be duly constituted and its proceedings valid if the chair of the general meeting is satisfied that adequate facilities are available throughout the electronic general meeting to ensure that members attending the electronic general meeting who are not present together at the same place may, by electronic means, attend and speak and vote at it. |
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29.2 | Nothing in these articles prevents a general meeting being held both physically and electronically. |
30 | Meaning of Participate |
For the purposes of article 29 the right of a member to participate in the business of any general meeting shall include without limitation the right to speak, vote on a poll, be represented by a proxy and have access (including electronic access) to all documents which are required by the Statutes or these articles to be made available the meeting.
31 | Security at Electronic General Meetings |
31.1 | The board and, at any electronic general meeting, the chair may make any arrangement and impose any requirement or restriction as is: |
31.1.1 | necessary to ensure the identification of those taking part and the security of the electronic communication; and |
31.1.2 | proportionate to those objectives, |
and in this respect the Company is able to authorise any voting application, system or facility for electronic general meetings as it sees fit.
32 | Other arrangements for viewing/hearing proceedings |
The board may make arrangements for persons entitled to attend a general meeting or an adjourned general meeting to be able to view and hear the proceedings of, and to speak at, that meeting (in the manner set out in article 28) from a location which is not classified as a meeting place. The persons attending at any such location shall not be regarded as present at the general meeting or adjourned general meeting and shall not be entitled to vote at the meeting. The inability for any reason of any person present at such a location to view or hear all or any of the proceedings of, or to speak at, the meeting shall not affect the validity of the proceedings of the meeting.
33 | Arrangements regarding level of attendance |
The board may from time to time make such arrangements for limiting the level of attendance at any location for which arrangements have been made under articles 28 and 32 as it considers appropriate. These arrangements may include the issue of tickets (on a basis intended to afford all members and proxies entitled to attend the meeting an equal opportunity of being admitted to any specific venue) or the imposition of some random means of selection for admission to that venue. In this case, the arrangements must allow any members and proxies excluded from attendance at the principal venue to attend at one of the other venues.
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34 | Change in place and/or time of meeting |
34.1 | If, after the giving of notice of a meeting but before the meeting is held, or after the adjournment of a meeting but before the adjourned meeting is held (whether or not notice of the adjourned meeting is required), the board decides that it is impracticable or unreasonable for reasons beyond its control to hold the meeting at the declared place (or any of the declared places, in the case of a meeting to which article 28 applies) and/or time, it may change the place (or as appropriate any of the places) and/or postpone the time at which the meeting is to be held. |
34.2 | If such a decision is made, the board may then change the place (or as appropriate any of the places) and/or postpone the time again if they decide that it is reasonable to do so. |
34.3 | In either case: |
34.3.1 | no new notice of the meeting need be given, but the board shall, if practicable, advertise the new place, date and/or time of the meeting in at least one leading national daily newspaper and shall make arrangements for notices of the change of place and/or postponement to appear at the original place and/or at the original time; and |
34.3.2 | notwithstanding article 56, an appointment of proxy in relation to the meeting may be deposited or delivered in any manner permitted by article 56.1.1 or 56.1.2 at any time not less than 48 hours before any new time fixed for holding the meeting. In calculating the 48 hour period, the board may decide not to take account of any part of a day that is not a working day. |
35 | Security |
The board and, at any general meeting, the chair may make any arrangement and impose any requirement or restriction it or he or she considers appropriate to ensure the security of a meeting including, without limitation, requirements for evidence of identity to be produced by any person attending the meeting, the searching of their personal property and the restriction of items that may be taken into the meeting place. A director or the secretary may refuse entry to a person who refuses to comply with these arrangements, requirements or restrictions. They may also arrange for persons to be removed from a meeting.
Notice of General Meetings
36 | Recipients of notice |
Notice of a general meeting shall be given to all members (other than any who, under these articles or the terms of issue of the shares they hold, are not entitled to receive such notice from the Company), and to each of the directors and to the Auditor.
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37 | Period of notice |
Save as permitted or required by the Statutes, an annual general meeting shall be called by not less than 21 days’ notice, and any other general meeting by 14 days’ notice.
38 | Contents of notice |
In addition to the provisions of the Statutes relating to the contents of the notice of general meeting (including, in relation to the place of the meeting, by identifying the principal venue and any other place at which the meeting is to be held under article 28), the notice shall include details of any arrangements made for the purpose of article 32 (making clear that participation in these arrangements will not amount to attendance at the meeting to which the notice relates).
Proceedings at General Meetings
39 | Quorum |
39.1 | No business other than the appointment of a chair shall be transacted at any general meeting unless a quorum is present at the time when the meeting proceeds to business and during the transaction of business. Two persons entitled to vote upon the business to be transacted, each being a member, the proxy of a member or a duly authorised representative of a corporation which is a member, shall be a quorum. |
39.2 | If within 15 minutes from the time fixed for a general meeting (or such longer time as the chair of the meeting may think fit to allow) a quorum is not present, or if during the meeting a quorum ceases to be present, the meeting, if convened on the requisition of members, shall be dissolved. In any other case, the meeting shall stand adjourned to such day, place and time as may have been specified for the purpose in the notice convening the meeting or (if not so specified) as the chair may determine. |
39.3 | If at such adjourned meeting a quorum is not present within 15 minutes from the time fixed for holding the meeting, the meeting shall be dissolved. |
40 | Chair |
40.1 | The chair of the board (if any), failing whom a deputy chair (if any), shall preside as chair at a general meeting. If there is no such chair or deputy chair or if at any meeting neither is present and willing to act within 15 minutes after the time fixed for holding the meeting, the directors present shall choose one of their number (or, if no director is present and willing to act, the members present and entitled to vote shall choose one of their number) to be chair of the meeting. |
40.2 | The chair of the meeting can take any action he or she considers appropriate for the proper and orderly conduct of the business to be carried out at the general meeting. The chair’s decision on matters of procedure or arising incidentally from the business of the meeting (including whether or not a matter falls in these categories) shall be final. |
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41 | Adjournments |
41.1 | The chair of any general meeting at which a quorum is present may with the consent of the meeting (and shall if so directed by the meeting) adjourn the meeting from time to time (or for an indefinite period) and from place to place, but no business shall be transacted at any adjourned meeting except business which might lawfully have been transacted at the meeting from which the adjournment took place. |
41.2 | In addition, the chair may without such consent adjourn the meeting to another time and/or place if in his opinion: |
41.2.1 | it is or is likely to be impracticable to hold or continue the meeting because of the number of members wishing to attend; or |
41.2.2 | the conduct of any persons attending the meeting prevents or is likely to prevent the orderly conduct of the business of the meeting; or |
41.2.3 | (where a general meeting is being held at more than one place) the facilities at any such place have become inadequate for the purposes referred to in article 28.2; or |
41.2.4 | adjournment is otherwise necessary so that the business of the meeting may be properly conducted. |
41.3 | Nothing in this article shall limit any other power vested in the chair to adjourn the meeting. |
42 | Place and time of adjourned meetings |
If a meeting is adjourned for 30 days or more, or for an indefinite period, at least seven days’ notice shall be given specifying the time and place (or places, in the case of a meeting to which article 28 applies) of the adjourned meeting and the general nature of the business to be transacted. Otherwise it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.
43 | Directors’ entitlement to attend and speak |
A director shall be entitled to attend and speak at any general meeting or class meeting of the Company notwithstanding that he is not a member of the Company.
44 | Resolutions and amendments |
44.1 | Subject to the Statutes, a resolution may only be put to the vote at a general meeting if the chair of the meeting in his or her absolute discretion decides that the resolution may properly be regarded as within the scope of the meeting. |
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44.2 | No amendment to a resolution to be proposed as an ordinary resolution may be considered or voted on (other than a mere clerical amendment to correct a patent error) unless either: |
44.2.1 | at least 48 hours before the time fixed for the meeting or adjourned meeting at which the ordinary resolution is to be considered, notice of the terms of the amendment and the intention to move it has been delivered by means of an instrument to the office or such other place as may be specified by or on behalf of the Company for that purpose, or received in an electronic communication at such address (if any) for the time being notified by or on behalf of the Company for that purpose; or |
44.2.2 | the chair in his or her absolute discretion decides that the amendment may be considered and voted on. |
44.3 | In the case of a resolution to be proposed as a special resolution no amendment may be considered or voted upon, except an amendment to correct a patent error or as may otherwise be permitted by law. |
44.4 | If the chair rules an amendment to any resolution admissible or out of order (as the case may be), the proceedings on the resolution shall not be invalidated by any error in his ruling. Any ruling by the chair in relation to a resolution or an amendment to a resolution shall be final and conclusive. |
44.5 | With the consent of the chair, a person who proposes an amendment to a resolution may withdraw it before it is put to the vote. |
45 | Methods of voting and demand for a poll |
45.1 | At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands unless a poll is (before or immediately after the declaration of the result of the show of hands or on the withdrawal of any other demand for a poll) demanded by: |
45.1.1 | the chair of the meeting; or |
45.1.2 | not less than five members present in person having the right to vote on the resolution; or |
45.1.3 | a member or members present in person representing in aggregate not less than one tenth of the total voting rights of all the members having the right to vote at the meeting; or |
45.1.4 | a member or members present in person holding shares in the Company conferring a right to vote at the meeting, being shares on which an aggregate sum has been paid up equal to not less than one tenth of the total sum paid up on all the shares conferring that right. |
45.2 | The appointment of a proxy to vote on a matter gives the proxy the authority to demand or join in demanding a poll on that matter. In applying the provision of this article, a demand by a proxy counts for the purposes of article 45.1.2 as a demand by the member; for the purposes of article 45.1.3 as a demand by a member representing the voting rights that the proxy is authorised to exercise; and for the purposes of article 45.1.4 as a demand by a member holding the shares to which those rights are attached. |
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46 | Conduct of poll and declaration of result |
46.1 | If a poll is demanded before the declaration of the result of a show of hands and the demand is duly withdrawn, the meeting shall continue as if the demand had not been made. A demand for a poll may be withdrawn with the consent of the chair at any time before the poll is taken. |
46.2 | Unless a poll is demanded (and the demand is not withdrawn) a declaration by the chair that a resolution has been carried, or carried unanimously, or by a particular majority, or lost and an entry to that effect in the minutes of the meeting shall be conclusive evidence of that fact without proof of the number or proportion of the votes recorded for or against the resolution. |
46.3 | If a poll is demanded (and the demand is not withdrawn), it shall be taken in such manner as the chair may direct. A poll demanded on the election of a chair or on a question of adjournment shall be taken immediately. A poll demanded on any other question shall be taken either immediately or at such subsequent time (being not more than 30 days after the date of the meeting at which the poll was demanded) and place as the chair may direct. No notice need be given of a poll whether taken at or after the meeting at which it was demanded. The result of a poll shall be deemed to be the resolution of the meeting at which the poll was demanded. |
46.4 | The chair may appoint scrutineers (who need not be members). |
46.5 | On a poll votes may be given either personally or by proxy or (if the member is a corporation) by the authorised representative and a person entitled to more than one vote need not use all his votes or cast all the votes he used in the same way. |
47 | Continuance of meeting |
The demand for a poll shall not prevent the continuance of a meeting for the transaction of any business other than the question on which the poll has been demanded.
Votes of Members
48 | Voting rights |
48.1 | Subject to these articles and to any special rights or restrictions as to voting for the time being attached to any class of shares in the Company, on a vote on a resolution (whether on a show of hands or on a poll) members, their duly appointed proxies and duly authorised representatives of corporate members shall have voting rights as provided in the Statutes, except that on a vote on a resolution on a show of hands at a meeting a proxy has one vote for and one vote against the resolution if the proxy has been duly appointed by more than one member entitled to vote on the resolution and either: |
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48.1.1 | the proxy has been instructed by one or more of those members to vote in one way and has been instructed by one or more other of those members to vote in the other way; or |
48.1.2 | the proxy has been instructed by one or more of those members to vote in one way and is given discretion as to how to vote by one or more other of those members and wishes to use that discretion to vote in the other way. |
48.2 | Nothing in these articles shall have the effect of permitting votes to be cast in advance on any resolution on a poll taken at a meeting. |
48.3 | For the avoidance of doubt (and without limiting article 49), article 2.1.3 shall apply to this article and a member present by proxy shall be deemed to be present in person. |
49 | Corporations acting by representatives |
Any corporation which is a member of the Company may (by resolution of its board or other governing body) authorise any person or persons to act as its representative or representatives at any meeting of the Company, or at any separate meeting of the holders of any class of shares in accordance with the Statutes. The board or any director or the secretary may (but shall not be bound to) require evidence of the authority of any representative.
50 | Votes of joint holders |
In the case of joint holders of a share the vote of the senior who tenders a vote shall be accepted to the exclusion of the votes of the other joint holders and for this purpose seniority shall be determined by the order in which the names stand in the register in respect of the relevant share.
51 | Members incapable of managing their affairs |
A member who is a patient for any purpose of any statute relating to mental health or in respect of whom an order has been made by any court having jurisdiction (anywhere in the world) in matters concerning the protection or management of the affairs of persons incapable of managing their own affairs, may vote, whether on a show of hands or on a poll, by his committee, receiver, curator bonis or other person in the nature of a committee, receiver or curator bonis appointed by that court, and any such committee, receiver, curator bonis or other person may, on a show of hands or on a poll, vote by proxy. Evidence to the satisfaction of the board of the authority of the person claiming the right to vote shall be deposited at the office, or at such other place (if any) as is specified for the delivery or receipt of appointments of a proxy in accordance with these articles, not later than the last time by which the appointment of a proxy must be delivered or received in order to be valid for use at the meeting or adjourned meeting or on the holding of the poll at or on which the person proposes to vote and in default the right shall not be exercisable.
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52 | Calls in arrears |
Unless the board otherwise determines, a member shall not be entitled to vote at a general meeting either personally or by proxy or (if the member is a corporation) by authorised representative in respect of any share held by him or to exercise any other right conferred by membership in relation to meetings of the Company if any call or other sum presently payable by him to the Company in respect of that share remains unpaid.
53 | Objections to voting |
No objection shall be raised as to the qualification of any person to vote or as to the admissibility of (or exclusion of) any vote except at the meeting or adjourned meeting or poll at which that vote is given or tendered. Any objection shall be referred in due time to the chair of the meeting and shall only vitiate the decision of the meeting or poll on any resolution if the chair decides that the same may have affected that decision. The decision of the chair on such matters shall be final and conclusive.
54 | Failure to vote in accordance with instructions |
The Company shall have no obligation to enquire whether a proxy or corporate representative has voted in accordance with instructions given to him by the member or members he represents. Any failure by a proxy or corporate representative to vote in accordance with instructions shall not affect the validity of the vote.
Proxies
55 | Appointment and form of proxy |
55.1 | A proxy need not be a member of the Company. |
55.2 | The appointment of a proxy shall not preclude a member from attending and voting in person at the meeting or on the poll concerned. |
55.3 | An appointment of proxy shall be: |
55.3.1 | by means of an instrument or contained in an electronic communication; |
55.3.2 | in any usual or common form or in any other form which the board may from time to time approve; and |
55.3.3 | be executed by the appointor or his agent or, if the appointor is a corporation of a duly authorised officer, attorney or other authorised person or under its common seal. |
For the purpose of this article and article 56 an electronic communication which contains a proxy appointment need not comprise writing if the board so determines and in such case, if the board so determines, the appointment need not be executed but shall instead be subject to such conditions as the board may approve.
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55.4 | The board may, if it thinks fit, but subject to the Statutes, at the Company’s expense send forms of proxy for use at the meeting and issue invitations contained in electronic communications to appoint a proxy in relation to the meeting in such form as the board may approve. |
55.5 | A member may appoint more than one proxy in relation to a meeting, provided that no more than one proxy is appointed per share. The member must specify the number of shares in respect of which each proxy is entitled to exercise rights. |
56 | Deposit of proxy |
56.1 | Without prejudice to article 34.3 the appointment of a proxy shall: |
56.1.1 | in the case of an instrument, be delivered personally or by post to the office or such other place within the United Kingdom as may be specified by or on behalf of the Company for that purpose: |
56.1.1.1 | in the notice convening the meeting; or |
56.1.1.2 | in any form of proxy sent by or on behalf of the Company in relation to the meeting, |
at least 48 hours before the time fixed for holding the meeting at which the person named in the appointment proposes to vote; or
56.1.2 | in the case of an appointment contained in an electronic communication, where an address has been specified by or on behalf of the Company for the purpose of receiving electronic communications: |
56.1.2.1 | in the notice convening the meeting; |
56.1.2.2 | in any form of proxy sent by or on behalf of the Company in relation to the meeting; or |
56.1.2.3 | in any invitation contained in an electronic communication to appoint a proxy issued by or on behalf of the Company in relation to the meeting, |
be received at that address not less than 48 hours before the time appointed for holding the meeting at which the person named in the appointment proposes to vote; or
56.1.3 | in either case, where a poll is taken more than 48 hours after it is demanded, or in the case of an adjourned meeting to be held more than 48 hours after the time fixed for the original meeting, be delivered or received as set out in article 56.1.1 or 56.1.2 after the poll has been demanded or meeting adjourned at least 24 hours before the time appointed for the taking of the poll or (as the case may be) taking the meeting; or |
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56.1.4 | in the case of an instrument, where a poll is not taken at the meeting at which it is demanded but is taken 48 hours or less after it was demanded, or in the case of an adjourned meeting to be held 48 hours or less after the time fixed for the original meeting, be delivered at the meeting at which the poll was demanded or (as the case may be) delivered at the original meeting to the chair or to the secretary or to any director or as directed at the meeting by the chair, |
but the board may decide to treat a proxy as valid notwithstanding that it has not been received in accordance with this provision. In calculating the periods mentioned in this article 56.1, the board may decide not to take account of any part of a day that is not a working day.
56.2 | Without limiting articles 55 or 56.1, in relation to any shares which are held in uncertificated form, the board may from time to time permit appointments of a proxy to be made by means of an electronic communication in the form an Uncertificated Proxy Instruction. The board may in a similar manner permit supplements to, or amendments or revocations of, any such Uncertificated Proxy Instruction to be made by like means. The board may in addition prescribe the method of determining the time at which any such properly authenticated dematerialised instruction (and/or other instruction or notification) is to be treated as received by the Company or such participant. Notwithstanding any other provision in these articles, the board may treat any such Uncertificated Proxy Instruction which purports to be or is expressed to be sent on behalf of a holder of a share as sufficient evidence of the authority of the person sending that instruction to send it on behalf of the holder. For the purpose of this article, Uncertificated Proxy Instruction means a properly authenticated dematerialised instruction and/or other instruction or notification, which is sent by means of the relevant system concerned and received by such participant in that system acting on behalf of the Company as the board may prescribe, in such form and subject to such terms and conditions as may from time to time be prescribed by the board (subject always to the facilities and requirements of the relevant system concerned). |
56.3 | In the case of an appointment executed by an agent of a member who is not a corporation, there shall also be delivered or received, in the manner set out in article 56.1, the authority under which the appointment is executed or an office copy of it or a copy of it certified in accordance with section 3 of the Powers of Attorney Act 1971. In the case of an appointment signed by an officer or other agent of a corporation, the board may also require there to be delivered or received, in the manner set out in article 56.1, the authority under which the appointment is signed, or a notarially certified copy of it, or such other authorities or documents as shall be specified in the notice of the relevant meeting or in any appointment of proxy issued by the Company in connection with the relevant meeting. |
56.4 | If the appointment of proxy is not delivered or received in the manner required above, the appointment shall not be treated as valid and the person named in the appointment of proxy shall not be entitled to vote in respect of the shares in question. |
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56.5 | No appointment of proxy shall be valid after the expiration of 12 months from the date stated in it as the date of its execution, except a power of attorney containing a power to act and vote for a member at meetings of the Company, and such a power, if duly notified to the Company once, shall not need to be delivered to or received by the Company again. |
56.6 | If two or more valid appointments of proxy are received in respect of the same share for use at the same meeting or on the same poll, the one which was executed last shall be treated as replacing and revoking the others; if the Company is unable to determine which was executed last, none of them shall be treated as valid in respect of that share. |
56.7 | An appointment of a proxy shall, unless the contrary is stated on the proxy, be valid as well for any adjournment of the meeting as for the meeting to which it relates. An appointment relating to more than one meeting (including any adjournment of a meeting) having been duly delivered for the purposes of any meeting shall not require to be delivered again in relation to any subsequent meetings to which it relates. |
56.8 | An appointment of proxy shall be deemed to include the right to demand or join in demanding a poll and to vote on any amendment of a resolution put to the meeting for which it is given as the proxy thinks fit and to exercise the rights to speak at the meeting of the member or members he represents. |
57 | Termination of authority of proxy |
A vote given or poll demanded by proxy or by an authorised representative of a corporation shall be valid notwithstanding the previous termination of the authority of the person voting or demanding a poll or (until entered in the register) the transfer of the share in respect of which the appointment of the relevant person was made unless notice of the termination or transfer shall have been received as mentioned in the next sentence at least 24 hours before the time fixed for the meeting or adjourned meeting or (in the case of a poll not taken on the same day as the meeting or adjourned meeting) the time fixed for the taking of the poll at which the vote is cast. Such notice of termination shall be either by means of an instrument delivered to the office or to such other place within the United Kingdom as may be specified by or on behalf of the Company in accordance with article 56.1 or contained in an electronic communication received at the address (if any) specified by or on behalf of the Company in accordance with article 56.2 regardless of whether any relevant proxy appointment was effected by means of an instrument or contained in an electronic communication. For the purpose of this article, an electronic communication which contains such notice of determination need not comprise writing if the board has determined that the electronic communication which contains the relevant proxy appointment need not comprise writing. In calculating the period mentioned in this article 57, the board may decide not to take account of any part of a day that is not a working day.
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Directors
58 | Number of directors |
The number of directors (other than alternate directors) shall not be less than two or more than 10. The Company may, by ordinary resolution, from time to time vary the minimum and/or maximum number of directors.
59 | Directors shareholding qualification |
A director shall not be required to hold any shares of the Company by way of qualification.
Appointment and Retirement of Directors
60 | Eligibility for election |
No person other than a director retiring at the meeting shall be eligible for appointment as a director at any general meeting unless he is recommended by the board for election, or unless not less than seven nor more than 42 days before the day appointed for the meeting there shall have been given to the Company notice, executed by a member (other than the person to be proposed) entitled to attend and vote at the meeting, of his intention to propose such person for appointment, and also notice in writing signed by the person to be proposed of his willingness to be elected. The notice to be lodged by the proposing member shall state the particulars of the nominee which would, if he were appointed, be required to be included in the Company’s register of directors.
61 | Appointment by ordinary resolution or by directors |
Subject to these articles, the Company may by ordinary resolution appoint any person to be a director either to fill a casual vacancy or as an additional director. In addition, the board may at any time appoint any person to be a director either to fill a casual vacancy or as an additional director. In either case, the total number of directors shall not at any time exceed the maximum number (if any) fixed by, or in accordance with, these articles. Any person so appointed by the board shall hold office only until the next annual general meeting and shall then be eligible for election, but shall not be taken into account in determining the number of directors who are to retire by rotation at such meeting.
62 | Separate resolutions for appointment of each director |
A resolution of a general meeting for the appointment of a director shall relate to one named person; a single resolution for the appointment of two or more persons as directors shall be void, unless a resolution that it shall be so proposed has first been agreed to by the meeting without any vote being given against it.
63 | Retirement of directors by rotation |
At each annual general meeting at least one-third of the directors excluding those required to retire at that annual general meeting under article 61 or, if their number is not three or an integral multiple of three, the number nearest to but not exceeding one-third, shall retire from office.
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64 | Selection of directors to retire |
64.1 | Subject to the Statutes and these articles, the directors to retire by rotation shall include (so far as necessary to obtain the number required) any director who wishes to retire and not to offer himself for re-appointment. Any further directors to retire by rotation shall be those of the other directors who have been longest in office since their last appointment or re-appointment, but as between persons who were last appointed or re-appointed directors on the same day, those to retire shall (unless they otherwise agree among themselves) be determined by lot. |
64.2 | The directors to retire on each occasion shall be determined by the composition of the board at the date of the notice convening the annual general meeting and no director shall be required to retire, or be relieved from retiring, by reason of any change in the number or identity of the directors after the date of such notice but before the close of the meeting. The names of the directors to retire by rotation shall be stated in the notice of the annual general meeting or in any document accompanying it. |
64.3 | A director retiring under article 61 or article 63 shall be eligible for re-appointment. |
65 | When directors deemed to be re-appointed |
The Company may at the meeting at which a director retires under any provision of these articles, by ordinary resolution fill the office being vacated by electing to that office the retiring director or some other person eligible for appointment. In the absence of such a resolution, the retiring director shall, if willing to act, be deemed to have been re-appointed unless at the meeting it is resolved not to fill the vacancy or a resolution for the re-appointment of the director is put to the meeting and lost. If the director is not re-appointed or deemed to have been re-appointed, he shall retain office until the meeting resolves to appoint another person in his place or not to fill the vacancy, or the resolution to appoint him is put to the meeting and lost, or otherwise until the end of the meeting.
66 | Additional powers of the Company |
The Company may by special resolution, or by ordinary resolution of which special notice has been given in accordance with the Statutes, remove any director from office notwithstanding any provision of these articles or of any contract between the Company and such director (but without prejudice to any claim he may have for damages for breach of any such contract) and by ordinary resolution appoint another person in place of a director so removed from office, and any person so appointed shall be treated, for the purpose of determining the time at which he or any other director is to retire by rotation, as if he had become a director on the day on which the director in whose place he is appointed was last elected a director. In default of such appointment, the vacancy arising upon the removal of a director from office may be filled as a casual vacancy.
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67 | Disqualification of a director |
The office of director shall be vacated in any of the following circumstances:
67.1 | he is removed or prohibited from being a director under any provisions of the Statutes or these articles or (if applicable) the Nasdaq Rules; |
67.2 | he gives to the Company notice executed by him of his wish to resign, in which event he shall vacate that office on the delivery of that notice to the Company or at such later time as is specified in the notice; |
67.3 | if he becomes bankrupt, insolvent or makes any arrangement or composition with his creditors generally or shall apply to the court for an interim order under section 253 of the Insolvency Act 1986 in connection with a voluntary arrangement under that Act; or |
67.4 | if he is, or may be, suffering from mental disorder and/or either he is admitted to hospital for treatment, or an order is made by a court (whether in the United Kingdom or elsewhere) having jurisdiction in matters concerning mental disorder for his detention or for the appointment of a receiver, curator bonis or other person to exercise powers with respect to his property or affairs and, in either case, the board resolves that his office be vacated; or |
67.5 | having been appointed for a fixed term, the term expires or his office as a director is vacated under article 61; or |
67.6 | he is absent from meetings of the board for six consecutive months without leave and his alternate director (if any) has not, during such period, attended in his place and the board resolves that his office be vacated; or |
67.7 | he is removed from office by notice given to him and executed by all of his co-directors (or their alternates), but so that in the case of a director holding an executive office which automatically determines on his ceasing to be a director such removal shall be deemed an act of the Company and shall have effect without prejudice to any claim for damages in respect of the consequent termination of his executive office. |
68 | Executive office |
68.1 | The board may appoint one or more directors to hold any executive office (including the office of chair, managing director or chief executive) on such terms and for such period (subject to the Statutes) as it may determine and may at any time revoke or terminate any such appointment, without prejudice to any claim under any contract entered into in any particular case. |
68.2 | The appointment of any director to any executive office specifically referred to in article 68.1 shall automatically determine if he ceases to be a director but without prejudice to any claim for damages for breach of any contract of service between him and the Company. The appointment of any director to any other executive office shall not automatically determine if he ceases to be a director, unless the contract or resolution under which he holds or is removed from office shall expressly state that it shall, in which event that cessation shall be without prejudice to any claim for damages for breach of any contract of service between him and the Company. |
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Alternate Directors
69 | Power to appoint alternate directors |
Any director (other than an alternate director) may appoint any person (including another director) to be his alternate director, and may remove him from that office. The appointment as an alternate director of any person who is not himself a director shall be subject to the approval of the majority of the other directors or a resolution of the board. Any of the directors may appoint the same alternate director.
70 | Formalities for appointment and termination |
70.1 | Every appointment and removal of an alternate director shall be made by notice to the Company executed by the director making the appointment or removal (or in any other manner approved by the board) and shall, be effective (subject to article 69) on receipt of such notice by the Company which shall, in the case of a notice contained in an instrument, be at the office or at a board meeting or in the case of a notice contained in an electronic communication be at such address (if any) for the time being notified by or on behalf of the Company for the purpose. |
70.2 | The appointment of an alternate director shall determine on the happening of any event which, if he were a director, would cause him to vacate such office or if his appointor ceases to be a director (otherwise than by retirement by rotation or otherwise at a general meeting at which he is re-appointed or deemed to be re-appointed) or if the approval of the directors to his appointment is withdrawn. |
70.3 | An alternate director may, by giving notice to the Company, executed by him, resign such appointment. |
71 | Alternate to receive notices |
An alternate director shall be entitled to receive notices of board meetings and of all meetings of committees of which the director appointing him is a member to the same extent as the director appointing him and shall be entitled to attend and vote as a director and be counted for the purposes of a quorum at any such meeting at which the director appointing him is not personally present, and generally at such meeting, to exercise and discharge all the functions, powers and duties of his appointor as a director. For the purposes of the proceedings at such meeting, these articles shall apply as if he (instead of his appointor) were a director. If he shall himself be a director, or shall attend any such meeting as an alternate for more than one director, his voting rights shall be cumulative but he shall count as only one for the purpose of determining whether a quorum is present. If his appointor is for the time being absent from the United Kingdom, or temporarily unable to act through ill-health or disability, his signature to any resolution in writing of the directors shall be as effective as the signature of his appointor. An alternate director shall not (save as aforesaid) have power to act as a director nor shall he be deemed to be a director for the purposes of these articles.
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72 | Alternate may be paid expenses but not remuneration |
An alternate director shall be entitled to be repaid expenses, and to be indemnified, by the Company to the same extent as if he were a director, but he shall not be entitled to receive from the Company any remuneration in respect of his services as an alternate director, except such proportion (if any) of the remuneration otherwise payable to his appointor as such appointor may by notice to the Company from time to time direct.
73 | Alternate not an agent of appointor |
Except as otherwise expressly provided in these articles, an alternate director shall be subject in all respects to these articles relating to directors. Accordingly, except where the context otherwise requires, a reference to a director shall be deemed to include a reference to an alternate director. An alternate director shall be responsible to the Company for his own acts and defaults and he shall not be deemed to be the agent of the director appointing him.
Remuneration, Expenses and Pensions
74 | Directors’ fees |
The fees of the directors for their services as directors shall not exceed in aggregate £600,000 in any financial year (or such higher amount as the Company may from to time by ordinary resolution determine). Subject to this limit each director who does not hold an executive office or employment with the Company or a subsidiary of the Company shall be paid a fee (to accrue from day to day) at such rate as is from time to time determined by the board. Any fee payable under this article 74 shall be distinct from any remuneration payable by the Company to executive directors under service agreements or other amounts payable to a director under other provisions of these articles. Subject to these Articles, a Director's remuneration may:
74.1 | take any form, and |
74.2 | include any arrangements in connection with the payment of a pension, allowance or gratuity, or any death, sickness or disability benefits, to or in respect of that Director. |
75 | Directors’ remuneration |
Any director who holds any executive office (including for this purpose the office of chair or deputy chair whether or not such office is held in an executive capacity) or who serves on any committee or who acts as trustee of a retirement benefits scheme or employees’ share scheme or who otherwise performs services which, in the opinion of the board are beyond the ordinary duties of a director may be paid such extra remuneration by way of salary, commission or otherwise as the board may determine. Any payment of a kind described in this article 75 shall not be regarded as a fee falling within the provisions of article 74.
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76 | Expenses |
The Company will pay to any director all proper and reasonable expenses incurred by him in attending and returning from meetings of the directors or of any committee or general meetings or otherwise in connection with the business of the Company or in the performance of his duties as a director.
77 | Pensions and other benefits |
The board shall have power to pay, provide or procure the grant of retirement, death or disability benefits, annuities or other allowances, emoluments, benefits or gratuities to any person who is or has been at any time director of, or in the employment or service of, the Company or of any other undertaking which is or was at some time:
77.1 | the parent undertaking of the Company; or |
77.2 | a subsidiary undertaking of the Company or of such parent undertaking; or |
77.3 | otherwise associated with the Company or any such parent or subsidiary undertaking, |
or of the predecessors in business of the Company or of any such parent or subsidiary undertaking or associate and to the families and other relatives or dependants of any such person. For that purpose the board may establish and maintain or participate in or contribute to any trust, scheme, association, arrangement or fund or pay premiums.
General Powers of Directors
78 | Business to be managed by the directors |
The business and affairs of the Company shall be managed by the board which, subject to the Statutes, these articles and any directions given by ordinary resolution, may exercise all the powers of the Company. No alteration of these articles and no such resolution shall invalidate any prior act of the board which would have been valid if that alteration had not been made or that resolution had not been passed. The general powers given by this article shall not be limited by any special authority or power given to the board by these articles or any resolution of the Company.
79 | Provision for employees |
The board may exercise any of the powers conferred by the Statutes to make provision for the benefit of any persons employed or formerly employed by the Company or any of its subsidiaries in connection with the cessation or the transfer to any person of the whole or part of the undertaking of the Company or any of its subsidiaries.
80 | Local boards |
80.1 | The board may make such arrangements as they think fit for the management and transaction of the Company’s affairs in any specified locality, whether in the United Kingdom or elsewhere, and, without prejudice to the generality of the foregoing, may: |
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80.1.1 | establish any divisional or local boards, committees or agencies for managing any of the affairs of the Company and may appoint any one or more of the directors, or any other persons, to be members of such boards, committees, or agencies, or to be managers or agents, and may fix their remuneration; |
80.1.2 | delegate to any divisional or local board or committee, manager or agent any of its powers, authorities and discretions (with power to sub-delegate); |
80.1.3 | authorise the members of any divisional or local boards or committees or any of them to fill any vacancies in them, and to act notwithstanding vacancies. |
80.2 | Any such appointment or delegation may be made upon such terms and subject to such conditions as the board thinks fit; and the board may remove any person so appointed, and may revoke or vary any such delegation, but no person dealing in good faith shall be affected by the revocation or variation. |
81 | Powers of attorney and agents |
The board may, by power of attorney or otherwise, appoint any person to be the agent of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in the board) and on such terms as the board determines and may delegate to any person so appointed any of its powers, authorities and discretions (with power to sub-delegate). Any such appointment may contain such provisions for the protection and convenience of persons dealing with any such attorney as the board may think fit. The board may revoke or vary such appointment, but no person dealing in good faith shall be affected by the revocation or variation.
82 | Signature on cheques, etc |
All cheques, promissory notes, drafts, bills of exchange, and other negotiable or transferable instruments, and all receipts for moneys paid to the Company, shall be signed, drawn, accepted, endorsed, or otherwise executed, as the case may be, in such manner as the board (or any duly authorised committee of the board) shall from time to time determine.
Directors’ Interests
83 | Director may have interests |
83.1 | For the purpose only of articles 84 to 90 below: |
83.1.1 | a conflict of interest includes a conflict of interest and duty and a conflict of duties; |
83.1.2 | an interest means a direct or an indirect interest; |
83.1.3 | an interest, transaction or arrangement of which a director is aware includes an interest, transaction or arrangement of which that director ought reasonably to be aware. |
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84 | Power of the board to authorise conflicts of interest |
84.1 | The board may authorise any matter proposed to it in accordance with these articles which would, if not so authorised, involve a breach by a director of his duty to avoid conflicts of interest under the Statutes, including, without limitation, any matter which relates to a situation (a relevant situation) in which a director has, or can have, an interest which conflicts, or possibly may conflict, with the interest of the Company or the exploitation of any property, information or opportunity, whether or not the Company could take advantage of it, but excluding any interest which cannot reasonably be regarded as likely to give rise to a conflict of interest. The provisions of this article do not apply to a conflict of interest arising in relation to a transaction or arrangement with the Company. |
84.2 | Any such authorisation will be effective only if: |
84.2.1 | any requirement as to quorum at the meeting at which the matter is considered is met without counting the director in question or any other interested director; and |
84.2.2 | the matter was agreed to without their voting or would have been agreed to if their votes had not been counted. |
84.3 | The board may (whether at the time of the giving of the authorisation or subsequently) make any such authorisation subject to any limits or conditions it expressly imposes but such authorisation is otherwise given to the fullest extent permitted. |
84.4 | The board may vary or terminate any such authorisation at any time. |
84.5 | Provided that article 85 is complied with, a director, notwithstanding his office: |
84.5.1 | may be a party to or otherwise be interested in any transaction or arrangement with the Company or in which the Company is otherwise interested; |
84.5.2 | may hold any other office or place of profit under the Company (except that of Auditor or of Auditor of a subsidiary of the Company) in conjunction with the office of director and may act by himself or through his firm in a professional capacity for the Company, and in any such case on such terms as to remuneration and otherwise as the board may arrange, either in addition to or in lieu of any remuneration provided for by any other article; and |
84.5.3 | may be a director or other officer of, or employed by, or a party to any transaction or arrangement with or otherwise interested in, any company promoted by the Company or in which the Company is otherwise interested or as regards which the Company has any powers of appointment. |
84.6 | The board may cause the voting rights conferred by the shares in any company held or owned by the Company to be exercised in such manner in all respects as they think fit (including without limitation the exercise of that power in favour of any resolution appointing the directors or any of them as directors or officers of (or in any other position in) such company, or voting or providing for the payment of any benefit to the directors or officers of, or holders of any other position in, such company). |
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84.7 | Provided the acceptance, entry into or existence of it has been approved by the board under article 84.1 or it comes within article 84.5, a director, notwithstanding his office, shall not be liable to account to the Company for any profit, remuneration or other benefit realised by any office or employment or from any transaction or arrangement or from any interest in any body corporate, no such transaction or arrangement shall be liable to be avoided on the grounds of any such interest or benefit nor shall the receipt of any such profit, remuneration or any other benefit constitute a breach of his duty under the Statutes not to accept benefits from third parties. |
85 | Declaration of interests |
85.1 | A director shall declare the nature and extent of his interest in a relevant situation within article 84.1 to the other directors. |
85.2 | A director who is aware that he is in any way interested in a proposed transaction or arrangement with the Company must declare the nature and extent of his interest to the other directors. |
85.3 | A director who is aware that he is in any way interested in a transaction or arrangement that has been entered into by the Company must declare the nature and extent of his interest to the other directors, unless the interest has already been declared under article 85.2. |
85.4 | The declaration of interest must (in the case of article 85.3) and may, but need not (in the case of article 85.1 or 85.2), be made: |
85.4.1 | at a meeting of the directors; or |
85.4.2 | by general or specific notice to the directors in accordance with the Statutes. |
85.5 | If a declaration of interest proves to be, or becomes, inaccurate or incomplete, a further disclosure must be made. |
85.6 | Any declaration of interest required by article 85.1 above must be made as soon as reasonably practicable. Failure to comply with this requirement does not affect the underlying duty to make the declaration of interest. |
85.7 | Any declaration of interest required by article 85.2 above must be made before the Company enters into the transaction or arrangement. |
85.8 | Any declaration of interest required by article 85.3 above must be made as soon as reasonably practicable. |
85.9 | For the purposes of articles 85.2 and 85.3 and, in the case of article 85.9.1 only, article 85.1, a director need not declare an interest: |
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85.9.1 | if it cannot reasonably be regarded as likely to give rise to a conflict of interest; |
85.9.2 | if, or to the extent that, the other directors are already aware of it; or |
85.9.3 | if, or to the extent that, it concerns terms of his service contract that have been or are to be considered: |
85.9.3.1 | by a meeting of the directors; or |
85.9.3.2 | by a committee of the directors appointed for the purpose under these articles. |
86 | Entitlement to keep information confidential |
86.1 | A director shall be under no duty to the Company with respect to any information which he obtains or has obtained otherwise than as a director of the Company and in respect of which he has a duty of confidentiality to another person. However, to the extent that his relationship with that other person gives rise to a conflict of interest or possible conflict of interest, this article applies only if the existence of that relationship has been approved by the board pursuant to article 84.1. In particular, the director shall not be in breach of the general duties he owes to the Company under the Statutes because he fails: |
86.1.1 | to disclose any such information to the board or to any director or other officer or employee of the Company; and/or |
86.1.2 | to use or apply any such information in performing his duties as a director of the Company. |
87 | Avoiding conflicts of interest |
87.1 | Where the existence of a director’s relationship with another person has been approved by the board pursuant to article 84.1 and his relationship with that person gives rise to a conflict of interest or possible conflict of interest, the director shall not be in breach of the general duties he owes to the Company under the Statutes because he: |
87.1.1 | absents himself from meetings of the board at which any matter relating to the conflict of interest or possible conflict of interest will or may be discussed or from the discussion of any such matter at a meeting or otherwise; and/or |
87.1.2 | makes arrangements not to receive documents and information relating to any matter which gives rise to the conflict of interest or possible conflict of interest sent or supplied by the Company and/or for such documents and information to be received and read by a professional adviser, |
for so long as he reasonably believes such conflict of interest or possible conflict of interest subsists.
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88 | Overriding principles |
88.1 | The provisions of articles 86 and 87 are without prejudice to any equitable principle or rule of law which may excuse the director from: |
88.1.1 | disclosing information in circumstances where disclosure would otherwise be required under these articles; or |
88.1.2 | attending meetings or discussions or receiving documents and information as referred to in article 85, in circumstances where such attendance or receiving such documents and information would otherwise be required under these articles. |
89 | Directors’ powers to vote |
89.1 | A director shall not vote (or be counted in the quorum at a meeting) in respect of any resolution concerning his own appointment (including fixing or varying the terms of appointment), or the termination of the appointment, or as the holder of any office or place of profit with the Company or any undertaking in which the Company is interested. Where proposals for such resolutions relate to two or more directors, those proposals may be divided and a resolution may be put in relation to each director separately and in such case each of the directors concerned (if not otherwise debarred from voting) shall be entitled to vote (and be counted in the quorum) in respect of each resolution, except that concerning him. |
89.2 | Without limiting article 89.1 (and save as provided in article 89.4), a director shall not vote (or be counted in the quorum) in respect of any contract or arrangement or any other proposal in which he has an interest which (together with any interest of any person connected with him) is to his knowledge a material interest otherwise than by virtue of his interests in shares or debentures or other securities of, or otherwise in or through, the Company. |
89.3 | If any question arises at any meeting as to the materiality of a director’s interest, or as to the entitlement of any director to vote, and such question is not resolved by his voluntarily agreeing to abstain from voting, such question shall be referred to the chair of the meeting (or, if the director concerned is the chair, to the other directors at the meeting) and his or her ruling in relation to any director other than himself or herself (or, as the case may be, the ruling of the majority of the other directors in relation to the chair) shall be final and conclusive, except in a case where the nature or extent of the interests of the director concerned, so far as known to him or her, has not been fairly disclosed. |
89.4 | The prohibition in articles 89.1 and 89.2 shall not apply and a director may (in the absence of some other material interest) vote and be counted in the quorum in respect of any resolution concerning any of the following matters: |
89.4.1 | the giving of any guarantee, security or indemnity in respect of: |
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89.4.1.1 | money lent or obligations incurred by him or by any other person at the request of, or for the benefit of, the Company or any of its subsidiary undertakings; |
89.4.1.2 | a debt or obligation of the Company or any of its subsidiary undertakings for which he himself has assumed responsibility (in whole or in part and whether alone or jointly with others) under a guarantee or indemnity or by the giving of security; |
89.4.2 | any contract concerning the subscription or purchase by him of shares, debentures or other securities of the Company under an offer or invitation to members or debenture holders of the Company, or any class of them, or to the public or any section of them; |
89.4.3 | any contract concerning any issue or offer of shares or debentures or other securities of or by the Company or any of its subsidiary undertakings for subscription or purchase, in respect of which he is or may be entitled to participate in his capacity as a holder of any such securities or as an underwriter or sub-underwriter; |
89.4.4 | any contract concerning another company in which he is interested, directly or indirectly, and whether as an officer or member or otherwise, provided that he does not hold an interest (as the term is used in Part 22 of the 2006 Act) representing one per cent or more of any class of the equity share capital of such company (or of any third company through which his interest is derived and calculated exclusive of any shares of that class in that company held as treasury shares) or of the voting rights available to members of the relevant company (any such interest being deemed for the purposes of this article to be a material interest in all circumstances); |
89.4.5 | any contract for the benefit of employees of the Company or of any of its subsidiary undertakings which does not accord to him any privilege or benefit not generally accorded to the employees to whom the contract or arrangement relates; |
89.4.6 | any contract concerning the purchase or maintenance of insurance either for or for the benefit of any director or for persons who include directors; |
89.4.7 | any proposal for the Company (1) to provide him with an indemnity permitted by the Statutes, (2) to provide him with funds in circumstances permitted by the Statutes to meet his defence expenditure in respect of any civil or criminal proceedings or regulatory investigation or other regulatory action or in connection with any application for any category of relief permitted by the Statutes, or (3) to do anything to enable him to avoid incurring any such expenditure. |
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90 | Relaxation of provisions |
Subject to the Statutes, the Company may by ordinary resolution suspend or relax the provisions of articles 83 to 89 to any extent or ratify any transaction not duly authorised by reason of a contravention of these articles.
Proceedings of the Board
91 | Board meetings |
91.1 | Subject to the provisions of these articles, the board may meet for the despatch of business, adjourn and otherwise regulate its meetings as it thinks fit. A director may, and the secretary at the request of a director shall, at any time summon a board meeting. |
91.2 | Notice of a board meeting shall be deemed to be properly given to a director if it is given to him personally or by word of mouth or sent by instrument to him at his last known address or any other address given by him to the Company for this purpose or given using electronic communications to such address (if any) for the time being notified by him or on his behalf to the Company for that purpose. A director absent or intending to be absent from the United Kingdom may request that notices of board meetings shall, during his absence, be sent by instrument or using electronic communication to him at an address given by him to the Company for this purpose but, in the absence of any such request, it shall not be necessary to give notice of a board meeting to any director for the time being absent from the United Kingdom. A director may waive notice of any meeting either prospectively or retrospectively. |
91.3 | Without limiting the first sentence of article 91.1, a board meeting of the directors may consist of a conference between directors who are not all in one place, provided that each director who participates is able, directly or by telephonic or other communication (whether in use when these articles are adopted or developed subsequently), to speak to each of the others and to be heard by each of the others simultaneously. A director taking part in such a conference shall be deemed to be present in person at the meeting and shall be entitled to vote or be counted in a quorum accordingly. Such a meeting shall be deemed to take place where the largest group of those participating in the conference is assembled, or, if there is no such group, at the place from where the chair of the meeting participates. |
92 | Quorum, competence and voting |
The quorum necessary for the transaction of the business of the board may be fixed by the board and, unless so fixed at any other number, shall be two. A board meeting at which a quorum is present shall be competent to exercise all powers and discretions for the time being vested in or exercisable by the board.
Questions arising at any meeting shall be determined by a majority of votes. In case of an equality of votes, the chair of the meeting shall have a second or casting vote.
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93 | Power of directors if number falls below minimum |
The continuing directors or director at any time may act notwithstanding any vacancies in their number, but if, and so long as, the number of directors is less than the number fixed as the necessary quorum for board meetings, the continuing directors or director may act for the purpose of filling up such vacancies or calling general meetings of the Company, but not for any other purpose. If there are no directors or director able or willing to act, then any two members may call a general meeting for the purpose of appointing directors.
94 | Chair |
The board may appoint a chair and one or more deputy chairmen and determine the period for which each is to hold office. The board may also revoke any such appointment. The chair or, in his or her absence, any deputy chair (determined as between the deputy chairmen present (if more than one) by seniority in length of appointment or otherwise as resolved by the board) shall preside at board meetings. If no chair or deputy chair shall have been appointed, or if at any meeting none of them be present within five minutes after the time fixed for holding the meeting or is willing to act as chair of the meeting, the directors present may choose one of their number to be chair of the meeting.
95 | Resolutions in writing |
A resolution in writing, executed by all the directors entitled to notice of and to vote at a board meeting (provided that their number is sufficient to constitute a quorum) shall be as valid and effective as a resolution passed at a board meeting duly convened and held. For this purpose:
95.1 | a resolution may be by means of an instrument or contained in an electronic communication sent to such address (if any) for the time being notified by the Company for that purpose; |
95.2 | a resolution may consist of several instruments or several electronic communications, each executed by one or more directors, or a combination of both; |
95.3 | a resolution executed by an alternate director need not also be executed by his appointor; and |
95.4 | a resolution executed by a director who has appointed an alternate director need not also be executed by the alternate director in that capacity. |
96 | Delegation of powers |
96.1 | The board may entrust to and confer upon any director any of its powers, authorities and discretions (with power to sub-delegate) on such terms and conditions and with such restrictions as it thinks fit, and either collaterally with, or to the exclusion of, its own powers, and may revoke, withdraw or vary all or any of such powers. |
96.2 | Without limiting article 96.1, the board may delegate any of its powers, authorities or discretions to a committee. Any such committee shall, unless the board otherwise resolves, have power to sub-delegate to any sub-committees any of the powers or discretions delegated to it. Any such committee or sub-committee shall consist of one or more of the directors and (if thought fit, and subject to article 96.3) one or more other persons co-opted to the committee or sub-committee. Any such delegation shall be made on such terms and conditions as the board thinks fit, and may be revoked or altered. |
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96.3 | Any committee or sub-committee so formed shall, in the exercise of the powers so delegated, conform to any regulations which may be imposed on it by the board. Any such regulations may provide for, or authorise, the co-option to the committee or sub-committee of persons other than directors and for such co-opted members to have voting rights as members of the committee or sub-committee provided that the majority of the members of the committee or sub-committee are directors, and no resolution of the committee or sub-committee shall be effective unless a majority of the members of the committee or sub-committee present at the meeting are directors or alternates of directors. |
97 | Proceedings of committees |
The meetings and proceedings of any such committee or sub-committee with two or more members shall be governed by any regulations made by the board under article 96.3 and (subject to any such regulations) the provisions of these articles regulating the meetings and proceedings of the board so far as the same are applicable.
98 | Validity of proceedings in spite of formal defect |
All acts done by a meeting of the board or of any committee or sub-committee or by a person acting as a director or a member of a committee or sub-committee shall, as regards all persons dealing in good faith with the Company, notwithstanding that there was some defect in the appointment or continuance in office of any member of the board or committee or sub-committee or person so acting, or that they or any of them were disqualified or had vacated office, or were not entitled to vote, be as valid as if every such person had been duly appointed and was qualified to be, and had continued to be, a director or member of the committee or sub-committee and had been entitled to vote.
Borrowing Powers
99 | General power to borrow |
Subject as provided in this article, the board may exercise all the powers of the Company to borrow money and to mortgage or charge all or any part of its undertaking, property, assets (present and future) and uncalled capital and, subject to and in accordance with the Statutes, to issue debentures and other securities, whether outright or as collateral security for any guarantee, debt, liability or obligation of the Company or of any third party.
100 | Maximum limit on borrowings |
The board shall restrict the borrowings of the Company and exercise all voting and other rights or powers of control exercisable by the Company in relation to its subsidiary undertakings (if any) so as to secure (but as regards subsidiary undertakings only so far as by such exercise it can secure) that the aggregate principal amount of all borrowings by the Group outstanding at any time (exclusive of any borrowings which are owed by any Group company to another Group company and subject to articles 101.2 and 101.5 below) shall not without the previous sanction of an ordinary resolution of the Company exceed an amount equal to three times the Adjusted Capital and Reserves.
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101 | Interpretation of articles 100 to 105 |
101.1 | For the purposes of the provisions of these articles relating to borrowing powers: |
101.1.1 | Adjusted Capital and Reserves shall mean the aggregate of: |
101.1.1.1 | the amount paid up or credited as paid up on the issued share capital of the Company and on any share capital that has been unconditionally allotted but not issued; and |
101.1.1.2 | the amounts standing to the credit of the reserves of the Group (including any share premium account, capital redemption reserve and revaluation reserve) after adding any credit balance or deducting any debit balance on the profit and loss account, |
as shown in the Latest Accounts but after:
101.1.1.3 | making such adjustments as may be appropriate to reflect any variations since the date of the Latest Accounts in such share capital or reserves and so that for this purpose if the Company proposes to issue or has issued any shares for cash and the issue has been underwritten or agreed to be subscribed or taken up then these shares shall be deemed to have been allotted and the amount (including any premium) of the subscription moneys or consideration payable (not being moneys payable later than six months after the date of allotment) shall be deemed to have been paid up on the date when the issue of such shares was underwritten or agreed to be subscribed or taken (or if such underwriting or subscription or purchase was conditional, on the date when it becomes unconditional); |
101.1.1.4 | making such adjustments as may be appropriate to reflect any variations since the date of the Latest Accounts in the interests of the Company in its subsidiary undertakings (including any undertaking which was not a subsidiary undertaking at that date but which is so as at the relevant time) and any undertaking which was a subsidiary undertaking at the date of the latest accounts but which is no longer so at the relevant time and any variations as a result of the transaction in relation to which the calculation falls to be made; |
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101.1.1.5 | excluding any sums attributable to outside interests in any subsidiary undertaking; |
101.1.1.6 | deducting any distributions declared, recommended or made by a Group company (to a person other than another Group company) out of profits earned up to and including the date of the Latest Accounts (to the extent that any such distributions are not provided for in such Accounts); |
101.1.1.7 | making such other adjustments (if any) as the Auditor may consider appropriate; |
101.1.2 | borrowings shall, subject to articles 101.1.2.8 to 101.1.2.12 be deemed to include the following: |
101.1.2.1 | the principal amount for the time being outstanding and owing by a Group company in respect of any debenture whether issued for cash or otherwise other than a debenture for the time being owned by a Group company; |
101.1.2.2 | the principal amount raised by the Group company by acceptances under any acceptance credit opened on its behalf and in its favour by any bank or accepting house (not being acceptances in respect of the purchase or sale of goods or the provision of services in the ordinary course of business which are outstanding for six months or less); |
101.1.2.3 | the nominal amount of any share capital and the principal amount of any debenture or borrowings of any person to the extent that the payment or redemption or repayment is the subject of a guarantee or indemnity or security given by a Group company or which any Group company may be required to purchase but excluding any such share capital which is for the time being beneficially owned by, and any such borrowings which are for the time being owed to, a Group company; |
101.1.2.4 | the nominal amount of any share capital (other than equity share capital) of any subsidiary undertaking owned otherwise than by any Group company; |
101.1.2.5 | any fixed or minimum premium payable on final redemption or repayment of any debentures, share capital or other borrowing or deemed borrowings falling to be taken into account; |
101.1.2.6 | any amount in respect of a finance lease payable by a Group company which would be shown as being so payable in a balance sheet prepared in accordance with the accounting principles used in the preparation of the Latest Accounts; and |
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101.1.2.7 | any part of the purchase price of any asset acquired by any Group company, the payment of which is deferred beyond the date of completion of the conveyance, assignment or transfer of the legal title to such assets, or, if no such conveyance, assignment or transfer is to take place within six months after the date on which the contract for such purchase is entered into or (if later) becomes unconditional, beyond that date; |
but to exclude the following:
101.1.2.8 | borrowings by a Group company to finance any contract in respect of which any part of the price receivable under the contract by that or any other Group company is guaranteed or insured by any government, governmental agency or body or by a person (not being a Group company) carrying on the business of providing credit insurance, up to an amount equal to that part of the price receivable under the contract which is so guaranteed or insured; |
101.1.2.9 | borrowings by a Group company before, and outstanding after, it becomes a subsidiary undertaking of the Company and amounts secured on an asset before, and remaining so secured after, it is acquired by a Group company until six months after the undertaking becomes a subsidiary undertaking or the asset is acquired, as the case may be; |
101.1.2.10 | any guarantee or indemnity given by any Group company in respect of any amount or obligation deemed not to be moneys borrowed under this article; |
101.1.2.11 | any amount payable under any hire purchase agreement, credit sale agreement, operating lease or similar agreement which is not a finance lease for the purposes of article 101.1.2.6 above; and |
101.1.2.12 | borrowings incurred by a Group company for the purposes of repaying within six months of the borrowing all or any part of any borrowing made by it or another Group company, pending their application for that purpose during the period; |
101.1.3 | Excepted Foreign Currency Borrowings means borrowings denominated or repayable in a currency other than sterling which have the benefit of an HM Treasury exchange cover scheme, forward currency contract, currency option, back-to-back loan, swap or other arrangement taken out or entered into to reduce the risks associated with fluctuations in the exchange rates; |
101.1.4 | Group means the Company and its subsidiary undertakings from time to time and Group company means any undertaking in the Group; |
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101.1.5 | Latest Accounts means: |
101.1.5.1 | the latest audited balance sheet of the Company; or |
101.1.5.2 | (where the Company prepares an audited consolidated balance sheet in respect of the Group), the latest audited consolidated balance sheet of the Group |
together, in either case, with the latest audited balance sheet of any subsidiary undertaking of the Company which is not included above; if the Company prepares its main audited consolidated balance sheet in accordance with one accounting convention and a supplementary balance sheet in accordance with another convention the main one shall be taken as the audited consolidated balance sheet;
101.1.6 | outside interests means the proportion of the nominal amount of the issued equity share capital of a partly owned subsidiary undertaking which is not attributable, directly or indirectly, to the Company; |
101.1.7 | subsidiary undertaking means a subsidiary undertaking of the Company. |
101.2 | For the purposes of any calculation under this article: |
101.2.1 | borrowings by a partly owned subsidiary undertaking and not owing to another Group company shall (notwithstanding article 101.1.2 of this article) be taken into account subject to the exclusion of a proportionate amount of such borrowings corresponding to the outside interests; |
101.2.2 | borrowings owing to a partly owned subsidiary undertaking by another Group company shall (subject to article 101.1.2 of this article and article 101.2.3 below) be taken into account to the extent of the proportionate amount of such borrowings corresponding to the outside interests; |
101.2.3 | in the case of borrowings and moneys owing to a partly owned subsidiary undertaking by another partly owned subsidiary undertaking, the proportion which would otherwise be taken into account under article 101.2.2 above shall be reduced by the exclusion of a proportionate amount of such borrowings corresponding to the outside interests in the borrowing subsidiary undertaking; |
101.2.4 | no amount shall be taken into account more than once in any calculation of moneys borrowed; and |
101.2.5 | any borrowing denominated or repayable, or any cash deposited, in a currency other than sterling shall: |
101.2.5.1 | with the exception of Excepted Foreign Currency Borrowings, be translated into sterling at the rate of exchange in London at the close of business on the last business day before the date on which the calculation is made or, if it would result in a lower figure, at the rate of exchange in London at the close of business on the date of the Latest Accounts and so that, for these purposes, the rate of exchange in London shall be taken as the spot rate quoted by a London clearing bank selected by the board for the purchase by the Company of the currency and amount in question for sterling; and |
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101.2.5.2 | in the case of any Excepted Foreign Currency Borrowings, at the rate of exchange applicable to such borrowings on their repayment to the extent that such rate is fixed under the scheme or other arrangement in connection with which the borrowing arises, provided that, where it is not possible to determine such rate, the borrowing shall be translated into sterling on such basis as may be agreed with, or determined by, the Auditor or otherwise in accordance with the provisions of article 101.2.5.1. |
101.3 | In determining the amount of any borrowings or debentures or of any share capital for the purpose of this article there shall be taken into account the nominal or principal amount thereof (or, in the case of partly-paid debentures or shares, the amount for the time being paid up thereon) together with any fixed or minimum premium payable on final repayment or redemption. |
101.4 | If moneys are borrowed or debentures or shares are issued on terms that they may be repayable or redeemable (or that any Group company may be required to purchase them) earlier than their final maturity date (whether by exercise of an option on the part of the issuer or the creditor (or a trustee for the creditor) or the member, by reason of a default or for any other reason) at a premium or discount to their nominal or principal amount then there shall be taken into account the amount (or the greater or greatest of two or more alternative amounts) which would, if those circumstances occurred, be payable on such repayment, redemption or purchase at the date as at which the calculation is being made. |
101.5 | There shall be offset against the amount of the borrowings any amounts beneficially owned by a Group company which represent the value of cash deposited and which would be shown as a current asset in a balance sheet prepared in accordance with the accounting principles used in the preparation of the Latest Accounts, subject, in the case of any such items which are beneficially owned by a partly owned subsidiary undertaking, to the exclusion of a proportionate amount of those items corresponding to outside interests in that subsidiary undertaking. For these purposes, cash deposited means an amount equal to the aggregate for the time being of all cash deposits with any bank or other person (not being a Group company), the realisable value of any certificates issued by governments and companies and other readily realisable deposits. |
102 | Fluctuating rates of exchange |
The Company shall not be in breach of the borrowing limit under this article by reason of the limit being exceeded as a result only of any fluctuation in rates of exchange provided that within six months of the board becoming aware of any such fluctuation or change which would but for this provision have caused such a breach, the aggregate principal amount of all borrowings by the Group in accordance with this article is reduced to an amount not exceeding the said limit.
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103 | Changes in legislation |
If as a result of any change in legislation relating to or affecting taxation matters, any amount payable by a Group company in respect of any finance lease shall increase and, if in consequence the borrowing limit under this article is exceeded, an amount of moneys borrowed equal to the excess may be disregarded until the expiration of six months after the date on which the board becomes aware that such a situation has arisen.
104 | Validity of borrowing arrangements |
No person dealing with the Company or any of its subsidiary undertakings shall be concerned to see or inquire whether the limit imposed under article 100 is observed, and no debt incurred or security given in excess of such limit shall be void or voidable at the instance of the Company or any other Group company unless the lender or the recipient of the security had, at the time when the debt was incurred or security given, express notice that the limit had been or would thereby be exceeded.
105 | Certification of Auditor |
A certificate or report by the Auditor as to the amount of Adjusted Capital and Reserves or the amount of borrowings or to the effect that the limit imposed by this article has or has not been or will or will not be exceeded at any particular time or times shall be conclusive evidence of the amount or of that fact.
Secretary
106 | Secretary |
The secretary shall be appointed by the board on such terms and for such period as it thinks fit. Any secretary so appointed may be removed from office by the board at any time, but without prejudice to any claim for damages for breach of any contract between him and the Company. If thought fit, the board may appoint two or more persons as joint secretaries, and may also appoint one or more deputy and/or assistant secretaries, in each case on such terms as it thinks fit.
Seals
107 | Seals |
107.1 | The board shall provide for the safe custody of the seal and any securities seal and neither shall be used without the authority of the board. |
107.2 | The board may determine who shall sign any instrument to which the seal is affixed, either generally or in relation to a particular instrument or type of instrument, and may also determine, either generally or in any particular case, that such signatures shall be dispensed with. |
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107.3 | Unless otherwise decided by the board: |
107.3.1 | certificates for shares, debentures or other securities of the Company issued under seal need not be signed; and |
107.3.2 | every other instrument to which a seal is affixed shall be signed autographically or manually on behalf of the Company by two of the directors, or by a director and the secretary or by a director in the presence of a witness who attests the signature. |
107.4 | Any document may be executed under the seal by impressing the seal by mechanical means or by printing the seal or a facsimile of it on the document or by applying the seal or a facsimile of it by any other means to the document. |
107.5 | A document signed, with the authority of the board, by a director and the secretary, by two directors or by one director in the presence of a witness who attests the signature and expressed to be executed by the Company shall have the same effect as if executed under seal. |
Minutes and Books
108 | Minutes and books |
108.1 | The board shall cause minutes to be made in books kept for the purpose: |
108.1.1 | of all appointments of officers made by the board; |
108.1.2 | of the names of the directors (or their alternates) and any other persons present at each meeting of the board and of any committee formed under article 96; and |
108.1.3 | of all resolutions and proceedings at all meetings of the Company and of any class of members of the Company and of the board and of any committees formed under article 96. |
108.2 | Any such minutes shall be conclusive evidence of any such proceedings if signed by the chair of the meeting at which the proceedings were held or by the chair of the next succeeding meeting. |
108.3 | The secretary must ensure that all resolutions of the board passed otherwise than at board meetings are kept for at least ten years. |
Dividends
109 | Declaration of dividends |
The Company may, by ordinary resolution, declare dividends in accordance with the respective rights of the members, and may fix the time for payment of such dividends, but no dividend shall exceed the amount recommended by the directors.
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110 | Interim dividends |
The board may pay interim dividends (including any dividend payable at a fixed rate) if it appears to the board that they are justified by the financial position of the Company. If at any time the share capital of the Company is divided into different classes, the board may pay interim dividends on shares which rank after shares conferring preferred rights with regard to dividends as well as on shares with preferred rights unless at the time of a payment a preferential dividend is in arrears. If the board acts in good faith, none of the directors shall incur any liability to the holders of any shares for any loss they may suffer by the lawful payment of any dividend on any shares with rights ranking after or pari passu with those shares.
111 | Calculation and currency of dividends |
111.1 | Unless and to the extent that the rights attached to, or the terms of issue of, any share otherwise provide: |
111.1.1 | all dividends shall (as regards any shares not fully paid throughout the period in respect of which the dividend is paid) be apportioned and paid pro rata according to the amounts paid on the shares during any portion or portions of the period in respect of which the dividend is paid (provided that, in accordance with article 131, no amount paid on a share in advance of calls shall be treated as paid on that share); and |
111.1.2 | dividends may be declared or paid in any currency. |
111.2 | The board may agree with any member that dividends which may at any time or from time to time be declared or become due on his share in one currency shall be paid or satisfied in another, and may agree the basis for conversion to be applied and how and when the amount to be paid in the other currency shall be calculated and paid and for the Company or any other person to bear any costs involved. |
112 | Dividends not to bear interest |
No dividend or other moneys payable by the Company on or in respect of a share shall bear interest as against the Company unless otherwise provided by the rights attached to the share.
113 | Permitted deductions |
The board may deduct from any dividend or other moneys payable to any member (either alone or jointly with another) on or in respect of a share all such sums (if any) presently payable by him (either alone or jointly with another) to the Company on account of calls or otherwise in relation to shares of the Company.
114 | Waiver of dividends |
The waiver, in whole or in part, of any dividend on any share by any document shall be effective only if such document is executed by the holder (or the person entitled to the share in consequence of a transmission event) and delivered to the Company and if, or to the extent that, the same is accepted as such or acted upon by the Company.
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115 | Manner of payment of dividends |
115.1 | Any dividend or other moneys payable in respect of a share may be paid to the member or, where permitted by the Company in relation to article 115.1.3, to such other person as the member (or, in the case of joint holders of a share, all of them) may direct by notice given to the Company. Such dividend or other moneys may be paid: |
115.1.1 | by cheque or warrant made payable to the payee or (where there is more than one payee) to any one of them; or |
115.1.2 | by any direct debit, bank or other funds transfer system (including, without limitation, payment through a relevant system) to such account as the payee or payees shall direct by notice given to the Company; or |
115.1.3 | in respect of shares in uncertificated form, where the Company is authorised to do so by or on behalf of the member, by means of a relevant system (subject always to the facilities and requirements of that relevant system); |
115.1.4 | by any other method approved by the board and agreed by the member (or, in the case of joint holders of a share, all of them). |
115.2 | A cheque or warrant may be sent by post: |
115.2.1 | to the registered address of the holder of the share or, in the case of joint holders, to the registered address of the person whose name stands first in the register; or |
115.2.2 | if a person is entitled by transmission to the share, as if it were a notice to be given under article 151; or |
115.2.3 | in any case, to such person and to such address as the holder or joint holders may direct by notice given to the Company. |
115.3 | Without limiting article 115.1.3, payment by means of a relevant system may include the Company, or any person on its behalf, sending an instruction to the Operator of the relevant system to credit the cash memorandum account of the holder or joint holders or, if permitted by the Company, of such person as the holder or joint holders may direct in writing. In this article 115.3, “cash memorandum account’ means an account so designated by the Operator of the relevant system. |
116 | Risk and discharge of Company |
Every cheque or warrant sent in accordance with these articles shall be sent at risk of the holder or person entitled. The Company shall have no responsibility for any sums lost or delayed in the course of payment by any method used by the Company in accordance with article 115. Payment of a cheque or warrant by the bank on which it was drawn or the transfer of funds by a bank or other funds transfer system or, in respect of shares in uncertificated form, the making of payment in accordance with the facilities and requirements of the relevant system shall be a good discharge to the Company.
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117 | Receipts of joint holders |
Any person registered as a joint holder of any share or who is entitled jointly to a share in consequence of a transmission event may give an effective receipt for any dividend or other moneys payable or property distributable in respect of the share.
118 | Scrip dividends |
118.1 | The board may, with the authority of an ordinary resolution of the Company, offer any holders of ordinary shares the right to elect to receive further ordinary shares, credited as fully paid, instead of cash in respect of all (or some part) of any dividend specified by the ordinary resolution (a scrip dividend) in accordance with the following provisions of this article. |
118.2 | The ordinary resolution may specify a particular dividend (whether or not declared) or may specify all or any dividends payable within a specified period expiring no later than five years after the date of the ordinary resolution. Any such offer shall, where practicable, be made prior to or contemporaneously with the announcement of the dividend in question and any related information as to the Company’s profits for the relevant financial period or part of it. |
118.3 | The basis of allotment shall be determined by the board so that, as nearly as possible, the value of the further ordinary shares (including any fractional entitlement) is equal to the amount of the cash dividend which would otherwise have been paid (disregarding any associated tax credit). |
118.4 | For such purpose the value of the further ordinary shares shall be the average of the middle market quotations of a share of that class derived from the AIM section of the Daily Official List of the London Stock Exchange, or the middle-market quotation of American Depositary Shares in Nasdaq (adjusted as the Directors shall determine to reflect the number of Ordinary Shares represented by each American Depositary Share), on each of the first five consecutive business days on which such shares are quoted “ex dividend” or shall be calculated in such other manner as may be determined by the ordinary resolution. |
118.5 | The board shall, after determining the basis of allotment, give notice to the members of the right of election accorded to them and shall specify the procedure to be followed in order to make the election. The board is not required to give notice to a member who has previously made, and has not revoked, an earlier election to receive ordinary shares in lieu of all future dividends, but instead shall send him a reminder that he has made such an election, indicating how that election may be revoked in time for the dividend then proposed to be paid. |
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118.6 | The dividend (or that part of it) in respect of which an election for a scrip dividend has been made shall not be paid and instead further ordinary shares shall be allotted in accordance with the election; for such purpose the board shall capitalise a sum equal to the aggregate nominal amount of the shares to be allotted out of such sums as are available for the purpose as the board may consider appropriate and shall apply the same in paying up in full the shares for such allotment. |
118.7 | The further ordinary shares so allotted shall rank pari passu in all respects with the fully paid ordinary shares then in issue, save only as regards participation in the relevant dividend. |
118.8 | The board may do all acts and things as it considers necessary or expedient to give effect to any such capitalisation, with full power to the board to make such provisions as it thinks fit in the case of shares becoming distributable in fractions (including provisions whereby, in whole or in part, fractional entitlements are disregarded or rounded up or the benefit of fractional entitlements accrues to the Company rather than to the members concerned). The board may authorise any person to enter into, on behalf of all the members interested, an agreement with the Company providing for such capitalisation and incidental matters and any agreement made under such authority shall be effective and binding on all concerned. |
118.9 | To the extent that the entitlement of the holder of ordinary shares in respect of any dividend is less than the value of one new ordinary share (as determined for the basis of any scrip dividend) the board may also from time to time establish or vary a procedure for such entitlement to be accrued and aggregated with any similar entitlement for the purposes of any subsequent scrip dividend. |
118.10 | Notwithstanding the foregoing, the board may at any time prior to payment of any specific dividend determine that the dividend shall be payable wholly in cash after all and that all elections made in respect of that dividend shall be disregarded. The dividend shall be payable wholly in cash if the ordinary share capital of the Company ceases to be admitted to AIM (or Nasdaq, as the case may be) at any time prior to the due date of issue of the additional shares or if the listing is suspended and not reinstated by the date immediately preceding the due date of such issue. |
118.11 | The board may determine that the right of election shall not be made available to any members with registered addresses in any territory where, in the opinion of the board, this would be unlawful or compliance with local laws or regulations would be unduly onerous. |
119 | Retention and forfeiture of dividends |
119.1 | The board may retain any dividend or other moneys payable on or in respect of a share on which the Company has a lien, and may apply the same in or towards satisfaction of the debts, liabilities or other obligations in respect of which the lien exists. |
119.2 | The board may retain dividends payable upon shares in respect of which any person is, under the provisions as to the transmission of shares contained above, entitled to become a member, or which any person is under those provisions entitled to transfer, until such person shall become a member in respect of such shares or shall transfer the same. |
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119.3 | Without prejudice to article 119.5, all unclaimed dividends or other moneys payable on, or in respect of, a share may be invested or otherwise made use of by the board for the benefit of the Company until claimed. The payment of any unclaimed dividend or other moneys payable on, or in respect of, a share into a separate account shall not constitute the Company a trustee in respect of it. |
119.4 | The Company shall not be obliged to send any dividends or other sums payable in respect of a share to the holder of that share if such a payment sent by the Company to that person in accordance with article 115 is returned undelivered or left uncashed or, if sent by means of electronic payment, has failed (whether by way of a funds transfer system or otherwise) in each case on at least two consecutive occasions, or, following one such occasion, if reasonable enquiries have failed to establish the new address for that person or, with respect to a payment to be made by a funds transfer system, a new account for that purpose. The entitlement conferred on the Company by this article in respect of any member shall cease if the member notifies the Company of an address or, where payment is to be made by a funds transfer system, details of the account, to be used for that purpose. |
119.5 | Any dividends unclaimed after a period of 12 years from the date when it became due for payment shall, if the board so resolves, be forfeited and shall cease to remain owing by the Company. |
120 | Dividends in specie |
120.1 | The Company may, upon the recommendation of the board, by ordinary resolution direct that payment of a dividend may be satisfied wholly or in part by the distribution of specific assets (and in particular of paid up shares or debentures of any other company). |
120.2 | Where any difficulty arises with respect to such distribution, the board may settle the same as it thinks fit and, in particular, may: |
120.2.1 | issue fractional certificates or may appoint any person to sell and transfer any fractions or disregard fractions altogether; |
120.2.2 | fix the value for distribution of such specific assets or any part of them; |
120.2.3 | determine that cash payments shall be made to any members on the basis of the value so fixed in order to ensure equality of distribution; and |
120.2.4 | vest any such specific assets in trustees on such trusts for the persons entitled to the dividend as the board may think fit. |
Record Dates
121 | Fixing of record dates |
121.1 | Notwithstanding any other of these articles, but without prejudice to any rights attached to any shares, the Company or the board may by resolution specify a date (the record date) as the date at the close of business by reference to which a dividend will be declared or paid or a distribution, allotment or issue made, and that date may be before, on or after the date on which the dividend, distribution, allotment or issue is declared, paid or made. |
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121.2 | In the absence of a record date being fixed, entitlement to any dividend, distribution, allotment or issue shall be determined by reference to the date on which the dividend is declared or the distribution, allotment or issue is made. |
Capitalisation of Profits and Reserves
122 | Capitalisation of reserves |
122.1 | The board may, with the authority of an ordinary resolution of the Company: |
122.1.1 | resolve to capitalise any sum standing to the credit of any reserve or other fund of the Company (including share premium account and capital redemption reserve) or any sum standing to the credit of the profit and loss account not required for paying any preferential dividend (whether or not it is available for distribution); |
122.1.2 | appropriate the sum resolved to be capitalised to the members in proportion to the nominal amounts of the shares (whether or not fully paid) held by them respectively which would entitle them to participate in a distribution of that sum if the shares were fully paid and the sum were then distributable and were distributed by way of dividend and apply such sum on their behalf either in or towards paying up the amounts, if any, for the time being unpaid on any shares held by them respectively, or in paying up in full unissued shares or debentures of the Company of a nominal amount equal to that sum, and allot the shares or debentures credited as fully paid to those members or as they may direct, in those proportions, or partly in one way and partly in the other, or otherwise deal with such sum as directed by the resolution, provided that the share premium account, the capital redemption reserve and any sum not available for distribution in accordance with the Statutes may only be applied in paying up unissued shares to be allotted credited as fully paid; and |
122.1.3 | resolve that any shares so allotted to any member in respect of a holding by him of any partly paid shares shall, so long as such shares remain partly paid, rank for dividend only to the extent that the latter shares rank for dividend. |
122.2 | The board may do all acts and things it considers necessary or expedient to give effect to such capitalisation. Where any difficulty arises in respect of any distribution of any capitalised reserve or other sum, the board may settle the difficulty as it thinks fit and in particular may make such provisions as it thinks fit in the case of shares or debentures becoming distributable in fractions (including provisions for payment in cash or otherwise or whereby fractional entitlements are disregarded or under which the benefit of fractional entitlements accrues to the Company rather than the member concerned). |
122.3 | The board may also authorise any person to sign, on behalf of all the persons entitled to share in the distribution, an agreement with the Company providing for such capitalisation and any matters incidental to it, and any such agreement shall be binding on all such persons. |
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Certificates
123 | Issue of share certificates |
123.1 | Except as provided in article 123.3, every person whose name is entered in the register as the holder of any certificated shares shall be entitled, without payment, to one certificate for all the certificated shares of each class held by him and, if he transfers a part of his holding of the shares represented by a share certificate, or elects to hold part in uncertificated form, to a certificate for the balance of his holding of certificated shares. |
123.2 | Every share certificate shall be issued by the Company in such manner as the board may decide (which may include use of the seal or securities seal or, in the case of shares on a branch register, an official seal for use in the relevant territory by one or more directors or the secretary or other person authorised to sign the share certificate on behalf of the Company). Each share certificate shall specify the nominal value, the number, class and distinguishing numbers (if any) of the shares to which it relates and the amount or respective amounts paid up on the shares. No share certificate shall be issued representing shares of more than one class. |
123.3 | The Company shall not be bound to issue more than one share certificate for shares held jointly by more than one person and delivery of a share certificate to one joint holder shall be a sufficient delivery to all of them. No share certificate shall be issued in respect of any shares held by a market nominee. |
124 | Cancellation and replacement of share certificates |
124.1 | Any two or more share certificates representing shares of any one class held by any member may, at his request, be cancelled and a single new share certificate for all such shares issued in lieu without charge. |
124.2 | If any member shall surrender a share certificate representing shares held by him for cancellation and request the Company to issue in lieu two or more certificates representing such shares in such proportions as he may specify, the board may, if it thinks fit, comply with such request on payment of such fee (if any) as the board may decide. |
124.3 | If a share certificate is damaged, defaced, worn out, or alleged to have been lost, stolen or destroyed, a new certificate representing the same shares may be issued to the holder on request subject to delivery up of the old certificate or (if alleged to have been lost, stolen or destroyed) compliance with such conditions (if any) as to evidence, indemnity and security for such indemnity, and the payment of any expenses of the Company in connection with the request, as the board thinks fit. |
124.4 | In the case of joint holders of a share any such request may be made by any one of the joint holders. |
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Calls on Shares
125 | Power to make calls |
The board may, from time to time, make calls upon the members in respect of any moneys unpaid on their shares, whether in respect of the nominal value of the shares or any premium (subject always to the terms of allotment of those shares). Each member shall (subject to being given at least 14 days’ notice specifying the time or times and place of payment) pay to the Company, the amount called on his shares as required by the notice. A call may be required to be paid in instalments and may be revoked or postponed by the board in whole or in part at any time before receipt by the Company of the payment due under it. A person upon whom a call is made shall remain liable for it notwithstanding the subsequent transfer of the share in respect of which the call was made.
126 | Time when call made |
A call shall be deemed to have been made at the time when the resolution of the board authorising that call is passed.
127 | Liability of and receipts by joint holders |
The joint holders of a share shall be jointly and severally liable to pay all calls in respect of that share.
128 | Failure to pay call |
128.1 | If a sum called in respect of a share is not paid before or on the due date for payment, the person from whom the sum is due shall pay interest on the sum from the due date for payment to the date of actual payment at the rate fixed by the terms of the allotment of the share or, if no rate is fixed, the rate determined by the board, not exceeding 15 per cent per annum or, if higher, the appropriate rate (as defined in the 2006 Act), and all expenses incurred by the Company by reason of such non-payment, but the board may, in any case or cases, waive payment of such interest and expenses, wholly or in part. |
128.2 | No dividend, or other payment or distribution, in respect of any such share shall be paid or distributed and no other rights, which would otherwise normally be exercisable in accordance with these articles by a holder of fully paid shares, may be exercised by the holder of any share so long as any such amount, or any interest, costs, charges or expenses payable in accordance with this article 128 in relation thereto, remains unpaid. |
129 | Other sums due on shares |
Any sum which by the terms of allotment of a share becomes payable upon allotment or at any fixed date shall, for the purposes of these articles, be deemed to be a call duly made and payable on the date fixed for payment. In the case of non-payment, the provisions of these articles as to payment of interest and expenses, forfeiture or otherwise shall apply as if such sum had become due and payable by virtue of a call.
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130 | Power to differentiate |
On any issue of shares the board may make arrangements to differentiate between the holders of the shares as to the amount of calls to be paid and the times of payment.
131 | Payments of calls in advance |
The board may, if it thinks fit, receive from any member willing to advance the same all or any part of the moneys uncalled and unpaid on the shares held by him, and such payment in advance of calls shall extinguish pro tanto the liability upon the shares in respect of which it is made. The Company may pay interest upon the moneys so received (until they would but for such advance become payable) at such rate as may be agreed between the member paying such sum and the board. No sum paid up in advance of calls shall entitle the holder of the share in respect of which that sum has been paid to any portion of a dividend, or other payment or distribution, declared in respect of any period prior to the date upon which such sum would, but for such payment, become payable.
Forfeiture, Surrender and Lien
132 | Notice on failure to pay a call |
132.1 | If the whole or any part of any call or instalment of a call remains unpaid after the due date for payment, the board may give notice to the person from whom it is due requiring payment of so much of the call or instalment as is unpaid together with any interest which may have accrued on it and any costs, charges and expenses incurred by the Company by reason of such non-payment. |
132.2 | The notice shall name a further day (not being less than 14 days from the date of service of the notice) on or before which, and the place where, the payment required by the notice is to be made and shall state that, in the event of non-payment in accordance with the notice, the share on which the call was made or instalment is payable will be liable to be forfeited. |
133 | Forfeiture for non-compliance |
133.1 | If a notice given under article 132 is not complied with, any share to which that notice relates may, at any time before the payment required by that notice has been made, be forfeited by a resolution of the board. The forfeiture shall include all dividends and other payments or distributions declared in respect of the forfeited share and not actually paid or distributed before forfeiture. The board may accept a surrender of any share liable to be forfeited. |
133.2 | A person all or any of whose shares have been forfeited or surrendered shall cease to be a member in respect of those shares and shall surrender any certificate for those shares to the Company for cancellation. |
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134 | Notice of forfeiture |
When any share has been forfeited, notice of the forfeiture shall be given to the holder of the share or, as the case may be, the person entitled to the share by transmission, and an entry of such notice having been given, and of the date of the forfeiture, shall be made in the register but no forfeiture shall be invalidated by any omission to give such notice or to make such entry.
135 | Annulment of forfeiture |
The board may, at any time before the forfeited or surrendered share has been sold, re-allotted or otherwise disposed of, annul the forfeiture or surrender upon the terms of payment of all calls and interest due upon and expenses incurred in connection with the call and forfeiture proceedings and upon any further terms it may think fit.
136 | Disposal of forfeited shares |
A share so forfeited or surrendered shall become the property of the Company and may (subject to the Statutes) be sold, re-allotted or otherwise disposed of, either to the person who was before such forfeiture or surrender the holder of the share or to any other person upon such terms and in such manner as the board shall think fit and whether with or without all or any part of the amount previously paid on the share being credited as paid. Where, for the purposes of its disposal, a forfeited or surrendered share held in certificated form is to be transferred to any person, the board may appoint any person to execute an instrument of transfer of the share to or in accordance with the directions of that person. Where, for the purpose of its disposal, a forfeited or surrendered share held in uncertificated form is to be transferred to any person, the board may exercise any of the Company’s powers under article 5.3. The Company may receive the consideration given for the share on its disposal.
137 | Extinction of rights |
A person any of whose shares have been forfeited or surrendered shall remain liable to pay to the Company all moneys which, at the date of forfeiture or surrender, were presently payable by him to the Company in respect of the shares, with interest on such moneys on the rate at which interest was payable on those moneys before the forfeiture or surrender or, if no interest was payable, at the rate determined by the board, not exceeding 15 per cent per annum or, if higher, the appropriate rate (as defined in the 2006 Act), from the date of forfeiture or surrender until payment. The board may at their absolute discretion enforce payment without any allowance for the value of the shares at the time of forfeiture or surrender or for any consideration received on their disposal or waive payment in whole or in part.
138 | Lien on partly paid shares |
The Company shall have a first and paramount lien on every share (not being a fully paid share) for all moneys payable (whether or not due) in respect of that share. The lien shall extend to all dividends and other payments or distributions payable or distributable in respect of the relevant share. The board may waive any lien which has arisen and may declare any share to be exempt, wholly or partially, from the provisions of this article.
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139 | Enforcement of lien by sale |
139.1 | The Company may sell any share on which it has a lien in such manner as the board thinks fit, but no sale shall be made unless an amount payable on the share in respect of which the lien exists is presently payable, nor until the expiration of 14 days after a notice demanding payment of the amount presently payable, and giving notice of the intention to sell in default, has been given to the holder for the time being of the share or the person entitled to it by reason of a transmission event. |
139.2 | To give effect to that sale the board may appoint any person to transfer the share sold to, or in accordance with the directions of, the buyer. |
140 | Application of proceeds of sale |
The net proceeds of the sale, after payment of the Company’s costs associated with the sale, shall be applied in or towards satisfaction of the amount in respect of which the lien exists, and any residue shall (subject to a like lien for debts or liabilities not presently payable but which existed on the share prior to the sale) on surrender to the Company for cancellation of the certificate (if any) in respect of the share sold, be paid to the person entitled to the share immediately before the sale.
141 | Evidence of forfeiture or lien |
A statutory declaration by a director or the secretary of the Company and that a share has been forfeited or surrendered or sold to satisfy a lien of the Company on a date stated in the declaration shall be conclusive evidence of the facts stated in the declaration as against all persons claiming to be entitled to the share. The declaration shall (subject if necessary to the relevant transfer being made) constitute a good title to the share and the person to whom the share is sold, re-allotted or disposed of shall be registered as the holder of the share, and shall not be bound to see to the application of the purchase money (if any), nor shall his title to the share be affected by any irregularity or invalidity in the proceedings relating to the forfeiture, surrender, sale, re-allotment or disposal of the share. The remedy of any person aggrieved in respect of the proceedings shall be in damages only and against the Company exclusively.
Untraceable Members
142 | Power to dispose of shares of untraced members |
142.1 | The Company may sell, in such manner as the board sees fit and at the best price reasonably obtainable, any share held by a member or to which a person is entitled by transmission if: |
142.1.1 | the share has been in issue for at least the previous 12 years and during that period at least three cash dividends have become payable in respect of the share and have been sent by the Company in a manner authorised by these articles; |
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142.1.2 | during that period of 12 years no cash dividend payable in respect of the share has been claimed, no cheque or warrant or other payment for an amount payable in respect of the share has been cashed or otherwise paid and no communication has been received by the Company from the member or person; |
142.1.3 | the Company has, after the expiration of that period, published advertisements in at least one leading national newspaper and one newspaper circulating in the area in which the last known address of the member (or person entitled by transmission to the share) or the address at which notices may be given under these articles is located, in each case giving notice of its intention to sell the share; and |
142.1.4 | the Company has not, during a further period of three months after the publication of those advertisements and prior to the sale of the share, received any communication in respect of the share from the member or person entitled by transmission. |
142.2 | The Company shall also be entitled to sell, in the manner provided for in article 142.1, any share (additional share) issued on or before the date of publication of the first of any advertisements under article 142.1 in right of any share to which that article applies (or in right of any share to which this article 142.2 applies) if the conditions in articles 142.1.2 to 142.1.4 are satisfied in relation to the additional share (but as if references to a period of 12 years were references to a period beginning on the date of allotment of the share and ending on the date of publication of the first advertisements referred to above). |
142.3 | To give effect to any sales under this article the board may: |
142.3.1 | where the shares are held in certificated form, appoint any person to execute, as transferor, an instrument of transfer of the shares to, or in accordance with the directions of, the buyer; |
142.3.2 | where the shares are held in uncertificated form, do all acts and things it considers necessary or expedient to effect the transfer of the shares to or in accordance with the directions of the buyer. |
142.4 | The buyer shall not be bound to see the application of the purchase money; nor shall the title of the new holder to the shares be affected by any irregularity in, or invalidity of, the proceedings relating to the sale. |
143 | Sale procedure and application of proceeds |
143.1 | The Company shall be indebted to the person entitled to the share at the date of sale for an amount equal to the net proceeds of sale, but no trust shall be created and no interest shall be payable in respect of the proceeds of sale pending payment of the net proceeds of sale to such person, and the proceeds may be used in the Company’s business or invested in such a way as the board may from time to time think fit. |
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143.2 | No interest shall be payable in respect of the net proceeds and the Company shall not be required to account for any money earned on the net proceeds. |
Accounts
144 | Accounts |
Accounting records sufficient to show and explain the Company’s transactions and otherwise complying with the Statutes shall be kept at the office or, subject to the Statutes, at such other place or places as the board thinks fit and shall always be open to the inspection by the Company’s officers. No member (as such) shall have any right of inspecting any account or book or document of the Company except as conferred by law or ordered by a court of competent jurisdiction or authorised by the board.
145 | Summary of financial statements |
Where permitted by the Statutes, the Company may send a summary financial statement in the form specified by the Statutes to the persons who would otherwise be entitled to be sent a copy of the Company’s full annual accounts and reports.
Auditor
146 | Validity of acts of Auditor |
Subject to the provisions of the Statutes, all acts done by any person acting as an Auditor shall, as regards all persons dealing in good faith with the Company, be valid notwithstanding that there was some defect in his appointment or that he was at the time of his appointment not qualified for appointment or subsequently became disqualified.
Service of Notices and Other Documents
147 | Notices in writing |
Any notice to be given to or by any person under these articles (other than a notice calling a meeting of the board) shall be in writing, except where otherwise expressly stated. Any such notice may be given using electronic communications provided sent to such address (if any) for the time being notified for that purpose to the person sending the notice by or on behalf of the person to whom the notice is sent and in the case of communications between the Company and its members, in accordance with the following articles 148 and 149.
148 | Method of giving notice to members |
148.1 | The Company shall give any notice or other document under these articles to a member by whichever of the following methods it may in its absolute discretion determine: |
148.1.1 | personally; or |
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148.1.2 | by posting the notice or other document in a prepaid envelope addressed, in the case of a member, to his registered address, or in any other case, to the person’s usual address; or |
148.1.3 | by leaving the notice or other document at that address; or |
148.1.4 | by sending the notice or other document using electronic communications to such address (if any) for the time being notified to the Company by or on behalf of the member for that purpose; or |
148.1.5 | in accordance with article 148.2; or |
148.1.6 | by any other method approved by the board. |
148.2 | A member whose registered address is not within the United Kingdom and who gives to the Company an address within the United Kingdom at which notices may be given to him or an address to which notices may be sent using electronic communications shall be entitled to receive notices and other documents from the Company at that address, but, unless he does so, shall not be entitled to receive any notice from the Company. Without limiting the previous sentence, any notice of a general meeting of the Company which is in fact sent or purports to be sent to such address shall be ignored for the purposes of determining the validity of proceedings at such meeting. |
148.3 | Subject to the Statutes the Company may also give any notice or other document under these articles to a member by publishing that notice or other document on a website where: |
148.3.1 | the Company and the member have agreed to the member having access to the notice or document on a website (instead of it being sent to him); |
148.3.2 | the notice or document is one to which that agreement applies; |
148.3.3 | the member is notified, in a manner for the time being agreed between him and the Company for the purpose, of: |
148.3.3.1 | the publication of the notice or document on a website; |
148.3.3.2 | the address of that website; and |
148.3.3.3 | the place on that website where the notice or document may be accessed, and how it may be accessed; and |
148.3.4 | the notice of document is published on that website throughout the publication period and (if applicable) continues to be so published until the conclusion of the meeting (and any adjourned meeting), provided that, if the notice or document is published on that website for a part, but not all of, such period, the notice or document shall be treated as being published throughout that period if the failure to publish that notice or document throughout that period is wholly attributable to circumstances which it would be reasonable to have expected the Company to prevent or avoid. |
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148.4 | In article 148.3 publication period means: |
148.4.1 | in the case of a notice of an adjourned meeting under article 42 of not less than seven clear days before the date of the adjourned meeting, beginning on the day following that on which the notice referred to in article 148.3.2 is sent or (if later) is deemed given; and |
148.4.2 | in any other case, a period of not less than 21 days, beginning on the day following that on which the notification referred to in article 148.3.2 is sent or (if later) is deemed given. |
148.5 | The board may from time to time issue, endorse or adopt terms and conditions relating to the use of electronic communications for the giving of notices, other documents and proxy appointments by the Company to members or persons entitled by transmission and by members or persons entitled by transmission to the Company. |
148.6 | Proof that an envelope containing a notice or other document was properly addressed, prepaid and posted shall be conclusive evidence that the notice or document was given. Proof that a notice or other document contained in an electronic communication was sent or given in accordance with guidance issued by the Institute of Chartered Secretaries and Administrators current at the date of adoption of these articles, or, if the board so resolves, any subsequent guidance so issued, shall be conclusive evidence that the notice or document was sent or given. A notice or other document sent by the Company to a member by post shall be deemed to be given or delivered: |
148.6.1 | if sent by first class post or special delivery post from an address in the United Kingdom to another address in the United Kingdom, or by a postal service similar to first class post or special delivery post from an address in another country to another address in that other country, on the day following that on which the envelope containing it was posted; |
148.6.2 | if sent by airmail from an address in the United Kingdom to an address outside the United Kingdom, or from an address in another country to an address outside that country (including without limitation an address in the United Kingdom), on the third day following that on which the envelope containing it was posted; |
148.6.3 | in any other case, on the second day following that on which the envelope containing it was posted. |
148.7 | A notice or other document sent by the Company to a member contained in an electronic communication shall be deemed given to the member on the day on which the electronic communication was sent to the member. Such a notice or other document shall be deemed given by the Company to the member on that day notwithstanding that the Company becomes aware that the member has failed to receive the relevant notice or other document for any reason and notwithstanding that the Company subsequently sends a copy of such notice or other document by post to the member. |
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148.8 | A notice, document or other communication shall be deemed to have been given if made available on a website, when the recipient was deemed to have received notification of the fact that the material was available on the website, in accordance with this Article and if such notice, document or communication is sent by means of a relevant system, when the Company or any sponsoring system-participant acting on its behalf sends the issuer-instruction relating to the communication. |
149 | Notice by members |
Unless otherwise provided by these articles, a member or a person entitled by transmission to a share shall give any notice or other document under these articles to the Company by whichever of the following methods he may in his absolute discretion determine:
149.1 | by posting the notice or other document in a prepaid envelope addressed to the office; or |
149.2 | by leaving the notice or other document at the office; or |
149.3 | by sending the notice or other document using electronic communications to such address (if any) for the time being notified by or on behalf of the Company for that purpose. |
150 | Notice to joint holders |
In the case of joint holdings, all notices and other documents shall be given or sent to the joint holder whose name appears first in the register and this shall be sufficient delivery to all the joint holders in their capacity as such. For such purpose a joint holder having no registered address in the United Kingdom and not having given an address within the United Kingdom at which notices may be given to him or an address to which notices may be sent using electronic communications shall be disregarded.
151 | Notice to persons entitled by transmission |
A notice may be given by the Company to the persons entitled to a share in consequence of the death or bankruptcy of a member by sending or delivering it, in any manner authorised by these articles for the giving of notice to a member, addressed to them by name, or by the title of representatives of the deceased, or trustee of the bankrupt or by any like description at the address, if any, within the United Kingdom supplied for that purpose by the persons claiming to be so entitled. Until such an address has been supplied, a notice may be given in any manner in which it might have been given if the death or bankruptcy had not occurred whether or not the Company has notice of the transmission event.
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152 | Disruption of postal services |
If at any time by reason of the suspension or curtailment of postal services within the United Kingdom, the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a notice advertised in at least one leading national daily newspaper and such notice shall be deemed to have been given to all members and other persons entitled to receive it on the day when the advertisement appears (or first appears). In any such case the Company shall send confirmatory copies of the notice by post if at least seven days prior to the meeting the posting of notices to addresses throughout the United Kingdom again becomes practicable.
153 | Deemed notice |
A member present in person at any meeting of the Company or of the holders of any class of shares shall be deemed to have received notice of the meeting and, where requisite, of the purposes for which it was called.
154 | Successors in title bound by notice to predecessor |
Every person who becomes entitled to a share shall be bound by any notice (other than a notice given under section 793 of the 2006 Act) in respect of that share which, before his name is entered in the register, was given to the person from whom he derives his title.
155 | Reference to notices are to notifications |
Except when the subject or context otherwise requires, in articles 148.1, 148.2, 148.5, 148.6, 149 and 150 references to a notice include without limitation references to any notification required by the Statutes or these articles in relation to the publication of any notices or other documents on a website.
156 | Statutory requirements |
Nothing in these articles shall affect any requirement of the Statutes that any particular offer, notice or other document be served in any particular manner.
157 | Record date for delivery |
157.1 | For the purposes of giving notices of meetings or other documents, whether under these articles or under section 310(1) of the 2006 Act, any other Statute or any other statutory instrument, the Company may determine that persons entitled to receive such notices or other documents are those persons entered on the register at the close of business on a day determined by it. |
157.2 | The day determined by the Company under article 157.1 may not be more that 21 days before the day that the notice of the meeting or other document is sent. |
157.3 | For the purposes of determining which persons are entitled to attend and/or vote at a meeting, and how many votes such persons may cast, the Company may specify in the notice of the meeting a time, not more than 48 hours before the time fixed for the meeting, by which a person must be entered on the register in order to have the right to attend and/or vote at the meeting. In calculating the period mentioned in this article 157.3, no account shall be taken of any part of a day that is not a working day. |
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Winding Up
158 | Liquidator may distribute in specie |
If the Company is being wound up (whether the liquidation is voluntary, under supervision or by the Court) the liquidator may, with the authority of a special resolution and any other sanction required by the Statutes:
158.1 | divide among the members in specie the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may for that purpose value any assets and determine how such division shall be carried out as between the members or different classes of members; and/or |
158.2 | vest the whole or any part of the assets in trustees upon such trusts for the benefit of members as the liquidator, with the like authority, shall think fit but so that no member shall be compelled to accept any assets in respect of which there is any liability. |
Provisions for Employees
159 | Provision for employees |
The board may, by resolution, exercise any power conferred by the Statutes to make provision for the benefit of persons employed or formerly employed by the Company or any of its subsidiary undertakings in connection with the cessation, or the transfer to any person, of the whole, or part of, the undertaking of the Company or that subsidiary undertaking.
Indemnity
160 | Indemnity |
Subject to the provisions of and so far as may be consistent with the Statutes, every director or other officer of the Company shall be indemnified out of the funds of the Company against all costs, charges, losses, expenses and liabilities incurred by him for negligence, default, breach of duty or breach of trust or otherwise in relation to the affairs of the Company or of an associated company, or in connection with the activities of the Company, or of an associated company, as a trustee of an occupational pension scheme (as defined in section 235(6) of the 2006 Act).
161 | Insurance |
161.1 | Without prejudice to article 160 the board shall have the power to purchase and maintain insurance for or for the benefit of any person who is or was at any time: |
161.1.1 | a director or other officer of any Relevant Company (as defined in article 161.2 below); or |
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161.1.2 | a trustee of any pension fund or retirement, death or disability scheme for the benefit of any employee of any Relevant Company or employees’ share scheme in which employees of any Relevant Company are interested, |
including (without limitation) insurance against any liability within article 160 incurred by him in relation to any Relevant Company, or any such pension fund, retirement or other scheme or employees’ share scheme.
161.2 | For these purposes Relevant Company shall mean the Company or any other undertaking which is or was at some time: |
161.2.1 | the parent undertaking of the Company; or |
161.2.2 | a subsidiary undertaking of the Company or of such parent undertaking; or |
161.2.3 | otherwise associated with the Company or any such parent or subsidiary undertaking or the predecessors in business of the Company or of any such parent or subsidiary undertaking or associate. |
162 | Forum Selection |
162.1 | Unless the Company consents in writing to the selection of an alternative forum, the Courts of England and Wales shall, to the fullest extent permitted by law, be the sole and exclusive forum for: |
162.1.1 | any derivative action or proceeding brought on behalf of the Company; |
162.1.2 | any action, including any action commenced by a member of the Company in its own name or on behalf of the Company, asserting a claim of breach of any fiduciary or other duty owed by any director, officer or other employee of the Company (including but not limited to duties arising under the 2006 Act); or |
162.1.3 | any action arising out of or in connection with these Articles (pursuant to any provision of the laws of England and Wales or the Memorandum and Articles of Association (as either may be may be amended from time to time), or otherwise in any way relating to the constitution or conduct of the Company. |
162.2 | Unless the Company consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the United States Securities Act of 1933, as amended or any successor thereto. |
162.3 | For the avoidance of doubt, nothing contained in this Article 162 shall apply to any action brought to enforce a duty or liability created by the United States Securities Exchange Act of 1934 Act, as amended, or any successor thereto. |
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Exhibit 4.1
Exhibit 4.2
TABLE OF CONTENTS
Page | ||
PARTIES | 1 | |
RECITALS | 1 | |
Section 1. | Certain Definitions | |
(a) | ADR Register | 1 |
(b) | ADRs; Direct Registration ADRs | 1 |
(c) | ADS | 1 |
(d) | Beneficial Owner | 1 |
(e) | Custodian | 2 |
(f) | Deliver, execute, issue et al. | 2 |
(g) | Delivery Order | 2 |
(h) | Deposited Securities | 2 |
(i) | Direct Registration System | 2 |
(j) | Holder | 2 |
(k) | Securities Act of 1933 | 3 |
(l) | Securities Exchange Act of 1934 | 3 |
(m) | Shares | 3 |
(n) | Transfer Office | 3 |
(o) | Withdrawal Order | 3 |
Section 2. | Form of ADRs | 3 |
Section 3. | Deposit of Shares | 3 |
Section 4. | Issue of ADRs | 4 |
Section 5. | Distributions on Deposited Securities | 5 |
Section 6. | Withdrawal of Deposited Securities | 5 |
Section 7. | Substitution of ADRs | 5 |
Section 8. | Cancellation and Destruction of ADRs; Maintenance of Records | 5 |
Section 9. | The Custodian | 6 |
Section 10. | Lists of Holders | 6 |
Section 11. | Depositary's Agents | 6 |
Section 12. | Resignation and Removal of the Depositary; Appointment of Successor Depositary | 7 |
Section 13. | Reports | 7 |
Section 14. | Additional Shares | 8 |
Section 15. | Indemnification | 8 |
Section 16. | Notices | 9 |
Section 17. | Counterparts | 10 |
Section 18. | No Third Party Beneficiaries; Holders and Beneficial Owners as Parties; Binding Effect | 10 |
Section 19. | Severability | 10 |
Section 20. | Governing Law; Consent to Jurisdiction | 11 |
Section 21. | Agent for Service | 12 |
Section 22. | Waiver of Immunities | 13 |
Section 23. | Waiver of Jury Trial | 14 |
TESTIMONIUM | 14 | |
SIGNATURES | 14 |
- i -
Page | |||
EXHIBIT A | |||
FORM OF FACE OF ADR | A-1 | ||
Introductory Paragraph | A-1 | ||
(1) | Issuance of ADSs | A-2 | |
(2) | Withdrawal of Deposited Securities | A-3 | |
(3) | Transfers, Split-Ups and Combinations of ADRs | A-3 | |
(4) | Certain Limitations to Registration, Transfer etc. | A-4 | |
(5) | Liability for Taxes, Duties and Other Charges | A-5 | |
(6) | Disclosure of Interests | A-6 | |
(7) | Charges of Depositary | A-6 | |
(8) | Available Information | A-9 | |
(9) | Execution | A-9 | |
Signature of Depositary | A-10 | ||
Address of Depositary's Office | A-10 | ||
FORM OF REVERSE OF ADR | A-11 | ||
(10) | Distributions on Deposited Securities | A-11 | |
(11) | Record Dates | A-12 | |
(12) | Voting of Deposited Securities | A-12 | |
(13) | Changes Affecting Deposited Securities | A-13 | |
(14) | Exoneration | A-14 | |
(15) | Resignation and Removal of Depositary; the Custodian | A-18 | |
(16) | Amendment | A-18 | |
(17) | Termination | A-19 | |
(18) | Appointment; Acknowledgements and Agreements | A-20 | |
(19) | Waiver | A-21 | |
(20) | Elective Distributions in Cash or Shares | A-21 |
DEPOSIT AGREEMENT dated as of [DATE] , 2021 (the "Deposit Agreement") among 4D PHARMA PLC and its successors (the "Company"), JPMORGAN CHASE BANK, N.A., as depositary hereunder (the "Depositary"), and all Holders (defined below) and Beneficial Owners (defined below) from time to time of American Depositary Receipts issued hereunder ("ADRs") evidencing American Depositary Shares ("ADSs") representing deposited Shares (defined below). The Company hereby appoints the Depositary as depositary for the Deposited Securities (defined below) and hereby authorizes and directs the Depositary to act in accordance with the terms set forth in this Deposit Agreement. All capitalized terms used herein have the meanings ascribed to them in Section 1 or elsewhere in this Deposit Agreement. The parties hereto agree as follows:
1. | Certain Definitions. |
(a) "ADR Register" is defined in paragraph (3) of the form of ADR (Transfers, Split-Ups and Combinations of ADRs).
(b) "ADRs" mean the American Depositary Receipts executed and delivered hereunder. ADRs may be either in physical certificated form or Direct Registration ADRs (as hereinafter defined). ADRs in physical certificated form, and the terms and conditions governing the Direct Registration ADRs, shall be substantially in the form of Exhibit A annexed hereto (the "form of ADR"). The term "Direct Registration ADR" means an ADR, the ownership of which is recorded on the Direct Registration System. References to "ADRs" shall include certificated ADRs and Direct Registration ADRs, unless the context otherwise requires. The form of ADR is hereby incorporated herein and made a part hereof; the provisions of the form of ADR shall be binding upon the parties hereto.
(c) Subject to paragraph (13) of the form of ADR, (Changes Affecting Deposited Securities) each "ADS" evidenced by an ADR represents the right to receive, and to exercise the beneficial ownership interests in, the number of Shares specified in the form of ADR attached hereto as Exhibit A (as amended from time to time) that are on deposit with the Depositary and/or the Custodian and a pro rata share in any other Deposited Securities, subject, in each case, to the terms of this Deposit Agreement and the ADSs. The ADS(s)-to-Share(s) ratio is subject to amendment as provided in the form of ADR (which may give rise to fees contemplated in paragraph (7) thereof).
(d) "Beneficial Owner" means as to any ADS, any person or entity having a beneficial ownership interest in such ADS. A Beneficial Owner need not be the Holder of the ADR evidencing such ADS. If a Beneficial Owner of ADSs is not a Holder, it must rely on the Holder of the ADR(s) evidencing such ADSs in order to assert any rights or receive any benefits under this Deposit Agreement. The arrangements between a Beneficial Owner of ADSs and the Holder of the corresponding ADRs may affect the Beneficial Owner’s ability to exercise any rights it may have.
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(e) "Custodian" means the agent or agents of the Depositary (singly or collectively, as the context requires) and any additional or substitute Custodian appointed pursuant to Section 9.
(f) The terms "deliver", "execute", "issue", "register", "surrender", "transfer" or "cancel", when used with respect to Direct Registration ADRs, shall refer to an entry or entries or an electronic transfer or transfers in the Direct Registration System, and, when used with respect to ADRs in physical certificated form, shall refer to the physical delivery, execution, issuance, registration, surrender, transfer or cancellation of certificates representing the ADRs.
(g) "Delivery Order" is defined in Section 3.
(h) "Deposited Securities" as of any time means all Shares at such time deposited under this Deposit Agreement and any and all other Shares, securities, property and cash at such time held by the Depositary or the Custodian in respect or in lieu of such deposited Shares and other Shares, securities, property and cash. Deposited Securities are not intended to, and shall not, constitute proprietary assets of the Depositary, the Custodian or their nominees. Beneficial ownership in Deposited Securities is intended to be, and shall at all times during the term of the Deposit Agreement continue to be, vested in the Beneficial Owners of the ADSs representing such Deposited Securities.
(i) "Direct Registration System" means the system for the uncertificated registration of ownership of securities established by The Depository Trust Company ("DTC") and utilized by the Depositary pursuant to which the Depositary may record the ownership of ADRs without the issuance of a certificate, which ownership shall be evidenced by periodic statements issued by the Depositary to the Holders entitled thereto. For purposes hereof, the Direct Registration System shall include access to the Profile Modification System maintained by DTC which provides for automated transfer of ownership between DTC and the Depositary.
(j) "Holder" means the person or persons in whose name an ADR is registered on the ADR Register. For all purposes under the Deposit Agreement and the ADRs, a Holder shall be deemed to have all requisite authority to act on behalf of any and all Beneficial Owners of the ADSs evidenced by the ADR(s) registered in such Holder's name.
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(k) "Securities Act of 1933" means the United States Securities Act of 1933, as from time to time amended.
(l) "Securities Exchange Act of 1934" means the United States Securities Exchange Act of 1934, as from time to time amended.
(m) "Shares" mean the ordinary shares of the Company, and shall include the rights to receive Shares specified in paragraph (1) of the form of ADR (Issuance of ADSs).
(n) "Transfer Office" is defined in paragraph (3) of the form of ADR (Transfers, Split-Ups and Combinations of ADRs).
(o) "Withdrawal Order" is defined in Section 6.
2. | Form of ADRs. |
(a) Direct Registration ADRs. Notwithstanding anything in this Deposit Agreement or in the form of ADR to the contrary, ADSs shall be evidenced by Direct Registration ADRs, unless certificated ADRs are specifically requested by the Holder.
(b) Certificated ADRs. ADRs in certificated form shall be printed or otherwise reproduced at the discretion of the Depositary in accordance with its customary practices in its American depositary receipt business, or at the request of the Company typewritten and photocopied on plain or safety paper, and shall be substantially in the form set forth in the form of ADR, with such changes as may be required by the Depositary or the Company to comply with their obligations hereunder, any applicable law, regulation or usage or to indicate any special limitations or restrictions to which any particular ADRs are subject. ADRs may be issued in denominations of any number of ADSs. ADRs in certificated form shall be executed by the Depositary by the manual or facsimile signature of a duly authorized officer of the Depositary. ADRs in certificated form bearing the facsimile signature of anyone who was at the time of execution a duly authorized officer of the Depositary shall bind the Depositary, notwithstanding that such officer has ceased to hold such office prior to the delivery of such ADRs.
(c) Binding Effect. Holders of ADRs, and the Beneficial Owners of the ADSs evidenced by such ADRs, shall each be bound by the terms and conditions of this Deposit Agreement and of the form of ADR, regardless of whether such ADRs are Direct Registration ADRs or certificated ADRs.
3. | Deposit of Shares. |
(a) Requirements. In connection with the deposit of Shares hereunder, the Depositary or the Custodian may require the following in a form satisfactory to it:
(i) a written order directing the Depositary to issue to, or upon the written order of, the person or persons designated in such order a Direct Registration ADR or ADRs evidencing the number of ADSs representing such deposited Shares (a "Delivery Order");
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(ii) proper endorsements or duly executed instruments of transfer in respect of such deposited Shares;
(iii) instruments assigning to the Depositary, the Custodian or a nominee of either any distribution on or in respect of such deposited Shares or indemnity therefor; and
(iv) proxies entitling the Custodian to vote such deposited Shares.
(b) Registration of Deposited Securities. As soon as practicable after the Custodian receives Deposited Securities pursuant to any such deposit or pursuant to paragraph (10) (Distributions on Deposited Securities) or (13) (Changes Affecting Deposited Securities) of the form of ADR, the Custodian shall present such Deposited Securities for registration of transfer into the name of the Depositary, the Custodian or a nominee of either, in each case for the benefit of Holders, to the extent such registration is practicable, at the cost and expense of the person making such deposit (or for whose benefit such deposit is made) and shall obtain evidence satisfactory to it of such registration. Deposited Securities shall be held by the Custodian for the account and to the order of the Depositary for the benefit of Holders of ADRs (to the extent not prohibited by law) at such place or places and in such manner as the Depositary shall determine. Notwithstanding anything else contained herein, in the form of ADR and/or any outstanding ADSs, the Depositary, the Custodian and their respective nominees are intended to be, and shall at all times during the term of the Deposit Agreement be, the record holder(s) only of the Deposited Securities represented by the ADSs for the benefit of the Holders. The Depositary, on its own behalf and on behalf of the Custodian and their respective nominees, disclaims any beneficial ownership interest in the Deposited Securities held on behalf of the Holders.
(c) Delivery of Deposited Securities. Deposited Securities may be delivered by the Custodian to any person only under the circumstances expressly contemplated in this Deposit Agreement. To the extent that the provisions of or governing the Shares make delivery of certificates therefor impracticable, Shares may be deposited hereunder by such delivery thereof as the Depositary or the Custodian may reasonably accept, including, without limitation, by causing them to be credited to an account maintained by the Custodian for such purpose with the Company or an accredited intermediary, such as a bank, acting as a registrar for the Shares, together with delivery of the documents, payments and Delivery Order referred to herein to the Custodian or the Depositary.
4. Issue of ADRs. After any such deposit of Shares, the Custodian shall notify the Depositary of such deposit and of the information contained in any related Delivery Order by letter, first class airmail postage prepaid, or, at the request, risk and expense of the person making the deposit, by SWIFT, cable, telex or facsimile transmission. After receiving such notice from the Custodian, the Depositary, subject to this Deposit Agreement, shall properly issue at the Transfer Office, to or upon the order of any person named in such notice, an ADR or ADRs registered as requested and evidencing the aggregate ADSs to which such person is entitled.
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5. Distributions on Deposited Securities. To the extent that the Depositary determines in its discretion that any distribution pursuant to paragraph (10) of the form of ADR (Distributions on Deposited Securities) is not practicable with respect to any Holder, the Depositary may (after consultation with the Company, if practicable, in the case where the Depositary believes such distribution is not practicable with respect to all Holders) make such distribution as it so deems practicable, including the distribution of foreign currency, securities or property (or appropriate documents evidencing the right to receive foreign currency, securities or property) or the retention thereof as Deposited Securities with respect to such Holder's ADRs (without liability for interest thereon or the investment thereof).
6. Withdrawal of Deposited Securities. In connection with any surrender of an ADR for withdrawal of the Deposited Securities represented by the ADSs evidenced thereby, the Depositary may require proper endorsement in blank of such ADR (or duly executed instruments of transfer thereof in blank) and the Holder's written order directing the Depositary to cause the Deposited Securities represented by the ADSs evidenced by such ADR to be withdrawn and delivered to, or upon the written order of, any person designated in such order (a "Withdrawal Order"). Directions from the Depositary to the Custodian to deliver Deposited Securities shall be given by letter, first class airmail postage prepaid, or, at the request, risk and expense of the Holder, by SWIFT, cable, telex or facsimile transmission. Delivery of Deposited Securities may be made by the delivery of certificates (which, if required by law shall be properly endorsed or accompanied by properly executed instruments of transfer or, if such certificates may be registered, registered in the name of such Holder or as ordered by such Holder in any Withdrawal Order) or by such other means as the Depositary may deem practicable, including, without limitation, by transfer of record ownership thereof to an account designated in the Withdrawal Order maintained either by the Company or an accredited intermediary, such as a bank, acting as a registrar for the Deposited Securities.
7. Substitution of ADRs. The Depositary shall execute and deliver a new Direct Registration ADR in exchange and substitution for any mutilated certificated ADR upon cancellation thereof or in lieu of and in substitution for such destroyed, lost or stolen certificated ADR, unless the Depositary has notice that such ADR has been acquired by a bona fide purchaser, upon the Holder thereof filing with the Depositary a request for such execution and delivery and a sufficient indemnity bond and satisfying any other reasonable requirements imposed by the Depositary.
8. Cancellation and Destruction of ADRs; Maintenance of Records. All ADRs surrendered to the Depositary shall be cancelled by the Depositary. The Depositary is authorized to destroy ADRs in certificated form so cancelled in accordance with its customary practices. The Depositary, however, shall maintain or cause its agents to maintain records of all ADRs surrendered and Deposited Securities withdrawn under Section 6 hereof and paragraph (2) of the form of ADR, substitute ADRs delivered under Section 7 hereof, and canceled or destroyed ADRs under this Section 8, in keeping with the procedures ordinarily followed by stock transfer agents located in the United States or as required by the laws or regulations governing the Depositary.
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9. The Custodian.
(a) Rights of the Depositary. Any Custodian in acting hereunder shall be subject to the directions of the Depositary and shall be responsible solely to it. The Depositary reserves the right to add, replace or remove a Custodian. The Depositary will give prompt notice of any such action, which will be advance notice if practicable. The Depositary may discharge any Custodian at any time upon notice to the Custodian being discharged.
(b) Rights of the Custodian. Any Custodian may resign from its duties hereunder by providing at least 30 days' prior written notice to the Depositary. Any Custodian ceasing to act hereunder as Custodian shall deliver, upon the instruction of the Depositary, all Deposited Securities held by it to a Custodian continuing to act. Notwithstanding anything to the contrary contained in this Deposit Agreement (including the ADRs) and, subject to the further limitations set forth in subparagraph (p) of paragraph (14) of the form of ADR (Exoneration), the Depositary shall not be responsible for, and shall incur no liability in connection with or arising from, any act or omission to act on the part of the Custodian except to the extent that any Holder has incurred liability directly as a result of the Custodian having (i) committed fraud or willful misconduct in the provision of custodial services to the Depositary or (ii) failed to use reasonable care in the provision of custodial services to the Depositary as determined in accordance with the standards prevailing in the jurisdiction in which the Custodian is located.
10. Lists of Holders. The Company shall have the right to inspect transfer records of the Depositary and its agents and the ADR Register, take copies thereof and require the Depositary and its agents to supply copies of such portions of such records as the Company may request. The Depositary or its agent shall furnish to the Company promptly upon the written request of the Company, a list of the names, addresses and holdings of ADSs by all Holders as of a date within seven days of the Depositary's receipt of such request.
11. Depositary's Agents. The Depositary may perform its obligations under this Deposit Agreement through any agent appointed by it, provided that the Depositary shall notify the Company of such appointment and shall remain responsible for the performance of such obligations as if no agent were appointed, subject to paragraph (14) of the form of ADR (Exoneration).
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12. Resignation and Removal of the Depositary; Appointment of Successor Depositary.
(a) Resignation of the Depositary. The Depositary may at any time resign as Depositary hereunder by written notice of its election to do so delivered to the Company, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided.
(b) Removal of the Depositary. The Depositary may at any time be removed by the Company by providing no less than 60 days' prior written notice of such removal to the Depositary, such removal to take effect the later of (i) the 60th day after such notice of removal is first provided and (ii) the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided. Notwithstanding the foregoing, if upon the resignation or removal of the Depositary a successor depositary is not appointed within the applicable 60-day period as specified in paragraph (17) of the form of ADR (Termination), then the Depositary may elect to terminate this Deposit Agreement and the ADR and the provisions of said paragraph (17) shall thereafter govern the Depositary's obligations hereunder.
(c) Appointment of Successor Depositary. In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall use its reasonable best efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, The City of New York. Every successor depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor. The predecessor depositary, only upon payment of all sums due to it and on the written request of the Company, shall (i) execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder (other than its rights to indemnification and fees owing, each of which shall survive any such removal and/or resignation), (ii) duly assign, transfer and deliver all right, title and interest to the Deposited Securities to such successor, and (iii) deliver to such successor a list of the Holders of all outstanding ADRs. Any such successor depositary shall promptly mail notice of its appointment to such Holders. Any bank or trust company into or with which the Depositary may be merged or consolidated, or to which the Depositary shall transfer substantially all its American depositary receipt business, shall be the successor of the Depositary without the execution or filing of any document or any further act.
13. Reports. On or before the first date on which the Company makes any communication that may require, or potentially result in, the Depositary taking action under this Deposit Agreement (e.g., voting, dividends, etc.) available to holders of Deposited Securities or any securities regulatory authority or stock exchange, by publication or otherwise, the Company shall transmit to the Depositary a copy thereof in English or with an English translation or summary. The Company has delivered to the Depositary, the Custodian and any Transfer Office, a copy of all provisions of or governing the Shares and any other Deposited Securities issued by the Company or any affiliate of the Company and, promptly upon any change thereto, the Company shall deliver to the Depositary, the Custodian and any Transfer Office, a copy (in English or with an English translation) of such provisions as so changed. The Depositary and its agents may rely upon the Company's delivery of all such communications, information and provisions for all purposes of this Deposit Agreement and the Depositary shall have no liability for the accuracy or completeness of any thereof.
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14. Additional Shares. The Company agrees with the Depositary that neither the Company nor any company controlling, controlled by or under common control with the Company shall (a) issue (i) additional Shares, (ii) rights to subscribe for Shares, (iii) securities convertible into or exchangeable for Shares or (iv) rights to subscribe for any such securities or (b) deposit any Shares under this Deposit Agreement, except, in each case, under circumstances complying in all respects with the Securities Act of 1933. At the reasonable request of the Depositary where it deems necessary, the Company will furnish the Depositary with legal opinions, in forms and from counsels reasonably acceptable to the Depositary, dealing with such issues requested by the Depositary. The Depositary will not knowingly accept for deposit hereunder any Shares required to be registered under the Securities Act of 1933 unless a registration statement is in effect and will use reasonable efforts to comply with written instructions of the Company not to accept for deposit hereunder any Shares identified in such instructions at such times and under such circumstances as may reasonably be specified in such instructions in order to facilitate the Company's compliance with the requirements of the securities laws, rules and regulations in the United States.
15. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify, defend and save harmless each of the Depositary, the Custodian and their respective directors, officers, employees, agents and affiliates against any loss, liability or expense (including reasonable fees and expenses of counsel) which may arise out of acts performed or omitted, in connection with the provisions of this Deposit Agreement and of the ADRs, as the same may be amended, modified or supplemented from time to time in accordance herewith (i) by either the Depositary or a Custodian or their respective directors, officers, employees, agents and affiliates, except for any liability or expense directly arising out of the negligence, or willful misconduct of the Depositary or its directors, officers or affiliates acting in their capacities as such hereunder, or (ii) by the Company or any of its directors, officers, employees, agents and affiliates.
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The indemnities set forth in the preceding paragraph shall also apply to any liability or expense which may arise out of any misstatement or alleged misstatement or omission or alleged omission in any registration statement, proxy statement, prospectus (or placement memorandum), or preliminary prospectus (or preliminary placement memorandum) relating to the offer, issuance, withdrawal or sale of ADSs or the deposit of Shares in connection therewith, except to the extent any such liability or expense arises out of (i) information relating to the Depositary or its agents (other than the Company), as applicable, furnished in writing by the Depositary expressly for use in any of the foregoing documents and not changed or altered by the Company or (ii) if such information is provided, the failure to state a material fact necessary to make the information provided not misleading.
(b) Indemnification by the Depositary. Subject to the limitations provided for in Section 15(c) below, the Depositary shall indemnify, defend and save harmless the Company against any direct loss, liability or expense (including reasonable fees and expenses of counsel resulting therefrom) incurred by the Company in respect of this Deposit Agreement to the extent such loss, liability or expense is due to the negligence or willful misconduct of the Depositary.
(c) Damages or Lost Profits. Notwithstanding any other provision of this Deposit Agreement or the ADRs to the contrary, neither the Depositary nor any of its agents shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, legal fees and expenses resulting therefrom) or lost profits, in each case of any form incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
(d) Survival. The obligations set forth in this Section 15 shall survive the termination of this Deposit Agreement and the succession or substitution of any indemnified person.
16. Notices.
(a) Notice to Holders. Notice to any Holder shall be deemed given when first mailed, first class postage prepaid, to the address of such Holder on the ADR Register or received by such Holder. Failure to notify a Holder or any defect in the notification to a Holder shall not affect the sufficiency of notification to other Holders or to the Beneficial Owners of ADSs held by such other Holders. The Depositary's only notification obligations under this Deposit Agreement and the ADRs shall be to Holders. Notice to a Holder shall be deemed, for all purposes of the Deposit Agreement and the ADRs, to constitute notice to any and all Beneficial Owners of the ADSs evidenced by such Holder’s ADRs.
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(b) Notice to the Depositary or the Company. Notice to the Depositary or the Company shall be deemed given when first received by it at the address or facsimile transmission number set forth in (i) or (ii), respectively, or by electronic transmission to the e-mail address set forth below or otherwise provided by the Depositary or the Company to the other in writing, or at such other address or facsimile transmission number as either may specify to the other by written notice:
(i) | JPMorgan Chase Bank, N.A. |
383 Madison Avenue, Floor 11
New York, New York, 10179
Attention: Depositary Receipts Group
Fax: (302) 220-4591
(ii) | 4D pharma plc |
9 Bond Court
Leeds
LS1 2JZ
England
Attention: Duncan Peyton
Email: legal@4dpharmaplc.com
Delivery of a notice by means of electronic messaging shall be deemed to be effective at the time of the initiation of the transmission by the sender (as shown on the sender’s records) to the email address set forth above, notwithstanding that the intended recipient retrieves the message at a later date, fails to retrieve such message, or fails to receive such notice on account of its failure to maintain the designated e-mail address, its failure to designate a substitute e-mail address or for any other reason.
17. Counterparts. This Deposit Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one instrument. Delivery of an executed signature page of this Deposit Agreement by facsimile or other electronic transmission (including “.pdf”, “.tif” or similar format) shall be effective as delivery of a manually executed counterpart hereof.
18. No Third-Party Beneficiaries; Holders and Beneficial Owners as Parties; Binding Effect. This Deposit Agreement is for the exclusive benefit of the Company, the Depositary, the Holders, and their respective successors hereunder, and, except to the extent specifically set forth in Section 15 of this Deposit Agreement, shall not give any legal or equitable right, remedy or claim whatsoever to any other person. The Holders and Beneficial Owners from time to time shall be parties to this Deposit Agreement and shall be bound by all of the provisions hereof. A Beneficial Owner shall only be able to exercise any right or receive any benefit hereunder solely through the Holder of the ADR(s) evidencing the ADSs owned by such Beneficial Owner.
19. Severability. If any provision of this Deposit Agreement or the ADRs is invalid, illegal or unenforceable in any respect, the remaining provisions contained herein and therein shall in no way be affected thereby.
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20. Governing Law; Consent to Jurisdiction.
(a) The Deposit Agreement, the ADSs and the ADRs shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to the application of the conflict of law principles thereof. Without limiting the foregoing, and for the avoidance of doubt, any claim brought by any Holder or Beneficial Owner or on behalf of the Company with regard to the internal affairs of the Company, including the ability to bring such a claim, shall be governed by and construed in accordance with the laws of England and Wales, and any such claims may only be instituted against the Company, its directors, officers or employees as provided in the Company’s Articles of Association in the courts of England and Wales.
(b) By the Company or the Depositary. The Company irrevocably agrees that any legal suit, action or proceeding against the Company brought by the Depositary, arising out of or based upon this Deposit Agreement, the ADSs or the ADRs or the transactions contemplated hereby or thereby, may be instituted in any state or federal court in New York, New York, and irrevocably waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The Company also irrevocably agrees that any legal suit, action or proceeding against the Depositary brought by the Company, arising out of or based upon this Deposit Agreement or the transactions contemplated hereby, may only be instituted in a state or federal court in New York, New York.
(c) By Holders and Beneficial Owners. By holding an ADS or an interest therein, Holders and Beneficial Owners each irrevocably agree that any legal suit, action or proceeding brought by any Holder or Beneficial Owner against or involving the Company or the Depositary, arising out of or based upon this Deposit Agreement, the ADSs, the ADRs or the transactions contemplated herein, therein or hereby, may only be instituted in a federal court in New York, New York, or, except for claims arising under the Securities Act of 1933 or Securities Exchange Act of 1934, any state court in New York, New York, and by holding an ADS or an interest therein each irrevocably waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding, provided, however, pursuant to applicable law and the Company’s Articles of Association, any claim brought by Holders or Beneficial Owners arising under the Securities Act of 1933 may be instituted only in any federal court in the United States, and any claim brought by any Holder or Beneficial Owner or on behalf of the Company with regard to the internal affairs of the Company, including the ability to bring such a claim, shall be governed by and construed in accordance with the laws of England and Wales, and may only be instituted against the Company, its directors, officers or employees as provided in the Company’s Articles of Association in the courts of England and Wales.
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(d) Notwithstanding the foregoing, any action against the Company based on this Deposit Agreement, the ADSs or the ADRs or the transactions contemplated hereby or thereby, may be instituted by the Depositary in any competent court in England and Wales and/or the United States.
21. Agent for Service.
(a) Appointment. The Company has appointed Cogency Global Inc., 10 East 40th Street, 10th Floor , New York, New York, as its authorized agent (the "Authorized Agent") upon which process may be served in any such action arising out of or based on this Deposit Agreement or the transactions contemplated hereby which may be instituted in any state or federal court in New York, New York by the Depositary or any Holder, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Subject to the Company’s rights to replace the Authorized Agent with another entity in the manner required were the Authorized Agent to have resigned, such appointment shall be irrevocable.
(b) Agent for Service of Process. The Company represents and warrants that the Authorized Agent has agreed to act as said agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. The Company further hereby irrevocably consents and agrees to the service of any and all legal process, summons, notices and documents in any suit, action or proceeding against the Company, by service by mail of a copy thereof upon the Authorized Agent (whether or not the appointment of such Authorized Agent shall for any reason prove to be ineffective or such Authorized Agent shall fail to accept or acknowledge such service), with a copy mailed to the Company by registered or certified air mail, postage prepaid, to its address provided in Section 16(b) hereof. The Company agrees that the failure of the Authorized Agent to give any notice of such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any suit, action or proceeding based thereon. If, for any reason, the Authorized Agent named above or its successor shall no longer serve as agent of the Company to receive service of process in New York, the Company shall promptly appoint a successor that is a legal entity with offices in New York, New York, so as to serve and will promptly advise the Depositary thereof.
(c) Waiver of Personal Service of Process. In the event the Company fails to continue such designation and appointment in full force and effect, the Company hereby waives personal service of process upon it and consents that any such service of process may be made by certified or registered mail, return receipt requested, directed to the Company at its address last specified for notices hereunder, and service so made shall be deemed completed five (5) days after the same shall have been so mailed.
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22. Waiver of Immunities. To the extent that the Company or any of its properties, assets or revenues may have or may hereafter be entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any respect thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or other matters under or arising out of or in connection with the Shares or Deposited Securities, the ADSs, the ADRs or this Deposit Agreement, the Company, to the fullest extent permitted by law, hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and consents to such relief and enforcement.
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23. Waiver of Jury Trial. EACH PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER OF, AND/OR HOLDER OF INTERESTS IN, ADSs OR ADRs) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER THEORY). No provision of this Deposit Agreement or any ADR is intended to constitute a waiver or limitation of any rights which Holders or Beneficial Owners may have under the Securities Act of 1933 or the Securities Exchange Act of 1934, to the extent applicable.
IN WITNESS WHEREOF, 4D PHARMA PLC and JPMORGAN CHASE BANK, N.A. have duly executed this Deposit Agreement as of the day and year first above set forth and all Holders and Beneficial Owners shall become parties hereto upon acceptance by them of ADSs issued in accordance with the terms hereof, or upon acquisition of any beneficial interest therein.
4D PHARMA PLC | ||
By: | ||
Name: | ||
Title | ||
JPMORGAN CHASE BANK, N.A. | ||
By: | ||
Name: | ||
Title: Vice President |
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
_______ | No. of ADSs: |
Number | |
Each ADS represents | |
Eight Shares | |
CUSIP: |
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
4D PHARMA PLC
(Incorporated under the laws of England and Wales)
JPMORGAN CHASE BANK, N.A., a national banking association organized under the laws of the United States of America, as depositary hereunder (the "Depositary"), hereby certifies that _________is the registered owner (a "Holder") of American Depositary Shares ("ADSs"), each (subject to paragraph (13) (Changes Affecting Deposited Securities)) representing eight ordinary shares (including the rights to receive Shares described in paragraph (1) (Issuance of ADSs), "Shares" and, together with any other securities, cash or property from time to time held by the Depositary in respect or in lieu of deposited Shares, the "Deposited Securities"), of 4D pharma plc, a corporation organized under the laws of England and Wales (the "Company"), deposited under the Deposit Agreement dated as of [DATE], 2021 (as amended from time to time, the "Deposit Agreement") among the Company, the Depositary and all Holders and Beneficial Owners from time to time of American Depositary Receipts issued thereunder ("ADRs"), each of whom by accepting an ADR becomes a party thereto. The Deposit Agreement and this ADR (which includes the provisions set forth on the reverse hereof) shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to the application of the conflict of law principles thereof. Without limiting the foregoing, and for the avoidance of doubt, any claim brought by any Holder or Beneficial Owner or on behalf of the Company with regard to the internal affairs of the Company, including the ability to bring such a claim, shall be governed by and construed in accordance with the laws of England and Wales, and any such claims may only be instituted against the Company, its directors, officers or employees as provided in the Company’s Articles of Association in the courts of England and Wales. All capitalized terms used herein, and not defined herein, shall have the meanings ascribed to such terms in the Deposit Agreement.
A-1
(1) Issuance of ADSs.
(a) Issuance. This ADR is one of the ADRs issued under the Deposit Agreement. Subject to the other provisions hereof, the Depositary may so issue ADRs for delivery at the Transfer Office (as hereinafter defined) only against deposit of: (i) Shares in a form satisfactory to the Custodian; or (ii) rights to receive Shares from the Company or any registrar, transfer agent, clearing agent or other entity recording Share ownership or transactions.
(b) Lending. In its capacity as Depositary, the Depositary shall not lend Shares or ADSs.
(c) Representations and Warranties of Depositors. Every person depositing Shares under the Deposit Agreement represents and warrants that:
(i) | such Shares and the certificates therefor are duly authorized, validly issued and outstanding, fully paid, nonassessable and legally obtained by such person, |
(ii) | all pre-emptive and comparable rights, if any, with respect to such Shares have been validly waived or exercised, |
(iii) | the person making such deposit is duly authorized so to do, |
(iv) | the Shares presented for deposit are free and clear of any lien, encumbrance, security interest, charge, mortgage or adverse claim and |
(v) | such Shares (A) are not "restricted securities" as such term is defined in Rule 144 under the Securities Act of 1933 ("Restricted Securities") unless at the time of deposit the requirements of paragraphs (c), (e), (f) and (h) of Rule 144 shall not apply and such Shares may be freely transferred and may otherwise be offered and sold freely in the United States or (B) have been registered under the Securities Act of 1933. To the extent the person depositing Shares is an "affiliate" of the Company as such term is defined in Rule 144, the person also represents and warrants that upon the sale of the ADSs, all of the provisions of Rule 144 which enable the Shares to be freely sold (in the form of ADSs) will be fully complied with and, as a result thereof, all of the ADSs issued in respect of such Shares will not be on the sale thereof, Restricted Securities. |
A-2
Such representations and warranties shall survive the deposit and withdrawal of Shares and the issuance and cancellation of ADSs in respect thereof and the transfer of such ADSs.
(d) The Depositary may refuse to accept for such deposit any Shares identified by the Company in order to facilitate compliance with the requirements of the Securities Act of 1933 or the Rules made thereunder.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) (Certain Limitations to Registration, Transfer etc.) and (5) (Liability for Taxes, Duties and Other Charges), upon surrender of (a) a certificated ADR in a form satisfactory to the Depositary at the Transfer Office or (b) proper instructions and documentation in the case of a Direct Registration ADR, the Holder hereof is entitled to delivery at, or to the extent in dematerialized form from, the Custodian's office of the Deposited Securities at the time represented by the ADSs evidenced by this ADR. At the request, risk and expense of the Holder hereof, the Depositary may deliver such Deposited Securities at such other place as may have been requested by the Holder. Notwithstanding any other provision of the Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be restricted only for the reasons set forth in General Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time to time) under the Securities Act of 1933.
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(3) Transfers, Split-Ups and Combinations of ADRs. The Depositary or its agent will keep, at a designated transfer office (the "Transfer Office"), (i) a register (the "ADR Register") for the registration, registration of transfer, combination and split-up of ADRs, and, in the case of Direct Registration ADRs, shall include the Direct Registration System, which at all reasonable times will be open for inspection by Holders and the Company for the purpose of communicating with Holders in the interest of the business of the Company or a matter relating to the Deposit Agreement and (ii) facilities for the delivery and receipt of ADRs. The term ADR Register includes the Direct Registration System. Title to this ADR (and to the Deposited Securities represented by the ADSs evidenced hereby), when properly endorsed (in the case of ADRs in certificated form) or upon delivery to the Depositary of proper instruments of transfer, is transferable by delivery with the same effect as in the case of negotiable instruments under the laws of the State of New York; provided that the Depositary, notwithstanding any notice to the contrary, may treat the person in whose name this ADR is registered on the ADR Register as the absolute owner hereof for all purposes and neither the Depositary nor the Company will have any obligation or be subject to any liability under the Deposit Agreement or any ADR to any Beneficial Owner, unless such Beneficial Owner is the Holder hereof. Subject to paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be split into other ADRs or combined with other ADRs into one ADR, evidencing the aggregate number of ADSs surrendered for split-up or combination, by the Holder hereof or by duly authorized attorney upon surrender of this ADR at the Transfer Office properly endorsed (in the case of ADRs in certificated form) or upon delivery to the Depositary of proper instruments of transfer and duly stamped as may be required by applicable law; provided that the Depositary may close the ADR Register (and/or any portion thereof) at any time or from time to time when deemed expedient by it. Additionally, at the reasonable request of the Company, the Depositary may close the issuance book portion of the ADR Register in order to enable the Company to comply with applicable law. At the request of a Holder, the Depositary shall, for the purpose of substituting a certificated ADR with a Direct Registration ADR, or vice versa, execute and deliver a certificated ADR or a Direct Registration ADR, as the case may be, for any authorized number of ADSs requested, evidencing the same aggregate number of ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as the case may be, substituted.
(4) Certain Limitations to Registration, Transfer etc. Prior to the issue, registration, registration of transfer, split-up or combination of any ADR, the delivery of any distribution in respect thereof, or, subject to the last sentence of paragraph (2) (Withdrawal of Deposited Securities), the withdrawal of any Deposited Securities, and from time to time in the case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the Custodian may require:
(a) payment with respect thereto of (i) any stock transfer or other tax or other governmental charge, (ii) any stock transfer or registration fees in effect for the registration of transfers of Shares or other Deposited Securities upon any applicable register and (iii) any applicable charges as provided in paragraph (7) (Charges of Depositary) of this ADR;
(b) the production of proof satisfactory to it of (i) the identity of any signatory and genuineness of any signature and (ii) such other information, including without limitation, information as to citizenship, residence, exchange control approval, beneficial ownership of any securities, compliance with applicable law, regulations, provisions of or governing Deposited Securities and terms of the Deposit Agreement and this ADR, as it may deem necessary or proper; and
(c) compliance with such regulations as the Depositary may establish consistent with the Deposit Agreement.
The issuance of ADRs, the acceptance of deposits of Shares, the registration, registration of transfer, split-up or combination of ADRs or, subject to the last sentence of paragraph (2) (Withdrawal of Deposited Securities), the withdrawal of Deposited Securities may be suspended, generally or in particular instances, when the ADR Register or any register for Deposited Securities is closed or when any such action is deemed advisable by the Depositary.
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(5) Liability for Taxes, Duties and Other Charges. If any tax or other governmental charges (including any penalties and/or interest) shall become payable by or on behalf of the Custodian or the Depositary with respect to this ADR, any Deposited Securities represented by the ADSs evidenced hereby or any distribution thereon, such tax or other governmental charge shall be paid by the Holder hereof to the Depositary and by holding or having held this ADR or any ADSs evidenced hereby, the Holder and all Beneficial Owners hereof and thereof, and all prior Holders and Beneficial Owners hereof and thereof, jointly and severally, agree to indemnify, defend and save harmless each of the Depositary and its agents in respect of such tax or other governmental charge. Each Holder of this ADR and Beneficial Owner of the ADSs evidenced hereby, and each prior Holder and Beneficial Owner hereof and thereof (collectively, the "Tax Indemnitors"), by holding or having held an ADR or an interest in ADSs, acknowledges and agrees that the Depositary shall have the right to seek payment of amounts owing with respect to this ADR under this paragraph (5) from any one or more Tax Indemnitor(s) as determined by the Depositary in its sole discretion, without any obligation to seek payment from any other Tax Indemnitor(s).The Depositary may refuse to effect any registration, registration of transfer, split-up or combination hereof or, subject to the last sentence of paragraph (2) (Withdrawal of Deposited Securities), any withdrawal of such Deposited Securities until such payment is made. The Depositary may also deduct from any distributions on or in respect of Deposited Securities, or may sell by public or private sale for the account of the Holder hereof any part or all of such Deposited Securities, and may apply such deduction or the proceeds of any such sale in payment of such tax or other governmental charge, the Holder hereof remaining liable for any deficiency, and shall reduce the number of ADSs evidenced hereby to reflect any such sales of Shares. In connection with any distribution to Holders, the Company will remit to the appropriate governmental authority or agency all amounts (if any) required to be withheld and owing to such authority or agency by the Company; and the Depositary and the Custodian will remit to the appropriate governmental authority or agency all amounts (if any) required to be withheld and owing to such authority or agency by the Depositary or the Custodian. To the extent not prohibited by law, rule or regulation, the Depositary will forward to the Company such information from its records maintained by it in its capacity as Depositary under the Deposit Agreement as the Company may reasonably request to enable the Company to file any necessary reports with governmental authorities or agencies. If the Depositary determines that any distribution in property other than cash (including Shares or rights) on Deposited Securities is subject to any tax that the Depositary or the Custodian is obligated to withhold, the Depositary may dispose of all or a portion of such property in such amounts and in such manner as the Depositary deems necessary and practicable to pay such taxes, by public or private sale, and the Depositary shall distribute the net proceeds of any such sale or the balance of any such property after deduction of such taxes to the Holders entitled thereto. Each Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian and any of their respective officers, directors, employees, agents and affiliates against, and hold each of them harmless from, any claims by any governmental authority with respect to taxes, additions to tax, penalties or interest arising out of any refund of taxes, reduced rate of withholding at source or other tax benefit obtained which obligations shall survive any transfer or surrender of ADSs or the termination of the Deposit Agreement.
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(6) Disclosure of Interests.
(a) General. To the extent that the provisions of or governing any Deposited Securities may require disclosure of or impose limits on beneficial or other ownership of, or interests in, Deposited Securities, other Shares and other securities and may provide for blocking transfer, voting or other rights to enforce such disclosure or limits, Holders and Beneficial Owners agree to comply with all such disclosure requirements and ownership limitations and to comply with any reasonable Company instructions in respect thereof. The Company reserves the right to instruct Holders (and through any such Holder, the Beneficial Owners of ADSs evidenced by the ADRs registered in such Holder's name) to deliver their ADSs for cancellation and withdrawal of the Deposited Securities so as to permit the Company to deal directly with the Holder and/or Beneficial Owner thereof as a holder of Shares and Holders and Beneficial Owners agree to comply with such instructions. The Depositary agrees to cooperate with the Company in its efforts to inform Holders of the Company's exercise of its rights under this paragraph and agrees to consult with, and provide reasonable assistance without risk, liability or expense on the part of the Depositary, to the Company on the manner or manners in which it may enforce such rights with respect to any Holder.
(b) Jurisdiction Specific. Notwithstanding any provision of the Deposit Agreement or of the ADRs and without limiting the foregoing, by being a Holder or Beneficial Owner, each such Holder and Beneficial Owner agrees to provide such information as the Company may request in a disclosure notice (a "Disclosure Notice") given pursuant to the United Kingdom Companies Act 2006 (as amended from time to time and including any statutory modification or re-enactment thereof, the "Companies Act") or the Articles of Association of the Company. By accepting or holding an ADR, each Holder and Beneficial Owner acknowledges that it understands that failure to comply with a Disclosure Notice may result in the imposition of sanctions against the holder of the Shares in respect of which the non-complying person is or was, or appears to be or has been, interested as provided in the Companies Act and the Articles of Association which currently may include, subject to the granting of an appropriate order by the court, the withdrawal of the voting rights of such Shares and the imposition of restrictions on the rights to receive dividends on and to transfer such Shares. In addition, by accepting or holding an ADR each Holder and Beneficial Owner agrees to comply with the provisions of the Disclosure Guidance and Transparency Rules published by the United Kingdom Financial Conduct Authority (as amended from time to time, the "DTRs") with regard to the notification to the Company of interests in Shares and certain financial instruments, which currently provide, inter alia, that a Holder and Beneficial Owner must notify the Company of the percentage of its voting rights he holds as shareholder or holds or is deemed to hold through his direct or indirect holding of certain financial instruments (or a combination of such holdings) if the percentage of those voting rights (i) reaches, exceeds or falls below 3%, 4%, 5%, 6%, 7%, 8%, 9%, 10% and each 1% threshold thereafter up to 100% as a result of an acquisition or disposal of Shares or certain financial instruments, or (ii) reaches, exceeds or falls below such applicable thresholds as a result of events changing the breakdown of voting rights and on the basis of information disclosed by the Company in accordance with the DTRs. The notification must be effected as soon as possible, but not later than two trading days after the Holder or Beneficial Owner, as the case may be, (a) learns of the acquisition or disposal or of the possibility of exercising voting rights, or on which, having regard to the circumstances, should have learned of it, regardless of the date on which the acquisition, disposal or possibility of exercising voting rights takes effect, or (b) is informed of the event mentioned in (ii) above.
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Any summary of the laws and regulations of the United Kingdom and of the terms of the Company's constitutional documents has been provided by the Company solely for the convenience of Holders, Beneficial Owners and the Depositary. While such summaries are believed by the Company to be accurate as of the date of the Deposit Agreement, (i) they are summaries and as such may not include all aspects of the materials summarized applicable to a Holder or Beneficial Owner, and (ii) these laws and regulations and the Company's constitutional documents may change after the date of the Deposit Agreement. Neither the Depositary nor the Company has any obligation to update any such summaries.
(7) Charges of Depositary.
(a) Rights of the Depositary. The Depositary may charge, and collect from, (i) each person to whom ADSs are issued, including, without limitation, issuances against deposits of Shares, issuances in respect of Share Distributions, Rights and Other Distributions (as such terms are defined in paragraph (10) (Distributions on Deposited Securities)), issuances pursuant to a stock dividend or stock split declared by the Company, or issuances pursuant to a merger, exchange of securities or any other transaction or event affecting the ADSs or the Deposited Securities, and (ii) each person surrendering ADSs for withdrawal of Deposited Securities or whose ADSs are cancelled or reduced for any other reason U.S.$5.00 for each 100 ADSs (or portion thereof) issued, delivered, reduced, cancelled or surrendered, or upon which a Share Distribution or elective distribution is made or offered (as the case may be). The Depositary may sell (by public or private sale) sufficient securities and property received in respect of Share Distributions, Rights and Other Distributions prior to such deposit to pay such charge.
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(b) Additional charges by the Depositary. The following additional charges shall also be incurred by the Holders, the Beneficial Owners, by any party depositing or withdrawing Shares or by any party surrendering ADSs and/or to whom ADSs are issued (including, without limitation, issuances pursuant to a stock dividend or stock split declared by the Company or an exchange of stock regarding the ADSs or the Deposited Securities or a distribution of ADSs pursuant to paragraph (10) (Distributions on Deposited Securities), whichever is applicable:
(i) | a fee of U.S.$0.05 or less per ADS held for any Cash distribution made, or for any elective cash/stock dividend offered, pursuant to the Deposit Agreement, |
(ii) | a fee for the distribution or sale of securities pursuant to paragraph (10) hereof, such fee being in an amount equal to the fee for the execution and delivery of ADSs referred to above which would have been charged as a result of the deposit of such securities (for purposes of this paragraph (7) treating all such securities as if they were Shares) but which securities or the net cash proceeds from the sale thereof are instead distributed by the Depositary to Holders entitled thereto, |
(iii) | an aggregate fee of U.S.$0.05 or less per ADS per calendar year (or portion thereof) for services performed by the Depositary in administering the ADRs (which fee may be charged on a periodic basis during each calendar year and shall be assessed against Holders as of the record date or record dates set by the Depositary during each calendar year and shall be payable at the sole discretion of the Depositary by billing such Holders or by deducting such charge from one or more cash dividends or other cash distributions), and |
(iv) | a fee for the reimbursement of such fees, charges and expenses as are incurred by the Depositary and/or any of its agents (including, without limitation, the Custodian and expenses incurred on behalf of Holders in connection with compliance with foreign exchange control regulations or any law or regulation relating to foreign investment) in connection with the servicing of the Shares or other Deposited Securities, the sale of securities (including, without limitation, Deposited Securities), the delivery of Deposited Securities or otherwise in connection with the Depositary's or its Custodian's compliance with applicable law, rule or regulation (which fees and charges shall be assessed on a proportionate basis against Holders as of the record date or dates set by the Depositary and shall be payable at the sole discretion of the Depositary by billing such Holders or by deducting such charge from one or more cash dividends or other cash distributions). |
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(c) Other Obligations and Charges. The Company will pay all other charges and expenses of the Depositary and any agent of the Depositary (except the Custodian) pursuant to agreements from time to time between the Company and the Depositary, except:
(i) | stock transfer or other taxes and other governmental charges (which are payable by Holders or persons depositing Shares); |
(ii) | SWIFT, cable, telex and facsimile transmission and delivery charges incurred at the request of persons depositing, or Holders delivering Shares, ADRs or Deposited Securities (which are payable by such persons or Holders); and |
(iii) | transfer or registration fees for the registration or transfer of Deposited Securities on any applicable register in connection with the deposit or withdrawal of Deposited Securities (which are payable by persons depositing Shares or Holders withdrawing Deposited Securities. |
(d) Foreign Exchange Related Matters. To facilitate the administration of various depositary receipt transactions, including disbursement of dividends or other cash distributions and other corporate actions, the Depositary may engage the foreign exchange desk within JPMorgan Chase Bank, N.A. (the “Bank”) and/or its affiliates in order to enter into spot foreign exchange transactions to convert foreign currency into U.S. dollars (“FX Transactions”). For certain currencies, FX Transactions are entered into with the Bank or an affiliate, as the case may be, acting in a principal capacity. For other currencies, FX Transactions are routed directly to and managed by an unaffiliated local custodian (or other third party local liquidity provider), and neither the Bank nor any of its affiliates is a party to such FX Transactions.
The foreign exchange rate applied to an FX Transaction will be either (a) a published benchmark rate, or (b) a rate determined by a third party local liquidity provider, in each case plus or minus a spread, as applicable. The Depositary will disclose which foreign exchange rate and spread, if any, apply to such currency on the “Disclosure” page (or successor page) of www.adr.com (as updated by the Depositary from time to time, “ADR.com”). Such applicable foreign exchange rate and spread may (and neither the Depositary, the Bank nor any of their affiliates is under any obligation to ensure that such rate does not) differ from rates and spreads at which comparable transactions are entered into with other customers or the range of foreign exchange rates and spreads at which the Bank or any of its affiliates enters into foreign exchange transactions in the relevant currency pair on the date of the FX Transaction. Additionally, the timing of execution of an FX Transaction varies according to local market dynamics, which may include regulatory requirements, market hours and liquidity in the foreign exchange market or other factors. Furthermore, the Bank and its affiliates may manage the associated risks of their position in the market in a manner they deem appropriate without regard to the impact of such activities on the Company, the Depositary, Holders or Beneficial Owners. The spread applied does not reflect any gains or losses that may be earned or incurred by the Bank and its affiliates as a result of risk management or other hedging related activity.
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Notwithstanding the foregoing, to the extent the Company provides U.S. dollars to the Depositary, neither the Bank nor any of its affiliates will execute an FX Transaction as set forth herein. In such case, the Depositary will distribute the U.S. dollars received from the Company.
Further details relating to the applicable foreign exchange rate, the applicable spread and the execution of FX Transactions will be provided by the Depositary on ADR.com. The Company, Holders and Beneficial Owners each acknowledge and agree that the terms applicable to FX Transactions disclosed from time to time on ADR.com will apply to any FX Transaction executed pursuant to the Deposit Agreement.
(e) Disclosure of Potential Depositary Payments. The Depositary anticipates reimbursing the Company for certain expenses incurred by the Company that are related to the establishment and maintenance of the ADR program upon such terms and conditions as the Company and the Depositary may agree from time to time. The Depositary may make available to the Company a set amount or a portion of the Depositary fees charged in respect of the ADR program or otherwise upon such terms and conditions as the Company and the Depositary may agree from time to time.
(f) The right of the Depositary to receive payment of fees, charges and expenses as provided above shall survive the termination of the Deposit Agreement. As to any Depositary, upon the resignation or removal of such Depositary, such right shall extend for those fees, charges and expenses incurred prior to the effectiveness of such resignation or removal.
(8) Available Information. The Deposit Agreement, the provisions of or governing Deposited Securities and any written communications from the Company, which are both received by the Custodian or its nominee as a holder of Deposited Securities and made generally available to the holders of Deposited Securities, are available for inspection by Holders at the offices of the Depositary and the Custodian, at the Transfer Office, on the U.S. Securities and Exchange Commission’s website, or upon request from the Depositary (which request may be refused by the Depositary at its discretion). The Depositary will distribute copies of such communications (or English translations or summaries thereof) to Holders when furnished by the Company. The Company is subject to the periodic reporting requirements of the Securities Exchange Act of 1934 and accordingly files certain reports with the United States Securities and Exchange Commission (the "Commission"). Such reports and other information may be inspected and copied through the Commission’s EDGAR system or at public reference facilities maintained by the Commission located at the date hereof at 100 F Street, NE, Washington, DC 20549.
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(9) Execution. This ADR shall not be valid for any purpose unless executed by the Depositary by the manual or facsimile signature of a duly authorized officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, N.A., as Depositary | ||
By | ||
Authorized Officer |
The Depositary's office is located at 383 Madison Avenue, Floor 11, New York, New York 10179.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) (Certain Limitations to Registration, Transfer etc.) and (5) (Liability for Taxes, Duties and other Charges), to the extent practicable, the Depositary will distribute as soon as reasonably practical to each Holder entitled thereto on the record date set by the Depositary therefor at such Holder's address shown on the ADR Register, in proportion to the number of Deposited Securities (on which the following distributions on Deposited Securities are received by the Custodian) represented by ADSs evidenced by such Holder's ADRs:
(a) Cash. Any U.S. dollars available to the Depositary resulting from a cash dividend or other cash distribution or the net proceeds of sales of any other distribution or portion thereof authorized in this paragraph (10) ("Cash"), on an averaged or other practicable basis, subject to (i) appropriate adjustments for taxes withheld, (ii) such distribution being impermissible or impracticable with respect to certain Holders, and (iii) deduction of the Depositary's and/or its agents' fees and expenses in (1) converting any foreign currency to U.S. dollars by sale or in such other manner as the Depositary may determine to the extent that it determines that such conversion may be made on a reasonable basis, (2) transferring foreign currency or U.S. dollars to the United States by such means as the Depositary may determine to the extent that it determines that such transfer may be made on a reasonable basis, (3) obtaining any approval or license of any governmental authority required for such conversion or transfer, which is obtainable at a reasonable cost and within a reasonable time and (4) making any sale by public or private means in any commercially reasonable manner.
(b) Shares. (i) Additional ADRs evidencing whole ADSs representing any Shares available to the Depositary resulting from a dividend or free distribution on Deposited Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars available to it resulting from the net proceeds of sales of Shares received in a Share Distribution, which Shares would give rise to fractional ADSs if additional ADRs were issued therefor, as in the case of Cash.
(c) Rights. (i) Warrants or other instruments in the discretion of the Depositary representing rights to acquire additional ADRs in respect of any rights to subscribe for additional Shares or rights of any nature available to the Depositary as a result of a distribution on Deposited Securities ("Rights"), to the extent that the Company timely furnishes to the Depositary evidence satisfactory to the Depositary that the Depositary may lawfully distribute the same (the Company has no obligation to so furnish such evidence), or (ii) to the extent the Company does not so furnish such evidence and sales of Rights are practicable, any U.S. dollars available to the Depositary from the net proceeds of sales of Rights as in the case of Cash, or (iii) to the extent the Company does not so furnish such evidence and such sales cannot practicably be accomplished by reason of the nontransferability of the Rights, limited markets therefor, their short duration or otherwise, nothing (and any Rights may lapse).
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(d) Other Distributions. (i) Securities or property available to the Depositary resulting from any distribution on Deposited Securities other than Cash, Share Distributions and Rights ("Other Distributions"), by any means that the Depositary may deem equitable and practicable, or (ii) to the extent the Depositary deems distribution of such securities or property not to be equitable and practicable, any U.S. dollars available to the Depositary from the net proceeds of sales of Other Distributions as in the case of Cash.
The Depositary reserves the right to utilize a division, branch or affiliate of JPMorgan Chase Bank, N.A. to direct, manage and/or execute any public and/or private sale of securities hereunder. Such division, branch and/or affiliate may charge the Depositary a fee in connection with such sales, which fee is considered an expense of the Depositary contemplated above and/or under paragraph (7) (Charges of Depositary). Any U.S. dollars available will be distributed by checks drawn on a bank in the United States for whole dollars and cents. Fractional cents will be withheld without liability and dealt with by the Depositary in accordance with its then current practices. All purchases and sales of securities will be handled by the Depositary in accordance with its then current policies, which are currently set forth in the "Depositary Receipt Sale and Purchase of Security" section of https://www.adr.com/Investors/FindOutAboutDRs, the location and contents of which the Depositary shall be solely responsible for.
(11) Record Dates. The Depositary may, after consultation with the Company if practicable, fix a record date (which, to the extent applicable, shall be as near as practicable to any corresponding record date set by the Company) for the determination of the Holders who shall be responsible for the fee assessed by the Depositary for administration of the ADR program and for any expenses provided for in paragraph (7) hereof as well as for the determination of the Holders who shall be entitled to receive any distribution on or in respect of Deposited Securities, to give instructions for the exercise of any voting rights, to receive any notice or to act in respect of other matters and only such Holders shall be so entitled or obligated.
(12) Voting of Deposited Securities.
(a) Notice of any Meeting or Solicitation. As soon as practicable after receipt of notice of any meeting at which the holders of Shares are entitled to vote, or of solicitation of consents or proxies from holders of Shares or other Deposited Securities, the Depositary shall fix the ADS record date in accordance with paragraph (11) above provided that if the Depositary receives a written request from the Company in a timely manner and at least 30 days prior to the date of such vote or meeting, the Depositary shall, at the Company's expense, distribute to Holders a notice (the “Voting Notice”) stating (i) final information particular to such vote and meeting and any solicitation materials, (ii) that each Holder on the record date set by the Depositary will, subject to any applicable provisions of the laws of England and Wales, be entitled to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by the ADSs evidenced by such Holder's ADRs and (iii) the manner in which such instructions may be given, including instructions to give a discretionary proxy to a person designated by the Company. Each Holder shall be solely responsible for the forwarding of Voting Notices to the Beneficial Owners of ADSs registered in such Holder's name. There is no guarantee that Holders and Beneficial Owners generally or any Holder or Beneficial Owner in particular will receive the notice described above with sufficient time to enable such Holder or Beneficial Owner to return any voting instructions to the Depositary in a timely manner.
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(b) Voting of Deposited Securities. Following actual receipt by the ADR department responsible for proxies and voting of Holders’ instructions (including, without limitation, instructions of any entity or entities acting on behalf of the nominee for DTC), the Depositary shall, in the manner and on or before the time established by the Depositary for such purpose, endeavor to vote or cause to be voted the Deposited Securities represented by the ADSs evidenced by such Holders’ ADRs in accordance with such instructions insofar as practicable and permitted under the provisions of or governing Deposited Securities. The Depositary will not itself exercise any voting discretion in respect of any Deposited Securities.
(c) Alternative Methods of Distributing Materials. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by any law, rule, or regulation or by the rules and/or requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of or solicitation of consents or proxies from holders of Deposited Securities, distribute to the Holders a notice that provides Holders with or otherwise publicizes to Holders instructions on how to retrieve such materials or receive such materials upon request (i.e., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Holders are strongly encouraged to forward their voting instructions as soon as possible. Voting instructions will not be deemed received until such time as the ADR department responsible for proxies and voting has received such instructions, notwithstanding that such instructions may have been physically received by JPMorgan Chase Bank, N.A., as Depositary, prior to such time.
(13) Changes Affecting Deposited Securities.
(a) Subject to paragraphs (4) (Certain Limitations to Registration, Transfer etc.) and (5) (Liability for Taxes, Duties and Other Charges), the Depositary may, in its discretion, and shall if reasonably requested by the Company, amend this ADR or distribute additional or amended ADRs (with or without calling this ADR for exchange) or cash, securities or property on the record date set by the Depositary therefor to reflect any change in par value, split-up, consolidation, cancellation or other reclassification of Deposited Securities, any Share Distribution or Other Distribution not distributed to Holders or any cash, securities or property available to the Depositary in respect of Deposited Securities from (and the Depositary is hereby authorized to surrender any Deposited Securities to any person and, irrespective of whether such Deposited Securities are surrendered or otherwise cancelled by operation of law, rule, regulation or otherwise, to sell by public or private sale any property received in connection with) any recapitalization, reorganization, merger, consolidation, liquidation, receivership, bankruptcy or sale of all or substantially all the assets of the Company.
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(b) To the extent the Depositary does not so amend this ADR or make a distribution to Holders to reflect any of the foregoing, or the net proceeds thereof, whatever cash, securities or property results from any of the foregoing shall constitute Deposited Securities and each ADS evidenced by this ADR shall automatically represent its pro rata interest in the Deposited Securities as then constituted.
(c) Promptly upon the occurrence of any of the aforementioned changes affecting Deposited Securities, the Company shall notify the Depositary in writing of such occurrence and as soon as practicable after receipt of such notice from the Company, may instruct the Depositary to give notice thereof, at the Company's expense, to Holders in accordance with the provisions hereof. Upon receipt of such instruction, the Depositary shall give notice to the Holders in accordance with the terms thereof, as soon as reasonably practicable.
(14) Exoneration.
(a) The Depositary, the Company, and each of their respective directors, officers, employees, agents and affiliates and each of them shall: (i) incur no liability to Holders or Beneficial Owners (A) if any present or future law, rule, regulation, fiat, order or decree of the United States, England, Wales or any other country or jurisdiction, or of any governmental or regulatory authority or any securities exchange or market or automated quotation system, the provisions of or governing any Deposited Securities, any present or future provision of the Company's charter, any act of God, war, terrorism, nationalization, epidemic, pandemic, expropriation, currency restrictions, work stoppage, strike, civil unrest, revolutions, rebellions, explosions, computer failure or circumstance beyond its direct and immediate control shall prevent or delay, or shall cause any of them to be subject to any civil or criminal penalty in connection with, any act which the Deposit Agreement or this ADR provides shall be done or performed by it or them (including, without limitation, voting pursuant to paragraph (12) hereof), or (B) by reason of any non-performance or delay, caused as aforesaid, in the performance of any act or things which by the terms of the Deposit Agreement it is provided shall or may be done or performed or any exercise or failure to exercise any discretion given it in the Deposit Agreement or this ADR (including, without limitation, any failure to determine that any distribution or action may be lawful or reasonably practicable); (ii) assume no liability to Holders or Beneficial Owners except to perform its obligations to the extent they are specifically set forth in this ADR and the Deposit Agreement without gross negligence or willful misconduct and the Depositary shall not be a fiduciary or have any fiduciary duty to Holders or Beneficial Owners; (iii) in the case of the Depositary and its agents, be under no obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or this ADR; (iv) in the case of the Company and its agents hereunder be under no obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or this ADR, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense (including fees and disbursements of counsel) and liability be furnished as often as may be required; and (v) not be liable to Holders or Beneficial Owners for any action or inaction by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Holder, or any other person believed by it to be competent to give such advice or information. The Depositary shall not be liable for the acts or omissions made by, or the insolvency of, any securities depository, clearing agency or settlement system.
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(b) The Depositary. The Depositary shall not be responsible for, and shall incur no liability in connection with or arising from, the insolvency of any Custodian that is not a branch or affiliate of JPMorgan Chase Bank, N.A. The Depositary shall not have any liability for the price received in connection with any sale of securities, the timing thereof or any delay in action or omission to act nor shall it be responsible for any error or delay in action, omission to act, default or negligence on the part of the party so retained in connection with any such sale or proposed sale. Notwithstanding anything to the contrary contained in the Deposit Agreement (including the ADRs), subject to the further limitations set forth in subparagraph (p) of this paragraph (14), the Depositary shall not be responsible for, and shall incur no liability in connection with or arising from, any act or omission to act on the part of the Custodian except to the extent that any Holder has incurred liability directly as a result of the Custodian having (i) committed fraud or willful misconduct in the provision of custodial services to the Depositary or (ii) failed to use reasonable care in the provision of custodial services to the Depositary as determined in accordance with the standards prevailing in the jurisdiction in which the Custodian is located.
(c) The Depositary, its agents and the Company may rely and shall be protected in acting upon any written notice, request, direction, instruction or document believed by them to be genuine and to have been signed, presented or given by the proper party or parties.
(d) The Depositary shall be under no obligation to inform Holders or Beneficial Owners about the requirements of the laws, rules or regulations or any changes therein or thereto of any country or jurisdiction or of any governmental or regulatory authority or any securities exchange or market or automated quotation system.
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(e) The Depositary and its agents will not be responsible for any failure to carry out any instructions to vote any of the Deposited Securities, for the manner in which any such vote is cast or for the effect of any such vote.
(f) The Depositary may rely upon instructions from the Company or its counsel in respect of any approval or license required for any currency conversion, transfer or distribution.
(g) The Depositary and its agents may own and deal in any class of securities of the Company and its affiliates and in ADRs.
(h) Notwithstanding anything to the contrary set forth in the Deposit Agreement or an ADR, the Depositary and its agents may fully respond to any and all demands or requests for information maintained by or on its behalf in connection with the Deposit Agreement, any Holder or Holders, any ADR or ADRs or otherwise related hereto or thereto to the extent such information is requested or required by or pursuant to any lawful authority, including without limitation laws, rules, regulations, administrative or judicial process, banking, securities or other regulators.
(i) None of the Depositary, the Custodian or the Company shall be liable for the failure by any Holder or Beneficial Owner to obtain the benefits of credits or refunds of non-U.S. tax paid against such Holder's or Beneficial Owner's income tax liability.
(j) The Depositary is under no obligation to provide the Holders and Beneficial Owners, or any of them, with any information about the tax status of the Company. The Depositary and the Company shall not incur any liability for any tax or tax consequences that may be incurred by Holders and Beneficial Owners on account of their ownership or disposition of the ADRs or ADSs.
(k) The Depositary shall not incur any liability for the content of any information submitted to it by or on behalf of the Company for distribution to the Holders or for any inaccuracy of any translation thereof, for any investment risk associated with acquiring an interest in the Deposited Securities, for the validity or worth of the Deposited Securities, for the credit-worthiness of any third party, for allowing any rights to lapse upon the terms of the Deposit Agreement or for the failure or timeliness of any notice from the Company.
(l) Notwithstanding anything herein or in the Deposit Agreement to the contrary, the Depositary and the Custodian(s) may use third party delivery services and providers of information regarding matters such as pricing, proxy voting, corporate actions, class action litigation and other services in connection herewith and the Deposit Agreement, and use local agents to provide extraordinary services such as attendance at annual meetings of issuers of securities. Although the Depositary and the Custodian will use reasonable care (and cause their agents to use reasonable care) in the selection and retention of such third party providers and local agents, they will not be responsible for any errors or omissions made by them in providing the relevant information or services.
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(m) The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary.
(n) By holding an ADS or an interest therein, Holders and Beneficial Owners each irrevocably agree that any legal suit, action or proceeding brought by any Holder or Beneficial Owner against or involving the Company or the Depositary, arising out of or based upon the Deposit Agreement, the ADSs, the ADRs or the transactions contemplated herein, therein or hereby, may only be instituted in a federal court in New York, New York, or, except for claims arising under the Securities Act of 1933 or Securities Exchange Act of 1934, any state court in New York, New York, and by holding an ADS or an interest therein each irrevocably waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding, provided, however, pursuant to applicable law and the Company’s Articles of Association, any claim brought by Holders or Beneficial Owners arising under the Securities Act of 1933 may be instituted only in any federal court in the United States, and any claim brought by any Holder or Beneficial Owner or on behalf of the Company with regard to the internal affairs of the Company, including the ability to bring such a claim, shall be governed by and construed in accordance with the laws of England and Wales, and may only be instituted against the Company, its directors, officers or employees as provided in the Company’s Articles of Association in the courts of England and Wales.
(o) The Company has agreed to indemnify the Depositary and its agents under certain circumstances and the Depositary has agreed to indemnify the Company under certain circumstances.
(p) Neither the Depositary, the Company, nor any of their respective agents shall be liable to Holders or Beneficial Owners for any indirect, special, punitive or consequential damages (including, without limitation, legal fees and expenses) or lost profits, in each case of any form incurred by any person or entity (including, without limitation, Holders and Beneficial Owners), whether or not foreseeable and regardless of the type of action in which such a claim may be brought.
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(q) No provision of the Deposit Agreement or this ADR is intended to constitute a waiver or limitation of any rights which Holders or Beneficial Owners may have under the Securities Act of 1933 or the Securities Exchange Act of 1934, to the extent applicable.
(15) Resignation and Removal of Depositary; the Custodian.
(a) Resignation. The Depositary may resign as Depositary by written notice of its election so to do delivered to the Company, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement.
(b) Removal. The Depositary may at any time be removed by the Company by no less than 60 days' prior written notice of such removal, to become effective upon the later of (i) the 60th day after delivery of the notice to the Depositary and (ii) the appointment of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement.
(c) The Custodian. The Depositary may appoint substitute or additional Custodians and the term "Custodian" refers to each Custodian or all Custodians as the context requires.
(16) Amendment. Subject to the last sentence of paragraph (2) (Withdrawal of Deposited Securities), the ADRs and the Deposit Agreement may be amended by the Company and the Depositary, provided that any amendment that imposes or increases any fees or charges on a per ADS basis (other than stock transfer or other taxes and other governmental charges, transfer or registration fees, SWIFT, cable, telex or facsimile transmission costs, delivery costs or other such expenses), or that shall otherwise prejudice any substantial existing right of Holders or Beneficial Owners, shall become effective 30 days after notice of such amendment shall have been given to the Holders. Every Holder and Beneficial Owner at the time any amendment to the Deposit Agreement so becomes effective shall be deemed, by continuing to hold such ADR, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any amendment impair the right of the Holder of any ADR to surrender such ADR and receive the Deposited Securities represented thereby, except in order to comply with mandatory provisions of applicable law. Any amendments or supplements which (i) are reasonably necessary (as agreed by the Company and the Depositary) in order for (a) the ADSs to be registered on Form F-6 under the Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in electronic book-entry form and (ii) do not in either such case impose or increase any fees or charges to be borne by Holders, shall be deemed not to prejudice any substantial rights of Holders or Beneficial Owners. Notwithstanding the foregoing, if any governmental body or regulatory body should adopt new laws, rules or regulations which would require amendment or supplement of the Deposit Agreement or the form of ADR to ensure compliance therewith, the Company and the Depositary may amend or supplement the Deposit Agreement and the ADR at any time in accordance with such changed laws, rules or regulations. Such amendment or supplement to the Deposit Agreement in such circumstances may become effective before a notice of such amendment or supplement is given to Holders or within any other period of time as required for compliance. Notice of any amendment to the Deposit Agreement or form of ADRs shall not need to describe in detail the specific amendments effectuated thereby, and failure to describe the specific amendments in any such notice shall not render such notice invalid, provided, however, that, in each such case, the notice given to the Holders identifies a means for Holders and Beneficial Owners to retrieve or receive the text of such amendment (i.e., upon retrieval from the Commission's, the Depositary's or the Company's website or upon request from the Depositary).
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(17) Termination. The Depositary may, and shall at the written direction of the Company, terminate the Deposit Agreement and this ADR by mailing notice of such termination to the Holders at least 30 days prior to the date fixed in such notice for such termination; provided, however, if the Depositary shall have (i) resigned as Depositary hereunder, notice of such termination by the Depositary shall not be provided to Holders unless a successor depositary shall not be operating hereunder within 60 days of the date of such resignation, or (ii) been removed as Depositary hereunder, notice of such termination by the Depositary shall not be provided to Holders unless a successor depositary shall not be operating hereunder on the 60th day after the Company's notice of removal was first provided to the Depositary. Notwithstanding anything to the contrary herein, the Depositary may terminate the Deposit Agreement without notice to the Company, but subject to giving 30 days’ notice to the Holders, under the following circumstances: (i) in the event of the Company’s bankruptcy or insolvency, (ii) if the Company effects (or will effect) a redemption of all or substantially all of the Deposited Securities, or a cash or share distribution representing a return of all or substantially all of the value of the Deposited Securities, or (iii) there occurs a merger, consolidation, sale of all or substantially all assets or other transaction as a result of which securities or other property are delivered in exchange for or in lieu of Deposited Securities.
After the date so fixed for termination, the Depositary and its agents will perform no further acts under the Deposit Agreement and this ADR, except to receive and hold (or sell) distributions on Deposited Securities and deliver Deposited Securities being withdrawn. As soon as practicable after the date so fixed for termination, the Depositary shall use its reasonable efforts to sell the Deposited Securities and shall thereafter (as long as it may lawfully do so) hold in an account (which may be a segregated or unsegregated account) the net proceeds of such sales, together with any other cash then held by it under the Deposit Agreement, without liability for interest, in trust for the pro rata benefit of the Holders of ADRs not theretofore surrendered. After making such sale, the Depositary shall be discharged from all obligations in respect of the Deposit Agreement and this ADR, except to account for such net proceeds and other cash. After the date so fixed for termination, the Company shall be discharged from all obligations under the Deposit Agreement except for its obligations to the Depositary and its agents.
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(18) Appointment; Acknowledgements and Agreements. Each Holder and each Beneficial Owner, upon acceptance of any ADSs or ADRs (or any interest in any of them) issued in accordance with the terms and conditions of the Deposit Agreement shall be deemed for all purposes to (a) be a party to and bound by the terms of the Deposit Agreement and the applicable ADR(s), (b) appoint the Depositary its attorney-in-fact, with full power to delegate, to act on its behalf and to take any and all actions contemplated in the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures necessary to comply with applicable law and to take such action as the Depositary in its sole discretion may deem necessary or appropriate to carry out the purposes of the Deposit Agreement and the applicable ADR(s), the taking of such actions to be the conclusive determinant of the necessity and appropriateness thereof, and (c) acknowledge and agree that (i) nothing in the Deposit Agreement or any ADR shall give rise to a partnership or joint venture among the parties thereto nor establish a fiduciary or similar relationship among such parties, (ii) the Depositary, its divisions, branches and affiliates, and their respective agents, may from time to time be in the possession of non-public information about the Company, Holders, Beneficial Owners and/or their respective affiliates, (iii) the Depositary and its divisions, branches and affiliates may at any time have multiple banking relationships with the Company, Holders, Beneficial Owners and/or the affiliates of any of them, (iv) the Depositary and its divisions, branches and affiliates may, from time to time, be engaged in transactions in which parties adverse to the Company or the Holders or Beneficial Owners may have interests, (v) nothing contained in the Deposit Agreement or any ADR(s) shall (A) preclude the Depositary or any of its divisions, branches or affiliates from engaging in such transactions or establishing or maintaining such relationships, or (B) obligate the Depositary or any of its divisions, branches or affiliates to disclose such transactions or relationships or to account for any profit made or payment received in such transactions or relationships, (vi) the Depositary shall not be deemed to have knowledge of any information held by any branch, division or affiliate of the Depositary and (vii) notice to a Holder shall be deemed, for all purposes of the Deposit Agreement and this ADR, to constitute notice to any and all Beneficial Owners of the ADSs evidenced by such Holder’s ADRs. For all purposes under the Deposit Agreement and this ADR, the Holder hereof shall be deemed to have all requisite authority to act on behalf of any and all Beneficial Owners of the ADSs evidenced by this ADR.
(19) Waiver. EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER OF, AND/OR HOLDER OF INTERESTS IN, ADSs OR ADRs) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER THEORY).
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(20) Elective Distributions in Cash or Shares. Whenever the Company intends to distribute a dividend payable at the election of the holders of Shares in cash or in additional Shares, the Company shall give notice thereof to the Depositary at least 30 days prior to the proposed distribution stating whether or not it wishes such elective distribution to be made available to Holders. Upon receipt of notice indicating that the Company wishes such elective distribution to be made available to Holders, the Depositary shall consult with the Company to determine, and the Company shall assist the Depositary in its determination, whether it is lawful and reasonably practicable to make such elective distribution available to the Holders. The Depositary shall make such elective distribution available to Holders only if (i) the Company shall have timely requested that the elective distribution is available to Holders, (ii) the Depositary shall have determined that such distribution is reasonably practicable and (iii) the Depositary shall have received satisfactory documentation within the terms of Section 14 of the Deposit Agreement including, without limitation, any legal opinions of counsel in any applicable jurisdiction that the Depositary in its reasonable discretion may request, at the expense of the Company. If the above conditions are not satisfied, the Depositary shall, to the extent permitted by law, distribute to the Holders, on the basis of the same determination as is made in the local market in respect of the Shares for which no election is made, either (x) cash or (y) additional ADSs representing such additional Shares. If the above conditions are satisfied, the Depositary shall establish a record date and establish procedures to enable Holders to elect the receipt of the proposed dividend in cash or in additional ADSs. The Company shall assist the Depositary in establishing such procedures to the extent necessary. Nothing herein shall obligate the Depositary to make available to Holders a method to receive the elective dividend in Shares (rather than ADSs). There can be no assurance that Holders or Beneficial Owners generally, or any Holder and/or Beneficial Owner in particular, will be given the opportunity to receive elective distributions on the same terms and conditions as the holders of Shares.
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Exhibit 5.1
Private and Confidential The Directors 4D pharma plc 5th Floor, 9 Bond Court Leeds LS1 2JZ |
|
Our Ref 118519125.7\SM104\655335.07024 | |
DDI +44 (0)207 418 8271 | |
E charles.waddell@pinsentmasons.com |
[•] 2021
Dear Sirs
Registration Statement on Form F-4 of 4D pharma plc
1. | INTRODUCTION |
We have acted for 4D pharma plc, a public limited company incorporated under the laws of England and Wales (the "Company"), as its legal advisers as to English law in connection with the agreement and plan of merger dated 22 October 2020 between the Company, Dolphin Merger Sub Limited ("Merger Sub") and Longevity Acquisition Corporation ("Longevity") (the "Merger Agreement") providing for the merger of Longevity with and into Merger Sub pursuant to Delaware law (the "Merger"). As consideration for the Merger, the Company intends to issue [•] ordinary shares of £0.0025 pence each (the "New Shares") in the Company to a depositary which will hold the New Shares on behalf of the Longevity shareholders and will issue American Depositary Shares ("ADS") of the Company to such shareholders, with each ADS representing 8 ordinary shares. In addition, the Company has agreed to assume the outstanding warrants to subscribe for Longevity shares ("New Warrants"), which new warrants will, upon completion of the Merger, entitle the warrantholder to subscribe for New Shares.
This opinion is being furnished in connection with the preparation and filing of the Company's registration statement on Form F-4 (the "Registration Statement"), the initial draft of which was filed on 25 November 2020 by the Company with the US Securities and Exchange Commission ("SEC") under the United States Securities Act of 1933 (as amended) (the "Securities Act"), and the rules and regulations promulgated thereunder (the "Rules").
The existing issued ordinary shares of the Company are admitted to trading, and it is intended that application will be made for the New Shares to be admitted to trading on the AIM market operated by London Stock Exchange plc ("AIM").
In connection with the proposed issuance of New Shares by the Company, we have been asked to provide an opinion on certain matters, as set out below.
2. | DOCUMENTS EXAMINED |
2.1 | For the purposes of giving this opinion, we have examined copies of the following documents: |
(a) | the Merger Agreement; |
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(b) | a certificate of the company secretary of the Company dated [•] 2021 (the "Certificate") relating to certain factual matters and having annexed thereto copies (certified by the company secretary as being true, accurate, complete and up-to-date in each case) of the following documents: |
(i) | the Company's certificate of incorporation; |
(ii) | the Company's articles of association; |
(iii) | the minutes of a meeting of the board of directors of the Company held on 17 October 2020, and of a meeting of a committee of the board of directors of the Company held on 21 October 2020 at which it was resolved, inter alia, to approve the Merger; |
(iv) | the minutes of a meeting of the board of directors of the Company held on 22 November 2020 at which it was resolved, inter alia, to approve the filing of the Registration Statement with the SEC; |
(v) | the draft minutes of a meeting of a committee of the board of directors of the Company proposed to be held after the general meeting of the shareholders of the Company described in 2.1(b)(vi), below, at which it is intended to be resolved that the New Shares be allotted to Longevity shareholders; |
(vi) | the resolutions to be proposed to the shareholders of the Company at a general meeting to be convened on [•] 2021 for the purpose of, inter alia: |
i. | by ordinary resolution, authorising the board of directors to allot the New Shares in accordance with section 551 of the Companies Act 2006 (the “Companies Act”); |
ii. | by special resolution, dis-applying pre-emption rights in respect of the New Warrants in accordance with section 561 of the Companies Act; and |
iii. | by special resolution, amending the Company's articles of association, | |
(the minutes and resolutions described in 2.1(b)(iii)-(vi) (inclusive) are collectively referred to herein as the "Corporate Approvals"); and |
(c) | a copy of the Registration Statement to be filed with the SEC. |
2.2 | For the purposes of giving this opinion, we have made the following enquiries: |
(a) | on [•] 2021 at [time] we carried out an online search of the register maintained by the Registrar of Companies in England and Wales in respect of the Company (the "Company Search"); and |
(b) | on [•] 2021 at [time] we carried out an online search in respect of the Company of the Central Registry of Winding-Up Petitions (the "Central Registry Enquiry" and, together with the Company Search, the "Searches"), |
and reviewed the information we received from our agents from the Searches (the "Search Results").
For the purposes of giving this opinion, we have only examined and relied on those documents referred to in paragraph 2.1(a) – (c) (inclusive), carried out the Searches on the dates and at the times specified, and reviewed the Search Results. We have made no other enquiries concerning the Company or any other matter in connection with the giving of this opinion.
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3. | ASSUMPTIONS |
3.1 | For the purposes of giving this opinion we have assumed (without carrying out any independent investigation or verification in respect of such assumptions) that: |
(a) | all signatures, seals and stamps on all documents (including copy documents) examined by us are genuine, complete and accurate; |
(b) | in respect of all documents submitted to us electronically through an email signature platform (such as Adobe Sign or DocuSign): |
(i) | such documents have been signed electronically and are not "advanced electronic signatures" or "qualified electronic signatures" (each as defined in Regulation (EU) No 910/2014 (the "eIDAS Regulation")); |
(ii) | where applicable, the documents have been duly witnessed by witnesses who were physically present when such documents were signed electronically, and each such witness duly observed the act of signing and was aware at that time that he/she was witnessing that signatory's signature; |
(c) | each individual who signs as, or otherwise claims to be, an officer of the Company is the individual he claims to be and holds the office he claims to hold; |
(d) | all documents submitted to us as original are authentic and complete and all documents submitted to us in electronic form or as certified photocopies or facsimile transmitted copies or other copies of original documents conform to the originals and that the originals from which such copies were taken were authentic and complete; |
(e) | all documents, including the constitutional documents, which we have reviewed are in force and remain accurate, up-to-date and have not been amended, terminated or rescinded, or any provisions thereof varied or waived; |
(f) | all documents reviewed by us have been or will be duly executed and, where applicable, delivered on behalf of the Company; |
(g) | the Certificate and all documents annexed thereto, as listed in paragraph 2.1(b)(iii) – (vi) (inclusive), are all the relevant minutes and resolutions of the directors and shareholders of the Company relating to the approval of the Merger by the Company and the completion of all of the transactions contemplated by the Merger Agreement; |
(h) | the Registration Statement will have become effective in accordance with its terms (and will remain effective on each date of the allotment and issue of the New Shares) (the "Allotment Dates"); |
(i) | the information disclosed by the Searches is complete, accurate and up-to-date and will remain so as at each Allotment Date and that there is no information which, for any reason, should have been disclosed by those Searches but was not; |
(j) | in relation to each of the meetings referred to in paragraph 2.1(b)(iii) and paragraph 2.1(b)(iv), it was duly convened, constituted and held in accordance with all applicable laws and regulations; that a duly qualified quorum of directors were present throughout such meetings and voted in favour of the resolutions and that, in accordance with the Companies Act and each other applicable statutory provision and the articles of association of the Company, all directors of the Company declared their interest in the matters to be discussed at that meeting of the board or directors or a committee of the board of directors (as the case may be) and that such directors were duly allowed to count in the quorum; and that all resolutions passed at those meetings have not been or will not be revoked or withdrawn prior to the Allotment Dates; |
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(k) | in relation to the meeting referred to in paragraph 2.1(b)(v), it will be duly convened, constituted and held in accordance with all applicable laws and regulations; that a duly qualified quorum of directors will be present throughout such meeting and vote in favour of the resolutions and that, in accordance with the Companies Act and each other applicable statutory provision and the articles of association of the Company, all directors of the Company will declare their interest in the matters to be discussed at that meeting of a committee of the board of directors and that such directors will be duly allowed to count in the quorum; that no resolutions passed at such meeting will be amended, withdrawn or revoked prior each Allotment Date; and that the draft minutes (or a close variation thereof) provided in the Certificate will be signed as a record of the meeting that took place; |
(l) | in relation to the general meeting of the shareholders of the Company referred to in paragraph 2.1(b)(vi), it will be duly convened, constituted and held in accordance with all applicable laws and regulations and that a duly qualified quorum of shareholders will be present throughout such meeting and vote in favour of the resolutions referred to in paragraph 2.1(b)(vi)i-iii and that such resolutions will not be amended, withdrawn or revoked prior to each Allotment Date; |
(m) | on each Allotment Date, the Company will comply with all applicable laws to allot and issue the New Shares; |
(n) | any conditionality on the authority to allot and issue the New Shares will be satisfied or waived by the relevant parties; |
(o) | on each Allotment Date the Company will be solvent and the Company will not have entered into any composition or arrangement with its creditors (or any class of them); |
(p) | no step will be taken to wind-up, strike off or dissolve the Company or to place the Company into administration and no receiver will be appointed over or in respect of the assets of the Company, nor will any analogous procedure or step be taken in any jurisdiction which (in either case) has or have not been revealed by the Searches; |
(q) | no foreign insolvency proceeding will have been recognised in Great Britain under the Cross Border Insolvency Regulations 2006 (and it is not possible to conduct a search in Great Britain in relation to any such proceedings) which would entitle actions in respect of any assets of the Company the subject of those foreign proceedings to be taken in Great Britain; |
(r) | the directors of the Company have acted in good faith and have complied, and will continue to comply, with their duties under the Companies Act and all applicable laws in approving the matters set out in the minutes of each of the meetings referenced in paragraphs 2.1(b)(iii)-(v) (inclusive), and all transactions contemplated thereby; |
(s) | the Company has complied with, and will continue to comply with, all English, US and other foreign laws applicable to it; |
(t) | no party will, by reasons of the transactions contemplated by the Corporate Approvals, be in breach of any of their respective obligations under any other agreement, licence, authorisation, consent or similar document or injunction or other court order against or affecting the Company; and |
(u) | the Company is not, nor will be, engaging in criminal, misleading or deceptive conduct, or seeking to conduct any relevant transaction or any associated activity in a manner or for a purpose which might render any transaction contemplated by the Corporate Approvals or any associated activity illegal, void, voidable or unenforceable. |
4. | OPINION |
Based on the documents referred to in paragraph 2, and subject to the assumptions contained in paragraph 3 and to the qualifications contained in paragraph 5, and to any matters not disclosed to us, it is our opinion that, upon the allotment of the New Shares in accordance with the Merger Agreement, the entry of the names of the appropriate persons in the Company's register of members in respect of the applicable numbers of New Shares, and the admission of those New Shares to trading on AIM, the New Shares will be duly and validly issued, credited as fully paid up and not subject to any call for the payment of further capital.
4 |
This opinion is strictly limited to the matters expressly stated in this paragraph 4 and is not to be construed as extending by implication to any other matter.
5. | QUALIFICATIONS |
5.1 | The opinion set out in paragraph 4 is subject to the following qualifications: |
a. | the records of the Registrar of Companies and the Central Registry of Winding-Up Petitions may not be complete or up-to-date. In particular, the Central Registry of Winding-Up Petitions may not contain details of administration applications filed, or appointments recorded in or orders made by, district registries and county courts outside London. Searches at Companies House and the Central Registry of Winding-Up Petitions are not capable of revealing whether or not a winding-up petition or a petition for the making of an administration order has been presented an, further, notice of a winding-up order or resolution, notice of an administration order and notice of the appointment of a receiver may not be filed at Companies House immediately and there may be a delay in the relevant notice appearing on the file of the company concerned; |
b. | our opinion relates only to the New Shares allotted and issued pursuant to the Merger Agreement. We express no opinion in respect of the ADS or in respect of any other securities of the Company; and |
c. | we express no opinion as to matters of United Kingdom taxation or any liability to tax which may arise or be incurred as a result of or in connection with the Merger or the transactions contemplated thereby, the allotment and issue of the New Shares, the proposal to issue the ADS or to trade the New Shares in ADS, or as to tax matters generally. |
6. | LAW |
This opinion is confined to matters of English law as applied by the English courts as the date of this opinion.
This opinion and any non-contractual obligations connected with it are given on the basis that they will be governed by and construed in accordance with English law and the English courts shall have exclusive jurisdiction in respect of any disputes or other matters that arise out of or in connection with them.
We express no opinion on, and have taken no account of, the laws or regulations of any jurisdiction other than England and Wales. We express no opinion on the effect of documents governed by laws other than English law.
7. | CONSENT |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are included in the category of persons whose consent is required under section 7 of the Securities Act or the Rules.
Yours sincerely
Pinsent Masons LLP
5 |
Exhibit 8.1
Wilson Sonsini Goodrich &
Rosati
650 Page Mill Road
o:
650.493.9300
|
January 27, 2021
4D pharma plc
5th Floor, 9 Bond Court
Leeds, LS1 2JZ, United Kingdom
Re: | Registration Statement on Form F-4 |
Ladies and Gentlemen:
We have acted as counsel to 4D pharma plc, a public limited company incorporated under the laws of England and Wales (the “Company”), in connection with the filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form F-4 (as it may be amended from time to time, the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration under the Securities Act of up to 31,055,000 ordinary shares (the “Shares”), nominal value £0.0025 per share, of the Company, issuable pursuant to that certain agreement and plan of merger, dated as of October 21, 2020 (the “Merger Agreement”, and the merger contemplated thereby, the “Merger”), by and among the Company, Longevity Acquisition Corporation ("Longevity"), a British Virgin Islands company limited by shares, and Dolphin Merger Sub Limited (“Merger Sub”), a British Virgin Islands company limited by shares and a wholly-owned subsidiary of the Company.
As counsel to the Company, we have examined and relied upon originals or copies of such agreements, instruments, certificates, records and other documents and have made such examination of law as we have deemed necessary or appropriate for the purpose of this opinion, including the Registration Statement and the proxy statement/prospectus contained therein (the “Prospectus”).
Although we have made such inquiries and performed such investigations as we have deemed necessary for purposes of our opinion, we have not independently verified all of the facts set forth in the Registration Statement, the Prospectus, or in any other document. Our opinion is conditioned on, among other things, the initial and continuing accuracy of the factual information set forth in the Registration Statement and the Prospectus. Any change or inaccuracy in the facts referred to, set forth or assumed herein may affect our conclusions set forth herein.
Our opinion is also based on the correctness of the following assumptions: (i) the Company and each of the entities in which the Company holds a direct or indirect interest have been and will continue to be operated in accordance with the laws of the jurisdictions in which they were formed and in the manner described in the relevant organizational documents, (ii) there will be no changes in the applicable laws of which any such entity has been formed, and (iii) each of the written agreements to which the Company or any such entity is a party will be implemented, construed and enforced in accordance with its terms.
austin
beijing boston brussels hong kong london los angeles new york palo alto
san diego san francisco seattle shanghai washington, dc wilmington, de
4D pharma plc
January 27, 2021
Page 2
In rendering our opinion, we have also considered the applicable provisions of the Internal Revenue Code of 1986 (the “Code”), the Treasury Regulations promulgated thereunder, judicial decisions, administrative rulings and other applicable authorities, in each case as in effect on the date hereof. The statutory provisions, regulations, decisions, rulings and other authorities on which this opinion is based are subject to change, and such changes could apply retroactively. A material change that is made after the date hereof in any of the foregoing bases for our opinion could affect our conclusions set forth herein.
In our examination, we have assumed (i) the legal capacity of all natural persons, (ii) the genuineness of all signatures, (iii) the authenticity of all documents submitted to us as originals, (iv) the conformity to original documents of all documents submitted to us as certified, conformed, or photostatic copies, and (v) the authenticity of the originals of such copies.
This opinion shall not be construed as or deemed to be a guaranty or insuring agreement. Opinions of counsel represent only counsel’s best legal judgment and are not binding on the Internal Revenue Service (“IRS”) or on any court. Accordingly, no assurance can be given that the IRS will not challenge the conclusions of the opinion set forth herein or that such a challenge would not be successful.
Based on and subject to the foregoing, we are of the opinion that the statements set forth in the Prospectus under the heading “Material U.S. Federal Income Tax Consequences,” but not including any statements regarding the classification of either the Company or Longevity as a "passive foreign investment company" for United States federal income tax purposes, to the extent that they constitute matters of United States federal income tax law or legal conclusions with respect thereto currently applicable to the holders described therein as of the date thereof, while not purporting to discuss all possible United States federal income tax consequences of the Merger or the investment in, sale of or other disposition of the Shares, constitute (subject to the qualifications, assumptions, limitations and exceptions set forth therein) accurate summaries of such matters in all material respects.
Other than as expressly stated above, we express no opinion on any issue relating to the Company or to any investment therein or under any other law.
This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any legal developments or factual matters arising subsequent to the date hereof, or the impact of any information, document, certificate, record, statement, representation, covenant, or assumption relied upon herein that becomes incorrect or untrue.
We hereby consent to the use of this opinion for filing with the Registration Statement as Exhibit 8.1 thereto, without admitting we are “experts” within the meaning of the Securities Act or the rules and regulations of the Commission issued thereunder, with respect to any part of the Registration Statement, including this exhibit.
4D pharma plc
January 27, 2021
Page 3
Sincerely, | |
/s/ Wilson Sonsini Goodrich & Rosati | |
WILSON SONSINI GOODRICH & ROSATI | |
Professional Corporation |
Exhibit 10.3
Exhibit 10.3 15/7068 Books of Council and Session Extract Registered 24 Feb 2015 AGREEMENT CONSTITUTING ALTERATION AND EXTENSION OF LEASE UNIVERSITY COURT OF THE UNIVERSITY OF ABERDEEN G T BIOLOGICS LIMITED |
15/7068 Books of Council and Session Extract Registered 24 Feb 2015 AGREEMENT CONSTITUTING ALTERATION AND EXTEN,..S• ION OF LEASE '.· UNIVERSITY COURT OF THE UNIVERSITY OF ABERDEEN G T BIOLOGICS LIMITED PINSENT MASONS LLP DX GW135 GLASGOW |
l\tgt1'ttrl of Si>cotlanb 1517068 . AT EDINBURGH the Twenty Fourth day of February Two thousand and· fifteen the Deed hereinafter' reproduced was presented for registration in the Books of the Lords of Council and Session for preservation and execution and is registered in the said Books as follows:-DOCS-3-892 THIS MINUTE OF ALTERATION AND EXTENSION OF LEASE HAS BEEN PREPARED BY PINSENT MASONS LLP FOR THE UNIVERSITY COURT OF THE UNIVERSITY OF ABERDEEN. PINSENT MASONS LLP ACT FOR,THE UNIVERSITY COURT OF THE UNIVERSITY OF ABERDEEN AND NOT FOR YOU. THE SIGNtNG OF THIS MINUTE OF ALTERATION AND EXTENSION OF LEASE MAY HAVE LEGAL CONSEQOENCES FOR YOU AND ACCORDINGLY YOU SHOULD TAKE INDEPENDENT LEGAL ADVICE PRIOR TO SIGNING THIS MINUTE OF ALTERATION AND EXTENSION OF LEASE THIS AGREEMENT constituting an ALTERATION AND EXTENSION OF LEASE is entered into between THE UNIVERSITY COURT OF THE UNIVERSITY OF ABERDEEN constituted under the Universities (Scotland) Act 1889, and having a place of business at Regent Walk, Aberdeen, the University of Aberdeen is a charity registered in Scotland SC013683 (the "Landlord"); and GT BIOLOGICS LIMITED incorporated under the Companies Acts in Scotland with company number SC336222 and havi11g its registered office at Ufe Science Innovation .Building, Cornhill Road, Aberdeen, AB25 2ZS (the "Tenant"). WHEREAS:-·The Landlord is the landlord under the Lease; The Tenant is the tenant under the Lease; and The Parties have agreed to vary the Lease with effect from the Date of Variation . IT IS AGREED by the Parties as follows:-DEFINITIONS AND INTERPRETATION 1.1In this Agreement unless the context requires otherwise:-"Date of Variation"means 23 January 2015 "Landlord"means the party designed as the Landlord in this Agreement or its successors to the Landlord's interest in the Lease ''lease"means the lease between the Landlord and the Tenant dated 20 and 22 August 2013 and registered in the Books of Council and Session on 6 February 2015 "Parties"means the Landlord and the Tenant "Plan"means the plan annexed and signed as relative hereto "Premises"means ALL and WHOLE the offices and laboratories forming part of the Life Sciences Innovation Building, · Foresterhill, ·Aberdeen as more particularly described in the Lease "New Premises" means ALL and WHOLE the offices and laboratories forming part of the Life Sciences Innovation Building, Foresterhill, Aberdeen being the offices and laboratories shown coloured purple on the Plan. 'Tenant" I means the party designed as the Tenant in this Agreement or its permitted assignees 57780806.1\Cboolh63I |
DOCS-3-892 Interpretation Except to the extent that the context or the express provision of this Agreement requires otherwise, in this Agreement:-1..2.1 a reference to one gender includes all other genders; °1.2.2 words in the singular include the plural and vice versa; if at any time there are two or more persons included in the expression the Tenant obligations contained in this Agreement which are expressed to be made by the Tenant are binding jointly and severally on them and their . respective executors and representatives without the necessity of discussing them in their order; if the Tenant is a firm or partnership the obligations of the Tenant will be binding jointly and severally on all persons who are or become partners of the firm at any time and their respective executors and representatives as well as on the firm and its whole stock, funds; assets and estate without the necessity of discussing them in their order and such obligations subsist and remain in full force and effect notwithstanding the dissolution of the firm or partnership or any change or changes which may take place in the firm or partnership whether by the assumption of a new partner or partners or by the retiral, bankruptcy or death of any individual partner or by a change in the firm name; any reference to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and words importing individuals include corporations and vice versa; references to this Agreement. or to any other document are construed as references to this Agreement or to that other document as modified, amended , varied, supplemented, assigned, novated or replaced from time to time; and references to the parties are to be construed as references to the parties to this Agreement. Headings The table of contents and the headings in this Agreement are included for convenience only and are to be ignored in construing this Agreement. VARIATION The Parties agree that the Lease will be varied with effect from the Date of Variation in accordance with the provisions of this Agreement. EXTENSION OF TERM OF LEASE The duration of the Lease shall be extended from 1 August 2015 until 30 November 2017. RENT The rent payable under the Lease will be increased with effect from the Date of Variation to EIGHTY THREE THOUSAND AND EIGHTY SEVEN POUNDS (£83,087.00) (exclusive of all Value Added Tax) by equal quarterty payments in advance on the Scottish Quarter Days of Candlemas (Twenty eighth February), Whitsunday (Twenty eighth May), Lammas (Twenty eighth August) and Martinmas Twenty eighth November) clear of all deductions whatsoever . The Tenant undertakes to pay interest on any late payment of rent as provided in the Lease. 58050,545 .1\Cbooth632 |
DOCS-3-892 SERVICE CHARGE The service charge payable under the Lease will be increased with effect from the Date of Variation to ONE HUNDRED AND TWENTY SIX THOUSAND NINE HUNDRED AND THIRTEEN POUNDS (£126,913.00) (exclusive of all Value Added Tax) by equal quarterly payments in advance on the Scottish Quarter pays of Candlemas (Twenty eighth February), Whitsunday (Twenty eighth May), Lammas (Twenty eighth August) and Martinmas Twenty eighth November) clear of all deductions whatsoever EXTENT OF PREMISES With effect from the Date of Variation, the Lease is varied to the extent that the definition of "Premises" in Clause 1.1 thereof shall be extended to include the New Premises; LEASE RATIFIED . The whole provisions of the Lease remain in full force and effect, except as expressly altered or varied in this Agreement, and the Landlord and Tenant confirm the whole clauses, .tenor and content of the Lease. COSTS The Tenant must pay on demand the Landlord's whole proper and reasonable legal expenses and outlays in connection with this Agreement including the cost of registering this Agreement in the Books of Council and Session and obtaining three extracts (two of which will be for the Landlord's use). CONSENT TO REGISTRATION The parties consent to the registration of this Agreement for preservation and execution : IN WITNESS WHEREOF these presents on this and the two preceding pages are executed as follows:-· They are signed for and on behalf of the Landlord at .Vi. \.... on .2.3. ::························ 2015 - ························· - ··· by ...\................. ... . ...\1\..f.. before, as witness .../....'f!. .<{ict!...........: ...······............. ..D.£1. <:1 ..J).1.fY... <;.;-:'.12 ...M !':f./\d.R. :P. .f?c.CS .(.$!l!t:.. f.\.! !-PP.M .C,..r:J.:(j.1. ••• .•..•• • • •• Clo UN\\JEP-S.rN oc:: beO f;fV, eEU8'.r1\tJ AL-r<. , A RCGGN ..... · For and on behalf of the Landlord ...........MO£..................... OJ witness .··, -, -".. ·' .. ,.:, -· ... ·:----.-:-:· \ ... .· ;' . "··.· 58050545.1\Cbooth633 |
l\egisteru ofcotlanb DOCS-3-892 They are signed for and on behalf of the Tenant at .....A..i.--1·-- ---on ..\q_fh....-Y-7.......... 2015 by ....v. .\J.G:r............ :1\-:\..o.N\So".\ .........}?.lrh---····················· ···············•·································· For and on behalf of the Tenant ......······················ Witness before, as witness . .\10¥.l......l8......... .. (o........:&19\03'-\'!::.s...l-f ..SCL...\NN .t:<TI ..S.U.1.wJNLr, (O \-\ILL. Q_oN) l f\lSt Gfi0 4 58050545.1\Cbooth63 |
. ··"'i.;\ ...··· \·:· D•• I IRfl_•,,: 1 I\() !.. ,..' I.J:·'.vyoa, :'Jp wo·-'s •"·• " - ",., W2.1:' .aQ ..s-t Q y di . ,; ·--· '·i · '' ,•1 1 11 1 D" =. t t r.,q : 1 "l:..J " .., 0 W19 ·r81.' Il. W20 Q) § 0 Q) --; .Cl <t:1 +' §Ll Q·+: lf:l Q) Q) a w· ........ ...... ett. GT BIOL•OGICS t'fi.. /-;rlN I 'U>/ s .... (!> "§" § 6h a .8 Cl .9 -"' o·· 0 0 bD .s""' 0 ..cl Q) E - I ;>-.M '· BUILDING LSI BUILDING I t1 9 S K:jUNIVERSITY OF ABERDEEN DRAWING TITLE LEASE PLAN JOB NO. DRAWN REV DATE JAN 2015 CHECKED E1 DRAWING NO. LSI/LEASE 01 SCALE 1:200@A4 "d .0 Q) ' ...:i "' C1 I fj ESTATES "t<lu 't> Q) i3 - SHARED FACILITIES CJSIGHT SCIENCE • "dE-< fr · _(;l |
LEASE between UNIVERSITY COURT OF THE UNIVERSITY OF ABERDEEN and GT BIOLOGICS LIMITED Premises: Offices and Laboratories forming part of the Life Sciences Innovation Building, Foresterhill, Aberdeen D Pinsent Masons Pinsent Masons LLP 13 Queen's Road Aberdeen AB15 4YL Tel: +44 (0)1224 377900 Fax: +44 (0)1224 377901 Web Site: http://www.pinsentmasons.com c:\documents and seltings\aanderson\my documents\styles\short lease.doc 13 January 2012 17:19 FAS: 7435 |
TABLE OF CONTENTS DEFINITIONS AND INTERPRETATION3 DURATION6 TENANTS MONETARY OBLIGATIONS6 RENT REVIEW7 VAT7 LABORATORY EQUIPMENT8 COMMON RIGHTS8 USE AND OCCUPATION8 FIT OUT, ALTERATIONS, DECORATION AND SIGNAGE9 ASSIGNATION, SUB-LETTING AND PARTING WITH POSSESSION9 REPAIR9 LANDLORD'S COSTS10 TENANT'S OTHER OBLIGATIONS10 LANDLORD'S OBLIGATIONS10 RESERVED RIGHTS11 TERMINATION AND REMOVAL12 IRRITANCY12 INDEMNITY13 NOTICES13 LANDLORD'S AND HEAD LANDLORD'S REMEDIES13 EXHIBITION OF ENERGY PERFORMANCE CERTIFICAT E13 STAMP DUTY LAND TAX CERTIFICATE13 TIME OF THE ESSENCE14 CONSENT TO REGISTRATION14 c:\nrportbl\gima nage\rogden\13653232_2.doc |
THIS LEASE HAS BEEN PREPARED BY PINSENT MASONS LLP FOR THE UNIVERSITY COURT OF THE UNIVERSITY OF ABERDEEN. PINSENT MASONS LLP ACT FOR THE UNIVERSITY COURT OF THE UNIVERSITY OF ABERDEEN AND NOT FOR YOU. BY SIGNING THIS LEASE THIS MAY HAVE LEGAL CONSQUENCES FOR YOU ACCORDINGLY YOU SHOULD TAKE INDEPENDENT LEGAL ADVICE PRIOR TO SIGNING THE LEASE. LEASE between THE UNIVERSITY COURT OF THE UNIVERSITY OF ABERDEEN constituted under the Universities (Scotland) Act 1889, and having a place of business at Regent Walk Aberdeen, the University of Aberdeen is a charily registered in Scotland SC013683 (in this Lease, along with the successors to its interest as landlord under this Lease, called the "Landlord") and GT BIOLOGICS LIMITED a company incorporated under the Companies Acts (Company Number SC336222) and having their registered office at Room W05 Life Science Innovation Building, Cornhill Road, Aberdeen, AB25 2ZS in this Lease, along with (in substitution) any permitted assignees of its interest in this Lease, called the "Tenant'') The Landlord and the Tenant agree that the Landlord, by this Lease, lets the Premises to the Tenant. on the terms set out in this Lease, namely:-DEFINITIONS AND INTERPRETATION In this Lease:-The following words and expressions shall have the following meanings where the context so permits:-"Common Parts" means all parts of the Building available for use in common with the other occupiers of the Building including the structure of the Building, the Service Media, all toilets, parking and landscaped areas, pedestrian and vehicular entrances, routes and accesses (including emergency escapes) but excluding (1) all parts of Building exclusively let to another party or capable of being let and (2) such other parts as may from time to time be excluded from the Common Parts by the Landlord acting properly and reasonably provided (i) the Tenant's use and enjoyment of Premises is not adversely affected by such exclusion(s) and (ii) the quantum of the Service Charge borne by the Tenant in terms of this Lease shall not be increased in circumstances where but for the exercise of such right by the Landlord, it would not have been increased. The Common Parts with effect from the Date of Entry shall extend to the rooms or areas within the Building shown coloured green on Plan A, the percentage area of such rooms or areas allocated to the Tenant in terms of this Lease being detailed in Part 2 of the Schedule; "Building" means the building known as the Life Sciences Innovation Building, Foresterhill, Aberdeen together with the Service Media exclusively serving it and comprised within it and including the external areas and car parking area comprising 22 spaces and 2 disabled spaces all of which are shown outlined in red on plan marked "Plan B" annexed and executed as relative hereto and which subjects are more particularly described in the Head Lease; "Duration" means the period from the Entry Date to the Expiry Date (inclusive), but shall also include any continuation of the period of this Lease, whether by agreement or by operation of law; c:\nrportbl\gimanage\rogden\ 13653232_2.doc Page 3 |
"Energy Performance Certificate" means an energy performance certificate in terms of the Energy Performance Certification Legislation; "Energy Performance Certification Legislation" means any legislation relative to energy performance certification and/or inspection and/or advice to users of air conditioning systems, in any of these cases relative to buildings in Scotland, including (without limitation) the Energy Performance of Buildings (Scotland) Regulations 2008 and the Building (Scotland) Act 2003 and regulations and orders made thereunder; "Entry Date" means 1 August 2013; "Expiry Date" means the date of expiry or termination of this Lease; "Head Landlord" means the party from time to time being the heritable proprietor of the Building and thus entitled to the interest of the landlord under the Head Lease; "Head Lease" means the lease of the Building between the Scottish Ministers and the Landlord dated 5 and 22 October 2007 and registered in the Land Register of Scotland under Title Number ABN95000; "Head Lease Rent" means the annual rent payable from time to time in terms of the Head Lease; "Laboratory Equipment" means the laboratory equipment detailed in Part 3 of the Schedule; "Landlord's Works" means the works being carried out by the Landlord, their agents and contractors in upgrading the systems within the Premises to be updated to bring them to the same standard as the systems throughout the rest of the Landlord's campus; "Lease" means this Lease, as it may be amended from time to time; "Lettable Part" means all parts of the Building including the Premises let or capable of letting; "Management Rules and Regulations" means such rules and regulations relative to the Building as the Landlord may acting properly and reasonably set down from time to time, in the interests of good estate management; · "Parties" means the Landlord and the Tenant; "Party" shall mean either of them; "Permitted Use" means use for the research and development of products and processes relating to the Life Sciences and for no other purpose without the prior written consent of the Landlord; "Premises" means those premises described in Part 1 of the Schedule; "Quarter Day" means the Scottish Quarter Days of Candlemas (Twenty Eighth August), Whitsunday (Twenty Eighth May), Lammas (Twenty Eighth August) and Martinmas (Twenty Eight November); "Rent" means FORTY SIX THOUSAND TWO HUNDRED AND TWENTY TWO POUNDS (£46,222) STERLING per annum exclusive of VAT, subject to review in terms of Clause 4; "Review Date" means the date from which the Duration of the Lease is extended in terms of Clause 2.2; c:\nrportb imanage\rogden\ 13653232_2.docPage 4 |
"RPI" means the general index of retail prices (all items) published by the Central Statistical Office of the Chancellor of the Exchequer and if that index is not published for any reason, any substituted index or index figures published by that Office for the month in question; "Schedule" means the schedule in 3 parts, annexed and executed as relative hereto; "Service Charge" means a fair and equitable proportion attributable to the Premises using the percentage allocation set out in Part 2 of the Schedule of the costs incurred by the Landlord annually in repairing, maintaining and where necessary lighting and cleaning of the Common Parts and all other parts of the Building including the Service Media, the costs of insuring the Building and effecting the other insurances and obligations the Landlord is obliged to comply with as provided for at Clause 14 hereof and all other payments incurred by the Landlord in the servicing and management of the Building as are consistent with an academic building and in particular gas, electricity and other utility costs, security services, fire protection, business rates and all other services used, consumed or provided in or upon the Premises and the Building (excepting damage caused by the insured risks as detailed at Clause 14 hereof) which sum shall be subject to annual review in line with the actual costs attributable to the Building as a whole; Declaring that the Service Charge payable by the Tenant in terms of Clause 3.1 of this Lease for the first Year of this Lease shall be FIFTY NINE THOUSAND AND NINETY EIGHT POUNDS (£59,098) STERLING exclusive of VAT; "Service Media" means all media for the supply or removal of heat, electricity, gas, water, sewage, air conditioning, energy, telecommunications and data to the Building and all other services and utilities and all structures, machinery and equipment ancillary to those media but excluding any media or services situated wholly within or exclusively serving any Lettable Part; "Tenant's Obligations" means all obligations of the Tenant under this Lease; "VAT" means Value Added Tax; "Working Day" means any day, excluding Saturdays, Sundays and Glasgow public holidays, during which the Scottish clearing banks in Glasgow are open for business; and "Year" means any consecutive period of 12 months commencing from the Entry Date. The masculine gender shall include the feminine and neuter genders, the singular number shall include the plural and vice versa and references to persons shall include bodies corporate, unincorporated associations and partnerships. If the Tenant comprises two or more persons, then the Tenant's Obligations shall be binding jointly and severally on such persons. References to Clauses are to Clauses of this Lease. Headings to the Clauses are inserted for convenience only and shall not affect the interpretation of this Lease. Any obligation upon either of the Parties not to do or omit to do anything shall include an obligation not to allow that thing to be done or omitted to be done by any person under their respective control. Any right reserved to the Landlord, may be exercised also by any superior landlord or other person authorised by the Landlord. Any entry on the Premises by the Landlord or by any person authorised under this Lease by the Landlord to enter, shall be at reasonable times convenient to the Tenant and upon notification of not less than 2 Working Days (or no notice in cases of emergency) and c:\nrportbl\gimanage\rogden\13653232_2 .docPage 5 |
subject to the proviso that the Landlord shall make good all physical damage caused to the Premises and the Laboratory Equipment in the exercise of such right. Any right of entry onto the Premises reserved to the Landlord under this Lease includes the right to bring contractors and appropriate equipment and machinery onto the Premises provided in exercise any right of entry as aforesaid, the provisions of Clause 1.8 shall be complied with. Any phrase prefaced by the words "including", "include", "in particular" or any similar expression or wording, shall not be construed as limiting the generality of any preceding phrase or word. Any plan attached to this Lease is demonstrative. Where consent or approval is not to be unreasonably withheld, a decision on whether or not to grant it must not be unreasonably delayed. This Lease is to be construed in accordance with the Laws of Scotland. DURATION The period of this Lease shall be from the Entry Date until 31 July 2015 subject always to the Tenant's option to extend the Duration in accordance with the terms of Clause 2.2 and (b) the provisions of Clause 2.3. The Tenant shall be entitled to extend the Duration of the Lease for a further period of one year by giving not less than six calendar months' written notice to the Landlord to that effect no later than 31 January 2015 in which event the Rent shall be reviewed in accordance with the terms of Clause 4 with effect from the Review Date. If there is damage to, or destruction of the Premises or any part of the Building upon which the Premises depend for access or other necessary purposes to the degree that the Premises cannot be used for the Permitted Use, then this Lease shall automatically terminate. TENANTS MONETARY OBLIGATIONS The Tenant binds itself and its successors and assignees as aftermentioned to pay to the Landlord throughout the Duration of this Lease the Rent and Service Charge by equal quarterly payments in advance on the Quarter Days. The first payment of Service Charge being due on the Entry Date for the period from the Entry Date to the next Quarter Day following the Entry Date and the first payment of Rent being due on the Entry Date for the period from the Entry Date to the next Quarter Day following the Entry Date. The Tenant shall be responsible for the provisions of a telephone and broadband service in the Premises during the Duration and for meeting any expenses incurred in relation to this service. If the Landlord so requires, any existing telephone number for the telephone in the Premises then this shall at expiry of the Lease remain with the Premises and accordingly the Tenant shall have no proprietary rights in the telephone number; The Tenant shall reimburse the Landlord within 14 days of written demand any shortfall in the insurance monies which would otherwise have been recovered by the Landlord where and to the extent that such shortfall arises as a consequence of any act, omission or default of the Tenant of those for whom the Tenant is legally responsible. The Tenant shall pay interest on any sums of money payable to the Landlord by the Tenant in terms of the Lease but not paid on the due date. Such interest shall be at the rate of 4% per annum above the base lending rate of The Royal Bank of Scotland pie, as varied from time to time and run from the date when the relevant sum of money became due until such sum was paid. c:\nrportbl\gimanage\rogden\13653232_2 .docPage 6 |
The rent and Service Charge payable in terms of Clause 3.1 hereof shall be made without the need for any demand from the Landlord, without deduction and by some automated method of direct bank transfer approved by the Landlord. RENT REVIEW The Rent shall be reviewed on the Review Dale and shall be increased from the sum payable immediately before the Review Date in the same proportion as other prices have increased over the relevant period in accordance with RPI plus 1% compounded annually from the Entry Date:-The revised rent equals:-A x .(fil x 1.0201 (C) Where: A = the rent payable immediately prior to the Review Date; B = RPI for the month preceding the month in which the Review Date falls; and C = RPI for the month preceding the month in which the Date of Entry fell; Declaring that time is not of the essence in respect to any of the provisions of this Clause and for the avoidance of doubt in the event of there being a decrease in RPI, the Rent shall remain unchanged. If the Rent shall not have been agreed by the Review Date in question, then pending such agreement the Tenant shall continue to pay rent at the rate payable immediately prior to the Review Date and within 14 days after such agreement, the Tenant shall pay to the Landlord an amount ("the Balancing Payment") representing the difference between the amount of rent actually paid in the period from and including the Review Date and the amount of rent which should have been paid in that period had the revised Rent been agreed or determined by the Review Date, together with interest thereon at the base rate for the time being and from time to time of the Royal Bank of Scotland calculated on a daily basis from the due date for payment until paid in full. Interest at the rate of 4% per annum above the said base rate shall be payable on the Balancing Payment from the date 14 days after such agreement or determination until the date of actual receipt of payment in full by the Landlord. If so required by the Landlords the Tenants shall enter into a Memorandum documenting the revised Rent following agreement or determination thereof. The Landlord and the Tenant shall each be responsible for their own legal expenses incurred relative to the negotiation, preparation, adjustment and completion of the said Memorandum with the Tenant liable for the cost of registering the Memorandum in the Books of Council and Session and obtaining three extracts of each (one for the Tenant and two for the Landlord). 4.2If at the Review Date the Landlord shall be obliged to comply with any statute dealing with the control of rent and which shall restrict or modify the Landlord's right to increase the rent, then the procedure for review of rent hereinbefore contained shall nevertheless be followed and the rent as so reviewed (or the permitted proportion thereof) shall immediately become payable with effect from the date of the relaxation or removal of such enactment. VAT All sums referred to in this Lease are expressed exclusive of any VAT chargeable . c:\nrportbl\gimanage\rogden\ 13653232_2.docPage 7 |
The Tenant shall pay to the Landlord any VAT and/or any other tax or charge of a similar nature as shall be properly chargeable in respect of all monies (including rent) undertaken to be paid by the Tenant under this Lease. LABORATORY EQUIPMENT The Tenant shall have a right to use the Laboratory Equipment on an exclusive right or on a non-exclusive first come, first served basis as detailed in the table at Part 3 of the Schedule provided always that (a) no guarantee nor warranty is given by the Landlord regarding any fitness for purpose of such Laboratory Equipment contained under the heading Non-Exclusive Equipment Lisi 2 and {b) the Landlord shall not be responsible unless the Landlord chooses to do so, which shall be at the Landlord's discretion, for the maintaining, repairing, replacing or renewing any such Laboratory Equipment contained under the heading Non-Exclusive Equipment List 2, nor for the cost of providing any consumables required for the operation and/or use of any of the Laboratory Equipment listed in the table at Part 3 of the Schedule. 6.2The Landlord shall be obliged to maintain, repair, replace or renew such Laboratory Equipment contained under the heading, Non-Exclusive Equipment List 1, as and when is necessary for the proper and reasonable working order of the said equipment. COMMON RIGHTS The following non-exclusive rights are granted to the Tenant (in common with other occupiers of the Building, the Landlord and any other persons authorised by the Landlord), but subject to the rights reserved as referred to in Clause 16:-Pedestrian access to and egress from the Premises by the designated entrances and exits and routes within the Building but provided the said areas shall be kept unobstructed at all times; To use eight car parking spaces for the parking of private motor vehicles within the car park but the Tenant must:-not park vehicles on any service road; and comply with any reasonable Landlord regulations for controlling traffic movements all as previously notified by the Landlord to the Tenant. Free passage of utility services through the Service Media forming part of the Common Parts to and from the Premises, but the Tenant must not block any of such Service Media. To use all fire escape routes within the Building, both in an emergency and for fire drills. To use the Common Parts. USE AND OCCUPATION The Tenant shall:-Use and occupy the Premises for the Permitted Use and for no other purpose; Not:-cause a nuisance, damage or disturbance to the Landlord or other occupiers of the Building or neighbouring proprietors; or overload the Building or cause harm to the drains; or bring on to the Premises or the Building any hazardous, explosive, dangerous or combustible goods or materials without the prior written consent of the Landlord. c:\nrportbl\gimanage\rogden\13653232_2.docPage 8 |
8.2The Landlord gives no representation or warranty that the Permitted Use is, or will be or remain, a permitted use in terms of planning legislation. FIT OUT, ALTERATIONS, DECORATION AND SIGNAGE To the extent not already fitted out as required by the Tenant,then the Tenant shall fit out the Premises in terms of drawings and specifications approved by the Landlord, such approval not to be unreasonably withheld. The Tenant shall not:-cut, divide, alter or damage the Premises or Building; make any additions to the Premises or Building; change the internal or external decoration of the Premises or Building; or erect any external signage or signage visible from the exterior through the windows of the Premises or Building; in any of these cases without the prior written consent of the Landlord. 9.3 10. 10.1 11. 11.1 11.2 11.3 11.3.1 11.3.2 Landlord's consent shall not be unreasonably withheld or delayed to internal non-structural alterations to, or internaldecorative treatment of, the Premises. ASSIGNATION, SUB-LETTING AND PARTING WITH POSSESSION The Tenant shall not be entitled to assign, sub-let, part with or share possession of; or otherwise in any way or for any purpose deal with its interest in the Premises or any part of the Premises except with the prior written consent of the Landlord. REPAIR The Tenant accepts the Premises and the Common Parts as in all respects in good and substantial condition and repair and fit for the purposes for which they are let or intended to be used. All implied warranties as to fitness for purpose are excluded. The Tenant shall:-keep and maintain the Premises (including Landlord's fixtures and fitting and the Laboratory Equipment as detailed in the table at Part 3 of the Schedule under the heading Exclusive Laboratory Equipment List 1) in such good and substantia l condition and repair and throughout the Duration well and substantially to repair, maintain, cleanse, replace, renew and rebuild the same irrespective of the cause of the damage or deterioration necessitating such repair, maintenance, cleansing, replacing, renewing or rebuilding, save as provided for in Clause 11.4; and keep the Premises and Building clean and tidy and clear of rubbish and in particular (a) to ensure that all refuse is disposed of promptly in accordance with the local or public authority; and (b) to place in separate and secure containers and arrange safe and proper removal and disposal of all clinical waste all in accordance with best practice; all to the Landlord's reasonable satisfaction. The Tenant shall not be required to make good any damage to the Premises to any extent to which the Landlord has received Insurance monies which apply to, and cover the cost of, making good such damage. c:\nrportbl\g imanage\rogden\ 13653232_2.docPage 9 |
If at the end of this Lease {whenever and however that happens) the Premises are not in the condition referred to in this Clause 11 and for which the Tenant are properly liable for in terms of this Lease, then the Landlord may do all works required to put the Premises into the required condition. The costs incurred by the Landlord in carrying out such works are payable by the Tenant within 14 days of written demand. LANDLORD'S COSTS The Tenant shall pay to the Landlord within 14 days of demand:-The dues of registering this Lease in the Books of Council and Session and obtaining 3 extracts of it (one of which shall be supplied to the Tenant); and All legal and other costs properly and reasonably incurred by the Landlord in:-dealing with any application by the Tenant for consent or approval; and serving any notice on the Tenant in respect of, or otherwise taking action required to remedy, any breach of the Tenant's Obligations. TENANT'S OTHER OBLIGATIONS The Tenant shall:-13.1 13.1.1 13.1.2 13.2 13.3 13.4 13.5 13.6 13.7 13.8 14. Comply at all times with:-the terms of the Landlord's policies of insurance for the Building; and the requirements of the insurers under any such policies of insurance. Not do anything which may invalidate any such policies of insurance. Insure against public liability for the Tenant's business carried on at, and the Tenant's occupation of, the Premises relative to injury or death of any person; and damage to property, and exhibit to the Landlord, within 14 days of written, a copy of the policy of insurance and the receipt for the latest premium payment. Comply with the Management Rules and Regulations {if any). Ask its staff and those it is responsible at law to take all necessary measures {none of which will incur any cost to the Tenant) to kept the Premises and where appropriate the Building secure and lockfast at all times throughout the Duration. Notify the Landlord of any damage caused by the Tenant or those for whom the Tenant is responsible at law to the Premises or the Building as soon as reasonably practicable after the Tenant knows of its occurrence . Comply with all statutory, local authority, fire authority and other proper authority requirements relating to the Premises or the Tenant's occupation of the Premises. Not make any application for planning permission relative to the Premises. LANDLORD'S OBLIGATIONS The Landlord shall:-14.1unless prevented from doing so by any act, omission or default of the Tenant or otherwise to keep and maintain throughout the period of this Lease insurance cover in respect of the Building against loss or damage by normal commercial risks (but only for so long and to the extent that the Landlord is able to obtain cover at reasonable commercial rates) and subject to such excesses, exclusions and limitations as the Landlord's insurers may c:\nrportbl\gimanage\rogden\ 13653232_2.docPage 10 |
impose or demand for such sum as represents the full cost of reinstatement and such insurance policy shall include adequate cover for Property Owner's Liability and Third Party Liability in relation to the Building. pay the Head Lease Rent and other payments due to the Head Landlord in terms of the Head Lease manage the Building in accordance with the principles of good estate management; to repair, maintain, and as appropriate heat, light, ventilate and keep clean and tidy, in whole or in part, the Common Parts; and comply with all statutory, local authority, fire authority and other proper authority requirements relating to the Common Parts. to keep full and accurate accounts and records of the expenditure incurred by or for the Landlord in respect of the Service Costs and the Tenant shall be entitled at reasonable intervals to attend the Landlord's main place of business or offices as advised by the Landlord to inspect such accounts and records (the Landlord being oblige to keep the same for the 2 previous years) and to make any examination or audit which the Tenant may desire at the Tenant's own costs and expenses and not more than once in any one Year. use its reasonable endeavours to keep the Building open to the Tenant 24 hours a day, 7 days a week , except when the Building, or parts of the Building, may be closed:-due to an emergency; or due to circumstances beyond the Landlord's reasonable control; or where necessary to facilitate the carrying out of maintenance or repair. the Landlord grants warrandice, subject to the other provisions of this Lease. keep insured the plant and equipment within the Building (but excluding the Laboratory Equipment) against mechanical and electrical breakdown, explosion and third party risks. RESERVED RIGHTS The following rights are reserved to the Landlord:-To enter the Premises (with or without contractors, materials and equipment) on notification to the Tenant of not less than two Working Days (except that no notice shall be required in an emergency):-to inspect the Premises or otherwise check compliance with the Tenant's Obligations; to inspect the Premises as necessary to allow the obtaining of an Energy Performance Certificate for the Building; to carry out alterations, repairs or other works to any other part of the Building; {4) to allow prospective purchasers and/or new tenants to view the Building; to carry out any works to the Premises which are otherwise a Tenant's Obligation but which the Tenant has failed to carry out provided the Landlord has first given to the Tenant not less than 2 months prior notice of the want of repair and the Tenant has failed to carry out the said works within the said 2 month period; and for all other reasonable or necessary purposes. c:\nrportbl\gimanage\rogd en\13853232_2.docPage 11 |
15.1.2 15.1.3 15.1.4 15.1.5 15.2 15.2.1 15.2.2 15.2.3 16. 16.1 16.1.1 16.1.2 16.1.3 16.1.4 16.2 17. 17.1 17.1.1 17.1.2 17.1.3 Free passage of utility services through the Service Media within the Premises to and from any other part of the Building. Any rights reserved to the Head Landlord. To alter, stop up or divert any Common Parts, subject to, where reasonably necessary, providing reasonable alternatives where appropriate. To alter, extend, reduce or add extensions to the Building or add new buildings to the subjects. In exercising any of the rights reserved under Clause 15.1 the Landlord must:-cause as little interference as is reasonably practicable to the Tenant's business carried on at the Premises: make good any damage caused to the Premises as soon as reasonably practicable; and only take access to the Premises if there is no other reasonably practicable or economic way to exercise the relevant right, except that this restriction shall not apply to circumstances where entry is required in an emergency or due to a breach of the Tenant's Obligations. TERMINATION AND REMOVAL On the Expiry Date (whenever and however that happens) the Tenant shall:-Return all keys to the Premises and the Building to the Landlord; Remove itself from the Premises and the Building, and remove all of the Tenant's properly from the Premises, making good all damage caused by either such removal. Give vacant possession of the Premises to the Landlord; and Leave the Premises in a condition consistent with implementation of the Tenant's Obligations. If the Tenant does not leave the Premises in the condition required by this Clause 16, the Landlord may do all works required to put the Premises into the required condition. The costs incurred by the Landlord in carrying out such works are payable by the Tenant within 14 days of demand. IRRITANCY If:-the Rent or any other sums payable by the Tenant under the Lease is unpaid 21 days after the due date (whether demanded or not); or there is any other breach of the Tenant's Obligations; or the Tenant is a company and enters into winding up or liquidation or has a receiver or an administrator or an administrative receiver appointed; or then the Landlord shall subject to the terms of Clause 17.2 hereof, be entitled at any time thereafter to irritate this Lease. Provided that in the case of a breach, non-observance or non-performance by the Tenant of any of its obligations contained in this Lease which are capable of being remedied (albeit late) the Landlord shall not exercise any such option of irritancy unless and until it shall first have given written notice to the Tenant specifying such breach, non-observance c:lnrportbl\gimanagelrogden\13653232_2.docPage 12 |
or non-performance and requiring the same to be remedied and intimating its intention to exercise its option of irritancy in the event of said breach, non-observance or non performance not being remedied within such period as may be stated in the notice (being such reasonable period of time as the Landlord shall stipulate in the notice as being practicable in all the circumstances, which in the case of a breach being the non-payment of rent or any other monetary sum, however, shall be specified by the Landlord as being a period of 14 days only) and the Tenant shall have failed to remedy the same within the said period. If the Landlord irritates this Lease, then this Lease will terminate, without the need for declarator, process of removal or other procedure at law. The Landlord's right of irritancy does not affect the availability of any other rights to the Landlord in relation to any breach of the Tenant's Obligations. INDEMNITY Save to the extent that such liability, loss, damage or others arise as a result of some act of default on the part of the Landlord or those for whom the Landlord is responsible at law or the Landlord is indemnified by the insurances which it has effected or would have been indemnified had it complied with its obligations in terms of this Lease, the Tenant shall indemnify the Landlord against any liability, loss or claim incurred by the Landlord arising:-Out of any breach by the Tenant of the Tenant's Obligations; or From the Tenant's activities or those of its employees, agents, visitors or others for whom the Tenant is responsible at law at the Premises. NOTICES Any notice by the Landlord to the Tenant shall be sent to the Tenant's registered office by recognised international postal services. Any such notice must be in writing and shall be deemed to be received at the expiry of 7 Working Days after posting. Any notice by the Tenant to the Landlord shall be sent to the Landlord's Head or Principal Office. Any such notices must be in writing and shall be deemed to be received at the expiry of 2 Working Days after posting if sent by recorded delivery post or on the day of delivery if served by hand with a single witness. LANDLORD'S AND HEAD LANDLORD'S REMEDIES The same rights and remedies as are available to the Head Landlord against the Landlord in terms of the Head Lease shall be available to the Landlord against the Tenant under this Lease in addition to, and without prejudice to, any rights and remedies contained in this Lease. The Tenant accepts that the Head Landlord, if it chooses to do so, shall be entitled (but not bound) to enforce the provisions of this Lease, including without prejudice to that generality those provisions which require the consent or approval of the Head Landlord to be obtained in particular circumstances, against the Tenant as if the Head Landlord was the Landlord, and this provision is inserted for the benefit of, and shall be enforceable by, the Head Landlord. EXHIBITION OF ENERGY PERFORMANCE CERTIFICATE The Landlord shall provide to the Tenant a copy of a valid current Energy Performance Certificate for the whole Building (including the Premises) as soon as reasonably practical after the Entry Date. STAMP DUTY LAND TAX CERTIFICATE c:\nrportbl\gimanage\rogden\ 13653232_2.docPage 13 |
If the grant of this Lease is a notifiable transaction for the purposes of stamp duty land tax, the Tenant must deliver to the Landlord within 10 Working Days of the Entry Date, the Revenue Certific ate for that transaction. TIME OF THE ESSENCE Except where provision is made in this Lease for extensions of timescales, time shall be of the essence with respect to all timescales referred to in this Lease. CONSENT TO REGISTRATION The Parties consent to the registration of this Lease for preservation and execution: IN WITNESS WHEREOF these presents consisting of this and the 13 preceding pages and the schedule and plans are subscribed as follows:-For and on behalf of GT Biologics Limited . I Signatory Lft'dn11f · t:/\/c / ;;> Full name 2o - A"1J-201 Date of Signature .A IJ cR/t · .r-v Place of Signature edWitness n \ \.)\A,L-\'2.. ((-ZO I rl I ) Full Name _J ::.JA _t{L I v...\\11L.r'1-9 1'Z.I E Address L{e &:.,( "'""'v"'-. '-J _._::, L9)" For and on behalf of The University Court of the University of Aberdeen c:r . Dlreetoic.' Company Secretary/Authorised Signatory Date of Signature 22 . 'O . I> Place of Signature Witness Full Name "f"Att. t•..s. Ofk_ c:;;, ,UN\ v<O.(S(f ( <:> Hi e_ , Address b ·"' .A6 -€,..lA&'2o+ '3h<: |
THIS IS THE SCHEDULE REFERRED TO IN THE FOREGOING LEASE BETWEEN UNIVERSITY COURT OF THE UNIVERSITY OF ABERDEEN AND GT BIOLOGICS LIMITED. SCHEDULE PART 1 The Premises ALL and WHOLE those offices and laboratories forming part of the Building and shown coloured in blue on the plan marked "Plan A" annexed and executed as relative hereto, and including as part of the Premises:-the interior faces of all structural walls and columns, the whole of any non structural part of any wall both faces of which are within the bounds of the Premises, one half in thickness of any non structural part of any wall which forms a boundary of the Premises, the interior screeding, all plasterwork and wall finishes, the false ceiling (if any) and the interior face of the structural ceiling above provided the upper limit of the Premises shall not extend to anything above the said structural ceiling, any glazing, windows, doors and other entrances, (but not the exterior finishes of any rear door) frames and fittings for any of the foregoing, such water and sanitary fittings, stopcocks, cisterns and radiators, air, water, electricity, gas and other service wires, ducts and apparatus as serve solely the Premises. |
Percentage allocation of Building Space |
[LOGO] |
Laboratory Equipment Exclusive Equipment List 1 None Non-Exclusive Equipment List 1 Equipment DescriptionLocationMake/ModelSerial Number OvenW15/W0140Binder08-48554 FD53 DishwasherW15/W0141Miele Professional4267060 G7804 AutoclaveW15/W0142Priorclave 230L AutoclaveW15/W0143Priorclave 450 L CentrifugeW11/W0147Sigma123937 Non-Exclusive Equipment List 2 Equipment DescriptionLocationMake/ModelSerial Number Platform ShakerW12New Brunswick Scientific1101541565 lnnova 2000 AutoclaveW15/W0139Prestige9102751 210002 -80 FreezerW16/W0135New Brunswick Scientific 1004-9155-0608 U570-86 Refrigerated CentrifugeW19/W0007Sigma129084 4-16K IncubatorW19/W0003Binder852179 6K15 Shaking IncubatorW19/W0004New Brunswick Scientific800734737 lnnova 44R |
c:\nrportbllgimanage\rogden\13653232_2.docPage 19 |
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·ga LAND REGISTER Officer's ID I DateTITLE NUMBER 5067 OF SCOTLAND 201512008 ABN95000 ORDNANCE SURVEY NATIONAL GRID REFERENCE NJ9207SW 70m. Survey Scale .111250 'fht b(>ulldorlu shown b)I dolltd linea hovo !>Ctn plotted from the d11d1. Phy1laol boundorit1 wlll II• lndloolcd olttr their df llntollon on tho Ordnonco Mop, cb ---0 ...····•.. .......··\. |
Exhibit 10.4
Date2017 • 4D PHARMA PLC • • • of Fifth Floor 9 Bond Court Leeds LS1 2JZ • I • • Macfarlanes LLP 20 Cursitor Street ILondon EC4A 1LT • |
• Clause CONTENTS Page 1 Definitions and interpretation 1 2 Demise and rents 4 3 Tenant's covenants 4 4 Landlord's covenants 4 5 Landlord's right to forfeit Lease 4 6 Exclusion of planning warranty 6 7 Misrepresentation 6 8 Notices 6 9 Arbitration 6 10 Exclusion of easements and other matters 7 11 Third party rights 7 12 Provisions relating to the Common Parts 7 13 Break clause 7 14 New tenancy under 1996 Act 8 Schedule 1 The Premises 11 2 Rights granted 12 3 Rights reserved 13 4 Title matters 14 5 Tenant's covenants 15 6 Landlord's Covenants 27 7 Insurance Provisions 28 8 Service Charge Provisions 31 Part 1 - Definitions and Interpretation 31 Part 2 - Standard Services and Heads of Charge 31 Part 3 - Additional Services 32 Part 4 - Service Costs 33 Part 5 - Calculation and Payment of Service Charge 34 Part 6 - Provision of Services 35 Part 7 - Exclusions from Service Charge 35 9 Form of Authorised Guarantee Agreement 37 10 Form of Guarantee 42 11 Rent Review 47 • • ' • • • • • • 44933320.2 |
PARTICULARS LR1. Date of lease 32017 LR2. Title number(s) LR2.1 Landlord's title number(s) WYK619830 LR2.2 Other title numbers None. LR3. Parties to this lease Landlord BISHOPSGATE LONG TERM PROPERTY FUND NOMINEES NO. 1 LIMITED (a company incorporated under the laws of Jersey with number 112001) and BISHOPSGATE LONG TERM PROPERTY FUND NOMINEES NO. 2 LIMITED (a company incorporated under the laws of Jersey with number 112002) both of whose registered offices are at 12 Castle Street, St. Helier, Jersey JE2 3RT and whose address for service in the United Kingdom is care of Legal & General Property Limited, One Coleman Street, London EC2R SAA and any other person entitled to the immediate reversion to this lease ("the Landlord") Tenant 4D PHARMA PLC (Company Number 08840579) whose registered office is at Third Floor, 9 Bond Court, Leeds LS1 2JZ ("the Tenant") LR4. Property In the case of a conflict between this clause and the remainder of this lease then, for the purposes of registration, this clause shall prevail. Part Fifth Floor 9 Bond Court Leeds more particularly described in Schedule 1 of this Lease. LR5. Prescribed statements etc. None. LR6. Term for which the Property Is leased Ten years commencing on and including Commencement Date") LR7. Premium None. 2017(the"Term LR8. Prohibitions or restrictions on disposing of this lease This lease contains a provision that prohibits or restricts dispositions. LR9. Rights of acquisition etc. LR9.1 Tenant's contractual rights to renew this lease, to acquire the reversion or another lease of the Property, or to acquire an interest In other land ,None. |
LR9.2 Tenant's covenant to (or offer to) surrender this lease None. • LR10. Restrictive covenants given in this lease by the Landlord in respect of land other than the Property None. LR11. Easements LR11.1 Easements granted by this lease for the benefit of the Property See Schedule 2 of this Lease. LR11.2 Easements granted or reserved by this lease over the Property for the benefit of other property See Schedule 3 of this Lease. LR12. Estate rentcharge burdening the Property None. LR13. Application for standard form of restriction None. LR14. Declaration of trust where there is more than one person comprising the Tenant None. ADDITIONAL PARTICULARS Initial Rent From and including the Rent Commencement Date to and including the date immediately preceding the Full Rent Date FORTY TWO THOUSAND SIX HUNDRED AND FOURTEEN POUNDS, £42,614 (exclusive of VAT) per annum. Rent • Rent Commencement Date ,(3(2017 Full Rent Date fI tlte Rent ) (nb 9 mgr:it/:I& Blier Permitted Use 6BFRffl9f:l 91+1fmt Date)(• Use as offices within Class B1(a) of the Town and Country Planning (Use Classes) Order 1987 as amended in 2005 meaning such Order as at the date this Lease is granted and (notwithstanding any provisions to the contrary) not including any legislation amending or replacing such Order;t 1el'Ml't\.()..:hCA {Jo.it.44933320.2 3 «\ °'Y .'.lon (,b-Q,'"5 -j,\.t fkj4ti o.uUat w. cr. o-+-tN-WfV\)• |
THIS LEASE is made on the date set out in the Particulars between the Landlord and the Tenant named in the Particulars. WITNESSES as follows: • In this Lease the following definitions apply: 1954 Act: the Landlord and Tenant Act 1954 1995 Act: the Landlord and Tenant (Covenants) Act 1995 Authorised Guarantee Agreement: has the meaning given to such term in Section 28 of the 1995 Act; Beneficial Owner: Bishopsgate Long Term Property Fund Unit Trust; Bishopsgate Trustee: Capita Trust Company (Jersey) Limited in its capacity as trustee of the Beneficial Owner; Building: the building and any external areas belonging to it (including the Car Park) known as 9 Bond Court Infirmary Street Leeds registered at the Land Registry with freehold title WYK619830 and each and every part of that building and including any extensions, alterations or additions from time to time made to it and anything attached to it and any items in the nature of Plant used for its benefit; Car Park: the car park in the basement of the Building; Car Parking Rent: from and including the Term Commencement Date TWO THOUSAND FIVE HUNDRED POUNDS (£2,500.00) (exclusive of VAT) as from time to time reviewed under this Lease per car parking space per annum to be used by the Tenant in accordance with the rights granted in paragraph 2.1 of Schedule 2 of this Lease; COM Regulations: the Construction (Design and Management) Regulations 2015 (which shall include any provisions amending or replacing the same) together with any approved code of practice and any guidance requirements issued by the Health and Safety Executive in connection with them; Common Parts: all those parts of the Building not specifically demised or intended to be demised to a tenant and from time to time and intended for common use by one or more of the tenants or occupiers of the Building or their employees or visitors and includes (without limitation) entrance areas access ways circulation areas staircases escalators lifts passages landscaped areas forecourts toilet accommodation landings fire escape routes car parks service areas service roads access roads storage areas and refuse disposal and collection areas; Excepted Tax: any tax payable by the Landlord on the receipt of the rents or other sums payable under this Lease or on any dealings with its reversion to this Lease or any such as the Landlord is bound by Law to pay notwithstanding any contract to the contrary; Group Company: any company within the same group of companies as the Tenant within the meaning of section 42 of the 1954 Act; Health and Safety File: the health and safety file to be maintained in respect of the Premises in accordance with any Law (including but not limited to the COM Regulations); Insurance Rent: the fair and reasonable cost payable by the Landlord for insuring the Premises pursuant to the provisions of paragraphs 1.1 and 1.2 of Schedule 7; |
Insured Risks: fire earthquake subsidence flood storm tempest lightning explosion bursting and overflowing of water pipes and apparatus riot civil commotion malicious damage impact aircraft and other aerial devices or articles dropped from them (other than war risks) and such other perils as the Landlord may from time to time insure against (acting reasonably); Interest Rate: three per cent over the base lending rate from time to time of Lloyds TSB Bank pie or if that rate is no longer published then three per cent over such rate of interest as the Landlord may reasonably specify and wherever interest is payable by reference to the Interest Rate it shall be calculated on a daily basis; • Law: anything having legal effect in the country in which the Premises are situated at the relevant time during the Term including Acts of Parliament and any applicable directives decisions and regulations of the European Union and any orders regulations directions schemes rules consents licences notices and bye-laws made or granted by any statutory public local or other authority or court of competent jurisdiction or any government department or otherwise; Lease: this Lease and includes any deed of variation licence consent or other document supplemental to or associated with this Lease; Notifiable Project: a notifiable project as defined in the COM Regulations; • Plan: the plan attached to this lease; Planning Acts: the Town and Country Planning Act 1990, the Planning (listed Building and Conservation Areas) Act 1990, the Planning (Hazardous Substances) Act 1990, the Planning (Consequential Provisions) Act 1990, the Planning and Compensation Act 1991, the Planning and Compulsory Purchase Act 2004, and all other statutes relating to town and country planning from time to time in force ; Plant: any existing or future plant equipment systems machinery and apparatus intended to exclusively serve the Premises (whether or not on or in the Premises) including without limitation any applicable lifts hoists generators equipment for air conditioning ventilation heating cooling fire alarms fire prevention fire control communication and security and any conduits cables wires pipes drains gutters and other equipment for the reception generation passage transmission and/or storage of electricity water gas drainage telephone other methods of communication of information and any other service or facility; {\ Premises: means the part of the floor of the Building more particularly described in Schedule 1; Retained Parts: every part of the Building and its curtilage (except for the Premises and other parts of the Building designed or intended for letting) including (without limitation): the Common Parts; any office accommodation for the manager of the Building and ancillary staff and any areas used for the provision of services to the Building;I the foundations roof structure exterior and any loadbearing framework of the Building; • 44933320.2 • |
any windows doors window frames and door frames not forming part of the Premises and any external parts of the Building or its curtilage; all directional and other signage for the Building other than signage belonging to any tenant or other occupier, and including in each case where applicable any cladding facings ceilings coverings plaster floorboards tiles carpets floor coverings and other finishes; Review Date: the fifth anniversary of the commencement date of the Term and in addition the date on which any Rent Restrictions (as referred to in paragraph 7 of Schedule 11) operating on a previous Review Date cease to operate or operate in a less restrictive manner; Tenant: the second party to this Lease and includes its successors in title to this Lease; Term: as specified in the Particulars and includes any extension holding over or continuation of it whether by Law or agreement or otherwise; Title Matters: the matters set out in Schedule 4; Value Added Tax: includes any similar or substituted tax; Working Day: any day from Monday to Friday (inclusive) which is not a bank holiday. In this Lease unless the context otherwise requires: words importing persons include firms, companies limited liability companies and corporations and vice versa; any obligations undertaken by more than one person are joint and several obligations; words denoting the singular number include the plural and vice versa; any obligation in this Lease on the Tenant not to do or omit to do any act or thing shall include an obligation not to allow such act or thing to be done or omitted to be done by any sub-tenant licensee occupier invitee or other person; references to numbered clauses and schedules are references to the relevant clause in or schedule to this Lease and reference in any schedule to numbered paragraphs are references to the numbered paragraphs of that schedule; any rights for the Landlord shall also be for any person authorised by the Landlord and reference to consent or approval of the Landlord means the prior written consent of the Landlord and (where necessary) prior written consent of any superior landlord and nothing in this Lease implies that such further consents cannot be unreasonably withheld; reference to any Law or any provision in any Law includes a reference to any Law or provision amending or replacing it; 1.2.Bheadings to clauses schedules and paragraphs in this Lease shall not affect their interpretation; 1.2.9 The words and expressions used in the Particulars and in the Additional Particulars shall have in this lease the meanings ascribed to them in the Particulars and in the Additional Particulars. |
2Demise and rents The Landlord with full title guarantee lets the Premises to the Tenant together with the rights (if any) specified in Schedule 2 and excepting and reserving to the Landlord the rights specified in Schedule 3 to hold them to the Tenant for the Term subject to and with the benefit of the Title Matters the Tenant paying during the Term by way of rent: • 2.2 the Rent which shall be paid on a yearly basis (and proportionately for any part of a year) by equal quarterly payments in advance on the usual quarter days by standing order if required by the Landlord the first payment to be made on the Full Rent Date for the period from (and including) the Full Rent Date to (but excluding) the next quarter day; the Car Parking Rent which shall be paid on a yearly basis (and proportionately for any part of a year) by equal quarterly payments in advance on the usual quarter days by standing order if required by the Landlord the first payment to be made on the Rent Commencement Date for the period from (and including) the Rent Commencement Date to (but excluding) the next quarter day; the Insurance Rent which shall be paid in accordance with schedule ?and is payable from and including the Rent Commencement Date; the Service Charge which shall be calculated and paid in accordance with schedule 8 and is payable from and including the Rent Commencement Date; any other sums (including Value Added Tax and interest) which may become due from the Tenant to the Landlord under the provisions of this Lease. 3Tenant's covenants The Tenant covenants with the Landlord during the Term or until released by the 1995 Act to observe and perform its covenants and obligations set out in this Lease including the Schedules. 4Landlord's covenants The Landlord covenants with the Tenant that whilst the reversion immediately expectant upon this Lease is vested in it the Landlord shall observe and perform its covenants set out in this Lease including the Schedules ' If any of the following events occur: 5.1.1if any Rent or other sum due under this Lease is unpaid for fifteen Working Days after becoming due (in the case of the Rent whether formally demanded or not); or above) which remains unremedied following a written notice received by the• 5.1.2 if there is a breach of any of the Tenant's covenants (save as referred to in (a) Tenant from the Landlord specifying the breach and specifying a reasonable date by which the breach must be remedied ; or if the Tenant or any guarantor from time to time of the Tenant's obligations in this Lease:• |
5.1.3.1 5.1.3.2 5.1.3.3 5.1.3.4 5.1.3.5 5.1.3.6 5.1.3.7 5.1.3.8 5.1.3.9 (except for a members' voluntary winding-up for the purposes of an amalgamation or reconstruction which does not involve or arise out of insolvency or give rise to a reduction in capital and which has the consent of the Landlord such consent not to be unreasonably withheld) either: passes a winding-up resolution, or resolves to present its own winding-up petition, or is the subject of a winding-up petition, or is wound up, or passes a resolution for an administration order or has an administration order made against it or an administrator appointed or is subject to a resolution passed by the directors or the shareholders or to a determination made by the members for notice of appointment of an administrator to be filed with the Court, or if a notice of appointment of an administrator is filed with the Court by the holder of a floating charge or by the Tenant or its directors, or has an administrative receiver or a receiver or a receiver and manager appointed in respect of the whole or part of its assets property or undertaking, or calls or a nominee calls on its behalf a meeting of its creditors or any of them or makes an application to the Court under Section 896 of the Companies Act 2006, or becomes or is deemed to be insolvent or unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or submits to its creditors or any of them a proposal pursuant to Part I of the Insolvency Act 1986 or enters into any arrangement scheme compromise moratorium or composition with its creditors or any of them (whether pursuant to Part I of the Insolvency Act 1986 or otherwise), or has a mortgagee or other chargee which takes possession or exercises or attempts to exercise any power of sale, or has a judgement or order made against it which is not complied with, or is struck off the Register of Companies or any application is made for the Tenant or any such guarantor to be struck off; if the Tenant or any guarantor from time to time of the Tenant's obligations under this Lease (being an individual or if more than one individual then any one of them): 5.1.4.1 5.1.4.2 5.1.4.3 is the subject of a bankruptcy petition or bankruptcy order; or has any receiver or insolvency practitioner appointed; or makes an application to the Court for an interim order under Part VIII of the Insolvency Act 1986; or |
• has a mortgagee or other chargee which takes possession or exercises or attempts to exercise any power of sale; or has a judgment or order made against it which is not complied with; • under this Lease ceases or if any event occurs in relation to the Tenant or any guarantor from time to time of the Tenant's obligations under this Lease either in any other jurisdiction or as a result of any new or amended insolvency Law applicable in England which in each case has the same or similar effect as any of the events set out in 5.1.3 and 5.1.4 above; 5.2 then without prejudice to any other rights of the parties (including in respect of previous breaches of this Lease) the Landlord may re-enter the Premises or any part thereof in the name of the whole and this Lease shall immediately come to an end • 5.3The provisions set out in clause 5.1.3 shall apply mutatis mutandis in relation to a Partnership or Limited Partnership (as defined in the Partnership Act 1980 and the Limited Partnerships Act 1907 respectively) or a Limited Liability Partnership (as defined in the Limited Liability Partnerships Act 2000). 6Exclusion of planning warranty Nothing in this Lease shall imply or constitute a warranty by the Landlord that the Premises may be used for any specific purposes under the Planning Acts or otherw ise. Misrepresentation The Tenant acknowledges that this Lease has not been entered into in reliance wholly or partly on any statement or representation made by or on behalf of the Landlord except any statement or representation set out in this Lease or given by the Landlord's solicitors in writing. Notices Any notice served under or in connection with this Lease shall be in writing and shall be treated as properly served if it complies with the provisions of section 196 of the Law of Property Act 1925 (as amended by the Recorded Delivery Service Act 1962). Arbitration Where this Lease provides for reference to arbitration then in the absence of any express contrary provision such reference shall be made in accordance with the Arbitration Act 1996 to a single arbitrator to be agreed upon by the parties or in the absence of agreement appointed by the President of The Royal Institution of Chartered Surveyors (or by any person authorised to act on his behalf) or if no such person shall be available and able then • |
by such officer of such professional body of surveyors as the Landlord shall reasonably designate. 1oExclusion of easements and other matters The Tenant shall not be or become entitled to any easement or other right for the benefit of the Premises save as set out in Schedule 2. • 11Third party rights A person who is not a party to this Lease has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Lease but this does not affect any right or remedy of a third party which exists or is available apart from that Act. Provisions relating to the Common Parts The Landlord shall be entitled to: alter stop up renew replace divert carry out works to or use the Retained Parts (including the Common Parts) or any part of them and to temporarily obstruct the Common Parts whilst doing so; and 12.1.2 temporarily close all or any part of the Common Parts for the purpose of repairing renovating cleansing and maintaining the same, provided that in each case reasonable access to the Premises is available and the Tenant may reasonably use and enjoy the Premises. t The Landlord may in the interests of the security of the Building require any persons using the Building to identify themselves and to identify the person in the Building whom they are visiting and to keep records of their arrival and departure times, and for this purpose the Landlord may prevent persons entering the Building or removing items from the Building unless the Landlord is reasonably satisfied as to their identity and purpose, and the Landlord may require the tenant or occupier of the Premises to escort visitors between any security or reception desk and the Premises. Break clause This Lease may be determined on the Termination Date by the Tenant serving at least nine months' prior written notice on the Landlord (which notice shall be irrevocable). This Lease shall only determine as a result of notice served by the Tenant under clause 13.1 if: the Tenant gives up the Premises free from any third party occupiers and/or third party rights of occupation (save in respect of any wayleave agreements) on the Termination Date; and at the Termination Date the Tenant has paid the rents reserved under this Lease (whether demanded or not), save for any sums in respect of a bona fide service charge dispute. 13.3Termination of this Lease shall be without prejudice to the Landlord's or the Tenant's rights against the other for any prior breach of covenant. 44933320 .2 |
Time is of the essence in relation to the date and periods referred to in clause 13.1. On the Termination Date the Tenant shall deliver to the Landlord the original of this Lease. The Landlord may (either before or after the Termination Date) waive compliance with all or any of the obligations in clause 13.2.1 or 13.2.2 by written notice to the Tenant but such waiver shall not release the Tenant from any liability for breach of such obligations. Following the service of a valid notice pursuant to clause 13.1 the payment of the rents and other sums (and any VAT in respect of them) due from the Tenant on the rent payment date immediately preceding the Termination Date shall be the proportion, calculated on a daily basis, in respect of the period starting on that rent payment date and ending on the Termination Date. Within 10 Working Days after the Termination Date the Landlord shall refund to the Tenant the proportion of the rents and other sums (and any VAT paid in respect of them) (if any) actually paid by the Tenant for the period from and excluding the Termination Date up to and excluding the next rent payment date, calculated on a daily basis. New tenancy under 1996 Act 0 This Lease is a new tenancy for the purposes of the 1995 Act. Bishopsgate Trustees Limitation of Liability The parties to this lease acknowledge and agree that each of Bishopsgate Long Term Property Fund Nominees No 1 Limited and Bishopsgate Long Term Property Fund Nominees No 2 Limited (the "Nominees") is entering into this lease in its capacity as a nominee of the Beneficial Owner and with the intention of binding the net assets held by them pursuant to respective declarations of trust dated 24 January 2014 and made between each Nominee and the Bishopsgate Trustee acting in its capacity as trustee of the Beneficial Owner (in this clause, such assets being the "Trust Assets"). The aggregate of all liabilities of each of the Nominees pursuant to this lease at all times and for all purposes extend only to the Trust Assets which are in the possession or under the control of the Nominees in their respective capacities as a nominee of the Beneficial Owner. In no circumstances shall any liability attach to or be enforced or enforceable against the assets of the Nominees (whether held as trustee of any other trust or in their respective personal capacities or in any other capacity) other than assets which comprise Trust Assets. All representations, warranties, undertakings, obligations and covenants in this lease are made, given, owed or agreed by or in relation to the Trust Assets and in the Nominees' respective capacities as nominees of the Beneficial Owner and shall not be construed to be made, given, owed or agreed by or in relation to the Nominees as trustee of any other trust or in their personal capacity or in any other capacity or in relation to any other assets. • The Tenant acknowledges that: c references in this Lease to the Nominees are references to the each Nominee in its capacity as nominee of the Beneficial Owner and references to actions in such capacity only and not to any corporate or other capacity. |
IN WITNESS WHEREOF this Lease has been executed and delivered as a deed on the date first above written 0 • • ) |
EXECUTED as a DEED on behalf of BISHOPSGATE LONG TERM PROPERTY FUND NOMINEES NO. 1 LIMITED, a company incorporated in Jersey, by Dominic Hebert Authorised Signatory and Simon Kelly being persons who, in accordance with the laws of that territory, are acting under the authority of the company ' -··V····'··l·l··t·<·····.··················. ············ Authorised Signatory EXECUTED as a DEED on behalf of BISHOPSGATE LONG TERM PROPERTY FUND NOMINEES NO. 2 LIMITED, a company '" Authorised Signatory ) 0 ··············· incorporated in Jersey, by Dominic Hebert ...!................ ............• and Simon Kelly ) Authorised Signatory ) being persons who, in) accordance with the laws of) that territory, are acting) under the authority of the)t company) ) |
SCHEDULE 1 The Premises Fifth floor premises forming part of the Building as shown edged red on the Plan and including: any landlord's fixtures and fittings therein; any alterations or additions made thereto; any Plant; the plaster and any other finishes on the inner sides of the walls bounding the Premises and on all faces of every load bearing wall or pillar wholly within the Premises; all floors screeds carpeting and other finishes on the floor immediately below the Premises (including any raised floor and the area beneath the raised floor); 6all ceilings and other finishes on the floor or roof slab immediately above the Premises (including any suspended ceiling but not the area above it); 0 all non-loadbearing walls within the Premises and one half in thickness of any non loadbearing walls bounding the Premises; the doors door frames and any fittings for them or any glass in them which either bound the Premises or are wholly within the Premises; any windows and their frames and fittings and glass which are wholly within the Premises But excluding: the walls bounding the Premises (save where one half in thickness of any non-loadbearing internal walls is included above) and all loadbearing walls or pillars within the Premises; any structural floor slabs beneath or above or any part of the roof above the Premises; all items in the nature of Plant which are not intended to exclusively serve the Premises including any such items in the nature of Plant situated above the suspended ceilings any windows and their frames and glass in them which bound the external walls of Premises |
SCHEDULE2 Rights granted • Use of Common Parts the right to use the Common Parts for the purposes for which they were designed PROVIDED THAT this right shall be exercisable 24 hours a day every day but on the basis that if the Tenant uses the Common Parts outside of the Normal Operating Hours then the Service Charge (as defined in Schedule 8) shall be adjusted to take account of any additional expenditure incurred by the Landlord as a result of such use; Use of Items in nature of Plant the right to connect to and use any items in the nature of Plant from time to time serving the Premises or provided for the benefit of the Premises; Support 0 1.3a right to support as currently enjoyed by the Premises from the remainder of the Building. The following rights which are exclusive to the Tenant: Air Conditioning Plant the right subject to having the Landlord's prior written consent (such consent not to be unreasonably withheld or delayed) and subject to there being in the Landlord's reasonable opinion adequate space available having regard to the requirements for space to be available both then and in the future for other occupiers of the Building) to install an air conditioning condenser unit on the roof of the Building in an area designated by the Landlord together with rights to connect such unit to the Premises and the right to access the roof in order to maintain and repair such unit and the unit already existing subject alwaysI to a right for the Landlord (at its cost) to temporarily relocate any unit at any time on giving reasonable written notice to the Tenant. Telecommunications Plant the right subject to having the Landlord's prior written consent (such consent not to be unreasonably withheld or delayed) to install telecommunications Plant on the roof of the Building in an area designated by the Landlord and/or to install telecommunications cabling in the risers, ducting or other conduits within the Building and to connect such Plant to the Premises subject to there being in the Landlord's reasonable opinion adequate space available having regard to the requirements for space to be available both then and in the future for other occupiers of the Building and subject to a right for the Landlord to require the Tenant to relocate such Plant and/or cabling at its own cost at any time on three months written notice. Car Parking Space the right to park two cars in the Car Park in such spaces as the Landlord (acting reasonably) from time to time nominates. • |
SCHEDULE3 Rights reserved The right for the Landlord (and those at any time authorised by it or otherwise entitled): Adjoining Premises To build on redevelop refurbish refit repair alter raise the height of or carry out any other works on and to use for any purpose any adjacent or nearby land or buildings (including other parts of the Building) provided that it does not materially interfere with the access of light and air to the Premises or any other amenity from time to time used or enjoyed by the Premises or cause any nuisance damage annoyance or inconvenience by noise dust vibration or otherwise. Use of Plant To inspect repair renew clean maintain alter remove connect to and use all items in the nature of Plant which are at the date of this Lease within the Premises and which serve or are intended to serve the Premises and other property (or solely other property). Entry Having given not less than 48 hours' prior notice in writing (save in emergency) and at reasonable times to enter upon the Premises with or without tools and equipment for the purpose of: 3.1exercising any of the rights granted or reserved to the Landlord in this Lease and on the terms set out in this Lease or complying with any of the Landlord's obligations in this Lease or with any Law; • in each case the person entering causing as little damage and inconvenience as reasonably practicable and making good any damage caused to the Premises 4Support All rights of support currently enjoyed by the remainder of the Building from the Premises. • 44933320 .2 |
SCHEDULE4 Title matters • • <I 44933320 .2 • |
SCHEDULE 5 Tenant's covenants Rents 1.1 To pay the Rent, the Insurance Rent and any other sums at the times and in the manner required by this Lease and without any deduction (save where required by Law) abatement counterclaim or set-off and (in the case of Rent) by standing order if the Landlord so requests. 1.2 • If the Landlord (acting reasonably) refuses to accept any Rent or other sums payable under this Lease because an event referred to in clause 5 has occurred and the Landlord does not wish to waive its rights under that clause then that unpaid Rent or other sum shall bear interest under paragraph 6 of this Schedule until the date such Rent or other sum is accepted. 2Cost of common structures I3 3.1 4 • 5 5.1 5.2 6 To pay within ten Working Days of receipt of a written demand a sum equal to a fair proportion to be reasonably determined by the Landlord of any expenditure payable by the Landlord in respect of repairing maintaining renewing cleaning lighting or carrying out other works to anything the use of which is common to the Building and other premises (including by way of example only party walls fences sewers drains roads paths pavements and car parks) but only where such sum does not form part of the Service Charge. Outgoings To pay all existing and future rates taxes assessments impositions charges and outgoings assessed or imposed on or in respect of the Premises or any areas over which exclusive rights to use or occupy are granted by this Lease (whether assessed or imposed on the Landlord or the Tenant) except any Excepted Tax and if the Premises are not separately assessed at any time for any such matters the Tenant shall pay the Landlord on demand a fair and reasonable proportion of any assessment which includes the Premises. Utilities To pay for all gas electricity water telephone and other utilities and services used at the Premises and all standing or other charges for meters or other equipment and to pay a fair and proper proportion of any charges affecting the Premises and other premises as the Landlord may reasonably determine. V.A.T. In addition to the rents fees and other sums payable by the Tenant under this Lease to pay at such times as such rents fees and other sums fall due (and at such times as any other supplies are made (but, where the supply has been made by the Landlord, after receiving a valid VAT invoice duly addressed to the Tenant)) any Value Added Tax which is now or may become payable in respect of any such rents fees and other sums and supplies. Any obligation to reimburse or pay the Landlord's costs fees or expenditure includes any Value Added Tax on those costs fees or expenditure unless and to the extent that the Landlord is able to obtain a credit for it from H M Revenue and Customs. Interest If any Rent or other sum (including Value Added Tax) payable by the Tenant to the Landlord under this Lease shall be due but unpaid after the due date (and in the case of the Rent whether it was demanded or not) to pay on written demand to the Landlord interest at the Interest Rate (which Interest Rate shall still apply after and despite any judgment of the 44933320 .2 |
Court) on such sums from the due date until payment provided that this paragraph shall not prejudice any other right or remedy of the Landlord in respect of such sums. Repair To repair the Premises and to keep them in good and substantial repair and condition and properly maintained (damage by an Insured Risk or Terrorist Damage excepted unless and to the extent that any insurance money is irrecoverable by reason of any act neglect or default of the Tenant or any undertenant occupier invitee or person under its or their control) and (as and when necessary) to replace any of the Landlord's fixtures and fittings which may be or become beyond economic repair with new ones which are of similar type quality and value. To keep all Plant and any Tenant's plant and equipment in good working order and condition clear unobstructed and properly maintained and serviced and (for these purposes) to renew and replace all working and other parts as and when necessary and to ensure (by directions to the Tenant's employees and otherwise) that such items are properly operated. Decoration and other treatment To redecorate the Premises in the last three months of the Term (however determined) preparing and painting those parts previously or usually painted with at least two coats of good and suitable paint and papering with suitable paper the respective parts of the Premises previously or usually painted or papered • As often as may be necessary to wash down clean repaint and make good in an appropriate manner all materials surfaces and finishes of the Premises including all wood plastic metal tiling brickwork concrete cement work and stonework not requiring painting or papering. To keep the Premises in a clean and tidy condition and at least once every month to clean the interior sides of all windows and window frames which bound the external walls of Premises and both sides of any interior windows and window frames and all other glass in the Premises. 9Other obligations with regard to Plant and other installations 9.2• Not to interfere in any way with any items in the nature of Plant not exclusively serving the Premises. Not to overload any Plant or the floors or structure of the Premises. Not to install or use in or upon the Premises any machinery or apparatus which causes noise or vibration which can be heard or felt outside the Premises. 1oDelivery up on determination At the end of the Term (however determined and including any surrender of this Lease) : to give up the Premises with vacant possession duly repaired decorated and otherwise delivered in accordance with the provisions of this Lease and to 44933320.2 • |
deliver any keys access cards any Health and Safety File and other such items to the Landlord; to remove any Tenants fixtures fittings furniture equipment goods and refuse and if the Tenant leaves any such items in the Premises for more than 14 days after the end of the Term the Landlord may treat them as having been abandoned and may remove store destroy or dispose of them as the Landlord wishes and the Tenant shall pay to the Landlord on demand the proper cost of this with interest at the Interest Rate from the date of demand to the date of payment and shall indemnify the Landlord against any resulting liability; to make good any damage caused by removal of the items referred to in paragraph 10.1.2 above and to redecorate the Premises in accordance with paragraph 8 of this Schedule; (unless the Landlord otherwise requires by giving notice in writing not less than 3 months prior to the end of the Term) to: remove all alterations and additions made to the Premises (and any other parts of the Building) and any moulding sign or wording of the name or business of the Tenant or .other occupiers on the Premises (and any other parts of the Building) made at any time during the Term (or pursuant to any agreement for lease made or period of occupation had before the start of the Term); • involves that such disconnection is carried out properly and safely and that such Plant is suitably sealed off or capped), and • 10.1.5 to replace any of the Landlord's fixtures and fittings which shall be missing broken damaged beyond economic repair or destroyed with new ones of similar kind quality and value. Compliance with statutory requirements, etc. To comply with the requirements of any Law as to the use of or the carrying out of works on or otherwise concerning the Premises and/or any substance or article on them Not to do or omit to be done in or near the Premises any act or thing by reason of which the Landlord may under any Law incur or have imposed upon it or become liable to pay any penalty compensation costs charges or expenses. To notify the Landlord as soon as reasonably practicable on becoming aware of any damage to or destruction of the Premises or any defect or want of repair in the Premises (including any defect within the meaning of Section 4 of the Defective Premises Act 1972) which the Landlord may be liable to repair under common law or by virtue of any Law. Repair etc on notice To make good with all practical speed (commencing work within two months of receipt of notice or sooner if necessary and then proceeding diligently) any defect in the repair decoration or treatment of the Premises or any failure to carry out other works in each case for which the Tenant is liable under this Lease and of which the Landlord has given written notice to the Tenant. |
If the Tenant shall not comply with paragraph 12.1 to allow the Landlord to enter the Premises and make good such defects or failures and to repay to the Landlord on demand as a debt the cost incurred by the Landlord in doing so. • Not to erect any new buildings or structures or make any alterations changes or additions to or carry out any other works to the structure (including roofs foundations and other load bearing parts) or the exterior of the Premises or unite the Premises with any adjoining premises save that the Tenant may make minor fixings to the internal structure for services conduits or other items with Landlord's consent (not to be unreasonably withheld or delayed) and subject (where applicable) to paragraph 13.3. Unless paragraph 13.4 applies not to make any other alterations changes or additions to the Premises (including any alterations or additions to the Plant) nor to undertake any works at the Premises which would be classed as a Notifiable Project without Landlord's consent (not to be unreasonably withheld or delayed) and subject (where applicable) to paragraph 13.3. Not to make any alterations additions or connections to any services installations at or serving the Premises save in accordance with standards prescribed by any relevant body or supply authority (for example the Institution of Electrical Engineers) and to obtain any0 necessary approvals (including Landlord's approval, not to be unreasonably withheld or delayed) to connect any Plant to the Landlord's or the relevant authority's own plant or installations. The Tenant may without the Landlord's consent (where such partitioning will not adversely affect the operation of air-conditioning or other Plant at the Premises or the Building) erect and remove non-structural demountable partitioning within the Premises provided that written details records drawings and such other information as the Landlord reasonably requires are supplied to the Landlord prior to the carrying out of such works. If the air conditioning or other Plant or any area which forms part of a fire escape route is to be affected then paragraph 13.2 shall apply. Signs Not without Landlord's consent to place or display outside the Premises or inside the Premises so as to be visible from outside any poster notice advertisement name or sign except the name and business of the Tenant and any permitted occupiers displayed at the entrance to the Premises in a size style and position and with a manner of affixing in each case approved by the Landlord (such approval not be unreasonably withheld or delayed) and the Tenant shall obtain and comply with necessary planning consents. Entry by Landlords To permit the Landlord on reasonable prior written notice (except in emergency when no notice need be given) to enter the Premises for the purpose of: viewing measuring or recording the condition of the Premises; 15.1.2 15.1.3 for any other purpose reasonably connected with the interest of the Landlord in the Premises or the Building and/or any adjoining or nearby premises including valuing or disposing of any interest of the Landlord; and/or ' To permit the Landlord to fix on the exterior of the Premises a notice or board indicating the Premises are available for sale or (in the last six months of the Term) for letting (provided that such notices and boards shall cause as little inconvenience to the Tenant or its business as reasonably practicable and shall not obstruct Tenant signage) and to permit persons authorised by the Landlord to inspect the Premises for such purpose the persons |
exercising such right complying with the reasonable requirements of the Tenant {whether as to security or otherwise) whilst in the Premises. Provisions applicable to any Tenants works The following provisions shall apply {in addition to any other relevant provisions of this schedule) to any repair decoration alterations reinstatement or other works to be carried out by or on behalf of or permitted by the Tenant and which are referred to in this schedule: 16.U 16.1.2 16.1.3 0 16.1.4 •16.1.5 16.1.6 • 16.1.7 16.1.8 16.1.9 they shall be carried out in a good and workmanlike manner with all reasonable speed; the Tenant's obligations to repair decorate reinstate or carry out any other works under this schedule 5 shall not apply to the extent that the Premises have been damaged or destroyed by any Insured Risk save in so far as payment of the insurance monies shall be withheld by reason of any act neglect or default of the Tenant or any undertenant occupier invitee or person under its or their control; if the COM Regulations apply to any works carried out at the Premises after the date hereof the Tenant shall comply or shall procure compliance with the CDM Regulations, shall act as the only client in respect of those works, shall serve a written election to that effect on the Health and Safety Executive and shall supply a copy of that election and any response to it to the Landlord; where applicable the Tenant shall supply as-built drawings of any works to the Landlord promptly following completion of such works; any damage caused by any such works to the Premises or to any adjacent premises shall be made good forthwith to the reasonable satisfaction of the Landlord; the Landlord shall have no liability as a result of any approval given to or any inspection made of any drawings or specifications for or any works carried out at the Premises nor shall any such approval or inspection relieve the Tenant of any of its obligations in this Lease; in relation to any works carried out at the Premises after the date hereof which constitute a Notifiable Project, the Tenant will appoint a COM co-ordinator {as defined in the COM Regulations) in accordance with the COM Regulations and shall ensure that the COM co-ordinator notifies the Health and Safety Executive in accordance with the COM Regulations and the Tenant shall provide to the Landlord a copy of that notification and of the Health and Safety Executive's response to it; the Tenant shall supply to the Landlord all information reasonably necessary in relation to the works in order to enable the Landlord to revise and otherwise review and update the Health and Safety File as often as may be appropriate to incorporate any relevant new information in accordance with the COM Regulations and the Tenant shall revise and otherwise review and update the copy Health and Safety File held at the Premises in accordance with the Landlord's reasonable instructions; the Tenant shall indemnify the Landlord against any reasonable and proper costs claims or liabilities the Landlord may reasonably and properly incur arising from or in connection with the carrying out of any such works or their reinstatement at the end of the Term to include {without limitation) the costs reasonably and properly incurred by the Landlord in connection with the keeping, revising and otherwise reviewing and updating of the Health and Safety File. |
Restrictions on alienation Not to assign charge underlet part with or share possession or occupation of the whole or any part of the Premises nor hold the Premises on trust for any person nor agree to do any such things save to the extent permitted under this paragraph 17 and not to pass the economic benefits and burdens of this Lease or any underlease howsoever remote by way of a virtual assignment or any similar concept or arrangement. (Assignment) Not to assign the whole of the Premises without Landlord's consent (not to be unreasonably withheld or delayed) but the Landlord and Tenant agree for the purposes of section 19(1A) of the Landlord and Tenant Act 1927 (without limiting the Landlord's ability to withhold consent where it is otherwise reasonable to do so or to impose other reasonable conditions) that: the Tenant shall not be entitled to assign the whole of the Premises if any one or more of the following circumstances apply: 17.2.1.1 17.2.1.2 17.2.1.3 17.2.1.4 where the proposed assignee is a Group Company of lesser financial standing than the Tenant (together with any0 guarantor) as at the time of the assignment; or if the Landlord reasonably determines that the proposed assignee is not of sufficient standing to enable it to comply with the covenants on the part of the Tenant contained or referred to in this Lease; or the proposed assignee enjoys diplomatic or state immunity: or if the assignee is either an individual or individuals domiciled in or a company registered outside the United Kingdom and in a country with whom there is no treaty or arrangement recognised by the High Court of Justice for the reciprocal enforcement of judgments for the purposes of the Civil Jurisdiction and Judgments Act 1982; 17.2.2 the Tenant shall not be entitled to assign the whole of the Premises unless the following conditions are satisfied: 17.2.2.1 17.2.2.2 17.2.2.3 17.2.2.4 if required by the Landlord (acting reasonably) the assignor (and any former Tenant who because of section 11 of the 1995 Act has not been released from the tenant's covenants in this Lease) enters into an authorised guarantee agreement in the form of Schedule 9 with such amendments as the Landlord may reasonably require: that any other means of security for the Tenant's obligations under this Lease of which the Landlord has the benefit immediately before the assignment is continued or renewed in respect of the assignor's liability under any authorised guarantee agreement; c that the Rent is paid before completion of the proposed assignment: |
(Underlettlngs) 17.3Not to underlet the whole or part of the Premises without Landlord's consent (not to be unreasonably withheld or delayed) and only by deed and in any event: 17.3.1 17.3.2 17.3.3 17.3.4 0 17.3.5 17.3.6 • 17.3.7 17.3.8 not to take any premium or fine for the grant of any underlease nor to underlet otherwise than at the open market rent reasonably obtainable; any rent free period or other inducements given to the undertenant shall be no greater than is usual in the market at the time; upon every underlease (if so required by the Landlord) to procure that the intending undertenant shall join in the licence to underlet to give a direct covenant to the Landlord to observe and perform the undertenant's covenants in the underlease for the period of its liability as tenant; upon every underlease (if reasonably required by the Landlord) the Tenant shall procure that a guarantor of the proposed undertenant reasonably satisfactory to the Landlord joins in the licence to underlet to give a direct covenant to the Landlord that the undertenant will observe and perform the undertenant's covenants in the underlease for the period of its liability under the underlease or any authorised guarantee agreement; the form of the underlease shall prohibit any further underletting and shall be in a form approved by the Landlord (such approval not to be unreasonably withheld or delayed where the terms of the underlease are materially consistent with the terms of this Lease); not to allow any person deriving title from or under the Tenant (however remotely) to assign underlet part with or share possession or occupation charge or hold on trust the Premises or any part of them or agree to do any such things save by an assignment of the whole of the underlet premises with Landlord's consent under this Lease (not to be unreasonably withheld but which may be reasonably withheld on the same terms as this Lease) or pursuant to paragraph 17.7; to procure that no underlease or sub-underlease (however remote) shall be completed without the parties thereto having excluded the underlease or sub underlease from the operation of Sections 24 to 28 (inclusive) of the 1954 Act and the Tenant shall supply to the Landlord a true copy of the notice and declaration with the true copy of the underlease or sub-underlease supplied pursuant to paragraph 19 below; there being no more than two underlettings of the Premises subsisting at any one time and occupation by the Tenant shall count as one such underletting. ) 17.4 (Charging) Not to charge part only of this Lease. 17.5 Not to charge the whole of this Lease without Landlord's consent (not to be unreasonably withheld or delayed) . (Sharing) Not to part with or share the possession or occupation of the whole or any part of the Premises except pursuant to paragraph 17.7 or by way of a permitted assignment or permitted underletting (and not to allow any persons deriving title from the Tenant to do so). |
When the Tenant or any permitted sub-tenant is a limited company they may share occupation of the whole or any part of the Premises with any Group Company of the Tenant or the permitted sub-tenant respectively provided that: no tenancy of the whole or any part of the Premises in favour of any such company is created; and upon such company ceasing to be a Group Company the occupation shall immediately cease or be documented in accordance with paragraph 17.3. (Rights) • Continuing obligations relating to underleases To enforce against any undertenant the provisions of any underlease and not to waive any such provisions or require or permit any rent payable under any underlease to be commuted or to be paid more than one quarter in advance or to be reduced. 0 Not to accept a surrender of part of any underlet premises. As soon as reasonably practicable after accepting a surrender of the whole of any underlet premises to notify the Landlord in writing . 18.4 • Notification of dealings Within one month after its completion to produce to the Landlord's solicitors every assignment transfer underlease charge or other document evidencing a devolution of the whole of the Premises paying a reasonable fee not being more than £20 plus Value Added Tax for each such registration and at the same time to provide the Landlord's solicitors with a true copy of such assignment transfer underlease charge or other document. To provide to the Landlord on reasonable demand particulars of all derivative interests affecting the Premises at the relevant time including details of rents, service charges and insurance charges payable under them and copies of relevant documents and the identity of all occupiers of the Premises. User c for any illegal purpose; or for any noisy or dangerous trade business or manufacture or as offices for a government agency or other authority involving the attendance of members of the public for the purpose of seeking employment or enrolling for or collecting any statutory social security health insurance or other benefit payment or applying for or collecting any licence passport certificate or similar document. Not to allow any person to reside or sleep on the Premises. Not to hold any sale by auction on the Premises. |
Not to vacate the Premises for a period exceeding 28 consecutive days without notifying the Landlord and complying with such security requirements as the Landlord and the insurers reasonably require and at all times during the Term to keep the Landlord and the local police notified of at least two persons with keys or other access to the Premises. Not to play or use any musical instrument loudspeaker tape recorder gramophone wireless television set or any other equipment which reproduces sound in the Premises so that it can be heard outside the Premises. Not to keep any animal fish reptile or bird in the Premises and to take all practicable steps to keep the Premises clear of rats mice and any other animals pests or vermin. Not to cook or heat any food in the Premises (other than making hot drinks) provided that the Tenant may heat food in the designated kitchen areas provided that no smells are produced which shall be a legal nuisance or which causes damage grievance annoyance or inconvenience to other tenants of the Building or to the tenants owners or occupiers of neighbouring adjoining or adjacent premises. Not to erect partitioning in front of windows in the Premises so as to create an untidy appearance and to maintain any blinds or other coverings or items in windows in good order and appearance. To keep the Premises equipped with equipment for detecting and fighting fire and fire alarm and other security equipment as may be required by the insurers or the fire officer and to keep such equipment properly inspected and maintained. ' 20.10.1 20.10.2 20.10.3 are reasonable and proper; are notified in writing to the Tenant; and are of uniform application to all occupiers of the Building; Provided Further that in the event of any conflict between the regulations and this Lease then the provisions of this Lease shall prevail. Not to place anything outside the Property or cause the Common Parts or any area adjacent to the Premises to be untidy. Nuisance 1 Not to do anything upon the Premises which is or may become an actionable nuisance or cause damage to the Landlord or to the owner tenant or occupier of any nearby premises. Not to knowingly do anything which may interfere with television radio telephone electrical or other reception or transmission or communications nearby. Planning and other notices To supply the Landlord with a copy of any application consent notice order or proposal for such matters affecting the Premises served on the Tenant by any competent authority (or received by the Tenant from any undertenant or other person) as soon as reasonably practicable after it is received by the Tenant and promptly to take all reasonable or necessary steps to comply with (or such other action as the Landlord may reasonably require in respect of) any such matters. At the request and cost of the Landlord to make or join with the Landlord in making such objections or representations against or in respect of any such matters affecting the 44933320 .2 |
Premises as the Landlord shall reasonably require save where to do so would be contrary to the business interests of the Tenant any undertenant or other lawful occupier. Planning controls Not to commit any breach of planning Law and to comply with all requirements under planning Law which affect the Premises. Not without Landlord's consent to make any application for planning permission affecting the Premises and not without such consent to implement any such permission (such consent in each case not to be unreasonably withheld or delayed). Not to serve any notice relevant to the Premises on any planning authority or any other relevant authority without Landlord's consent (such consent not to be unreasonably withheld or delayed). Not to enter into any agreement affecting the Premises with any planning authority or other relevant authority without Landlord's consent (such consent not to be unreasonably withheld or delayed). Unless the Landlord otherwise directs to complete before the expiry of the Term any development begun on the Premises and any work specified as having to be carried out by a date after the expiry of the Term in a planning permission or in an agreement with the planning or any other authority entered into as a condition to obtaining planning permission. • Save where consequent upon any permitted alterations or signage to preserve so far as the Tenant is able any rights of light air and other easements enjoyed by the Premises and to prevent anyone acquiring any right of light or other easement over the Premises and in each case to notify the Landlord of any claim or attempted claim in respect of any such right or easement made by any person and to afford to the Landlord such facilities and assistance as the Landlord (at its cost) may reasonably require in respect of any such matters. Costs of licences To pay the reasonable and proper costs and expenses (including legal and surveyor's fees) of the Landlord and of any superior landlords resulting from all applications by the Tenant for any consent of the Landlord (or any superior landlords) required by this Lease (including costs and expenses incurred in cases where consent is reasonably refused or the application is withdrawn) . Other costs • the preparation and service of any schedules of dilapidations either before or within 6 months of the end of the Term but relating in all cases only to dilapidations which occurred prior to the expiry of the Term; • any breach of any of the Tenant's covenants and obligations in this Lease. • 44933320 .2 I |
Title matters To observe and perform the Title Matters insofar as the same are still subsisting and capable of taking effect in respect of the Premises. Substitute guarantors To notify the Landlord in writing within ten Working Days if any of the events set out in clause 5.1.3, 5.1.4, 5.1.5 or 5.1.6 of this Lease occur in relation to any guarantor of the Tenant's obligations in this Lease and if the Landlord (acting reasonably) so requires the Tenant shall at its own expense within twenty Working Days of such requirement procure that a substitute guarantor reasonably acceptable to the Landlord shall execute a guarantee in the same form as the guarantee given by the substituted guarantor with such amendments as the Landlord may reasonably require. Release of Landlord Not to unreasonably withhold or delay consent to an application by the Landlord pursuant to the 1995 Act following a transfer by it of the reversion to this Lease for the release of the Landlord from its covenants contained in this Lease. 0 30The Health and Safety File The Tenant shall throughout the term: 30.1 • keep a copy of the Health and Safety file available at the Premises for inspection (at any reasonable time upon the giving of prior notice) by the Landlord, its surveyors and any other party with any interest in the Premises or any part of them and will allow such parties to enter the Premises after reasonable prior notice for such an inspection; • use reasonable endeavours to obtain royalty-free, irrevocable, non-exclusive and transferable copyright licences in favour of the Landlord in relation to all drawings, specifications and other copyright material supplied to the Landlord in accordance with paragraph 30.2 of this Schedule 5 for inclusion in the Health and Safety File; deliver the copy Health and Safety File to the Landlord on the expiry of the Term; and on any assignment or underletting of the whole of the Premises, deliver the copy Health and Safety File to the Tenant's assignee or undertenant. Energy Performance Certificate To cooperate with the Landlord so far as is reasonably necessary to allow the Landlord to obtain an energy performance certificate and recommendation report in respect of the whole or any part or parts of the Premises and/or the Building including without limitation providing the Landlord with access to the Premises and/or the Building and copies of any plans data documents or other information held by or under the control of the Tenant that would assist in obtaining an energy performance certificate. To permit the Landlord on reasonable notice to enter the Premises with or without any energy assessor to inspect the Premises for the purposes of preparing an energy performance certificate and/or recommendation report for the Premises or Building. The Tenant shall not commission an energy performance certificate for the Premises without the Landlord's consent such consent not to be unreasonably withheld save that no |
consent shall be required where the Tenant is under a statutory duty to provide an energy performance certificate to a third party. The Tenant shall supply a copy of any energy performance certificate and associated recommendation report and reference number commissioned by the Tenant in respect of the whole or any part or parts of the Premises and/or the Building within one month of receipt of it by the Tenant. If the Tenant does anything which invalidates a valid energy performance certificate for the Premises and/or the Building the Tenant will if required to do so by the Landlord obtain a new energy performance certificate for the Premises and/or the Building (as appropriate) or reimburse to the Landlord the proper costs incurred in obtaining one. 0 c |
SCHEDULES Landlord's Covenants Quiet enjoyment The Tenant may enjoy the Premises peaceably during the Term without any interruption by the Landlord or any person lawfully claiming through under or in trust for the Landlord (or by title paramount). 2Landlord's Right of Entry If the Landlord shall exercise any of the rights of entry onto the Premises conferred by this Lease then in relation to any such entry: 2.1it shall make good all damage occasioned to the Premises or to the Tenant's fixtures and fittings and chattels and it shall cause as little inconvenience as reasonably possible; 2.2save where entry is required to remedy a breach of Tenant's covenants it shall consider all reasonable alternatives not involving any materially greater cost and shall consult with the 0Tenant; 2.3it shall ensure so far as reasonably practicable that such rights of entry are exercised outside normal business hours. • • |
SCHEDULE 7 Insurance Provisions • (Subject to the Tenant complying with paragraph 3.2) the Landlord shall insure: the Building in its full reinstatement value (including the full cost of demolition site clearance the provision of temporary support all necessary professional fees in connection with such works and Value Added Tax thereon); and a sum to cover three years (or such longer period as the Landlord may reasonably require) loss of Rent; against the Insured Risks provided that the Landlord shall only be obliged to insure under this paragraph 1.1 to the extent that insurance is available with a reputable insurer in the London insurance market. The Landlord may (but shall not be obliged to) take out third party and public liability insurance and any other relevant insurances in respect of the Building including any Plant0 and including insurance against liability under the Defective Premises Act 1972 and any other relevant Law. To the extent that any excess exclusion or limitation in any policy applies or the Tenant fails to comply with paragraph 3.2 or insurance is not available on the London insurance market with a reputable insurer then any risk which would otherwise be an Insured Risk but which is not actually covered shall not be an Insured Risk. Where the Landlord is an insurance company it may self-insure and will be deemed to do so on its normal terms and at its normal commercial rates. The Landlord shall not be obliged to account to the Tenant for any commission or other benefit obtained by the Landlord for placing any insurance policies, referred to in this paragraph 1. The Landlord shall use reasonable endeavours to procure that: the insurers waive any rights of subrogation against the Tenant and any other lawful occupier of the Premises; the insurance policy contains a non-invalidation clause. The Landlord shall provide (but not more than once in any 12 month period) upon written request from the Tenant, a copy of the existing insurance policy and reasonable evidence that such policy is in force. 2Reinstatement Subject to obtaining all planning and other necessary consents in a satisfactory form which the Landlord shall use all reasonable endeavours to obtain as soon as possible (and to receiving the insurance monies referred to in paragraph 1.1(a) (making up any shortfall out of its own monies) and any monies due under paragraph 3.3) the Landlord shall make good the relevant damage or destruction caused by an Insured Risk (but not so as to provide accommodation identical in layout appearance design or construction if it would not be reasonably practicable or appropriate to do so) provided that the Landlord shall not be obliged to make good if such making good is rendered impossible by causes beyond the Landlord's reasonable control. |
Tenant's insurance covenants To pay to the Landlord within ten Working Days of written demand (which may be in reasonable advance of the premiums falling due) the Insurance Rent. Not (by act or omission) to do anything which may invalidate any insurance policies effected by the Landlord or a superior landlord or to render any insurance monies irrecoverable or to increase the premium for them nor to maintain any insurance against any Insured Risks in respect of the Premises or the Building. To pay to the Landlord within ten working days of demand any insurance monies either refused by reason of any breach of paragraph 3.2 or required to be paid by way of increased premium as a result of the Tenant's occupation of the Premises and all costs loss or damage suffered by the Landlord by reason of any breach of paragraph 3.2. To pay within ten Working Days of demand following a claim which relates to the Premises a fair proportion of any excess under any policy of insurance referred to in paragraph 1 above. 3.5 0 To notify the Landlord in writing promptly of any damage to or destruction of the Premises or other event likely to lead to a claim on the Landlord's insurance relating to the Premises. 3.6To give to the Landlord written details of any alterations or works which are proposed to be carried out at the Premises before such works are commenced. • Suspension of Rent If the whole or any part of the Premises or any access thereto is destroyed or damaged by an Insured Risk so that the Premises are unfit for use or occupation or without essential services then (unless and to the extent that any insurance money is irrecoverable by reason of any act or default of the Tenant or any undertenant or its or their servants or agents and the Tenant has not made good the shortfall) the Rent and Insurance Rent and Service Charge or a fair proportion of them according to the nature and extent of the damage shall be suspended until the Premises or such access are again fit for use and occupation or (if earlier) until the period of loss of Rent insurance cover expires. Termination If any damage or destruction of the Premises or any access thereto by an Insured Risk has not been made good so as to make the Premises or such access fit for occupation and use by the date when the loss of Rent insurance cover expires then either the Landlord or (unless any insurance money is irrecoverable by reason of any act or default of the Tenant or any undertenant, invitee or licencee of the Tenant) the Tenant may by written notice served at any time (but before such making good occurs) determine this Lease without prejudice to any rights and remedies any party may have against the other and all insurance proceeds shall belong to the Landlord and the Landlord will reimburse the Tenant any monies paid in advance and attributable to the period follow ing the date of such termination . 6Disputes Any dispute under paragraphs 4 and 5 shall be determined by an arbitrator who shall be appointed and who shall act in accordance with clause 9 of this Lease. 7Terrorism 7.1In this paragraph 7 "Terrorist Damage" means that the Premises have been destroyed or damaged by terrorist action and such risk is not fully insured or is subject to some special 44933320.2 |
limitation excess or exclusion such that the full cost of reinstatement and rebuilding (save for any normal excess) is not recoverable by the Landlord under the insurance policies for the Premises. If there is Terrorist Damage then: Premises shall be deemed to have been damaged by Insured Risks; and• 7.2.1 for the purpose of the repairing clauses and rent cesser under this Lease the within nine months of the damage or destruction in question the Landlord shall give written notice to the Tenant ("Election Notice") stating whether or not it proposes to rebuild or reinstate the Premises; if the Election Notice states that the Landlord does propose to rebuild or reinstate the Premises then for all the purposes of this Lease the Terrorist Damage shall be deemed to have been damage by Insured Risks in respect of which the full insurance monies are recoverable by the Landlord under the insurance policies; if the Election Notice states that the Landlord does not propose to rebuild or reinstate the Premises or if no Election Notice is served strictly within the0 period of nine months referred to in paragraph 7.2.2 then this Lease will determine with immediate effect; if the Lease is determined under paragraph 7.2.4 the Tenant shall be permitted a reasonable time not exceeding one month to remove from the Premises any fixtures fittings or equipment belonging to it and shall not be required to reinstate any alterations or additions made by it nor to yield up the Premises in the state of repair and decoration which would (but for the Terrorist Damage) be required by this Lease. c 44933320.2 |
SCHEDULES Service Charge Provisions PART1 Definitions and Interpretation In this Schedule 8 and in this Lease the following definitions apply: "Service Costs" means the costs and expenses specified in Part 4 of this Schedule excluding the costs and expenses specified in Part 7 of this Schedule; "Service Charge Budget" means a budget setting out the estimated Service Costs and estimated Service Charge to be incurred and payable in a Service Charge Period; "Service Charge Period" means the period of twelve months from 1 January to 31 December in each year or such other period as the Landlord may from time to time designate; "Standard Services" means the services and heads of charge listed in Part 2 of this Schedule as may from time to time be varied pursuant to the terms of this Schedule; "Additional Services" means the services and heads of charge listed in Part 3 of this Schedule as may from to time be varied pursuant to the terms of this Schedule; "Service Charge" means that part of the Service Costs in any Service Charge Period payable by the Tenant and which shall be a fair and proper proportion of the Service Costs determined by the Landlord acting reasonably and which shall normally be based primarily on the proportion which the net internal area of the Premises bears to the net internal area of those parts of the Building intended for letting at the relevant time (but which may take account of other relevant factors where this is consistent with the principles of good estate management) but including a fair proportion of the service costs determined by the Landlord acting reasonably for providing any Services in relation to the Car Park; "Services" means the Standard Services and the Additional Services. PART2 Standard Services and Heads of Charge Repair and operation of the Building The repair decoration cleaning lighting maintenance inspection testing operation and (where beyond economic repair) replacement renewal or rebuilding of the Retained Parts (including any items in the nature of Plant within or serving the Retained Parts of the Building). The provision and operation of refuse collection storage and disposal facilities for the Building. Compliance with any Law and with requirements or reasonable recommendations of insurers in relation to the use occupation and enjoyment of the Building (other than those areas intended for letting). The payment of any rates taxes assessments impositions charges and outgoings assessed or imposed on or in respect of the Retained Parts (except any Excepted Tax). Cleaning the outside of the windows of the Building. Heating and Cooling The provision of adequate heating and ventilation to the Common Parts. |
The provision of adequate air conditioning to the Common Parts.• Lifts The operation of any passenger and service lifts in the Retained Parts. Toilets The provision of hot and cold water and all proper equipment and other requisites in any kitchens and toilets in the Retained Parts (if any). Fire Fighting and Security The provision of : fire alarms fire prevention fire fighting and sprinkler systems equipment and apparatus for the Building; such security patrols and/or observation systems and/or other security equipment and systems for the Building as the Landlord considers appropriate (acting reasonably). PART3 Additional Services obtaining insurance policies against mechanical breakdown or other risks in respect of any lifts boilers and any other relevant items in the nature of Plant in or serving the Retained Parts of the Building; 2obtaining insurance policies against employers liability third party and public liability or other relevant insurances in respect of the Building and its operation and management including insurance against liability under the Defective Premises Act 1972 and any other relevant Law; I the cost of valuations for insurance purposes at appropriate intervals provided always that (in the absence of material changes to the Building) these are not carried out more than once in any 24 month period; maintaining and (where beyond economic repair) replacing any furniture furnishings carpeting and equipment in the Retained Parts (including any control areas staff rooms or storage areas); planting maintaining and (where beyond economic repair) replacing any grounds trees landscaped areas plants and flowers in the Retained Parts; • the provision and maintenance of signs hoardings showcases advertisements fascias or notices in or to serve the Common Parts; maintenance or service contracts for any items in the nature of Plant in or serving the Building; the provision of any other services which the Landlord from time to time reasonably considers appropriate having regard to the principles of good estate management; • |
PART4 Service Costs The Service Costs are all costs and expenses properly incurred by the Landlord in connection with the Building and its operation and management in any Service Charge Period including (without limitation) the following: the provision of the Services; standing and other charges for the provision or supply of gas electricity and other services to the Building and of fuel or other power for any items in the nature of Plant serving the Building; any reasonable costs payable to any Superior Landlord (except for rent payable under any Superior Lease) or to any other parties arising out of any Title Matters and any reasonable costs payable by the Landlord as a contribution to the cost of maintaining renewing repairing cleaning or lighting any structures or things that are used in common by the Building with adjoining or nearby premises, including contributions paid if the Premises are within a Business Improvement District or the like; the employment or hiring of staff for the provision of the Services (including management and security) to the Building (including costs of or expenditure on health national and other insurances pensions and other benefits recruitment and redundancy or severance costs and the provision of uniforms protective clothing vehicles tools and other equipment required in connection with their duties); the cost of making any claims or taking or defending any proceedings which the Landlord reasonably requires in respect of any rights or services enjoyed by the Building or its occupiers to which it or they may be entitled or against any contractors or professional persons supplying any works or services in connection with the Building; the cost of employing managing agents to provide the Services and manage the Building and prepare Service Charge budgets and apportionments or (if the Landlord carries out this function itself) a fee for the Landlord (such cost or fee being no more than shall be reasonable in each case); any reasonable fees and expenses payable to surveyors accountants or other persons for auditing Service Charge accounts; all professional charges fees and other expenditure payable by the Landlord in respect of the Services and the Service Costs; an amount or amounts reasonably determined by the Landlord as appropriate to build up a sinking fund and I or a reserve fund with a view to ensuring as far as reasonably practicable that the Service Charge is consistent and fluctuations from year to year are reduced PROVIDED THAT: the said monies shall be held by the Landlord for the purposes for which they were collected for the joint benefit of the Landlord and all; tenants from time to time in the Building (as the case may be) until such time as the said monies shall be required for use for the said purposes they should be held upon trust upon the terms of this Lease and the Landlord shall as soon as practicable after the end of each accounting period place the same on deposit in a separately designated interest earning account with interest being credited to the account (net of any tax thereon); the Landlord shall apply the monies and all income thereof (after payment of or provision for any tax payable thereon) whenever necessary or as provided for in this Lease in or towards the discharge of the expenditure for which they are collected or held; |
if the Landlord charges the Tenant with a contribution to the sinking fund and/or reserve fund then the Landlord will itself contribute to that fund the contribution attributable to any lettable parts of the Building in respect of which the Landlord for the time being is not entitled to receive such contribution from a tenant thereof for whatever reason (and such contribution by the Landlord shall not itself form part of the Service Costs); the Landlord shall keep proper records and accounts of the sinking/reserve fund consistent with the principles of good estate management and if so required in writing by the Tenant will permit the Tenant upon prior appointment to inspect the said records and accounts ; • the reasonable costs claims or liabilities reasonably incurred by the Landlord in connection with or arising from the keeping, revising and otherwise reviewing and updating of the Health and Safety File. PART5 Calculation and Payment of Service Charge The Landlord will provide the Tenant with the Service Charge Budget before or as soon as practicable during any Service Charge Period. 2The Tenant shall pay the estimated Service Charge by way of four equal quarterly payments in advance on the same days upon which the Rent is payable under this Lease. • The Service Charge shall be treated as accruing on a daily basis for the purpose of apportionments in respect of any relevant periods of less than one year (for example, if the end of the Term does not coincide with the end of a Service Charge Period). The Landlord may revise the Service Charge Budget prior to or during any Service Charge Period having proper regard to likely Service Costs for the relevant Service Charge Period and the Tenant shall pay the Landlord any additional estimated Service Charge then due within twenty Working Days of demand. c If the Service Charge exceeds the estimated Service Charge then the Tenant shall pay such excess to the Landlord within ten Working Days of receipt of the statement. If the Service Charge is less than the estimated Service Charge then the excess paid by the Tenant may (at the Landlord's option) be credited against the next Service Charge payment due from the Tenant or set off against any other sums due to the Landlord under the Lease or (if neither of these is applicable) repaid to the Tenant within twenty Working Days of provision of the statement to the Tenant. |
• 16The statement of the Service Costs issued by the Landlord or its managing agent or other authorised representative shall (in the absence of manifest error) be conclusive in respect of matters of fact referred to in it. PARTS Provision of Services The Landlord shall provide the Standard Services and such of the Additional Services as the Landlord reasonably considers appropriate from time to time acting in accordance with good estate management principles. 2The Tenant shall not object to the Service Charge (or any item of it) on any of the following grounds: 02.1the employment of managing agents to provide the Services on behalf of the Landlord; the inclusion of any item of Service Costs which might have been provided at a lower cost; the inclusion in any Service Charge Period of any item of cost or expenditure omitted from the Service Charge in any preceding Service Charge Period (save for any cost or expenditure incurred prior to the date of this Lease). 3The Landlord shall not be required to apportion or account for the Service Charge on any assignment of this Lease by the Tenant and the Landlord shall be entitled to deal exclusively with the Tenant in whom this Lease is vested from time to time. • The Landlord may add to vary or withdraw any of the Services at any time where it is reasonable to do so in the interests of good estate management or for the benefit of the majority of the occupiers of the Building. If the Building is extended added to or altered in any substantial manner or if it is otherwise reasonable to do so the Landlord may adjust the Service Charge on a fair and reasonable basis. PART7 Exclusions from Service Charge The following items shall be excluded from the Service Charge: any fees and expenses attributable to disputes not relating to Common Parts with other tenants or occupiers of the Building or attributable to any action or proceedings relating to the Landlord's title to the Building or a superior title; any amount attributable to any unlet lettable areas in the Building; Service Costs attributable to any part of the Building which has been let but where the relevant tenant has not paid such costs (whether or not the Landlord has taken legal proceedings to recover such costs); |
the cost of collection of rents; the costs of making good any damage caused by any of the Insured Risks and acts of terrorism whether or not an Insured Risk. costs incurred in substantial refurbishment or in the extension upgrade or improvement of the Building beyond those required to maintain the Building as high class offices in accordance with the principles of good estate management. anything payable by a third party. anything relating to the letting or sale of the Building or any part of it. any VAT where it is recoverable. 1Oanything arising as a result of a negligent or wrongful act or default of the Landlord or its agents. 0 • • |
SCHEDULE9 Form of Authorised Guarantee Agreement THIS DEED dated BETWEEN: •(Company No. •)whose registered office is at• ("the Guarantor") (2)•(Company No.•} whose registered office is at• ("the Landlord") WITNESSES as follows: Definitions and Interpretation 1.1In this Deed the following definitions apply: 0"1995 Act" means The Landlord and Tenant (Covenants} Act 1995 "Authorised Guarantee Agreement" has the meaning given to such term in Section 28 of the 1995 Act • "Lease" means a lease of the Premises dated • made between • (1) and • (2) and includes where relevant any Deed of variation licence consent or other document supplemental to or associated with the Lease "Premises" means • I"Relevant Variation" has the meaning given to it in Section 18(4) of the 1995 Act "Tenant" means• (Company No.) In this Deed unless the context otherwise requires : words importing persons include firms , companies and corporations and vice versa any obligations undertaken by more than one person are joint and several obligations words denoting the singular number include the plural and vice versa any obligation in this Deed on the Guarantor not to do or omit to do any act or thing shall include an obligation not to allow such act or thing to be done or omitted to be done references to numbered clauses and schedules are references to the relevant clause in or schedule to this Deed and reference in any schedule to numbered paragraphs are references to the numbered paragraphs of that schedule in this Deed reference to observance and performance of covenants and obligations by the Tenant shall for the avoidance of doubt include payment of any rents and other sums due |
Guarantee• In consideration of the Landlord granting licence to assign the Lease to the Tenant so that the Guarantor is released from its obligations as tenant under the Lease the Guarantor • The guarantee contained in clause 2.1 shall (unless and to the extent that such matters amount to a Relevant Variation) also be a guarantee of: payment by the Tenant to the Landlord of any sums due and the observance and performance of all covenants and obligations to be observed or performed by the Tenant under or by virtue of any compromise or arrangement agreed to between the Tenant and the Landlord the payment of any sums payable and the observance and performance of any covenant or obligation of the Tenant subject to which the Tenant obtains an order from any court relieving it against forfeiture 0 payment by the Tenant of any sums due from the Tenant and the observance and the performance by the Tenant of all covenants and obligations on its part contained in any Deed of variation licence consent or other document supplemental to or associated with the Lease or any relevant Authorised Guarantee Agreement and the Guarantor shall at the request of the Landlord join in any such Deed of variation licence consent or other document (including any relevant Authorised Guarantee Agreement) for the purposes of acknowledging that the covenants in this clause 2 extend to it (but this shall not apply to any Relevant Variation) and for the purpose of this Deed any obligations in clause 2.2.1 - 2.2.3 above shall be deemed to be covenants and obligations of the Tenant in the Lease or in any relevant Authorised Guarantee Agreement Indemnity Notwithstanding clause 2 if the Landlord incurs loss damages demands costs or expenses as a result of the Tenant's failure to observe and perform its covenants and obligations referred to in Clause 2.1 the Guarantor will indemnify the Landlord against such loss damages demands costs and expenses so incurred Primary Obligation The liability of the Guarantor under this Deed is a primary separate and independent liability and is owed to the Landlord by the Guarantor as principal and is irrespective of the liability that exists between the Landlord and the Tenant.c The liability of the Guarantor under this Deed shall continue notwithstanding any forbearance by the Landlord to enforce against the Tenant its covenants and obligations in the Lease or any relevant Authorised Guarantee Agreement or the giving of time or any other concessions to the Tenant; c the taking or holding of or the variation realising release or non-enforcement of any other security for the covenants and obligations of the Tenant; any legal limitation or incapacity relating to the Tenant or the Tenant ceasing to exist; |
• • • any arrangement or compromise entered into by the Tenant or any other person who is liable with all or any of its creditors (whether or not such arrangement or compromise is expressed to bind the Landlord); any other act or omission of the Landlord or any other circumstances which but for this clause 4.2 would discharge the Guarantor, I and for the purposes of this clause 4 the Tenant shall be deemed to be liable to continue to observe and perform the covenants and obligations in the Lease and any relevant Authorised Guarantee Agreement notwithstanding any of the above matters New Lease In this clause 5 "Relevant Event means: the disclaimer of the Lease following the liquidation or bankruptcy of the Tenant under the Lease; or the disclaimer of the Lease after it has become bona vacantia; or 5.1.3the Tenant ceasing to exist. The Guarantor shall if required by the Landlord in writing within the period beginning on the day of the Relevant Event and expiring three months after the Landlord has been notified in writing by the Guarantor or the Tenant of the Relevant Event enter into a new lease of the Premises (the "New Lease") . The New Lease shall: be for a term commencing on the date of the Relevant Event and expiring on the date on which the contractual term originally granted by the Lease would have expired by effluxion of time; be at the rent which would then have been payable (ignoring any period of rent cesser or rent reduction then applicable) under the Lease if it still existed; be otherwise on the same terms as the Lease (but with no provision for a rent free period); • The Guarantor shall pay the Landlord's proper costs of entering into the New Lease including any stamp duty land tax. The New Lease will take effect subject to the Lease, if and to the extent that it is still subsisting, and subject to any underlease or other interest created or permitted by the Tenant. Unless and until a New Lease is granted the Guarantor shall remain liable under the other provisions of this Deed. 44933320.2 |
Other Provisions The Landlord may enforce this guarantee and indemnity without first making demand on or taking proceedings against the Tenant. The Guarantor shall not without Landlord's written consent: exercise any rights of subrogation or indemnity in respect of the Tenant's obligations; take the benefit of or share in or enforce any security or other guarantee or indemnity for the Tenant's obligations; or prove in the bankruptcy or liquidation of the Tenant in competition with the Landlord. Any security taken by the Guarantor and all monies at any time received in respect of it or as a result of any breach of clause 6.2 shall be held in trust for the Landlord as security for the liability of the Guarantor under this Deed. All payments made by the Guarantor under this Deed shall be made without set-off or deduction (whether legal or equitable} or counterclaim. If the Guarantor is legally required to deduct or withhold any sum from any payment due to the Landlord under this Deed (save for deduction of tax which the Landlord can reclaim or which the Landlord would have been obliged to pay} the sum due from the Guarantor in respect of such payment shall be increased so that the Landlord receives a net sum equal to the sum which it would have received had no such deduction or withholding been required to be made. Any settlement or release or discharge made between the Guarantor and the Landlord shall be conditional upon no security disposition or payment to the Landlord by the Tenant the Guarantor any co-guarantor or any other person being void or set aside pursuant to any law relating to bankruptcy liquidation or insolvency or for any other reason whatever and if such condition shall not be fulfilled the Landlord shall be entitled to enforce this Deed subsequently as if such release discharge or settlement had not occurred. Any money received in connection with this Deed (whether before or after the liquidation or bankruptcy of the Tenant or the Guarantor} may be placed to the credit of a suspense account with a view to preserving claims against the Tenant or the Guarantor or may be applied by the Landlord towards satisfaction of such of the obligations of the Tenant as the Landlord requires. 7Interest • Joint and Several Liability etc The liability of the Guarantor under this Deed shall be the joint and several liability of all parties who may have executed this Deed as Guarantor and all other persons who from time to time guarantee the Tenant's obligations to the Landlord. Each person who shall have executed this Deed as Guarantor agrees to be bound by this Deed notwithstanding that any other person intended to execute or to be bound by this Deed may not do so or may not be bound and notwithstanding that this Deed may be or become invalid or unenforceable against any other persons. 44933320.2 • |
9Benefit of this Deed The rights of the Landlord under this Deed will enure tor the benefit of the Landlord and its successors in title without any need for any express assignment of them. • No failure or delay on the part of the Landlord to exercise any power right or remedy under this Deed or at law shall operate as a waiver thereof nor shall any single or partial exercise or waiver of any such power right or remedy preclude its further exercise or the exercise of any other power right or remedy. Costs The Guarantor agrees to pay to the Landlord on demand all legal and other costs properly payable by the Landlord in relation to the enforcement of the Guarantor's obligations in this Deed. Severability Each of the provisions of this Deed is distinct and severable from the others, and if at any time one or more such provisions is or becomes illegal invalid or unenforceable (either wholly or to any extent) the validity legality and enforceability of the remaining provisions (or the same provision to any other extent) will not be affected or impaired. Scope of this Guarantee •13.1 The intention of the parties to this Deed is that it should be an Authorised Guarantee Agreement within the meaning of the 1995 Act. 13.2If any provision or any part of any provision has the effect of causing this Deed not to be such an Authorised Guarantee Agreement that provision or that part is to be treated for all purposes as having been modified (including if necessary by its omission) to such extent as will avoid that effect. Jurisdiction This Deed shall be governed by English law. The parties submit to the non-exclusive jurisdiction of the English Courts. The Guarantor irrevocably appoints Messrs • or such firm as may succeed to its practice as its agent for the service of process in England and Wales service upon whom shall be deemed to be proper service whether or not forwarded to or received by the Guarantor . [NB Clause 14 can be deleted If there is no foreign party. A legal opinion letter may be required if there is a foreign party] I IN WITNESS whereof this Deed has been duly delivered the date first above written [NB INSERT ATTESTATION CLAUSES] , |
SCHEDULE10 Form of Guarantee THIS DEED dated BETWEEN: •(Company No.•) whose registered office is at• (the "Guarantor") •(Company No..) whose registered office is at• (the "Landlord") WITNESSES as follows : Definitions and Interpretation In this Deed the following definitions apply: "Authorised Guarantee Agreement" has the meaning given to such term in Section 28 of the Landlord and Tenant (Covenants) Act 1995; "Landlord" includes the immediate reversioner from time to time to the Lease; "Lease" means a lease of the Premises dated • made between • (1) and • (2) and includes any deed of variation licence consent or other document supplemental to or associated with the Lease; "Premises" means • "Tenant" means• (Company No •). In this Deed unless the context otherwise requires: words importing persons include firms, companies and corporations and vice versa; any obligations undertaken by more than one person are joint and several obligations; words denot ing the singular number include the plural and vice versa ; any obligation in this deed on the Guarantor not to do or omit to do any act or thing shall include an obligation not to allow such act or thing to be done or omitted to be done; • in this deed reference to observance and performance of covenants and obligations by the Tenant shall for the avoidance of doubt include payment of any rents and other sums due. Guarantee In consideration of the Landlord granting (licence to assign] the Lease to the Tenant at the request of the Guarantor the Guarantor unconditionally and irrevocably covenants w ith and guarantees to the Landlord that: • |
(to the extent the law permits the Guarantor to do so) the Tenant will comply with its covenants and obligations in any Authorised Guarantee Agreement entered into by it pursuant to the Lease; (to the extent the law permits the Guarantor to do so) the Tenant will comply with its covenants and obligations in any new lease entered into by the Tenant with the Landlord pursuant to any obligation on the Tenant to do under the Authorised Guarantee Agreement following disclaimer of the Lease by the assignee or other relevant event. The guarantee contained in clause 2.1 shall also be a guarantee of: payment by the Tenant to the Landlord of any sums due and the observance and performance of all covenants and obligations to be observed or performed by the Tenant under or by virtue of any compromise or arrangement agreed to between the Tenant and the Landlord ; the payment of any sums payable and the observance and performance of any covenant or obligation of the Tenant subject to which the Tenant obtains an order from any court relieving it against forfeiture ; 2.2.3 • payment by the Tenant of any sums due from the Tenant and the observance and the performance by the Tenant of all covenants and obligations on its part contained in any deed of variation licence consent or other document supplemental to or associated with the Lease or any Authorised Guarantee Agreement and the Guarantor shall at the request of the Landlord join in any such deed of variation licence consent or other document for the purposes of acknowledging that the covenants in this clause 2 extend to it, and for the purpose of this deed any obligations in clause 2.2.1 - 2.2.3 above shall be deemed to be covenants and obligations of the Tenant in the Lease (or, as applicable the Authorised Guarantee Agreement) . Indemnity Notwithstanding clause 2 if the Landlord incurs loss damages demands costs or expenses as a result of: the Tenant's failure to observe and perform its covenants and obligations under the Lease or any Authorised Guarantee Agreement or under any new lease referred to in clause 2.1.3; or any event referred to in (clause 5) [i.e. the forfeiture clause) of the Lease; or any breach of this Deed, the Guarantor will indemnify the Landlord against such loss damages demands costs and expenses so incurred. Primary Obligation The liability of the Guarantor under this deed is a primary separate and independent liability and is owed to the Landlord by the Guarantor as principal and is irrespective of the liability that exists between the Landlord and the Tenant. The liability of the Guarantor under this deed shall continue notwithstanding : any forbearance by the Landlord to enforce against the Tenant its covenants and obligations in the Lease or any Authorised Guarantee Agreement or the giving of time or any other concessions to the Tenant; |
the taking or holding of or the variation realising release or non-enforcement of any other security for the covenants and obligations of the Tenant; any legal limitation or incapacity relating to the Tenant or the Tenant ceasing to exist ; the invalidity or unenforceability of any of the covenants or obligations of the Tenant; 5 the forfeiture disclaimer or other termination of the Lease or (if applicable) the Authorised Guarantee Agreement or the surrender of part of the Premises ; any variation to the Lease (or the Authorised Guarantee Agreement) including any increase or reduction in the Premises or in the rent payable under the Lease; any arrangement or compromise entered into by the Tenant or any other person who is liable with all or any of its creditors (whether or not such arrangement or compromise is expressed to bind the Landlord); any other act or omission of the Landlord or any other circumstances which but for this clause 4.2 would discharge the Guarantor , and for the purposes of this clause 4 the Tenant shall be deemed to be liable to continue to observe and perform the covenants and obligations in the Lease and any Authorised Guarantee Agreement notwithstanding any of the above matters. New Lease In this clause 5 "Relevant Event" means : the disclaimer of the Lease following the liquidation or bankruptcy of the Tenant under the Lease; or the disclaimer of the Lease after it has become bona vacantia; or the Tenant ceasing to exist. The Guarantor shall if required by the Landlord in writing within the period beginning on the day of the Relevant Event and expiring three months after the Landlord has been notified in writing by the Guarantor or the Tenant of the Relevant Event enter into a new lease of the Premises (the "New Lease"). The New Lease shall: 5.3.1 be for a term commencing on the date of the Relevant Event and expiring on the date on which the contractual term originally granted by the Lease would have expired by effluxion of time; • 5.3.3 • 5.3.4take effect from the date of the Relevant Event. The Guarantor shall pay the Landlord's proper costs of entering into the New Lease including any stamp duty land tax . • 44933320 .2 • |
The New Lease will take effect subject to the Lease, if and to the extent that it is still subsisting, and subject to any underlease or other interest created or permitted by the Tenant. Unless and until a New Lease is granted the Guarantor shall remain liable under the other provisions of this Deed. Other Provisions The Landlord may enforce this guarantee and indemnity without first making demand on or taking proceedings against the Tenant. The Guarantor shall not without Landlord's written consent: exercise any rights of subrogation or indemnity in respect of the Tenant's obligations ; take the benefit of or share in or enforce any security or other guarantee or indemnity for the Tenant's obligations; or prove in the bankruptcy or liquidation of the Tenant in competition with the Landlord. Any security taken by the Guarantor and all monies at any time received in respect of it or as a result of any breach of clause 6.2 shall be held in trust for the Landlord as security for the liability of the Guarantor under this Deed. All payments made by the Guarantor under this Deed shall be made without set-off or deduction (whether legal or equitable) or counterclaim. If the Guarantor is legally required to deduct or withhold any sum from any payment due to the Landlord under this Deed (save for deduction of tax which the Landlord can reclaim or which the Landlord would have been obliged to pay) the sum due from the Guarantor in respect of such payment shall be increased so that the Landlord receives a net sum equal to the sum which it would have received had no such deduction or withholding been required to be made. Any settlement or release or discharge made between the Guarantor and the Landlord shall be conditional upon no security disposition or payment to the Landlord by the Tenant the Guarantor any co-guarantor or any other person being void or set aside pursuant to any law relating to bankruptcy liquidation or insolvency or for any other reason whatever and if such condition shall not be fulfilled the Landlord shall be entitled to enforce this Deed subsequently as if such release discharge or settlement had not occurred. Any money received in connection with this Deed (whether before or after the liquidation or bankruptcy of the Tenant or the Guarantor) may be placed to the credit of a suspense account with a view to preserving claims against the Tenant or the Guarantor or may be applied by the Landlord towards satisfaction of such of the obligations of the Tenant as the Landlord requires. Interest The Guarantor agrees to pay interest on each amount demanded of it under this Deed from the date of such demand until payment (as well after as before judgement) at the [Interest Rate] as defined in the Lease. Joint and Several Liability etc 8.1 The liability of the Guarantor under this Deed shall be the joint and several liability of all parties who may have executed this Deed as Guarantor and all other persons who from time to time guarantee the Tenant's obligations to the Landlord. 44933320.2 |
8.2Each person who shall have executed this Deed as Guarantor agrees to be bound by thisCl Deed notwithstanding that any other person intended to execute or to be bound by this Deed may not do so or may not be bound and notwithstanding that this Deed may be or become invalid or unenforceable against any other persons. 9Benefit of this Deed The rights of the Landlord under this deed will enure tor the benefit of the Landlord and its successors in title without any need for any express assignment of them. No Waiver No failure or delay on the part of the Landlord to exercise any power right or remedy under this Deed or at law shall operate as a waiver thereof nor shall any single or partial exercise or waiver of any such power right or remedy preclude its further exercise or the exercise of any other power right or remedy. Costs The Guarantor agrees to pay to the Landlord on demand all legal and other costs properly payable by the Landlord in relation to the enforcement of the Guarantor's obligations in this Deed. Severability • Jurisdiction This Deed shall be governed by English law. The parties submit to the non-exclusive jurisdiction of the English Courts. The Guarantor irrevocably appoints Messrs or such firm as may succeed to its practice as its agent for the service of process in England and Wales service upon whom shall be deemed to be proper service whether or not forwarded to or received by the Guarantor. [NB Clause 13 can be deleted if there is no foreign party. A legal opinion letter may be required if there is a foreign party] IN WITNESS whereof this deed has been duly delivered the date first above written [NB INSERT ATTESTATION CLAUSES] i • 44933320 .2 • |
SCHEDULE11 Rent Review Basis of Rent Review The Rent as from each Review Date until the next Review Date (or in the case of the last or only Review Date from that Review Date until the end of the Term) shall be the higher of : the Rent payable immediately prior to that Review Date (ignoring any suspension of Rent then applicable under paragraph 4 of Schedule 7 or any Rent Restrictions (as referred to in paragraph 7} then applicable}; and the Open Market Rent (as defined in paragraph 3 below}. 2Agreement or determination 2.1 0 If the Landlord and the Tenant have not agreed the Open Market Rent for the applicable Review Date by the date which is three months prior to such Review Date then either party may refer the matter for determination by an independent professionally qualified surveyor or valuer having experience in the valuation of similar premises (the "Rent Review Surveyor") to be agreed upon by the Landlord and the Tenant or in the absence of agreement (by the date which is two months prior to the Review Date) appointed on the application of either party by the President of The Royal Institution of Chartered Surveyors (or any person authorised to act on his behalf) or if no such person is available then by such officer of such professional body of surveyors or valuers as the Landlord may reasonably designate. The Rent Review Surveyor shall act as an arbitrator and the Arbitration Act 1996 shall apply. • 3Open Market Rent 3.1Open Market Rent means the yearly rent (payable after the expiry of any rent free period or period of concessionary rent for the period of time taken for fitting out} which might reasonably be expected to be paid for the Premises in the open market (without a fine or premium being taken by the willing landlord) on the relevant Review Date on the assumptions set out in paragraph 3.2 and disregarding the matters set out in paragraph 3.3. (Assumptions) 3.2 there is a willing landlord and willing tenant for a letting of the whole of the Premises in the open market with vacant possession; the letting is to be for the residue of the Term remaining at the Review Date; the letting shall commence on the relevant Review Date and is to be on the same terms as this Lease (save for the amount of Rent and Car Parking Rent and ignoring any rent free period or inducement given in this Lease but including the provisions for rent review); all the covenants contained in this Lease have been complied with ; 44933320 .2 |
any destruction of or damage to the Premises or any requisite access to or services for them has been reinstated; the Premises are ready to receive the willing tenant's fit out works and the willing tenant is to receive the benefit of any rent free period or concessionary rent period for the period of time taken for fitting out which may at the relevant Review Date be usual on the grant of a new lease on the terms set out in this paragraph 3.2; the Premises comply with any Law affecting them and can be lawfully used for any purpose permitted under this Lease; • that no reduction is to be made to take account of any rental concession. (Disregards) 3.3 0 any effect on rental value of the fact that the Tenant its sub-tenants or their respective predecessors in title have been or is in occupation of the Premises; any goodwill attached to the Premises by reason of the carrying on there of any business; any work carried out at the Premises which reduces the rental value of the Premises; • effected at the Landlord's cost; or effected pursuant to an obligation to the Landlord save tor any obligation to comply with statutory requirements or any law; or which may give rise to any liability on the Landlord to pay any compensation to the Tenant under the provisions of the Landlord and Tenant Act 1927 or otherwise; any effect on the rental value of disturbance or nuisance resulting from any works being carried out on any neighbouring premises; any actual or potential obligation on the Tenant or any undertenant to reinstate alterations or additions to the Premises. Backdating of reviewed rent and interest If the Rent on any review shall not have been agreed or determined until after the relevant Review Date then the Rent reserved immediately before the relevant Review Date shall continue to be payable until the new Rent has been ascertained after which the new Rent shall be payable; and the difference (if any) between the Rent actually paid in respect of any period after the Review Date and the Rent which would have been payable in respect of that period if the new Rent had been ascertained on or before the Review |
Date shall be added to and be payable with the first instalment of Rent falling due after the new Rent has been ascertained; and 2 interest shall also be payable (with the first instalment of Rent falling due after the new Rent has been ascertained) at three per cent below the Interest Rate on each part of the difference from the date such parts would have been payable if the new Rent had been ascertained on or before the relevant Review Date to the date of actual payment of such parts of the difference. If the Rent on any review is ascertained on or before the relevant Review Date and that date is not a quarter day the Tenant must on that Review Date pay to the Landlord the difference between the Rent due for that quarter and the Rent already paid for it. 5Costs of Determination 5.1The cost of the reference to the Rent Review Surveyor and of his determination or award shall be paid as he may direct and in the absence of any direction each party shall bear its own costs in so far as any Law does not require otherwise. 5.2If either party fails to pay any such costs awarded against it or directed to be paid by it within 0twenty Working Days of demand by or on behalf of the Rent Review Surveyor then either party may pay any such amount on the Tenant's behalf and the amount so paid shall become a debt immediately due from the Tenant to the Landlord. • Within twenty Working Days of agreement or determination of the Open Market Rent the Landlord and the Tenant shall each sign and exchange a memorandum recording the increased Rent (or recording that there is no increase in the Rent) but the absence of any such memorandum shall not affect the liability of the Tenant to pay any reviewed Rent. Rent Restrictions If, at any time during the Term, restrictions are imposed by any statute for the control of rent which prevent or prohibit wholly or partly the operation of the rent review provisions contained in this schedule or which operate to impose any limitation, whether in time or amount, on the collection and retention of any increase in the Rent or any part then and in each case respectively: the operation of the rent review provisions contained in this schedule shall be postponed to take effect on the first date on which such operation (whether wholly or partially and with or without limited effect) may occur and in the case of restrictions which partially prevent or prohibit such operation and/or limit its effect on each such date; and the collection of any increase in the rent shall be postponed to take effect on the first date on which such increase may be collected and/or retained in whole or in part and on as many occasions as shall be required to ensure the collection of the whole increase, and, until such restrictions shall be relaxed either wholly or partially, the Rent shall be the maximum sum from time to time permitted by such restrictions. aTime not of the essence Nothing in this Lease shall make time of the essence in relation to the review of the Rent. 9Car Parking Rent The Car Parking Rent shall also be reviewed and paragraphs 1, 2, 4, 5, 6, 7 and 8 shall apply as if the word "Rent" were replaced by the words "Car Parking Rent" but paragraph 3 shall not apply and "Open Market Rent" for the purpose of the Car Parking Rent shall be the |
yearly rent which might reasonably be expected to be paid by a willing tenant or licencee for a space in the Car Park in the open market (without a fine or premium being taken by the willing landlord) on the Relevant Review Date for a period of one year. • 0 • • |
• J I I :> ' n I d! u.LJ I tI I ,, P House riestley .!! ::! ..f--1II :!! •:::; It Location Plan r 1:1250 •--- ------- 1 s......... CORE A ·I.rl/'1s ri o-"Q-cl Rev Descriplion Date ii --1 DDDD \j CORE 8 Lease Plan SHOP DRAWINGS. CONTRACTOR TO VERIFY ALL DIMENSIONS ON SITE BEFORE COMMENCING ANY WORK OR PREPARING It-----------..... - - ...._ -... - ------' --- -----ALL WORK MUST COMPLY WITH THE RELEVANT AUTHORITI ES REQUIREMENTS AND THE CONTRACTOR SHALL BE RESPONSIBLE FOR OBTAINING ALL NECESSARY STATUTORY CONSENTS. DIMENSIONS MUST NOT BE SCALED FROM THIS PRINT. Savtlls UK Limited Ground FJoor City Point 29 King Street Leed • LS1 2HL savills Itr-CLIENT: Toi. 01132440100 Fax.0113 244 0104 I Legal& General Floor Plan It It 1 :200 PROPERTY:9 Bond Court Leeds LS1 2JZ TITLE: Lease Plan 5111Fioor [REF:LP--00111DATE: April 2017I I SCALE:Various @ A:J 11DRAWN:MHI |
Exhibit 10.5
NONRESIDENTIAL LEASE AGREEMENT In Madrid , on April 7, 2016 Of the one part , INSTITUTO BIOMAR, S.A., a Spanish company, with registered office in Le6n (Spain), at Parque Tecnol6gico de Le6n, Pare M 10.4, 24009 Armunia , registered at the Le6n Conunercial Registry in volume 778, sheet 157, page LE-7540 and with tax identification number A24330292 (the "Lessor "), represented in this act by its director Mr. Marcos Fernandez Ashton , of age, a Spanish national , with domicile for such purposes in calle Jiloca, n° 3, 5° Izquierda , 28016 Madrid , and with national identification number 07221717-Q . It exercises this representative authority pursuant to the resolutions adopted by the board of directors of the Seller on April 6, 2016 . And of the other pati, Of the one pati, 4D PHARMA LEON, S.L.U., a Spanish company, with registered office in Le6n (Spain) , Parque Tecnol6gico de Le6n, Pare M I 0.4, 24009 Armunia , registered at the Madrid Commercial Registry in volume 33,662, sheet 52, section 8, page M-605922 , pending to register the change of the registration of the company from the Madrid Conunercial Registry to Le6n Commercial Registry and with tax identification number B87319489 (the "Lessee"), represented in this act by Alexander James Stevenson , of age, a British national , with domicile for such purposes at Leeds (United Kingdom), at Third Floor , 9 Bond Comi, Leeds, LSI 2JZ, with passpo1i number 521352385 and with Spanish foreign identification number Y4628368T . He exercises this representative authority as representative of the Purchaser as it is stated in the minutes of the sole director of the Purchaser dated April 1, 2016. INSTITUTO BIOMAR , S.A. and 4D PHARMA LEON, S.L.U., shall also be refen-ed to jointly as the "Parties " and, individually , where applicable, as a "Party ". The patiies recognize each other 's legal capacity to enter into this non-residential lease agreement (the "Agreement ") and, |
WHEREAS The Lessor is the owner of an industrial building (the "Industrial Building") , being its descriptive data as follows: Description: Industrial building located on the plot of land marked as Manzana M-10.4, with an industrial-technological use, resulting from Actuaci6nUrbanfstica Plan Parcial del Sector Industrial "Parque Tecnol6gico ", fonnerly known as Parque Empresarial, in Leon , located amongst the municipal terms of Oteruelo de la Valdoncina, Almunia, Carretera de Circunvalaci6n (Ring Road) and the Railroad Palencia-La Corufia. The industrial building occupies 1,432.5 sqm over the plot of land and consists of ground floor and first floor, with a total built area of 2,396.64 sqm. Title deed: The Industrial Building belongs to the Lessor pursuant to the titles of purchase and sale, finished new works and modifications to the new works. Registry details: It is registered in the name of the Lessor at Prope1ty Registry number 3 in Leon, in Volume 3311, Book 399, Sheet 49, registered Prope1ty number 19413. Condominium arrangement: It has not been divided into a condominium property aITangement and does not form part of any condominium prope1ty regime or real estate complex. Charges and encumbrances: a. Subsequent condition, deriving from the origin estate (prope1ty registry no . 16,119) in favor of Leon Town hall, with the scope indicated in the extract attached as Annex 1. b. Subsequent condition in favor of Gestion Urbanistica de Castilla y Leon, S.A., with the scope indicated in the extract attached as Annex 1. c. Mortgage in favor of Banco Sabadell , S.A. ("Banco Sabadell"), in guarantee of a loan with maturity date on March 3, 2024, with the scope indicated in the extract attached as Annex 1. d. Attachment, under the terms of mticle 31.4 of the Subsidies General Law 38/2003, for reimbursement of the non-payable grant awarded by Resolution dated December 29, 2006 from the President of Agencia de Inversiones y Servicios de la Junta de Castilla y Leon, to the Lessor, with the scope indicated in the extract attached as Annex 1. - 2 - /i> |
Cadastral reference. 7075607TN8177N0001SU . The above Industrial Building houses, inter alia, the following area and outside there are some parking spaces, which are the subject matter of this lease (jointly, the "Premises"): 966.03 sqm on the ground floor and 451.46 sqm on the first floor, identified in the plan attached as Annex 2. 12 parking spaces, highlighted in Annex 2 in yellow. For the purposes of clarification, this lease agreement includes the Lessee 's right to share with the Lessor the use of (a) the common areas of the Industrial Building, which appear in Annex 2 highlighted in blue, (b) entry to and exit from the Industrial Building and the plot of land housing it and, (c) in general, any other right or area that is necessary in order for the Lessee to use the Premises under the terms and conditions of this Agreement. The Lessor wanants that it is who uses the paii of the Industrial Building that is not leased as paii of the Premises . On this date and prior to this act, the Lessor, Lessee and 4D Pharma plc have executed a sale and purchase agreement for the acquisition by the Lessee of the Lessor's independent fermentation production unit located in Parque Tecnol6gico in Leon, where the Industrial Building is located (the "Business Sale and Purchase Agreement") . The Parties have agreed , as part of the Business Sale and Purchase Agreement, to the lease of the Premises for the business development of the Lessee , pursuant to the following CLAUSES Lease The Lessor leases to the Lessee, which accepts, the Premises described in Recital II above, as is, up to date in payment of all types of expenses and taxes, together with all its rights and appurtenances , and for the term , rent and other terms and conditions provided for in the Agreement. As indicated in Whereas II, in addition to the Premises, this lease agreement includes the Lessee 's right to share the use with the Lessor of (a) the common areas of the Industrial Building, which appear in Annex 2 highlighted in blue, (b) entry to and exit from the Industrial Building and the plot of land housing it and, (c) in general, any other right or area that is necessary in order for the Lessee to use the Premises under the terms and conditions of this Agreement. - 3 - |
Possession of the Premises is handed over in this act by the Lessor to the Lessee, which receives and accepts it, in its crnTent state of maintenance and repair , of which the Lessee states it is aware. The Lessor represents and wmrnnts as follows in relation to the charges and encumbrances existing over the Industrial Building and, consequently, over the Premises: It is up to date in compliance with their obligations related to each of the above charges and encumbrances , there being no circumstance which may affect the use of the Premises or normal development of this Agreement. This Agreement does not entail any breach of the terms and conditions of the various obligations assumed by the Lessor in relation to each of the charges and encumbrances . Prior to this date, the Lessor has informed Banco Sabadell of the contents of this Agreement, and the Bank has not raised any objection or comment to the same. In any event, the Lessor shall notify the Bank in a duly attested manner actual execution of this Agreement within five days, attaching a copy of such agreement. The Lessor undertakes to keep the Lessee in peaceful possession of the Premises during the whole term of this Agreement. Inter ctlia, the Lessor unde1iakes to continue complying with the obligations relating to the charges and encumbrances existing over the Industrial Building (including payments to be made for any reason, whether of an urban nature, payments relating to the m01igage existing over the Industrial Building, etc.), so that normal use and enjoyment of the Premises by the Lessee according to the terms and conditions agreed herein is not affected. The Lessor acknowledges that the representations and guarantees and obligation assumed under this Clause are of an essence and undertakes to keep the Lessee hannless against any expenses and damages that may be suffered by the Lessee as a result of noncompliance or defective fulfillment of what has been represented and agreed. 1.4 The Pmiies hereby place on record that this is an urban lease agreement, pursuant to the provisions of miicle 3 of the Urban Lease Law 29/1994, of November 24, 1994 and subject to miicle 4 thereof. /)-4 - |
2.Use 2.1The Premises under the Agreement shall be assigned for development of the Lessee's industrial activity and ancillary activities, such as offices or any other admitted by applicable regulation . The Lessee may use the Premises as its registered office or registered office of any company within its group of companies, although, in such cases, such circumstance must be modified immediately on termination of the Agreement for any reason . . The Lessee may use the Premises (as well as the other areas refeITed to in Clause 1.1 above) 24 hours a day, every day of the year, without any restriction whatsoever for the purposes hereof by the Lessor, amongst others, in relation to the access to and exit from the Premises and/or the plot of land on which it is located. Term Term. The te1m of this lease is established at ten (10) years as from the execution of the Agreement, which shall therefore remain in force until April 7, 2026 (the "Term"), without prejudice to Clause 3.2, Clause 12 (c) and Clause 15.3 below . Unilateral withdrawal by the Lessee. After the first five (5) years of the Term have elapsed, the Lessee is entitled to unilaterally withdraw from this Agreement without paying any indemnification to the Lessor, although it shall notify the Lessor of its intention to terminate this Agreement, in writing, at least six months prior to the date when termination is to take effect. For example, if the Lessee intends to terminate this Agreement with effects on April 7, 2021, it shall so notify the Lessor before October 7, 2020; if the Lessee intends to te1minate this Agreement with effects November 30, 2021, it shall so notify the Lessor before May 31, 2021; and so on. Vacation. On termination of this Lease Agreement for any reason , the Lessee must make the Premises available to the Lessor in proper maintenance condition considering the maintenance obligations provided for in this Agreement as well as any such wear and tear as may derive from the normal use thereof. Therefore, the Lessee is not obliged to reinstate the Premises to its present status which is described in Annex 3, which includes several pictures . The Lessee shall remove from the Premises any such furnishings, installations, machinery, fittings and objects belonging to it placed therein. Attached as Annex 4 is a list of the installations and elements existing at the Premises, which are owned by the Lessor and are paii of the Premises and, as |
such, the Lessee shall be entitled to use them for caffying out its activity at the Premises. Any delay in the handover of the Premises shall give rise to daily indemnification , which shall substitute any indemnification for damage or losses, equal to double of 1/30 of the monthly rent until the date on which the Premises are vacated on the agreed terms. Payment of this amount shall not entitle the Lessee to continue using the Premises or in any way prevent the Lessor from taking such action as it may deem fit in order to ensure the vacation thereof. Rent Amount of the rent. The rent agreed on for the lease of the Premises amounts to the fixed global figure of SEVENTY EIGHT THOUSAND AND SIXTY EUROS (€78,060) per year (hereinafter , the "Rent"). The Rent shall be increased by the VAT applicable on the relevant due date. Payment method. The Rent shall be paid by the Lessee in advance monthly installments of SIX THOUSAND FIVE HUNDRED AND FIVE EUROS (€6,505), plus the relevant VAT, within the first seven (7) days of each month. The Rent and the expenses payable pursuant to Clause 8, shall be paid by direct debit from the following bank account , designated by the Lessee in this act for such purposes : Banco Santander: 0049 5144 0020 16136091. The Lessee may substitute the bank account refetTed to above with any other it may have opened in Spain, serving duly authenticated notice of such circumstance on the Lessor at least seven (7) days in advance of the date on which payment is to be made from the new bank account designated by the Lessee. As an exception to the form of payment agreed, the Lessee shall pay to the Lessor the rent corresponding to the current month , amounting to four thousand nine hundred eighty seven euros sixteen cents (4,987.16€), plus VAT amounting to one thousand fo1ty seven euros thirty cents (1,047.30€), less applicable withholding amounting to nine hundred forty seven euros fifty six cents (947.56€), through bank transfer to the bank account held by the Lessor number ES67 2038 9442 67 6000241257, open in Bankia, S.A., within five (5) days following the date hereof . The Lessor shall deliver the relevant invoice to the Lessee within five (5) days following reception of the amount indicated . Theamountindicatedinthepreviousparagraphhasbeencalculated proportionally to the number of days remaining of the current month. Withholdings. The Lessee shall make the withholding provided for in the tax legislation in force over the Rent and other amounts to be paid to the Lessor |
pursuant to the Agreement, unless the Lessor provides annual evidence that such withholding is not applicable under the legally required documents in each case. Invoices. Each month , the Lessor shall issue and send the Lessee an invoice with the legal requirements, including the requirements for the purposes of VAT, between the 15th and the 20th of the month prior to the month in which the relevant monthly payment is to be made . The invoice shall include the following items : the monthly rent amount the amount of the expenses payable that accrue within 30 days prior to the date of the invoice . Late payment. Any amount to be paid pursuant to the Agreement and not settled on the date provided for herein shall accrue default interest at the legal interest rate in force on the date of non-payment. Rent review The agreed Rent shall be reviewed on January 1 of each year, upwards or downwards, in line with any variations to the Spanish General National Index of the Consumer Pricing System ("CPI"), published by the National Statistics Institute or any such body as may replace it, save for the rent c01Tesponding to the sixth year , which shall be reviewed in accordance to market prices as indicated in paragraph 5.4 below. The reviews deriving from the system described above shall be cumulative in nature throughout the term of the Agreement. As an exception, the first review of the rent shall take place on January 1 of 2017, taking into consideration the variation to the CPI between April and December of the year 2016. The Lessor must serve annual written notice on the Lessee of the new updated rent, stating the percentage modification applied , within the first five (5) days of the month of January. In the event that the National Statistics Institute ceases to publish the indices referred to in this clause, the review shall be calculated based on any such indices or models as may replace them . The rent corresponding to the sixth year shall be updated in accordance to the market prices to be determined by the Parties, by mutual agreement , or through the real estate consultants appointed by the Paiiies as indicated below. - 7 - |
The Paities shall negotiate to determine the rent corresponding to the sixth year from the 1st to the 7'11 day of September 2020. Should they not reach an agreement within such term, each Pmty shall appoint a real estate consultant with experience in the industrial sector and within the scope of the province of Leon. Appointment of the real estate consultant shall occur within five (5) days following the end of the previous term, in other words, by September 12, 2020. Each of the consultants shall determine the market rent within a term of ten (10) days as from their appointment, in other words, by September 22, 2020. In the event any of the aforementioned dates should fall on a public holiday in Leon, the deadline shall be understood as the following working day. Each Pmty shall communicate to the other Pmty the market rent determined by the consultant appointed by the relevant Party. The average between the rent established by both consultants shall be considered as market rent. Should any of the Patties fail to appoint their consultant within the term indicated or if the consultant appointed by any of the Pmties fail to determine the market rent within the relevant term, then the market rent determined by the consultant of the other Pmty shall be considered as market rent. In any event, the Lessee shall retain the possibility to unilaterally withdraw from this Agreement in accordance with Clause 3.2 above. Each Pmty shall bear the costs of the consultant appointed by the relevant Party. Works Works of the Lessee. The Lessee shall perform conservation and maintenance works required for its activity (save for those indicated in paragraph 6.2 below, which are for the account of the Lessor). It may also perform other works at the Premises provided that they do not affect security, stability or strncture of the Industrial Building. In any event, the Lessee shall perfo1m the works indicated after notifying the Lessor with at least 7 days' prior notice and obtaining the relevant urban licenses, provided that those are mandatory, and under the direction of the relevant technician, provided that it is mandatory. The Lessee shall also provide the Lessor with the information requested by the latter in relation to the works performed. In any event, the works shall be performed in such a way as to not affect the business of the Instituto Biomar, S.A. or to do so at a minimum. Works of the Lessor. The Lessor shall be responsible to perform any works at the Premises and/or the Industrial Building affecting their structure, roof, fac;:ade |
and general installations, not being entitled to charge any cost on the Lessee or increase the Rent. In any event, performance of any works by the Lessor on the Premises shall require prior authorization from the Lessee, unless the work consists in urgent repairs or the remedy of defects imposed by an administrative or judicial authority. In such cases, the work shall be performed in such a way that it does not affect the Lessee's business or does so at a minimum . 6.3Signs. The Lessee may place one sign on the fas;ade of the Premises or the Industrial Building and/or on the te1rnce roof of the Industrial Building after agreement with the Lessor on its dimensions and characteristics . The Lessor shall not deny, condition or delay its authorization unless there is some technical reason o security reason to do so. In any event, the Lessee shall remove its sign upon termination of this Agreement. Licenses The Lessor represents and warrants to the Lessee (a) that it holds the Autorizaci6n Ambiental Integrada for the activity conducted at the Industrial Building, which is in full force and effect, and (b) that it is up to date in compliance with urban regulation on construction of the Industrial Building and it holds the relevant licenses (in pm1icular, works license and first occupation license) so that the Lessee may apply for the urban licenses for the pursuit of its activity, including activity license, opening license and, as the case may be, works license. Lessee unde11akes to apply for and obtain, at its expense, all such authorizations and licenses as may be necessary pursuant to the applicable legislation from time to time for the pursuit of its activity in the Premises. The Lessor shall cooperate with the Lessee providing the relevant documentation or with other actions which may be necessary or convenient to process application of the authorizations or licenses of the Lessee. Expenses and Taxes Payable by the Lessee: The Lessee shall be responsible for payment of the following amounts : 50% of the following items: general expenses for suitable maintenance of the Industrial Building, water and natural gas supply, waste management and Prope1iy Tax, according to the breakdown attached hereto as Annex 5. For the purposes of clarification, the amounts and items listed in Annex 5 include those relating to the Premises themselves, as well as the rest of the Industrial |
Building , including common areas that are also subject to use under this Agreement , as indicated in Whereas II and Clause 1.1. Electricity expenses incmTed by the Premises and any other private supply contracted by the lessee, such as telephony or the Internet. Expenses and taxes resulting from the business it performs at the Premises . Facility maintenance , repair and replacement expenses, provided they are facilities of the Premises for the exclusive use of the same. The Lessor represents and wmTants that the facilities of the Premises are in perfect state of use and repair. The Lessee shall be entitled, at its sole expense, to modify and/or adapt the private installations, services or utilities of the Premises and change the suppliers, all the above to pursue or improve its activity. In such case, the Lessee shall cease to pay the relevant amounts indicated in this section 8.1 and in Annex 5. Payable by the Lessor The Lessor shall pay all expenses, taxes or items other than those indicated in Section 8.1 above, without passing on any amount thereof whatsoever to the Lessee. Liability and insurance The Lessee shall bear sole and exclusive liability for all such damage as may be occasioned to third persons or things as a result of its activity in the Premises , the · occupation or use thereof or any works performed. With a view to securing such liability, the Lessee must arrange, throughout the Term of the Agreement , civil liability insurance covering, inter alia, such liability for a minimum amount of SIX HUNDRED THOUSAND EUROS (€600,000) as well as a damages insurance. The Lessee must provide evidence to the Lessor , at its simple request, of the existence of the above insurance, the liability insured (and the amount thereof) and the fact that it is up-to-date in payment of the premium. 9.2The Lessor has arranged an insurance of the whole Industrial Building for a minimum amount of FOUR MILLION ONE HUNDRED AND EIGHTEEN THOUSAND NINE HUNDRED AND NINE EUROS (€4,118,909), which shall be in place throughout the Te1m of the Agreement , being the cost thereof for the account of the Lessor during such term. |
The Lessor must provide evidence to the Lessee, at its simple request , of the existence of the above insurance, the liability insured (and the amount thereof) and the fact that it is up-to-date in payment of the premium. Assignment and sublease The Lessee may assign the Agreement and sublease, in whole or in part , the Premises , to any company within its group of companies without the above originating any increase in rent. Group of companies shall be defined in accordance to article 42 of the Commercial Code. A merger, spin-off, alteration of legal form, segregation or any other corporate transaction in which the Lessee may be involved shall not be deemed to constitute an assignment nor shall it give rise to any increase in rent. Access to the Premises The Lessee shall allow the Lessor or any such person as it may designate to access the Premises in order to check proper compliance with the obligations provided for in the Agreement and to carry out any inspection or make any repair of common elements or facilities taking place in the Premises , subject to notification of such visits at least three (3) business days in advance. The Lessor may not interrupt the habitual pursuit of the Lessee's activities in the Premises with such visits. The Lessor and the Lessee shall comply with all formal and sustantive obligations on prevention of occupational hazards, health and safety in relation to their respective employees. Both Parties shall coordinate the necessary actions on prevention of occupational hazards. Preemptive acquisition right Notwithstanding the fact that the Premises constitute the purpose of this Agreement , the Pmiies agree that the Lessee shall have a preemptive acquisition right on the entire Industrial Building, in the event it is subject to transfer, which it may exercise in accordance with miicle 25, in relation to miicle 31, of the Urban Lease Law. Fmihermore , in the event the Industrial Building is divided or constituted under the horizontal division regime and the Premises were configured as an independent registered property , the Lessee shall have the preemptive acquisition right according to articles 31 and 25 of the Urban Lease Law . In case that the preemptive acquisition right is not exercised this Lease shall remain in force under its own terms and conditions with the new lessor. |
In case that the Industrial Building and/or the Premises were transferred to a competitor of the Lessee, the latter shall be entitled to terminate this Agreement without paying any indemnification or any other amount for such termination. To this effect, the Lessee shall inf01111 the Lessor of its intention to put an end to this Agreement within 30 days after reception of the notice served by the Lessor announcing transfer of the Industrial Building and I or the Premises; in said notice, the relevant data to identify the acquirer shall appear in addition to any other data. Competitor of the Lessee shall be defined as those that carry on, any activity that may compete with activities related to live bio-therapeutic products it being understood as biological products that: (a) contain live organisms, such as bacteria; (b) are applicable to the prevention, treatment, or cure of diseases of human beings or animals; and (c) are not a vaccine, as well as, nor to provide services in relation to such activities neither to have any direct or indirect interest in such activities. Security deposit The Lessee shall deliver THIRTEEN THOUSAND AND TEN EUROS (€13,010) to the Lessor in respect of a legal security deposit amounting to two monthly rent, within five (5) days as from the date hereof through bank transfer to the bank account held by the Lessor number ES67 2038 9442 67 6000241257 open in Bankia, S.A. The existence of the legal security deposit may not be alleged by the Lessee in order to delay its payment obligations nor may it be allocated by the Lessee to payment of the Rent or any amount whatsoever owed by it. The security deposit shall be returned by the Lessor to the Lessee within one (1) month as from the vacation of the Premises. Any delay to such repayment shall accrue default interest at the legal interest rate in force on the date of non payment. The Lessor shall deposit the security deposit with the relevant administrative body and shall evidence such deposit to the Lessee. Notarization of the Lease Agreement Either of the Pmiies may request that the Agreement be executed in a public deed and registered at the Property Registry, the Parties being obliged to co-operate. All such taxes and expenses as may derive from notarization and registration shall be for the account of the Pmiy that so requests . |
Termination of the Agreement A failure by either of the Parties to comply with the obligations entered into under the Agreement shall entitle the other Paiiy to require such compliance or institute the termination of the Agreement (in the latter case, after having complied with the provisions of Clause 15.2 below) , in both cases with the relevant indemnification for damage or losses and paym ent of interest. In the event of any breach by either of the Parties, the complying Paiiy must serve notice of such circumstance on the other Party, which shall have a maximum of one (1) month in which to rectify or remedy such breach . Once the above period has elapsed without the Party at breach having rectified or remedied the breach , the other Party may exercise its right to tenninate the Agreement pursuant to the provisions of this clause. In the event of termination or annulment of the Business Sale and Purchase Agreement refeITed to in Whereas III of this Agreement for any reason attributable to the Lessor or, in general, not attributable to the Lessee, the Lessee shall be entitled to terminate this Lease Agreement , without being obliged to pay any amount to the Lessor and, as the case may be, claim the relevant compensation for damages. Notices All notices, authorizations , consents and other communications relating to the Agreement shall be made in writing , to the addresses indicated below and in a duly attested manner (including through burofax): The Lessor : Instituto Biomar , S.A. Attn .: Mr. Miguel Fernandez Medarde Address: Parque Tecnologico de Leon Parcela Ml0.4 24009 Almunia , Leon , Spain E-mail : m.fernandez@biomar.com The Lessee : 4D Phaima Leon, S.L.U. Attn. : Mr. Laurence Smith Dale Address : Third Floor, 9 Bond Comi, Leeds, LS 1 2JZ, United Kingdom E-mail : Laurie.Dale@4dphannaplc .com Copy to: !( |
Addleshaw Goddard Attn.: Mr. Tim Wheldon Address : Sovereign House, Sovereign Street, Leeds, LSI lHQ, United Kingdom E-mail : Tim.Wheldon @addleshawgoddard.com Language This Agreement has been executed in Spanish and English . Spanish version shall prevail in case of contradiction between both. Applicable law. Jurisdiction Applicable law The Agreement shall be governed by, and interpreted under , the laws of Spain, Urban Lease Law and the Civil Code. Jurisdiction The Paities expressly waive any other jurisdiction to which they may be legally entitled, and expressly submit the resolution of any disputes or claims arising over the interpretation or performance of the Agreement, including those relating to any noncontractual obligations arising from or related to it, to the jurisdiction of the courts and tribunals of the city of Leon . IN WITNESS WHEREOF, the Parties have formalized the Agreement in three counterparts, which together shall constitute one agreement, in the place and on the date first above written. Signatory Signatory Mr. Marcos Fernandez Ashton Instituto Biomar, S.A. Mr. Alexander James Stevenson 4D Pharma Leon , S.L.U. |
LIST OF ANNEXES Annex 1: Extract from the Property Register Annex 2 : Plan Annex 3: Status and pictures Annex 4: Elements owned by the Lessor Annex 5: Expenses to be shifted over on the Lessee |
Anexo 1 |
lnformaci6n Registral expedida por MARIA PILAR FERNANDEZ ALVAREZ Registrador de la Propiedad de LEON 3 Calle del Carmen 7, 1° - LEON tlfno: 0034 987 273752 correspond iente a la so licitud formu lada por BGYCABOGADOS con DNl/CIF: 824209371 ••• lnteres legitimo alegado: lnvestigaci6n juridico -econ6mica sabre credito, solvencia o responsabilidad ldentificador de la solicitud : U39TN57Z Citar este identificador para cualquier cuesti6n relacionada con esta informaci6n. ht> h I'., r.ut <d:t1r;1 b'fn-· s I• r.t-rrd cJo: ·nh l-'yr;r.,;IQl 1we """' w tv o;-uu:f .1 ('Qf\I: 1cr.tmt'!t:t11 s <!el Colt-rl.:!de P:t1.s r»o.--o cibrr!;:,e hdtrbf.t4 •k' l•i.ok it:,;d lllll llllllllll lll!llllllllHll/1111111 A829663680A288 F20 03:S FS FOOB0720C3 . http://www.registradores.orgPag . 1 |
REGISTRO DE LA PROPIEDAD DE LEON N° 3 CALLE CARMEN , 7 Planta: 1 24001 LEON Telefono : 987273752Fax: 987239395 NOTA SIMPLE INFORMATIVA Para informacion de consumidores se hace constar que la manifestacion de los libros por esta Nota Simple lnformativa se hace con los efectos que expresa el art.332 del Reglamento Hipotecario, y que solo la Certificacion acredita, en perjuicio de tercero , la libertad o gravamen de los bienes inmuebles, segun dispone el art.225 de la Ley Hipotecaria. Fecha de Emision: VEINTISEIS DE FEBRERO DEL ANO DOS MIL DIECISEIS DESCRIPCION DE LA FINCA_ FINCA DE LEON SEC 3 N°: 19413 CRU: 24014000938805, URBANA: NAVE INDUSTRIAL que se levanta sobre la parcela de terreno seiialada como MANZANA M-10.4 de Uso lndustrial-Tecnologico, resultante de la Actuacion Urbanistica Plan Parcial del Sector Industrial "PARQUE TECNOLOGICO" antes denominado parque Empresarial, en termino de Leon, comprendida entre los nucleos de Oteruelo de la Valdoncina, Armunia, la Carretera de Circunvalacion y la linea del Ferrocarril Palencia-La Coruiia. Citada Nave ocupa en planta MIL CUATROCIENTOS TREINTA Y DOS METROS Y CINCO DECIMETROS CUADRADOS. La edificacion consta de: Planta baja por la que se tiene acceso principal al edificio a traves de un porche que da a un vestibulo con sala de espera y oficina de recepcion, que comunica las diferentes estancias que son los despachos de direccion y administracion , archivo, aseos, vestuarios del personal y distribuidor que comunica con las escaleras que llevan a la planta alta . Ademas en esta planta existe una zona de laboratorios con las dependencias, estancias y servicios propios de los mismos. Tambien en esta planta se ubica una zona de planta piloto, para centro de control, laboratorio de inoculos con su camara de incubacion, local para fermentacion, sala de extraccion y purificacion , almacen y preparacion de mezclas. Por razones de seguridad se adosan por el exterior los almacenes de disolventes, de residuos y de balas de gas. La superficie construida en esta planta es de MIL CUATROCIENTOS TREINTA Y DOS METROS Y CINCO DECIMETROS CUADRADOS. Y planta alta, a la que se accede desde la baja por medio de escaleras y ascensor. Alberga en su interior la sala de reuniones, biblioteca que hace funciones de zona de descanso y cafeteria, ademas de laboratorios de sintesis, ensayos, preclinica, quimica de productos naturales y masas HPLC, con sus respectivos despachos. Tambien en esta planta se ubican locales de preparacion de muestras, liofilizadores, zona de congeladores y mantenimiento . La Superficie construida en esta planta es de NOVECIENTOS SESENTA Y CUATRO METROS Y CINCUENTA Y NUEVE DECIMETROS CUADRADOS. La total superficie construida en el edificio es de DOS MIL TRESCIENTOS NOVENTA Y SEIS METROS Y SESENTA Y CUATRO DECIMETROS CUADRADOS. Cuenta con los servicios propios de la zona urbana donde se ubica, como agua, luz, alcantarillado y pavimentacion. La parcela de terreno sobre la que se levanta tiene una superficie de CINCO MIL METROS CUADRADOS de acuerdo con la geometria de su piano y linda: Norte, con Manzana 12 de Equipamiento Socio Comercial y Viario-Aparcamiento Publico; Sur, con calle D y Manzana M-10.3; Este, con calle "D" y Viario-Aparcamiento Publico; y Oeste, con Manzana M-10.3 de Uso Industrial Tecnologico y Manzana 12 de Equipamiento Socio-Comercial. CONDICIONES URBANISTICAS: USO INDUSTRIAL-TECNOLOGICA. Tambien permitidos: Espacio libre privado, zonas verdes publicas, equipamiento, Viario y Aparcamiento. Compatibles: Oficinas. Parcela Minima: 1.000 m2 con frente minimo a viario o espacio libre publico de 30 metros. Edificabilidad maxima 0'8 m2/m2 • Ocupacion maxima 60%. Altura maxima 12'00 metros a cornisa. Planta Baja+ 1•. Sotanos y Semisotanos: permitidos en numero de 2. No computan edificabilidad segun las ordenanzas. Aparcamientos interior de parcela: 1 plaza/100 m2 edificac . Referenda Catastral numero 7075607TN8177N0001 SU. s.org i:' ;;:1'1'!'Y.i ('ll Q .te: W t w ti;f 'r.tsU'1.l F1 I0:1 nrt'CQ\C'!r.tli t\es I Coltll:>d: f\r1 1aod-...-ci.,cibf'!!:1:lidtrt.f. .:frrt'..! h ':l ldt.4 lllll llll llmllll lllllllHl llllll ll --------------------------------Pag . 2 A829663680A2B8F2003S F8F0090720C3 . |
NO COORDINADA GRAFICAMENTE CON EL CATASTRO A LA FECHA DE EMISION DE LA PRESENTE. TITULARIDADES_ NOMBRE TITULARN.l.F.TOMO LIBRO FOLIO ALTA INSTITUTO BIOMAR SA,A243302923206 369 166 2 El pleno dominio de esta finca por titulo de compraventa . INSTITUTO BIOMAR SA,A243302923206 369 167 3 La declaracion de obra nueva terminada sobre esta finca. INSTITUTO BIOMAR SA,A243302923311 399 49 7 La ampliacion y modificacion de obra nueva declarada sobre esta finca. CAR GAS_ La condicion resolutoria proveniente de la finca aportada al proyecto de actuacion, registral 16.119 de esta Seccion 3• del Ayuntamiento de Leon, que por razon de su incorporacion a la Unidad de Actuacion se traslada a esta finca. Dicha CONDICION RESOLUTORIA se establecio en favor def Ayuntamiento de Leon en la escritura de cesion gratuita a favor de GESTION URBANISTICA DE CASTILLA Y LEON SA, autorizada el 18 de febrero de 2003 por el Notario de Leon don Francisco-Javier Dominguez Alcahud y Navarro, numero 492 de su protocolo, que motivo la inscripcion 4" de expresada finca aportada 16.119, en los siguientes terminos: "La parcela secede con el fin de ejecutar en ella las obras de construccion del Parque Empresarial de Leon, en cumplimiento del convenio suscrito el dia 27 de noviembre de 2000 entre el Ayuntamiento y la citada entidad mercantil, finalidad que debera cumplirse en el plazo de cinco aiios contados a partir del dia siguiente al de la firma de la escritura publica de cesion, debiendo mantener su destino para este fin durante los treinta aiios siguientes. El cumplimiento de estos plazos se sujeta a condicion resolutoria expresa, por lo que, en caso de incumplimiento bastara con acta Notarial de constancia de hechos acreditandolo, acompaiiada de la misma escritura de cesion, para volver a inscribir en el Registro los terrenos a favor del Ayuntamiento por derecho de reversion dimanante del incumplimiento de la condicion expresa . Gravada con CONDICION RESOLUTORIA a favor de la entidad mercantil GESTION URBANISTICA DE CASTILLA Y LEON S.A. formalizada en la escritura de compraventa autorizada por en Navatejera, Ayuntamiento de Villaquilambre - Leon, el dia veintinueve de marzo de dos mil siete por el Notario con Residencia en Villaquilambre don Francisco-Javier Santos Aguado, numero 402 de su protocolo, segun resulta de la inscripcion 2• de fecha treinta y uno de mayo de dos mil siete, que tiene el siguiente tenor literal. PRESCRIPCIONES DEL CONTRA TO.-PRIMERA.-La parcela objeto del contrato del asiento adjunto sera destinada por la parte compradora a usos permitidos por el Plan Parcial del Polfgono Industrial en el que se ha indicado se ubica, comprometiendose a respetar integramente las normas urbanisticas vigentes en la zona, de todo lo cual tiene pleno conocimiento la parte compradora. SEGUNDA . La parte compradora se obliga a iniciar la edificacion de la parcela, con la preceptiva licencia municipal, antes de dos aiios a partir de la fecha de la firma de la escritura que se inscribe, a realizarla al ritmo que seiiale el proyecto de construccion ya finalizarla en el plazo maximo de tres aiios, todo ello por lo que respecta, como minimo, al 50% de la edificabilidad de la parcela, contado tambien desde la suscripcion de la escritura que se inscribe. En caso de no poderse obtener la licencia en tiempo habil para cumplir la condicion anterior debera justificarse la causa de la demora . TERCERA. Se prohibe expresamente a la parte compradora la transmision a terceros , durante el plazo de diez aiios a contar desde la fecha del otorgamiento de la escritura que se inscribe, de la parcela objeto de dicha escritura , por cualquier titulo, asi como la transmision de la construccion que sobre la misma se ejecute, sin autorizacion expresa de la entidad vendedora. En el supuesto que la parte compradora incumpliera con referida obligacion, GESTURCAL podra optar por: a.-Resolver el contrato que por este asiento se inscribe, hacienda suya la parcela y construcciones existentes, abonando el precio aqui fJh h;cl.'.J c:.ir UI <'O !i;;I Oo! b .t'T , · t.;.('.l'J-rs la *' kV j'h:! •Ol l 1-. 1;;TiT Y.l<;n a:.u e« ';UU It'V !I l:;l SCf\ C:)°A(" ·les "'' Co!"lb de R c 1M1•*rciJ t ibr !-ti l.dt.riif.c.tdt""" ': ls J.<11:•t - 11111 1111111 1 111111111111 111 111111 111 A8296636SOA2 B6 F20035F8FDDBD720C3. http://www .registradores.orgPag. 3 |
fijado por fas primeras y el coste real de construccion, aminorado, todo eflo, en un 20%, importe este que se fija en concepto de cfilusufa penal e indemnizacion por daiios y perjuicios. B.· Exigir de la parte compradora del contrato que se inscribe el abono, en concepto de clilusula penal e indemnizacion por daiios y perjuicios del 50% del precio fijado en el documento que se inscribe por la compraventa de la parcela. CUARTA.·Hasta que nose hayan expedido las resoluciones o licencias administrativas que acrediten estar acabadas las obras de construccion y las instalaciones industriales a realizar en la parcela objeto del contrato, se prohibe expresamente gravar, total o parcialmente la parcela sin la autorizacion expresa de GESTURCAL. Cuando GESTURCAL autorice la constitucion de hipoteca sobre la parcela vendida, a favor de establecimientos oficiales de Credito y en garantia de las otorgadas para la edificacion y la instalacion del inmueble, dicha hipoteca tendril carilcter preferente sobre las condiciones resolutorias pactadas en la escritura que se inscribe. CONDICIONES RESOLUTORIAS DEL CONTRATO.· PRIMERA.· Este contrato quedaril resuelto de pleno derecho con el simple requerimiento fehaciente que a tal efecto se hiciera, y con trascendencia real, a instancias de GESTURCAL en los siguientes cases: a.· Si la parte compradora no inicia o no finaliza las obras de construccion en la forma o en los plazas establecidos en la prescripcion SEGUNDA y no justifica, en su caso, la demora a que se refiere el pilrrafo segundo de la prescripcion citada. B.· Si el adjudicatario incumpliese las limitaciones establecidas en las prescripciones tercera y cuarta de las relativas a las prescripciones del contrato . SEGUNDA.· Resuelto el contrato, y sin perjuicio de otras responsabilidades, la parte compradora tendril derecho a la devolucion del 80% del precio de venta, ode la cantidad pagada hasta la fecha, deducidos de este porcentaje el importe de las cargas y gravilmenes que, con la autorizacion de GESTURCAL se hayan constituido. TERCERA. ·Con respecto a las obras y las edificaciones que la parte compradora haya podido realizar en la parcela, tendril derecho a que su importe, que seril calculado por los Servicios Tecnicos de GESTURCAL , le sea abonado cuando la parcela en cuestion sea transmitida a terceros. CUARTA.· En el supuesto de que las cargas y gravilmenes , constituidos con la autorizacion que se establezca, sobrepasen el 80% del precio de venta o de la cantidad pagada hasta aquefla fecha que tiene derecho a percibir, GESTURCAL se reintegraril del exceso con cargo al importe en que se valoren las obras y edificaciones citadas anteriormente. QUINTA.· Si las obras fuesen ilegales o nose acomodasen a la licencia de obras, se deduciril de la cantidad que hubiera que devolver al comprador, el importe de la demolicion de todo aquello que se haya construido indebidamente. SEXTA.· En todo caso, el derecho de dominio de la parcela vendida junto con sus accesos revertiril automilticamente y, con carilcter retroactive al patrimonio de GESTURCARL solamente acreditando el cumplimiento de la condicion resolutoria por cualquiera de los medics de prueba admitidos en derecho y el pago o la consignacion a favor del interesado del citado 80% con las deducciones que fueren precisas. Se consigna como domicilio hilbil, a efectos de notificaciones, el de todo interesado en la escritura que se inscribe, segun lo indicado en la misma. Una HIPOTECA a favor de CAJA DE AHORROS DEL MEDITERRANEO en garantia de un prestamo de DOS MILLONES SETECIENTOS MIL EUROS de principal; de DOSCIENTOS OCHENTA Y SEIS MIL DOSCIENTOS EUROS de intereses remuneratorios; por SEISCIENTOS SETENTA Y CINCO MIL EUROS de intereses de demora ; de CIENTO TREINTA Y CINCO MIL EUROS para prestaciones accesorias, y de SESENTA Y NUEVE MIL CIENTO VEINTE EUROS para costas y gastos, con un plazo de duracion de QUINCE aiios a contar desde el TRES DE MARZO DEL ANO DOS MIL NUEVE o, en su caso, a contar desde la fecha en que se realice la ultima acta de entrega, o la Caja otorgue escritura de reduccionde capital, si una u otra se otorgan antes de la citada fecha. Constituida en escritura autorizada el 3 de marzo de 2008 por el notario de Leon don Jose-Angel Tahoces Rodriguez, numero 593 de protocolo, conforme resulta de la 4" de fecha 31 de julio de 2008. Por nota al margen de indicada inscripcion 4", practicada con fecha ocho de mayo de dos mil nueve, en virtud de acta autorizada el dia treinta y uno de marzo de dos mil nueve por el Notario de Leon don Jose-Angel Tahoces Rodriguez, numero 554 de su protocolo, se ha constatado la ultima entrega del capital del prestamo antes referido. MODIFICADAS LAS CONDICIONES DE LA HIPOTECA PRECEDENTE COMO SE INDICA EN LA 5",6" y 8". En la escritura que motivo la hipoteca de la inscripcion 4" a favor de CAJA DE AHORROS DEL MEDITERRANEO , la entidad GESTION URBANISTICA DE CASTILLA Y LEON SA consintio que la condicion resolutoria existente a su favor sobre la finca, se posponga a la citada hipoteca de la inscripcion 4". lgualmente mediante escritura otorgada en Leon el 30 de junio de 2008, ante su notario don Jose-Angel Tahoces Rodriguez, numero 1482 de protocolo, se hizo constar que, por acuerdo del pleno municipal del Ayuntamiento de Leon en sesion celebrada el siete de marzo de dos mil ocho se acordo autorizar expresamente la posposicion en el Registro de la Propiedad del range de la condicion resolutoria expresada, por cuanto tal posposicion no supone un menoscabo de los intereses htJ .,1.ieJl'..J r.UI <"6:i1p la1T1 ·t;ie.-·o I• *"•1'C"d ;! .uh 1.-'¥"<T,;l(nq "! :-OJ t if trl-1 !'1 lc srrtlrAt'!r.til*J QCI {'Jt"11.:ide Rti<i'"J.X,.•a,clt)l"l,f;, 1.dcrtif.c.dC""t'"! h l-::lt..:f http://www .registradores.orgPag. 4 |
municipafes, siendo condicion sine qua non que fa entidad financiera otorgante def credito hipotecario asuma las siguientes obligaciones: a) en el caso de que se produzca , notificar en el pfazo de maximo de quince dias al Excmo. Ayuntamiento de Leon fa iniciacion def procedimiento de ejecucion de fa garantia hipotecaria. b) Poner en conocimiento de fos posibfes adquirentes de fa parcefa en cuestion, finca numero 19.413 def Registro de fa Propiedad numero 3 de Leon, fa obligatoriedad de mantener su destino para el fin previsto durante el pfazo fijado por la condicion resolutoria objeto de posposicion. En la misma escritura consta la aceptacion de las obfigaciones resenadas por CAJA DE AHORROS DEL MEDITERRANEO y fa mercantil INSTITUTO BIOMAR SA, y que se ha comunicado dicha aceptacion al Ayuntamiento en virtud de escrito de fecha once de abril de dos mil ocho. Todo ello resufta de la misma inscripcion 4", y de notas marginales a las inscripciones 1• y 2• de esta finca, extendidas el dia 31 de julio de 2008.-Mediante nota extendida el 4 de noviembre de 2009 al margen de la inscripcion 3", se ha hecho constar la afeccion de esta finca en los terminos previstos en el articufo 31.4 de la Ley General de Subvenciones 38/2003, al pago del reintegro de la subvencion a fondo perdido concedida por Resolucion de 29 de diciembre de 2006 del Presidente de la Agencia de lnversiones y Servicios de la Junta de Castilla y Leon, por importe de 694.844,16 euros, concedida la entidad INSTITUTO BIOMAR SA para un proyecto de inversion que se realizara en el termino municipal de Leon, provincia de Leon, cuya actividad sera "Descubrimiento-Desarrollo-Produccion de nuevos Candidatos a Farmacos de Origen Microbiano Marino", no pudiendo modificarse ni la ubicacion ni la actividad sin autorizacion previa del Director Gerente de la Agencia de lnversiones y Servicios; resolucion individual en cuyo apartado 2.7 de sus condiciones particulares, se establece que a fecha 29 de sept iembre de 2008 deben cumplirse y mantenerse las condiciones generales y particulares impuestas por la misma resolucion; mientras que el apartado 2.8, sin perjuicio del anterior, dispone que a partir del mencionado plazo debera el beneficiario mantener la inversion durante cinco anos en el establecimiento objeto de ayuda; comprometiendose la citada beneficiaria INSTITUTO BIOMAR SA, domiciliada en Onzonilla -Leon-, Poligono Industrial de Leon, edificio C.E.I modulos 2.02 y 2.03, con C.l.F. A-24330292 ,, a los efectos de la Ley General de Subvenciones 38/2003, de 17 de noviembre, a destinar la finca al fin concreto para el que se concedio la subvencion por un plazo superior a CINCO ANOS. Resulta de acta autorizada en Leon el 8 de octubre de 2009 por su notario don Jose-Angel Tahoces Rodriguez, numero 1720 de protocolo, y la resolucion administrativa citada.-La hipoteca de la inscripcion 4" actualmente por transmision def credito hipotecario por titulo de sucesion universal a favor del BANCO DE SABADELL, S.A. por fusion por absorcion, se MODIFICA mediante escritura otorgada en Leon el dia 31 de diciembre de 2.012 ante su Notario Don Santiago-Alfonso Gonzalez Lopez numero 1.690 de protocolo, ratificada mediante otra escritura otorgada el dia 7 de febrero de 2.013 ante el mismo Notario de Leon senor Gonzalez Lopez numero 205 de protocolo, en el sentido de que con fecha valor tres de junio de doce mil doce, se establece como vencimiento definitivo del prestamo el dia TRES DE MARZO DE DOS MIL VEINTICUATRO. Asi resulta de la inscripcion 5", fechada el dia tres de mayo de dos mil trece. La hipoteca de las inscripciones 4" y 5" a favor del BANCO DE SABADELL, S.A., se MODIFICA mediante escritura otorgada en Leon el dia 9 de agosto de 2.013 ante su Notario Don Santiago-Alfonso Gonzalez Lopez numero 838 de protocolo, ratificada mediante otra escritura otorgada el dia 20 de diciembre de 2.013 ante el mismo Notario de Leon senor Gonzalez Lopez numero 1.318 de protocolo, entre otros extremos, alterando el plazo de amortizacion, y sin cambiar el vencimiento definitivo del prestamo. Asi resulta de la inscripcion 6",fechada el dia dieciseis de enero de dos mil catorce. /} Afecta al pago de la liquidacion o liquidaciones que eventualmente puedan girarse por el lmpuesto sobre TRANSMISIONES PATRIMONIALES Y ACTOS JURiDICOS DOCUMENTADOS y/o SUCESIONES Y consecuencia de la revision de las liquidaciones o declaraciones presentadas por DONACIONES, como razon de los actos inscritos o anotados. fru h.-.e t=irtJJ <0;i ! !So'! ta :u - •:.a-s 11 *"·•r'dJ:! ·Uh L-".,.w.r."71 a .e p t VJ c< 'O• U"-1 ii i:: sr-....%:r.r.c'!r.'1Jle.J clcl Cokr i::ode Rt1.i.tiaoOo.-eiJ d\1r_.-::o ehdt nt>f.ujt'f"(-'! li s.of.::lt....:I lllll llllllllll llllllllllllillllll/111111111 s.or ---------------------------------Pag. 5 |
Documentos relativos a la finca presentados y pendientes de despacho, vigente el asiento de presentaci6n, al cierre del Libro Diario del dia anterior a la fecha de expedici6n de la presente nota: NO hay documentos pendientes de despacho AVISO: Los datos consignados en la presente nota se refieren al dia de emisi6n de la presente nota, antes de la apertura del diario. MUY IMPORTANTE, queda prohibida la incorporaci6n de los datos de esta nota a ficheros o bases informaticas para la consufta individualizada de personas fisicas o juridicas, incluso expresando la fuente de informaci6n (B.O.E. 27/02/1998) . ADVERTENCIAS A los efectos de lo previsto en ef art. 31 de la Ley Organica 10/1998, de 17 de diciembre, se hace constar que: la equivafencia de Euros de las cantidades expresadas en unidad de cuenta Pesetas a que se refiere la precedente informaci6n, resulta de dividir tales cantidades por el tipo oficial de conversion, que es de 166,386 pesetas. Esta informaci6n registral tiene valor puramente indicativo, careciendo de garantia, pues la libertad o gravamen de los bienes inscritos, solo se acredita en perjuicio de tercero, por certificaci6n del registro (Articulo 225 de la Ley Hipotecaria) Queda prohibida la incorporaci6n de los datos que constan en la presente informaci6n registral a ficheros o bases de datos informaticas para la consulta individualizada de personas fisicas o juridicas, incluso expresando la fuente de procedencia (lnstrucci6n de la D.G.R.N. 17/02/98; B.0.E. 17/02/98) Esta lnformaci6n no surte los efectos regulados en el art. 354-a del Reglamento Hipotecario. A los efectos de la Ley Organica 15/1999 de 13 de diciembre, de Protecci6n de Datos de caracter personal queda informado de que: Conforme a lo dispuesto en las clausulas informativas incluidas en el modelo de solicitud los datos personales expresados en el presente documento han sido incorporados a los libros de este Registro y a los ficheros que se llevan en base a dichos libros, cuyo responsable es el Registrador En cuanto resulte compatible con la legislaci6n especifica del Registro, se reconoce a los interesados los derechos de acceso, rectificaci6n, cancelaci6n y oposici6n establecidos en la Ley Organica citada pudiendo ejercitarlos dirigiendo un escrito a la direcci6n del Registro. ADVERTENCIAS Esta informaci6n registral tiene valor puramente indicativo, careciendo de garantia, pues la libertad o gravamen de los bienes o derechos inscritos, solo se acredita, en perjuicio de tercero, por certificaci6n del Registro (articulo 225 de la Ley Hipotecaria). Queda prohibida la incorporaci6n de los datos que constan en la presente informaci6n registral a ficheros o bases informaticas para la consulta individualizada de personas fisicas o juridicas, incluso expresando la fuente de procedencia (lnstrucci6n de la D.G.R.N 17/02/98; 8.0.E. 27/02/1998). ho r lf.J c!i{u.I '('6;t !p Clo! t:)lfU· ·'1S ,. le (ld)1 (Sh l-';nn:IO"I Q it-w cc;r •.:U-1 1 "'' sentr/ c l"tlle.5 c'tl {Q!r&ode 1tti61J es,clt-ir.:':i l.d<rt.f ,c,>jCO""c' l>l it..::I llllllllllllll lllll llHll lllllllllm I http://www .registradore ............................... s.org A829663680A28B F2D D3 FS FDDBD720C3. |
Esta informaci6n registrar no surte los efectos regulados en el art. 354-a def Reglamento Hipotecario. El usuario receptor de esta informaci6n se acoge a las condiciones de la Politica de privacidad expresadas en la web oficial del Colegio de Registradores de la Propiedad, Mercantiles y de Bienes ;I bD h l!s Girt.il <O !i; tli!' t:,,rr•s· • -'""' I• t!rtrlJ1 csh ';;.irrT Y. a ri w t«"" f t);f 1 t"Or I ;;) stn tif'At'lr.ta!cs Oel Colt1..;:idc Rr1•r.1•tk.reiJ dbt"!:>l.dcrt.f.a>::lort' :lsPJ k it...:tl 11111 1111111111111111111111111 1111111111111 A829663680A288F20 03 F8F DO BD720C3. http://www.registradores .orgPag. 7 |
CONTRATO DE ARRENDAMIENTO PARA USO DISTINTO DEL DE VIVIENDA ANEXO 2 I |
-r------.) ® !In,[ x x J--" .-.:.:•.= ::-:::"'=-0· 0 u IIPl.ANTA BAJA 0 SUPERFICIE CONSTRUIOA ZONA COMUN BIOMAR-•o PHARMA. 371,6'1 m' 0 SUPERFICIECONSTRUIDA-<DPHARMA57<.17m' 0 SUPERFICIE EXTERIOR OCUPAOA 40 PHARMA20.22 m:t O _og '-' 00 28 I "O,. I 22 1ZI "'10 1e 111 1G15 10 11 0 - |
Pl.NITA PRU.IE RA D SUPERF!ClE COUSTRUIOA ZOHA COl'.tUtl BIOMAR-•D PHARMA2s•.•o m" 0D SUPERF!ClECOflSTRUIDA•DPKARMA_ 00 |
CONTRATO DE ARRENDAMIENTO PARA USO DISTINTO DEL DE VIVIENDA ANEXOS 3 Y 4 /I .. .' ;1 |
Anexo 3 La zona arrendada se encuentra recien pintada, con todos los elementos electricos, de fontaneria y de carpinteria en perfecto estado de uso. Anexo4 Las instalaciones y elementos existentes en el local y que son propiedad del arrendador son: lnstalaci6n (tuberias) de aire comprimido . lnstalaci6n (tuberfas) de nitr6geno desde la sala tecnica . Sistema de climatizaci6n, lncluyendo las climatizadoras, fancoils, conductos y rejillas. Elementos de fontaneria y electricos . I'' ;I |
-1 .. \ :,,..'·'.. |
t-I \ \ . \ |
[LOGO] |
Anexo 5 |
Conceptos Contrato de Arrendamiento Servicios Administraci6n {1430 €/mes) Recepci6n (750 €/mes) Selecci6n personal y formaci6n (250 €/mes) Fotocopiadora (135 €/mes) Cafeteria (60 €/mes) Seguros (235 €/mes) 1.1.5.1. 1.1.5.2. Segura Continente Edificio (190 €/mes) Segura RC (45 €/mes) Mantenimiento Edificio {750 €/mes) Limpieza {800 €/mes) Seguridad (a lama y extintores) {85 €/mes) Saneamiento (plagas y sanitarios) {60 €/mes) Suministros e impuestos Agua (50%) Luz (Segun contador interno) 2.3 . Gas Natural {50%) 2.4. l.B.I. {50%) 2.5. Gesti6n de residuos {50%) !l |
Exhibit 10.6
Dated td2014 4D PHARMA PLC DUNCAN JOSEPH PEYTON Service Agreement Schofield Sweeney LLP Springfield House 76 Wellington Street Leeds LS1 2AY Tel: 0113 220 6270 (Ref: LSD/3368.43) |
Contents ClausePage lnterpretation1 Term of Appointment2 Employee Warranties2 Duties3 Place of Work4 Hours of Work4 Salary4 Expenses5 Bonus5 Directors' and Officers' Insurance5 Holidays5 lncapacity6 Confidential Information7 Intellectual Property7 Ceasing to be a Director8 Payment in Lieu of Notice8 Termination Without Notice8 Garden Leave9 Obligations Upon Termination9 Post-termination Restrictions10 Disciplinary and Grievance Procedures11 Data Protection12 Collective Agreements12 Notice13 Entire Agreement13 Variation14 Counterparts14 Third Party Rights14 Governing Law14 |
This Agreement is datedItJ/-!'>2014 Parties 4d pharma pie incorporated and registered in England and Wales with company number 8840579 whose registered office is at 74 Gartside Street, Manchester M3 3EL (the Company) Duncan Joseph Peyton of 4 Hollin Lane, Leeds LS16 SLZ (the Employee). Operative Provisions Interpretation The definitions and rules of interpretation in this clause 1 apply in this Agreement. Admission the admission of the issued and to be issued share capital of the Company to trading on AIM, the market operated by the London Stock Exchange pie, becoming effective in accordance with the AIM Rules for Companies (published by the London Stock Exchange pie and as amended form time to time); Appointment means the employment of the Employee by the Company on the terms of this Agreement. Board means the board of directors of the Company (including any committee of the board duly appointed by it). Capacity means as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity. Confidential Information means information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to the business, products, affairs and finances of the Company for the time being confidential to the Company and trade secrets including, without limitation, technical data and know-how relating to the business of the Company or any of its business contacts. Garden Leave means any period during which the Company has exercised its rights under clause 18. Incapacity means any sickness, injury or other medical disorder or condition which prevents the Employee from carrying out his duties. Intellectual Property Rights means patents, rights to Inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, |
and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Invention means any invention, idea, discovery, development, improvement or innovation, whether or not patentable or capable of registration, and whether or not recorded in any medium. Restricted Business means those parts of the business of the Company with which the Employee was involved to a material extent in the 12 months before Termination. Restricted Person means anyone employed by the Company and who could materially damage the interests of the Company if they were involved in any Capacity in any business concern which competes with any Restricted Business, and with whom the Employee dealt with in the 12 months before Termination in the course of his employment. Staff Handbook means the staff handbook of the Company as amended from time to time. Termination means the termination of the employment of the Employee with the Company however caused. The headings in this Agreement are inserted for convenience only and shall not affect its construction. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders; words in the singular include the plural and in the plural include the singular. Term of Appointment Subject to Admission, the Appointment shall be deemed to have commenced on the date of this Agreement and shall continue, subject to the remaining terms of this Agreement, for a fixed period of 12 months and thereafter until terminated by either party giving the other not less than 12 calendar months' prior notice in writing, such notice not to be given until expiry of that fixed period. The Company shall employ the Employee and the Employee shall serve the Company on the terms of this Agreement as an Employee Shareholder in accordance with section 205A of the Employment Rights Act 1996. No employment with a previous employer will count towards the period of continuous employment that the Employee has with the Company. Employee Warranties The Employee represents and warrants to the Company that, by entering into this Agreement or performing any of his obligations under it, he will not be in breach of any |
court order or any express or implied terms of any contract or other obligation binding on him. The Employee warrants that he is entitled to work in the United Kingdom without any additional approvals and will notify the Company immediately if he ceases to be so entitled during the Appointment. The Employee warrants that he is not subject to any restrictions which prevent him from holding office as a director. Duties Subject to Admission, the Employee shall serve the Company as chief executive officer. During the Appointment the Employee shall: act as a director of the Company and carry out duties on behalf of the Company; comply with the articles of association (as amended from time to time) of the Company; abide by any statutory, fiduciary or common-law duties to the Company; not do anything that would cause him to be disqualified from acting as a director; comply with all requirements or regulations of all regulatory authorities relevant to the Company and any code of practice issued by the Company (as amended from time to time) relating to dealing in the securities of the Company; comply with the requirements under both legislation and regulation as to the disclosure of inside information; comply with the anti-corruption and bribery policy and related procedures of the Company; unless prevented by Incapacity, devote the whole of his time, attention and abilities during his normal working hours to the business of the Company; faithfully and diligently exercise such powers and perform such duties as may from time to time be reasonably assigned to him by the Company; comply with all reasonable and lawful directions given to him by the Company; promptly make such reports to the chairman in connection with the affairs of the Company on such matters and at such times as are reasonably required; and |
report his own wrongdoing and any wrongdoing or proposed wrongdoing of any other employee or director of the Company to the chairman immediately on becoming aware of it. The Employee shall comply with any rules, policies and procedures set out in the Staff Handbook a copy of which will be provided to the Employee. The Staff Handbook does not form part of this Agreement and the Company may amend it at any time. To the extent that there is any conflict between the terms of this Agreement and the Staff Handbook, this Agreement shall prevail. All documents, manuals, hardware and software provided for the use of the Employee by the Company, and any data or documents (including copies) produced, maintained or stored on the computer systems of the Company or other electronic equipment (including mobile phones), remain the property of the Company. The Employee shall disclose to the Board all business interests other than those of the Company and shall not, without the prior written approval of the Board, be directly or indirectly involved in any Capacity with any business concern which is similar to or competitive with any business for the time being carried on by the Company or where such involvement might give rise to a potential or actual conflict of interest or conflict with any of his other obligations under this Agreement. Place of Work The normal place of work of the Employee is the Company's registered office or such other place within a reasonable area which the Company may reasonably require for the proper performance and exercise of his duties. The Employee agrees to travel on any business of the Company (both within the United Kingdom or abroad) as may be required for the proper performance of his duties under the Appointment. During the Appointment the Employee shall not be required to work outside the United Kingdom for any continuous period of more than one month. Hours of Work The normal working hours of the Employee shall be 9.00 am to 5.00 pm on Mondays to Fridays and such hours as are necessary for the proper performance of his duties; the Employee acknowledges that he shall not receive further remuneration in respect of such additional hours. Salary The Employee shall be paid an initial salary of £100,000 per annum (inclusive of any fees due to the Employee by the Company as an officer of the Company). |
The salary paid to the Employee shall accrue from day to day and be payable monthly in arrears on or about the final working day of each month directly into his bank or building society. The salary paid to the Employee shall be reviewed annually by the Company, acting by its remuneration committee, the first such review to take place in February 2015. The Company is under no obligation to award an increase following a salary review. There will be no review of the salary after notice has been given by either party to terminate the Appointment. The Company may deduct from the salary, or any other sums owed to the Employee, any money owed to the Company by the Employee. Expenses The Company shall reimburse (or procure the reimbursement of) all reasonable expenses wholly, properly and necessarily incurred by the Employee in the course of the Appointment, subject to production of VAT receipts or other appropriate evidence of payment. The Employee shall abide by the policies of the Company on expenses as communicated to him from time to time. Bonus The Company may in its absolute discretion pay the Employee a bonus of such amount, at such intervals and subject to such conditions as the Company, acting by its remuneration committee, may in its absolute discretion determine from time to time. Any bonus payment to the Employee shall be purely discretionary and shall not form part of the contractual remuneration of the Employee under this Agreement. If the Company makes a bonus payment to the Employee, it shall not be obliged to make subsequent bonus payments. Any bonus payment shall not be pensionable. Directors' and Officers' Insurance During the Appointment and for six years following Termination the Employee shall be entitled to be covered by a policy of directors' and officers' liability insurance on terms no less favourable than those in place from time to time for other members of the Board. A copy of the policy is available from the Board. Holidays The Employee shall be entitled to 30 days' paid holiday in each holiday year which shall include the usual public holidays in England and Wales or days in lieu where the Company requires the Employee to work on a public holiday. The holiday year of the Company runs between January and February. If the Appointment commences or terminates part way |
through a holiday year, the entitlement of the Employee during that holiday year shall be calculated on a pro-rata basis rounded up to the nearest whole day. The Employee shall not without the consent of the Board carry forward more than five days accrued but untaken holiday entitlement to a subsequent holiday year unless the Employee has been unavoidably prevented from taking such holiday during the relevant leave year because of sickness absence or statutory maternity, paternity or adoption leave. The Employee shall have no entitlement to any payment in lieu of accrued but untaken holiday except on termination of the Appointment. The amount of such payment in lieu shall be 1/260th of the salary of the Employee for each untaken day of the entitlement under clause 11.1 for the holiday year in which termination takes place and any untaken days carried forward from the preceding holiday year. If on termination of the Appointment the Employee has taken in excess of his accrued holiday entitlement, the Company shall be entitled to recover from the Employee by way of deduction from any payments due to the Employee or otherwise one day's pay calculated at 1/260th of the salary for each excess day. If either party has served notice to terminate the Appointment, the Company may require the Employee to take any accrued but unused holiday entitlement during the notice period. Any accrued but unused holiday entitlement shall be deemed to be taken during any period of Garden Leave under clause 18. Incapacity Subject to the compliance of the Employee with this Agreement and the sickness absence procedures of the Company (as amended from time to time), the Employee shall continue to receive his full salary and contractual benefits during any period of absence due to Incapacity for up to an aggregate of 26 weeks in any 52 week period. Such payment shall be inclusive of any statutory sick pay due in accordance with applicable legislation. The Employee agrees to consent to medical examinations (at the expense of the Company) by a doctor nominated by the Company should the Company so require. The Employee agrees that any report produced in connection with any such examination may be disclosed to the Company and the Company may discuss the contents of the report with the relevant doctor. If the Incapacity is or appears to be occasioned by actionable negligence, nuisance or breach of any statutory duty on the part of a third party in respect of which damages are or may be recoverable, the Employee shall immediately notify the Board of that fact and of any claim, compromise, settlement or judgment made or awarded in connection with it and all relevant particulars that the Board may reasonably require. The Employee shall if required by the Company, refund to the Company that part of any damages or compensation recovered by him relating to the loss of earnings for the period of the Incapacity as the Board may reasonably determine less any costs borne by him in |
connection with the recovery of such damages or compensation, provided that the amount to be refunded shall not exceed the total amount paid to the Employee by the Company in respect of the period of Incapacity. Confidential Information The Employee acknowledges that in the course of the Appointment he will have access to Confidential Information. The Employee has therefore agreed to accept the restrictions in this clause 13. The Employee shall not (except in the proper course of his duties), either during the Appointment or at any time after its termination (however arising), use or disclose to any person, company or other organisation whatsoever any Confidential Information. This shall not apply to: any use or disclosure authorised by the Board or required by law or by the requirements or regulations of any applicable regulatory authority; or any information which is already in, or comes into, the public domain other than through the unauthorised disclosure of the Employee; or any protected disclosure within the meaning of section 43A of the Employment Rights Act 1996. Intellectual Property The Employee shall give the Company full written details of all Inventions and of all works embodying Intellectual Property Rights made wholly or partially by him at any time during the course of the Appointment which relate to, or are capable of being used in, the business of the Company. The Employee acknowledges that all Intellectual Property Rights subsisting (or which may in the future subsist) in all such Inventions and works shall automatically, on creation, vest in the Company absolutely. To the extent that they do not vest automatically, the Employee holds them on trust for the Company. The Employee agrees promptly to execute all documents and do all acts as may, in the opinion of the Company, be necessary to give effect to this clause 14.1. The Employee irrevocably waives all moral rights under the Copyright, Designs and Patents Act 1988 (and all similar rights in other jurisdictions) which he has or will have in any existing or future works referred to in clause 14.1. The Employee irrevocably appoints the Company to be his attorney to execute and do any such instrument or thing and generally to use his name for the purpose of giving the Company or its nominee the benefit of this clause 14. The Employee acknowledges in favour of a third party that a certificate in writing signed by any Director or the Secretary of the Company that any instrument or act falls within the authority conferred by this clause 14 shall be conclusive evidence that such is the case. |
Ceasing to be a Director Except with the prior approval of the Board, or as provided in the articles of association of the Company, the Employee shall not resign as a director of the Company. If during the Appointment the Employee ceases to be a director of the Company (otherwise than by reason of his death, resignation or disqualification pursuant to the articles of association of the Company, as amended from time to time, or by statute or court order) the Appointment shall continue with the Employee as an employee only and the terms of this Agreement (other than those relating to the holding of the office of director) shall continue in full force and effect. The Employee shall have no claims in respect of such cessation of office. Payment in Lieu of Notice Notwithstanding clause 2, the Company may, in its sole and absolute discretion, terminate the Appointment at any time and with immediate effect by notifying the Employee that the Company is exercising its right under this clause 16 and that it will make within 28 days a payment in lieu of notice (Payment in lieu) to the Employee. This Payment in lieu will be equal to the basic salary (as at the date of termination) which the Employee would have been entitled to receive under this Agreement during the notice period referred to at clause 2 (or, if notice has already been given, during the remainder of the notice period) less income tax and National Insurance contributions. Notwithstanding clause 16.1 the Employee shall not be entitled to any Payment in lieu if the Company would otherwise have been entitled to terminate the Appointment without notice in accordance with clause 17. Termination Without Notice The Company may also terminate the Appointment with immediate effect without notice and with no liability to make any further payment to the Employee (other than in respect of amounts accrued due at the date of Termination) if the Employee: is disqualified from acting as a director; or is guilty of any gross misconduct affecting the business of the Company; or commits any serious or repeated breach or non-observance of any of the provisions of this Agreement; or is declared bankrupt or makes any arrangement with or for the benefit of his creditors or has a county court administration order made against him under the County Court Act 1984; or is convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non custodial penalty is imposed) or any offence under any regulation or legislation relating to insider dealing; or |
17.1.6 17.1.7 becomes of unsound mind (which includes lacking capacity under the Mental Capacity Act 2005), or a patient under any statute relating to mental health; or is guilty of any fraud or dishonesty or acts in any manner which in the opinion of the Company brings or is likely to bring the Employee or the Company into disrepute or is materially adverse to the interests of the Company. The rights of the Company under clause 17.1 are without prejudice to any other rights that it might have at law to terminate the Appointment or to accept any breach of this Agreement by the Employee as having brought the agreement to an end. Any delay by the Company in exercising it rights to terminate shall not constitute a waiver thereof. Garden Leave Following service of notice to terminate the Appointment by either party, or if the Employee purports to terminate the Appointment in breach of contract, the Company may by written notice place the Employee on Garden Leave for the whole or part of the remainder of the Appointment. During any period of Garden Leave: the Company shall be under no obligation to provide any work to the Employee and may revoke any powers the Employee holds on behalf of the Company; 18.2.2 18.2.3 18.2.4 18.2.5 18.2.6 the Employee shall continue to receive his basic salary and all contractual benefits in the usual way and subject to the terms of any benefit arrangement; the Employee shall remain an employee of the Company and bound by the terms of this Agreement; the Employee shall ensure that the Board knows where he will be and how he can be contacted (except during any periods taken as holiday in the usual way); the Company may exclude the Employee from any premises of the Company and the Company may require the Employee not to contact or deal with (or attempt to contact or deal with) any officer, employee, consultant, client, customer, supplier, agent, distributor, shareholder, adviser or other business contact of the Company. Obligations Upon Termination On Termination of the Appointment (however arising) or, if earlier, at the start of a period of Garden Leave following the service of notice or purported Termination of the Appointment by the Employee, the Employee shall: |
19.1.1 19.1.2 19.1.3 19.1.4 resign immediately without compensation from any office or trusteeship that he holds in or on behalf of the Company; subject to clause 19.2 if applicable, immediately deliver to the Company all documents, books, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the business or affairs of the Company or its business contacts, any keys and any other property of the Company, which is in his possession or under his control; irretrievably delete any information relating to the business of the Company stored on any magnetic or optical disk or memory and all matter derived from such sources which is in his possession or under his control outside the premises of the Company; and provide a signed statement that he has complied fully with his obligations under this clause 19.1 together with such reasonable evidence of compliance as the Company may request. Where the Employee has been placed on Garden Leave he shall not be required by clause 19.1 to return until the end of the Garden Leave period any property provided to him as a contractual benefit for use during the Appointment. Post-termination Restrictions In order to protect the Confidential Information, trade secrets and business connections of the Company to which he has access as a result of the Appointment, the Employee covenants with the Company that he shall not: 20.1.1 20.1.2 20.1.3 20.1.4 for 12 months after Termination in the course of any business concern which is in direct competition with any Restricted Business, offer to employ or engage or otherwise endeavour to entice away from the Company any Restricted Person; or for 12 months after Termination in the course of any business concern which is in direct competition with any Restricted Business, employ or engage or otherwise facilitate the employment or engagement of any Restricted Person, whether or not such person would be in breach of contract as a result of such employment or engagement; or for 12 months after Termination, be involved in any Capacity with any business concern which is in direct competition with any Restricted Business; or at any time after Termination, represent himself as connected with the Company in any Capacity, other than as a former employee, or use any registered business names or trading names associated with the Company. None of the restrictions in clause 20.1 shall prevent the Employee from: |
20.2.1 20.2.2 20.2.3 holding an investment by way of shares or other securities of not more than 5% of the total issued share capital of any company, whether or not it is listed or dealt in on a recognised stock exchange; or being engaged or concerned in any business concern insofar as the duties of the Employee or work shall relate solely to geographical areas where the business concern is not in direct competition with any Restricted Business; or being engaged or concerned in any business concern, provided that the duties of the Employee or work shall relate solely to services or activities of a kind with which the Employee was not concerned with to a material extent in the 12 months before Termination. The restrictions imposed on the Employee by this clause 20 apply to him acting: 20.3.1 20.3.2 directly or indirectly; and on his own behalf or on behalf of, or in conjunction with, any firm, company or person. The periods for which the restrictions in clause 20.1 apply shall be reduced by any period that the Employee spends on Garden Leave immediately before Termination. Each of the restrictions in this clause 20 is intended to be separate and severable. If any of the restrictions shall be held to be void but would be valid if part of their wording were deleted, such restriction shall apply with such deletion as may be necessary to make it valid or effective. Disciplinary and Grievance Procedures The Employee is subject to the disciplinary and grievance procedures of the Company, copies of which are available from the Board. These procedures do not form part of the contract of employment of the Employee. If the Employee wants to raise a grievance, he may apply in writing to the chairman in accordance with the grievance procedure of the Company. If the Employee wishes to appeal against a disciplinary decision he may apply in writing to the chairman in accordance with the disciplinary procedure of the Company. The Company may suspend the Employee from any or all of his duties for a period of up to 30 days during any period in which the Company is investigating any disciplinary matter involving the Employee or while any disciplinary procedure against the Employee is outstanding. During any period of suspension: the Employee shall continue to receive his basic salary and all contractual benefits in the usual way and subject to the terms of any benefit arrangement; |
21.5.2 21.5.3 21.5.4 21.5.5 the Employee shall remain an employee of the Company and bound by the terms of this Agreement; the Employee shall ensure that the Board knows where he will be and how he can be contacted (except during any periods taken as holiday in the usual way); the Company may exclude the Employee from his place of work or any other premises of the Company; and the Company may require the Employee not to contact or deal with (or attempt to contact or deal with) any officer, employee, consultant, client, customer, supplier, agent, distributor, shareholder, adviser or other business contact of the Company. Data Protection The Employee consents to the Company processing data relating to the Employee for legal, personnel, administrative and management purposes and in particular to the processing of any sensitive personal data (as defined in the Data Protection Act 1998) relating to the Employee, including, as appropriate: 22.1.1 22.1.2 22.1.3 information about the physical or mental health or condition of the Employee in order to monitor sick leave and take decisions as to the fitness for work of the Employee; or the racial or ethnic origin of the Employee or religious or similar information in order to monitor compliance with equal opportunities legislation; or information relating to any criminal proceedings in which the Employee has been involved for insurance purposes and in order to comply with legal requirements and obligations to third parties. The Company may make such information available to those who provide products or services to the Company (such as advisers and payroll administrators), regulatory authorities,potential or future employers, governmental or quasi-governmental organisations and potential purchasers of the Company or the business in which the Employee works. The Employee consents to the transfer of such information to the business contacts of the Company outside the European Economic Area in order to further its business interests even where the country or territory in question does not maintain adequate data protection standards. Collective Agreements There is no collective agreement which directly affects the Appointment. |
Notice A notice given to a party under this Agreement shall be in writing in the English language and signed by or on behalf of the party giving it. It shall be delivered by hand or sent to the party at the address or fax number given in this Agreement or as otherwise notified in writing to the other party. Any such notice shall be deemed to have been received: if delivered by hand, at the time the notice is left at the address or given to the addressee; or in the case of pre-paid first class UK post or other next working day delivery service, at 9.00 am two business days after posting or at the time recorded by the delivery service; or in the case of pre-paid airmail, 9.00 am five business days after posting or at the time recorded by the delivery service; or in the case of fax, at the time of transmission. A notice shall have effect from the earlier of its actual or deemed receipt by the addressee. For the purpose of calculating deemed receipt: all references to time are to local time in the place of deemed receipt; and if deemed receipt would occur on a Saturday or Sunday or a public holiday when banks are not open for business, deemed receipt is at 9.00 am on the next business day. A notice required to be given under this Agreement shall not be validly given if sent by e mail. This clause does not apply to the service of any proceedings or other documents in any legal action. Entire Agreement This Agreement (and any document referred to in it) constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract. Nothing in this clause 25 shall limit or exclude any liability for fraud. |
Variation No variation or agreed termination of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). Counterparts This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument. Third Party Rights No person other than a party to this Agreement may enforce any of its terms. Governing Law This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). This Agreement has been entered into on the date stated at the beginning of this Agreement. |
Executed (but not delivered until the date hereof) as a deed by 4d pharma pie acting by a director Signature of witness Name .. &.!: 41':..................... Address ..........(Y.. .d....Q. r-........h..t'!?.B................................................... . Executed (but not delivered until the date hereof) as a deed by Duncan Joseph Peyton in the ........................................... . ignature of witness Name ...h& !.!.f!r..................... Address ......?.<e...P.V. U-1.l!!.0./!?.1!.../-........h..lf.e( .......................... ......................... Director |
Exhibit 10.7
Dated ((} F6i>.at2014 40 PHARMA PLC ALEXANDER JAMES STEVENSON Service Agreement Schofield Sweeney LLP Springfield House 76 Wellington Street Leeds LS1 2AY Tel: 0113 220 6270 (Ref: LSD/3368.43) |
Contents ClausePage lnterpretation1 Term of Appointment2 Employee Warranties2 Duties3 Place of Work4 Hours of Work4 Salary4 Expenses5 Bonus5 Directors' and Officers' Insurance5 Holidays5 lncapacity6 Confidential Information7 Intellectual Property7 Ceasing to be a Director8 Payment in Lieu of Notice8 Termination Without Notice8 Garden Leave9 Obligations Upon Termination9 Post-termination Restrictions10 Disciplinary and Grievance Procedures11 Data Protection12 Collective Agreements12 Notice13 Entire Agreement13 Variation14 Counterparts14 Third Party Rights14 Governing Law14 |
This Agreement is dated 2014 Parties 4d pharma pie incorporated and registered in England and Wales with company number 8840579 whose registered office is at 74 Gartside Street, Manchester M3 3EL (the Company) Alexander James Stevenson of 2 Oaklands Avenue, Adel, Leeds LS16 (the Employee). Operative Provisions Interpretation The definitions and rules of interpretation in this clause 1 apply in this Agreement. Admission the admission of the issued and to be issued share capital of the Company to trading on AIM, the market operated by the London Stock Exchange pie, becoming effective in accordance with the AIM Rules for Companies (published by the London Stock Exchange pie and as amended form time to time); Appointment means the employment of the Employee by the Company on the terms of this Agreement. Board means the board of directors of the Company (including any committee of the board duly appointed by it). Capacity means as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity. Confidential Information means information {whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to the business, products, affairs and finances of the Company for the time being confidential to the Company and trade secrets including, without limitation, technical data and know-how relating to the business of the Company or any of its business contacts. Garden Leave means any period during which the Company has exercised its rights under clause 18. Incapacity means any sickness, injury or other medical disorder or condition which prevents the Employee from carrying out his duties. Intellectual Property Rights means patents, rights to Inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, |
and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Invention means any invention, idea, discovery, development, improvement or innovation, whether or not patentable or capable of registration, and whether or not recorded in any medium. Restricted Business means those parts of the business of the Company with which the Employee was involved to a material extent in the 12 months before Termination. Restricted Person means anyone employed by the Company and who could materially damage the interests of the Company if they were involved in any Capacity in any business concern which competes with any Restricted Business, and with whom the Employee dealt with in the 12 months before Termination in the course of his employment. Staff Handbook means the staff handbook of the Company as amended from time to time. Termination means the termination of the employment of the Employee with the Company however caused. The headings in this Agreement are inserted for convenience only and shall not affect its construction. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders; words in the singular include the plural and in the plural include the singular. Term of Appointment Subject to Admission, the Appointment shall be deemed to have commenced on the date of this Agreement and shall continue, subject to the remaining terms of this Agreement, for a fixed period of 12 months and thereafter until terminated by either party giving the other not less than 12 calendar months' prior notice in writing, such notice not to be given until expiry of that fixed period. The Company shall employ the Employee and the Employee shall serve the Company on the terms of this Agreement as an Employee Shareholder in accordance with section 205A of the Employment Rights Act 1996. No employment with a previous employer will count towards the period of continuous employment that the Employee has with the Company. Employee Warranties The Employee represents and warrants to the Company that, by entering into this Agreement or performing any of his obligations under it, he will not be in breach of any |
court order or any express or implied terms of any contract or other obligation binding on him. The Employee warrants that he is entitled to work in the United Kingdom without any additional approvals and will notify the Company immediately if he ceases to be so entitled during the Appointment. The Employee warrants that he is not subject to any restrictions which prevent him from holding office as a director. Duties Subject to Admission, the Employee shall serve the Company as chief scientific officer. During the Appointment the Employee shall: act as a director of the Company and carry out duties on behalf of the Company; comply with the articles of association (as amended from time to time) of the Company; abide by any statutory, fiduciary or common-law duties to the Company; not do anything that would cause him to be disqualified from acting as a director; comply with all requirements or regulations of all regulatory authorities relevant to the Company and any code of practice issued by the Company (as amended from time to time) relating to dealing in the securities of the Company; comply with the requirements under both legislation and regulation as to the disclosure of inside information; comply with the anti-corruption and bribery policy and related procedures of the Company; unless prevented by Incapacity, devote the whole of his time, attention and abilities during his normal working hours to the business of the Company; faithfully and diligently exercise such powers and perform such duties as may from time to time be reasonably assigned to him by the Company; comply with all reasonable and lawful directions given to him by the Company; promptly make such reports to the chairman in connection with the affairs of the Company on such matters and at such times as are reasonably required; and |
report his own wrongdoing and any wrongdoing or proposed wrongdoing of any other employee or director of the Company to the chairman immediately on becoming aware of it. The Employee shall comply with any rules, policies and procedures set out in the Staff Handbook a copy of which will be provided to the Employee. The Staff Handbook does not form part of this Agreement and the Company may amend it at any time. To the extent that there is any conflict between the terms of this Agreement and the Staff Handbook, this Agreement shall prevail. All documents, manuals, hardware and software provided for the use of the Employee by the Company, and any data or documents (including copies) produced, maintained or stored on the computer systems of the Company or other electronic equipment (including mobile phones), remain the property of the Company. The Employee shall disclose to the Board all business interests other than those of the Company and shall not, without the prior written approval of the Board, be directly or indirectly involved in any Capacity with any business concern which is similar to or competitive with any business for the time being carried on by the Company or where such involvement might give rise to a potential or actual conflict of interest or conflict with any of his other obligations under this Agreement. Place of Work The normal place of work of the Employee is the Company's registered office or such other place within a reasonable area which the Company may reasonably require for the proper performance and exercise of his duties. The Employee agrees to travel on any business of the Company (both within the United Kingdom or abroad) as may be required for the proper performance of his duties under the Appointment. During the Appointment the Employee shall not be required to work outside the United Kingdom for any continuous period of more than one month. 6Hours of Work The normal working hours of the Employee shall be 9.00 am to 5.00 pm on Mondays to Fridays and such hours as are necessary for the proper performance of his duties; the Employee acknowledges that he shall not receive further remuneration in respect of such additional hours. Salary The Employee shall be paid an initial salary of £100,000 per annum {inclusive of any fees due to the Employee by the Company as an officer of the Company). |
The salary paid to the Employee shall accrue from day to day and be payable monthly in arrears on or about the final working day of each month directly into his bank or building society. The salary paid to the Employee shall be reviewed annually by the Company, acting by its remuneration committee, the first such review to take place in February 2015. The Company is under no obligation to award an increase following a salary review. There will be no review of the salary after notice has been given by either party to terminate the Appointment. The Company may deduct from the salary, or any other sums owed to the Employee, any money owed to the Company by the Employee. Expenses The Company shall reimburse (or procure the reimbursement of) all reasonable expenses wholly, properly and necessarily incurred by the Employee in the course of the Appointment, subject to production of VAT receipts or other appropriate evidence of payment. The Employee shall abide by the policies of the Company on expenses as communicated to him from time to time. Bonus The Company may in its absolute discretion pay the Employee a bonus of such amount, at such intervals and subject to such conditions as the Company, acting by its remuneration committee, may in its absolute discretion determine from time to time. Any bonus payment to the Employee shall be purely discretionary and shall not form part of the contractual remuneration of the Employee under this Agreement. If the Company makes a bonus payment to the Employee, it shall not be obliged to make subsequent bonus payments. Any bonus payment shall not be pensionable. Directors' and Officers' Insurance During the Appointment and for six years following Termination the Employee shall be entitled to be covered by a policy of directors' and officers' liability insurance on terms no less favourable than those in place from time to time for other members of the Board. A copy of the policy is available from the Board. Holidays The Employee shall be entitled to 30 days' paid holiday in each holiday year which shall include the usual public holidays in England and Wales or days in lieu where the Company requires the Employee to work on a public holiday. The holiday year of the Company runs between January and February. If the Appointment commences or terminates part way |
through a holiday year, the entitlement of the Employee during that holiday year shall be calculated on a pro-rata basis rounded up to the nearest whole day. The Employee shall not without the consent of the Board carry forward more than five days accrued but untaken holiday entitlement to a subsequent holiday year unless the Employee has been unavoidably prevented from taking such holiday during the relevant leave year because of sickness absence or statutory maternity, paternity or adoption leave. The Employee shall have no entitlement to any payment in lieu of accrued but untaken holiday except on termination of the Appointment. The amount of such payment in lieu shall be 1/260th of the salary of the Employee for each untaken day of the entitlement under clause 11.1 for the holiday year in which termination takes place and any untaken days carried forward from the preceding holiday year. If on termination of the Appointment the Employee has taken in excess of his accrued holiday entitlement, the Company shall be entitled to recover from the Employee by way of deduction from any payments due to the Employee or otherwise one day's pay calculated at 1/260th of the salary for each excess day. If either party has served notice to terminate the Appointment, the Company may require the Employee to take any accrued but unused holiday entitlement during the notice period. Any accrued but unused holiday entitlement shall be deemed to be taken during any period of Garden Leave under clause 18. Incapacity Subject to the compliance of the Employee with this Agreement and the sickness absence procedures of the Company (as amended from time to time), the Employee shall continue to receive his full salary and contractual benefits during any period of absence due to Incapacity for up to an aggregate of 26 weeks in any 52 week period. Such payment shall be inclusive of any statutory sick pay due in accordance with applicable legislation. The Employee agrees to consent to medical examinations (at the expense of the Company) by a doctor nominated by the Company should the Company so require. The Employee agrees that any report produced in connection with any such examination may be disclosed to the Company and the Company may discuss the contents of the report with the relevant doctor. If the Incapacity is or appears to be occasioned by actionable negligence, nuisance or breach of any statutory duty on the part of a third party in respect of which damages are or may be recoverable, the Employee shall immediately notify the Board of that fact and of any claim, compromise, settlement or judgment made or awarded in connection with it and all relevant particulars that the Board may reasonably require. The Employee shall if required by the Company, refund to the Company that part of any damages or compensation recovered by him relating to the loss of earnings for the period of the Incapacity as the Board may reasonably determine less any costs borne by him in |
connection with the recovery of such damages or compensation, provided that the amount to be refunded shall not exceed the total amount paid to the Employee by the Company in respect of the period of Incapacity. Confidential Information The Employee acknowledges that in the course of the Appointment he will have access to Confidential Information. The Employee has therefore agreed to accept the restrictions in this clause 13. The Employee shall not (except in the proper course of his duties), either during the Appointment or at any time after its termination {however arising), use or disclose to any person, company or other organisation whatsoever any Confidential Information. This shall not apply to: any use or disclosure authorised by the Board or required by law or by the requirements or regulations of any applicable regulatory authority; or any information which is already in, or comes into, the public domain other than through the unauthorised disclosure of the Employee; or any protected disclosure within the meaning of section 43A of the Employment Rights Act 1996. Intellectual Property The Employee shall give the Company full written details of all Inventions and of all works embodying Intellectual Property Rights made wholly or partially by him at any time during the course of the Appointment which relate to, or are capable of being used in, the business of the Company. The Employee acknowledges that all Intellectual Property Rights subsisting (or which may in the future subsist) in all such Inventions and works shall automatically, on creation, vest in the Company absolutely. To the extent that they do not vest automatically, the Employee holds them on trust for the Company. The Employee agrees promptly to execute all documents and do all acts as may, in the opinion of the Company, be necessary to give effect to this clause 14.1. The Employee irrevocably waives all moral rights under the Copyright, Designs and Patents Act 1988 (and all similar rights in other jurisdictions) which he has or will have in any existing or future works referred to in clause 14.1. The Employee irrevocably appoints the Company to be his attorney to execute and do any such instrument or thing and generally to use his name for the purpose of giving the Company or its nominee the benefit of this clause 14. The Employee acknowledges in favour of a third party that a certificate in writing signed by any Director or the Secretary of the Company that any instrument or act falls within the authority conferred by this clause 14 shall be conclusive evidence that such is the case. |
Ceasing to be a Director Except with the prior approval of the Board, or as provided in the articles of association of the Company, the Employee shall not resign as a director of the Company. If during the Appointment the Employee ceases to be a director of the Company (otherwise than by reason of his death, resignation or disqualification pursuant to the articles of association of the Company, as amended from time to time, or by statute or court order) the Appointment shall continue with the Employee as an employee only and the terms of this Agreement (other than those relating to the holding of the office of director) shall continue in full force and effect. The Employee shall have no claims in respect of such cessation of office. Payment in Lieu of Notice Notwithstanding clause 2, the Company may, in its sole and absolute discretion, terminate the Appointment at any time and with immediate effect by notifying the Employee that the Company is exercising its right under this clause 16 and that it will make within 28 days a payment in lieu of notice (Payment in lieu) to the Employee. This Payment in lieu will be equal to the basic salary (as at the date of termination) which the Employee would have been entitled to receive under this Agreement during the notice period referred to at clause 2 (or, if notice has already been given, during the remainder of the notice period) less income tax and National Insurance contributions. Notwithstanding clause 16.1 the Employee shall not be entitled to any Payment in lieu if the Company would otherwise have been entitled to terminate the Appointment without notice in accordance with clause 17. Termination Without Notice The Company may also terminate the Appointment with immediate effect without notice and with no liability to make any further payment to the Employee (other than in respect of amounts accrued due at the date of Termination) if the Employee: is disqualified from acting as a director; or is guilty of any gross misconduct affecting the business of the Company; or commits any serious or repeated breach or non-observance of any of the provisions of this Agreement; or is declared bankrupt or makes any arrangement with or for the benefit of his creditors or has a county court administration order made against him under the County Court Act 1984; or is convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non custodial penalty is imposed) or any offence under any regulation or legislation relating to insider dealing; or |
17.1.6 17.1.7 becomes of unsound mind (which includes lacking capacity under the Mental Capacity Act 2005), or a patient under any statute relating to mental health; or is guilty of any fraud or dishonesty or acts in any manner which in the opinion of the Company brings or is likely to bring the Employee or the Company into disrepute or is materially adverse to the interests of the Company. The rights of the Company under clause 17.1 are without prejudice to any other rights that it might have at law to terminate the Appointment or to accept any breach of this Agreement by the Employee as having brought the agreement to an end. Any delay by the Company in exercising it rights to terminate shall not constitute a waiver thereof. Garden Leave Following service of notice to terminate the Appointment by either party, or if the Employee purports to terminate the Appointment in breach of contract, the Company may by written notice place the Employee on Garden Leave for the whole or part of the remainder of the Appointment. During any period of Garden Leave: the Company shall be under no obligation to provide any work to the Employee and may revoke any powers the Employee holds on behalf of the Company; 18.2.2 18.2.3 18.2.4 18.2.5 18.2.6 the Employee shall continue to receive his basic salary and all contractual benefits in the usual way and subject to the terms of any benefit arrangement; the Employee shall remain an employee of the Company and bound by the terms of this Agreement; the Employee shall ensure that the Board knows where he will be and how he can be contacted (except during any periods taken as holiday in the usual way); the Company may exclude the Employee from any premises of the Company and the Company may require the Employee not to contact or deal with (or attempt to contact or deal with) any officer, employee, consultant, client, customer, supplier, agent, distributor, shareholder, adviser or other business contact of the Company. Obligations Upon Termination On Termination of the Appointment {however arising) or, if earlier, at the start of a period of Garden Leave following the service of notice or purported Termination of the Appointment by the Employee, the Employee shall: |
19.1.1 19.1.2 19.1.3 19.1.4 resign immediately without compensation from any office or trusteeship that he holds in or on behalf of the Company; subject to clause 19.2 if applicable, immediately deliver to the Company all documents, books, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the business or affairs of the Company or its business contacts, any keys and any other property of the Company, which is in his possession or under his control; irretrievably delete any information relating to the business of the Company stored on any magnetic or optical disk or memory and all matter derived from such sources which is in his possession or under his control outside the premises of the Company; and provide a signed statement that he has complied fully with his obligations under this clause 19.1 together with such reasonable evidence of compliance as the Company may request. Where the Employee has been placed on Garden Leave he shall not be required by clause 19.1 to return until the end of the Garden Leave period any property provided to him as a contractual benefit for use during the Appointment. Post-termination Restrictions In order to protect the Confidential Information, trade secrets and business connections of the Company to which he has access as a result of the Appointment, the Employee covenants with the Company that he shall not: 20.1.1 20.1.2 20.1.3 20.1.4 for 12 months after Termination in the course of any business concern which is in direct competition with any Restricted Business, offer to employ or engage or otherwise endeavour to entice away from the Company any Restricted Person; or for 12 months after Termination in the course of any business concern which is in direct competition with any Restricted Business, employ or engage or otherwise facilitate the employment or engagement of any Restricted Person, whether or not such person would be in breach of contract as a result of such employment or engagement; or for 12 months after Termination, be involved in any Capacity with any business concern which is in direct competition with any Restricted Business; or at any time after Termination, represent himself as connected with the Company in any Capacity, other than as a former employee, or use any registered business names or trading names associated with the Company. None of the restrictions in clause 20.1 shall prevent the Employee from: |
20.2.1 20.2.2 20.2.3 holding an investment by way of shares or other securities of not more than 5% of the total issued share capital of any company, whether or not it is listed or dealt in on a recognised stock exchange; or being engaged or concerned in any business concern insofar as the duties of the Employee or work shall relate solely to geographical areas where the business concern is not in direct competition with any Restricted Business; or being engaged or concerned in any business concern, provided that the duties of the Employee or work shall relate solely to services or activities of a kind with which the Employee was not concerned with to a material extent in the 12 months before Termination. The restrictions imposed on the Employee by this clause 20 apply to him acting: 20.3.1 20.3.2 directly or indirectly; and on his own behalf or on behalf of, or in conjunction with, any firm, company or person. The periods for which the restrictions in clause 20.1 apply shall be reduced by any period that the Employee spends on Garden Leave immediately before Termination. Each of the restrictions in this clause 20 is intended to be separate and severable. If any of the restrictions shall be held to be void but would be valid if part of their wording were deleted, such restriction shall apply with such deletion as may be necessary to make it valid or effective. Disciplinary and Grievance Procedures The Employee is subject to the disciplinary and grievance procedures of the Company, copies of which are available from the Board. These procedures do not form part of the contract of employment of the Employee. If the Employee wants to raise a grievance, he may apply in writing to the chairman in accordance with the grievance procedure of the Company. If the Employee wishes to appeal against a disciplinary decision he may apply in writing to the chairman in accordance with the disciplinary procedure of the Company. The Company may suspend the Employee from any or all of his duties for a period of up to 30 days during any period in which the Company is investigating any disciplinary matter involving the Employee or while any disciplinary procedure against the Employee is outstanding. During any period of suspension: the Employee shall continue to receive his basic salary and all contractual benefits in the usual way and subject to the terms of any benefit arrangement; |
21.5.2 21.5.3 21.5.4 21.5.5 the Employee shall remain an employee of the Company and bound by the terms of this Agreement; the Employee shall ensure that the Board knows where he will be and how he can be contacted (except during any periods taken as holiday in the usual way); the Company may exclude the Employee from his place of work or any other premises of the Company; and the Company may require the Employee not to contact or deal with (or attempt to contact or deal with) any officer, employee, consultant, client, customer, supplier, agent, distributor, shareholder, adviser or other business contact of the Company. Data Protection The Employee consents to the Company processing data relating to the Employee for legal, personnel, administrative and management purposes and in particular to the processing of any sensitive personal data (as defined in the Data Protection Act 1998) relating to the Employee, including, as appropriate: 22.1.1 22.1.2 22.1.3 information about the physical or mental health or condition of the Employee in order to monitor sick leave and take decisions as to the fitness for work of the Employee; or the racial or ethnic origin of the Employee or religious or similar information in order to monitor compliance with equal opportunities legislation; or information relating to any criminal proceedings in which the Employee has been involved for insurance purposes and in order to comply with legal requirements and obligations to third parties. The Company may make such information available to those who provide products or services to the Company (such as advisers and payroll administrators), regulatory authorities,potential or future employers, governmental or quasi-governmental organisations and potential purchasers of the Company or the business in which the Employee works. The Employee consents to the transfer of such information to the business contacts of the Company outside the European Economic Area in order to further its business interests even where the country or territory in question does not maintain adequate data protection standards. Collective Agreements There is no collective agreement which directly affects the Appointment. |
Notice A notice given to a party under this Agreement shall be in writing in the English language and signed by or on behalf of the party giving it. It shall be delivered by hand or sent to the party at the address or fax number given in this Agreement or as otherwise notified in writing to the other party. Any such notice shall be deemed to have been received: if delivered by hand, at the time the notice is left at the address or given to the addressee; or in the case of pre-paid first class UK post or other next working day delivery service, at 9.00 am two business days after posting or at the time recorded by the delivery service; or in the case of pre-paid airmail, 9.00 am five business days after posting or at the time recorded by the delivery service; or in the case of fax, at the time of transmission. A notice shall have effect from the earlier of its actual or deemed receipt by the addressee. For the purpose of calculating deemed receipt: all references to time are to local time in the place of deemed receipt; and if deemed receipt would occur on a Saturday or Sunday or a public holiday when banks are not open for business, deemed receipt is at 9.00 am on the next business day. A notice required to be given under this Agreement shall not be validly given if sent by e mail. This clause does not apply to the service of any proceedings or other documents in any legal action. Entire Agreement This Agreement (and any document referred to in it) constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract. Nothing in this clause 25 shall limit or exclude any liability for fraud. |
26Variation No variation or agreed termination of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 27Counterparts This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument. Third Party Rights No person other than a party to this Agreement may enforce any of its terms. Governing Law This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). This Agreement has been entered into on the date stated at the beginning of this Agreement. |
Executed (but not delivered until the date hereof) as a deed by 4d pharma pie acting by a director f: Signature of witness Name ..kw &!.!:.... ................. Address ......"lrf:.......0.(.1?.': .<#.&m ... / ·········· ················································· Executed (but not delivered until the date hereof) as a deed by Alexander James Stevenson in the presence . Signature of witness Name ...h.u4(![!.!..C:!F.. ... ........... Address .. ...kkfr:.Cd:-£.tY&f£:.'!.... /-...........fu........................................... . ······ ··· ············· |
Exhibit 10.8
Dated151 November2017 4D PHARMA PLC RICHARD AVISON Employment Contract |
Contents ClausePage Interpretation1 Term of Appointment2 Employee Warranties3 Duties3 Place of Work4 Hours of Work4 Salary5 8Expenses5 9Bon5 Holidays5 lncapacity6 Confidential Information6 Intellectual Property7 Payment in Lieu of Notice7 Termination Without Notice8 Garden Leave9 Obligations on Termination9 Post-termination Restrictions10 Disciplinary and Grievance Procedures11 Pensions12 Data Protection12 Collective Agreements12 Reconstruction and Amalgamation12 Notices13 Entire Agreement13 Variation14 Counterparts14 Third Party Rights14 Governing Law14 Jurisdiction14 |
This Agreement is made the 1st November 2017 Parties 4D PHARMA PLC incorporated and registered in England and Wales with company number 08840579 whose registered office is at 9 Bond Court, Leeds LS1 2JZ (the Company) RICHARD AVISON of 7 Huyton Avenue, St. Helens, Merseyside, WA10 6LU (the Employee). Operative Provisions 1Interpretation 1.1The definitions and rules of interpretation in this clause 1 apply in this Agreement. Appointment means the employment of the Employee by the Company on the terms of this Agreement. Associated Employer has the meaning given to it in the Employment Rights Act 1996. Board means the board of directors of the Company (including any committee of the board duly appointed by it). Capacity means as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity. Commencement Date means 1st November 2017. Company Polices means such policies and procedures that the Company may in in force from time to time and to include the Employee Handbook. Confidential Information means information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to the business, products, affairs and finances of any Group Company for the time being confidential to any Group Company and trade secrets including, without limitation, technical data and know-how relating to the business of any Group Company or any of their business contacts. Employee Handbook means the Company's staff handbook as amended from time to time. Garden Leave means any period during which the Company has exercised its rights under clause 16. Group Company means the Company, its Subsidiaries or Holding Companies from time to time and any Subsidiary of any Holding Company from time to time. Incapacity means any sickness, injury or other medical disorder or condition which prevents the Employee from carrying out his duties. Intellectual Property Rights means patents, rights to Inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to |
sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Invention means any invention, idea, discovery, development, improvement or innovation, whether or not patentable or capable of registration, and whether or not recorded in any medium. Restricted Business means any business engaged to any material extent in the 12 months before Termination in the field of live biotherapeutics (human and/or veterinary) and/or associated diagnostics for human and animal disease. Restricted Person means anyone employed by the Company or any Group Company and who could materially damage the interests of the Company or any Group Company if they were involved in any Capacity in any Restricted Business, and with whom the Employee dealt with in the 12 months before Termination in the course of his employment. Subsidiary and Holding Company means in relation to a company mean "subsidiary" and "holding company" as defined in section 1159 of the Companies Act 2006. Termination means the termination of the employment of the Employee with the Company however caused or arising. The headings in this Agreement are inserted for convenience only and shall not affect its construction. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular. Term of Appointment The Appointment shall commence on the Commencement Date and shall continue, subject to the remaining terms of this Agreement, until terminated by either party giving the other not less than three months' prior notice in writing. No employment with a previous employer counts towards the Employee's period of continuous employment with the Company. |
The Employee consents to the transfer of his employment under this Agreement to an Associated Employer at any time during the Appointment. Employee Warranties The Employee represents and warrants to the Company that, by entering into this Agreement or performing any of his obligations under it, he will not be in breach of any court order or any express or implied terms of any contract or other obligation binding on him and undertakes to indemnify the Company against any claims, costs, damages, liabilities or expenses which the Company may incur as a result if he is in breach of any such obligations. The Employee warrants that he is entitled to work in the United Kingdom without any additional approvals and will notify the Company immediately if he ceases to be so entitled during the Appointment. Duties The Employee shall serve the Company as Group Finance Officer or such other role as the Company reasonably considers appropriate. During the Appointment the Employee shall: comply with all requirements or regulations of all regulatory authorities relevant to any Group Company and any code of practice issued by the Company (as amended from time to time) relating to dealing in the securities of the Company; comply with the requirements under both legislation and regulation as to the disclosure of inside information; comply with the anti-corruption and bribery policy and related procedures of the Company; unless prevented by Incapacity, devote the whole of his time, attention and abilities during his normal working hours to the business of the Company; faithfully and diligently exercise such powers and perform such duties as may from time to time be assigned to him by the Company together with such person or persons as the Company may appoint to act jointly with them; comply with all reasonable and lawful directions given to him by the Company; promptly make such reports to the Board in connection with the affairs of the Company or Group Company on such matters and at such times as are reasonably required; report his own wrongdoing and any wrongdoing or proposed wrongdoing of any other employee or director of the Company to the Board immediately on becoming aware of it; |
use his best endeavours to promote, protect, develop and extend the business of any Group Company; and consent to the Company monitoring and recording any use that he makes of the Company's electronic communications systems for the purpose of ensuring that the Company's rules are being complied with and for legitimate business purposes. The Employee shall comply with any rules, policies and procedures set out in the Company Policies. The Employee Handbook does not form part of this Agreement and the Company may amend it at any time. To the extent that there is any conflict between the terms of this Agreement and the Employee Handbook, this Agreement shall prevail. All documents, manuals, hardware and software provided for the Employee's use by the Company, and any data or documents (including copies) produced, maintained or stored on the Company's computer systems or other electronic equipment (including mobile phones), remain the property of the Company. The Employee shall disclose to the Board all business interests other than those of the Company and shall not, without the prior written approval of the Board, be directly or indirectly involved in any Capacity with any business concern which is similar to or competitive with any business for the time being carried on by the Company or where such involvement might give rise to a potential or actual conflict of interest or conflict with any of his other obligations under this Agreement. Place of Work The Employee's normal place of work is the Company's premises at Bond Court, Leeds or such other place which the Company may reasonably require for the proper performance and exercise of his duties. The Employee agrees to travel on the Company's or any Group Company's business (both within the United Kingdom or abroad) as may be reasonably required for the proper performance of his duties under the Appointment. During the Appointment the Employee shall not be required to work outside the United Kingdom for any continuous period of more than one month. Hours of Work The Employee's normal working hours shall be 9am to 5.30pm on Mondays to Fridays, with one hour for lunch which should be taken between 12.00 noon and 2.00 pm; and such additional hours as are necessary for the proper performance of his duties. The Employee acknowledges that he shall not receive further remuneration in respect of such additional hours. |
Salary The Employee shall be paid an initial salary of £60,000 per annum with a £5,000 bonus payable on completion of 12 months service and thereafter a salary of £65,000 per annum. The Employee's salary shall accrue from day to day and be payable monthly in arrears on the 28th day of each month in accordance with the Company Policies directly into the Employee's bank or building society. The Employee's salary shall be reviewed annually. The Company is under no obligation to award an increase following a salary review. There will be no review of the salary after notice has been given by either party to terminate the Appointment. The Company may deduct from the salary, or any other sums owed to the Employee, any money owed to the Company or any Group Company by the Employee. Expenses The Company shall reimburse (or procure the reimbursement of) all reasonable expenses wholly, properly and necessarily incurred by the Employee in the course of the Appointment, subject to production of VAT receipts or other appropriate evidence of payment. The Employee shall abide by the Company's policies on expenses as set out in the Employee Handbook from time to time. Any credit card supplied to the Employee by the Company shall be used only for expenses incurred by him in the course of the Appointment. Bonus The Company may in its absolute discretion pay the Employee a bonus of such amount, at such intervals and subject to such conditions as the Company may in its absolute discretion determine from time to time. Any bonus payment to the Employee shall be purely discretionary and shall not form part of the contractual remuneration of the Employee under this Agreement. If the Company makes a bonus payment to the Employee, it shall not be obliged to make subsequent bonus payments. Any bonus payment shall not be pensionable. Holidays The Employee shall be entitled to 25 days' paid holiday in each holiday year together with public holidays as laid out in the Employee Handbook and determined by the Company from time to time. The Company's holiday year runs between 1st January and 31st December. If the Appointment commences or terminates part way through a holiday year, the Employee's entitlement during that holiday year shall be calculated on a pro-rata basis. |
Holiday shall be taken at such time or times as shall be approved in advance by the Employee's line manager. The Employee shall not except as provided for in the Employee Handbook, without the consent of his line manager carry forward any accrued but untaken holiday entitlement to a subsequent holiday year. The Employee shall have no entitlement to any payment in lieu of accrued but untaken holiday except on Termination. The amount of such payment in lieu shall be 1/260th of the Employee's salary for each untaken day of the entitlement under clause 10.1 for the holiday year in which Termination takes place and any untaken days carried forward from the preceding holiday year. If on Termination the Employee has taken in excess of his accrued holiday entitlement, the Company shall be entitled to recover from the Employee by way of deduction from any payments due to the Employee or otherwise one day's pay calculated at 1/260th of the Employee's for each excess day. If either party has served notice to terminate the Appointment, the Company may require the Employee to take any accrued but unused holiday entitlement during the notice period. Any accrued but unused holiday entitlement shall be deemed to be taken during any period of Garden Leave under clause 16. Incapacity Subject to the Employee's compliance with this Agreement and the Company's sickness absence procedures, the Employee shall be paid any statutory sick pay due in accordance with applicable legislation in force at the time of absence. The Employee agrees to consent to medical examinations (at the Company's expense) by a doctor nominated by the Company should the Company so require. The Employee agrees that any report produced in connection with any such examination may be disclosed to the Company and the Company may discuss the contents of the report with the relevant doctor. Confidential Information The Employee acknowledges that in the course of the Appointment he will have access to Confidential Information. The Employee has therefore agreed to accept the restrictions in this clause 12. The Employee shall not (except in the proper course of his duties), either during the Appointment or at any time after Termination, use or disclose to any person, company or other organisation whatsoever (and shall use his best endeavours to prevent the publication or disclosure of) any Confidential Information. This shall not apply to: any use or disclosure authorised by the Board or required by law or by the requirements or regulations of any applicable regulatory authority; or any information which is already in, or comes into, the public domain other than through the Employee's unauthorised disclosure; or |
any protected disclosure within the meaning of section 43A of the Employment Rights Act 1996. Intellectual Property The Employee shall give the Company full written details of all Inventions and of all works embodying Intellectual Property Rights made wholly or partially by him at any time during the course of the Appointment which relate to, or are capable of being used in, the business of any Group Company. The Employee acknowledges that all Intellectual Property Rights subsisting (or which may in the future subsist) in all such Inventions and works shall automatically, on creation, vest in the Company absolutely. To the extent that they do not vest automatically, the Employee holds them on trust for the Company. The Employee agrees promptly to execute all documents and do all acts as may, in the opinion of the Company, be necessary to give effect to this clause 13.1. The Employee irrevocably waives all moral rights under the Copyright, Designs and Patents Act 1988 (and all similar rights in other jurisdictions) which he has or will have in any existing or future works referred to in clause 13.1. The Employee irrevocably appoints the Company to be his attorney to execute and do any such instrument or thing and generally to use his name for the purpose of giving the Company or its nominee the benefit of this clause 13. The Employee acknowledges in favour of a third party that a certificate in writing signed by any Director or the Secretary of the Company that any instrument or act falls within the authority conferred by this clause 13 shall be conclusive evidence that such is the case. Payment in Lieu of Notice Notwithstanding clause 2, the Company may, in its sole and absolute discretion, terminate the Appointment at any time and with immediate effect by notifying the Employee that the Company is exercising its right under this clause and that it will make within 28 days a payment in lieu of notice (Payment in Lieu) equal to the basic salary (as at the date of Termination) which the Employee would have been entitled to receive under this Agreement during the notice period referred to at clause 2 (or, if notice has already been given, during the remainder of the notice period) less income tax and National Insurance contributions. For the avoidance of doubt, the Payment in Lieu shall not include any element in relation to: any bonus or commission payments that might otherwise have been due during the period for which the Payment in Lieu is made; any payment in respect of benefits which the Employee would have been entitled to receive during the period for which the Payment in Lieu is made; and any payment in respect of any holiday entitlement that would have accrued during the period for which the Payment in Lieu is made. The Company may pay any sums due under clause 14.1 in equal monthly instalments until the date on which the notice period referred to at clause 2 would have expired if notice had |
been given. The Employee shall be obliged to seek alternative income during this period and to notify the Company of any income so received. The instalment payments shall then be reduced by the amount of such income. The Employee shall have no right to receive a Payment in Lieu unless the Company has exercised its discretion in clause 14.1. Notwithstanding clause 14.1 the Employee shall not be entitled to any Payment in Lieu if the Company would otherwise have been entitled to terminate the Appointment without notice in accordance with clause 15. In that case the Company shall also be entitled to recover from the Employee any Payment in Lieu (or instalments thereof) already made. Termination Without Notice The Company may also terminate the Appointment with immediate effect without notice and with no liability to make any further payment to the Employee (other than in respect of amounts accrued due at the date of Termination) if the Employee: 15.1.1 15.1.2 15.1.3 15.1.4 15.1.5 15.1.6 15.1.7 15.1.8 15.1.9 is guilty of any gross misconduct affecting the business of any Group Company; or commits any serious or repeated breach or non-observance of any of the provisions of this Agreement or refuses or neglects to comply with any reasonable and lawful directions of the Company; or is, in the reasonable opinion of the Board, negligent and incompetent in the performance of his duties; or is convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed) or any offence under any regulation or legislation relating to insider dealing; or is declared bankrupt or makes any arrangement with or for the benefit of their creditors or has an administration order made against them; or becomes of unsound mind (which includes lacking capacity under the Mental Capacity Act 2005), or a patient under any statute relating to mental health; or ceases to be eligible to work in the United Kingdom; or is guilty of any fraud or dishonesty or acts in any manner which in the opinion of the Board brings or is likely to bring the Employee or any Group Company into disrepute or is materially adverse to the interests of any Group Company; or is in breach of the Company's anti-corruption and bribery policy and related procedures; or |
15.1.10is guilty of a serious breach of any rules issued by the Company from time to time regarding its electronic communications systems. 15.2The rights of the Company under clause 15.1 are without prejudice to any other rights that it might have at law to terminate the Appointment or to accept any breach of this Agreement by the Employee as having brought the agreement to an end. Any delay by the Company in exercising its rights to terminate shall not constitute a waiver thereof. Garden Leave Following service of notice to terminate the Appointment by either party, or if the Employee purports to terminate the Appointment in breach of contract, the Company may by written notice place the Employee on Garden Leave for the whole or part of the remainder of the Appointment. During any period of Garden Leave: 16.2.1 16.2.2 16.2.3 16.2.4 16.2.5 16.2.6 16.2.7 the Company shall be under no obligation to provide any work to the Employee and may revoke any powers the Employee holds on behalf of the Company or any Group Company; the Company may require the Employee to carry out alternative duties or to only perform such specific duties as are expressly assigned to the Employee, at such location (including the Employee's home) as the Company may decide; the Employee shall continue to receive his basic salary and all contractual benefits in the usual way and subject to the terms of any benefit arrangement; the Employee shall remain an employee of the Company and bound by the terms of this Agreement; the Employee shall ensure that the Chief Executive knows where he will be and how he can be contacted during each working day (except during any periods taken as holiday in the usual way); the Company may exclude the Employee from any premises of the Company or any Group Company; and the Company may require the Employee not to contact or deal with (or attempt to contact or deal with) any officer, employee, consultant, client, customer, supplier, agent, distributor, shareholder, adviser or other business contact of the Company or any Group Company. Obligations on Termination On Termination or, if earlier, at the start of a period of Garden Leave following the service of notice or purported Termination of the Appointment by the Employee, the Employee shall: |
17.1.1 17.1.2 17.1.3 17.1.4 resign immediately without compensation from any office or trusteeship that he holds in or on behalf of any Group Company; subject to clause 17.2 if applicable, immediately deliver to the Company all documents, books, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the business or affairs of any Group Company or its business contacts, any keys, credit card and any other property of any Group Company, which is in his possession or under his control; irretrievably delete any information relating to the business of any Group Company stored on any magnetic or optical disk or memory and all matter derived from such sources which is in his possession or under his control outside the Company's premises; and provide a signed statement that he has complied fully with his obligations under this clause 17.1 together with such reasonable evidence of compliance as the Company may request. Where the Employee has been placed on Garden Leave he shall not be required by clause 17.1 to return until the end of the Garden Leave period any property provided to him as a contractual benefit for use during the Appointment. On Termination the Employee shall not be entitled to any compensation for the loss of any rights or benefits under any share option, bonus, long-term incentive plan or other profit sharing scheme operated by the Company or any Group Company in which they may participate. Post-termination Restrictions In order to protect the Confidential Information, trade secrets and business connections of the Company and each Group Company to which he has access as a result of the Appointment, the Employee covenants with the Company (for itself and as trustee and agent for each Group Company) that he shall not: 18.1.1 18.1.2 18.1.3 for 12 months after Termination in the course of any Restricted Business, offer to employ or engage or otherwise endeavour to entice away from the Company or any Group Company any Restricted Person; or for 12 months after Termination in the course of any Restricted Business, employ or engage or otherwise facilitate the employment or engagement of any Restricted Person, whether or not such person would be in breach of contract as a result of such employment or engagement; or for 12 months after Termination, be involved in any Capacity with any Restricted Business; or |
18.1.4at any time after Termination, represent himself as connected with the Company or any Group Company in any Capacity, other than as a former employee, or use any registered business names or trading names associated with the Company or any Group Company. None of the restrictions in clause 18.1 shall prevent the Employee from: 18.2.1 18.2.2 holding an investment by way of shares or other securities of not more than 5% of the total issued share capital of any company, whether or not it is listed or dealt in on a recognised stock exchange; or being engaged or concerned in any business concern, provided that the duties of the Employee or work shall relate solely to services or activities of a kind with which the Employee was not concerned with to a material extent in the 12 months before Termination. The restrictions imposed on the Employee by this clause 18 apply to him acting: 18.3.1 18.3.2 directly or indirectly; and on his own behalf or on behalf of, or in conjunction with, any firm, company or person. The periods for which the restrictions in clause 18.1 apply shall be reduced by any period that the Employee spends on Garden Leave immediately before Termination. If the Employee receives an offer to be involved in a business concern in any Capacity during the Appointment, or before the expiry of the last of the covenants in this clause 18, the Employee shall give the person making the offer a copy of this clause 18. The Company and the Employee entered into the restrictions in this clause 18 having been separately legally advised. Each of the restrictions in this clause 18 is intended to be separate and severable. If any of the restrictions shall be held to be void but would be valid if part of their wording were deleted, such restriction shall apply with such deletion as may be necessary to make it valid or effective. Disciplinary and Grievance Procedures The Employee is subject to the Company's disciplinary and grievance procedures, copies of which are in the Employee Handbook. These procedures do not form part of the Employee's contract of employment. If the Employee wants to raise a grievance, he may apply in writing to his line manager in accordance with the Company's grievance procedure. If the Employee wishes to appeal against a disciplinary decision he may apply in writing in accordance with the Company's disciplinary procedure. |
The Company may suspend the Employee from any or all of his duties during any period in which the Company is investigating any disciplinary matter involving the Employee or while any disciplinary procedure against the Employee is outstanding. Pensions The Company will comply with the auto enrolment legislation. The Employee will be invited to join the Company's group personal pension scheme (or such other registered pension scheme as may be set up by the Company to replace such scheme). A contracting-out certificate is not in force in respect of the Appointment. Data Protection The Employee consents to the Company or any Group Company processing data relating to the Employee for legal, personnel, administrative and management purposes and in particular to the processing of any sensitive personal data (as defined in the Data Protection Act 1998) relating to the Employee, including, as appropriate: information about the Employee's physical or mental health or condition in order to monitor sick leave and take decisions as to the Employee's fitness for work; the Employee's racial or ethnic origin or religious or similar information in order to monitor compliance with equal opportunities legislation; information relating to any criminal proceedings in which the Employee has been involved for insurance purposes and in order to comply with legal requirements and obligations to third parties; and any other sensitive data to be processed. Collective Agreements There is no collective agreement which directly affects the Appointment. Reconstruction and Amalgamation If the Appointment is terminated at any time by reason of any reconstruction or amalgamation of the Company or any Group Company, whether by winding up or otherwise, and the Employee is offered employment with any concern or undertaking involved in or resulting from the reconstruction or amalgamation on terms which (considered in their entirety) are no less favourable to any material extent than the terms of this Agreement, the Employee shall have no claim against the Company or any such undertaking arising out of or connected with the termination. |
Notices A notice given to a party under this Agreement shall be in writing in the English language and signed by or on behalf of the party giving it It shall be delivered by hand or sent to the party at the address given in this Agreement or as otherwise notified in writing to the other party. Any such notice shall be deemed to have been received: if delivered by hand, at the time the notice is left at the address or given to the addressee; and in the case of pre-paid first class UK post or other next working day delivery service, at 9.00 am on the second business day after posting or at the time recorded by the delivery service. A notice shall have effect from the earlier of its actual or deemed receipt by the addressee. For the purpose of calculating deemed receipt: all references to time are to local time in the place of deemed receipt; and if deemed receipt would occur on a Saturday or Sunday or a public holiday when banks are not open for business, deemed receipt is at 9.00 am on the next business day. A notice required to be given under this Agreement shall not be validly given if sent by e mail. This clause does not apply to the service of any proceedings or other documents in any legal action. Entire Agreement This Agreement and any document referred to in it constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement Each party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract 25-4Nothing in this Agreement shall limit or exclude any liability for fraud. |
Variation No variation or agreed termination of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). Counterparts This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. Third Party Rights Except as provided in this clause, no one other than a party to this Agreement shall have any right to enforce any of its terms. Each Group Company may in its own right enforce the provisions of clauses 12 and 18 subject to, and in accordance with, the Contracts (Rights of Third Parties) Act 1999. The parties to this Agreement may terminate or rescind this Agreement, or agree to any variation, waiver or settlement in connection with it, without the consent of any third party, whether or not it extinguishes or alters any entitlement it may have under its right to enforce any of the provisions of this Agreement. Governing Law This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. 30Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). This Agreement has been entered into on the date stated at the beginning of this Agreement. |
Executed (but not delivered until the date hereof) as a deed by 40 pharma pie acting by a director inthepr/f: - ········································ ·-······ Signature of witness Name ... /'!.0...../.?.......... Address ...W C?...f.""/.?.8..!?5?<-?....f!:!.?!-:«K ....!.:. -< <!..t&Jc!Cv!7( ........... ······ ....116...?...... JY.!................................... . Executed (but not delivered until the date hereof) as a deed by Ri Avison · ····················'-:······1·······............ Signature of wilrres""s Name .....S7I ......D.\J\":.l.................... Address ..... .....Y.!./..-L...K.. Af:....... c') ,'leJ,J ··················p; ·······i·· _g································· .....<YL................. . Director |
Fifth Floor 9 Bond Court Leeds LS1 2JZ Tel: 0113 895 0130 Richard Avison 7 Huyton Avenue St Helens Merseyside WA10 6LU www.4dpharmaplc.com 29 August 2019 LETTER OF VARIATION No. 1 Dear Richard, Re: SERVICE AGREEMENT DATED 1st November 2017 (“AGREEMENT”) We are pleased to confirm the following amendments from the 1st January 2019. This letter confirms that the following two (2) sections of the Agreement are amended in accordance with Section 25 of the Agreement as follows: Section 7 : Salary: is amended And replaced with Section 7 : Salary: 7.1The Employee shall be paid an initial salary of £75,000 per annum. All other sub-sections within Section 7 in the Agreement remain unchanged. All other terms and conditions of the Agreement remain in full force and effect. For and on behalf of 4D PHARMA PLC Signed: Date: 29 August 2019_ Name :Tamar Minty Title: Registered Office: 4D pharma plc Third Floor, 9 Bond Court Leeds LS1 2JZ United Kingdom Registered In England and Wales, Company Number 08840579 |
For and on behalf of Richard Avison Signed: Name : Richard Avison Date: 29/08/19 Title: Group Finance Director |
Exhibit 10.10
4D Pharma
plc
2015 Long Term Incentive
Plan
Adopted on
17 September 2015
KPMG LLP
1 The Embankment
Neville Street Leeds,
LS1 4DW
4D Pharma plc
2015 Long Term Incentive Plan
KPMG LLP
Contents
1 Interpretation
Definitions
1.1 | In these Rules, unless the context otherwise requires, the following words and expressions shall have the following meanings: |
“Acceptance Notice” | a notice from a Participant accepting an Option, in such form as the Committee may from time to time determine; | |
“Acquiring Company” | an acquiring Company as defined in Rule 6.1; | |
“Adoption Date” | the date this Plan is adopted by the Board; | |
“Board” | the board of directors for the time being of the Company or the directors present at a duly convened meeting of the directors or a duly appointed committee of the board of directors at which a quorum is present; | |
“Committee | the duly appointed remuneration committee of the board of directors of the Company at which a quorum is present save that, for the purposes of the definition of Internal Reconstruction and Rule 6, it means the remuneration committee as constituted immediately before the change of Control of the Company; | |
“Company” | 4D Pharma plc registered in England and Wales with company number 08840579; | |
“Control” | the same meaning as in Section 995 of the Income Tax Act 2007; | |
“Daily Official List” | the daily record setting out the prices of all trades in shares and other securities conducted on the London Stock Exchange; | |
“Date of Grant” | the date the Grantor grants an Option under this Plan in accordance with Rule 2.6; | |
“Dealing Day” | a day on which the London Stock Exchange is open for the transaction of business; | |
“Dealing Restriction” | a restriction on dealings in Shares imposed by any law, regulation, order or directive or by the rules applying to any listing of the Company and/or any other code adopted by the Company; | |
“Exercise Date” | the date that an Option is exercised as defined in Rules 7.4 and 7.5; | |
“Exercise Notice” | an exercise notice given by a Participant in accordance with Rule 7, in such form as the Committee may from time to time determine; |
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“Exercise Price” | the price (if any) at which a Share under Option may be acquired as determined by the Committee (with the Trustee’s consent where the Option is to be granted by the Trustee) at the Date of Grant of an Option, being at least the nominal value of a Share if the Shares under Option are to be subscribed for; | |
“General Offer” | a general offer to acquire: | |
(a) all of the issued ordinary share capital of the Company other than that which is already owned by the person making the offer or any persons acting in concert with the offeror, or | ||
(b) all of the shares of the same class as the Shares other than those which are already owned by the person making the offer or any persons acting in concert with the offeror | ||
which, in either case, is related to and/or conditional on the person making the offer, either alone or together with persons acting in concert with him, acquiring Control of the Company; | ||
“Good Leaver” | a Participant who is a Good Leaver as defined in Rule 4.9; | |
“Grant Letter” | a letter notifying a Participant of the grant of an Option issued in accordance with Rule 2.14, in such form as the Committee may from time to time determine; | |
“Grantor” | the Company acting by the Committee or the Trustee, as the context requires; | |
“Grant Period” | a period of 42 days commencing on the Dealing Day after the Company announces its results for any period; | |
“Group Company” | the Company or a subsidiary of the Company within the meaning of Section 1159 of the Companies Act 2006 and “Group” shall be construed accordingly; | |
“Group Employee” | an executive director or employee of any Group Company; | |
“Internal Reconstruction” | an event which will result in: | |
(a) the Company coming under the Control of another company; or | ||
(b) the business of the Company being carried on by another company | ||
in circumstances where the Committee considers that the persons who directly or indirectly own the shares in the Company before the event will be substantially the same as the persons who will directly or indirectly own the shares in that other company after the event; |
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“Listed” | the Shares are Listed at any time that they are traded on the main market of the London Stock Exchange or any Recognised Exchange including the AIM Market of the London Stock Exchange; | |
“London Stock Exchange” | London Stock Exchange plc or any successor body thereto; | |
“Market Value” | on any day: | |
(a) if the Shares are Listed, an amount equal to the middle market quotation of a Share as derived, where relevant, from the Daily Official List for the immediately preceding Dealing Day; or | ||
(b) if the Shares are not Listed, the market value of a Share determined by the Committee in accordance with the provisions of Part VIII of the Taxation of Chargeable Gains Act 1992; | ||
“Option” | a right to acquire Shares granted to a Group Employee under this Plan (or where the context so requires, a right to acquire Shares so to be granted); | |
“Option Certificate” | a certificate evidencing an Option issued in accordance with Rule 2.14, in such form as the Committee may from time to time determine; | |
“NIC” | National Insurance Contributions | |
“NIC Agreement” | an agreement under paragraph 3A(2) of Schedule 1 to the Social Security Contributions and Benefits Act 1992; | |
“NIC Election” | An election under paragraph 3B(1) of Schedule 1 to the Social Security Contributions and Benefits Act 1992; | |
“Participant” | a person who holds an Option or, if the context requires, his personal representatives; | |
“Performance Condition” | a condition determined by the Committee, which must be satisfied for an Option to become exercisable; | |
“Performance Period” | the period over which any Performance Condition is measured; | |
this “Plan” | the 4D Pharma plc 2015 Long Term Incentive Plan as set out in these Rules; | |
“Recognised Exchange” | an exchange that is: | |
(a) a recognised stock exchange for the purposes of Section 1005 of the Income Tax Act 2007; and/or | ||
(b) a recognised investment exchange for the purposes of Section 285(1)(a) of the Financial Services and Markets Act 2000; |
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1.2 | In these Rules, except insofar as the context otherwise requires: |
(a) | words denoting the singular shall include the plural and vice versa; |
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(b) | words importing a gender shall include every gender; |
(c) | references to a person shall include bodies corporate and unincorporated and any successors or assignees; |
(d) | reference to any enactment or statutory provision shall be construed to include a reference to the corresponding provisions of any earlier statue (whether repealed or not) directly or indirectly amended, consolidated, extended or replaced by those provisions (or re-enacted in those provisions) and that enactment or provision as from time to time amended, re-enacted or replaced and shall include any subordinate legislation made under the enactment; |
(e) | headings are provided for reference only and shall not be considered as part of this Plan; and |
(f) | a reference to writing or written form shall include any legible format capable of being reproduced on paper, irrespective of the medium used. |
1.3 | The Company holds the benefit of any agreement or consent given by a Participant under these Rules for itself and as trustee and agent for any Group Company or other person who benefits from the agreement or consent. The Company may assign the benefit of such agreement or consent to such Group Company or other person. |
1.4 | Each provision in these Rules is entirely separate and independent from the other provisions. If any provision is found to be invalid, it shall be deemed never to have been part of these Rules and this shall not affect the validity or enforceability of any of the remaining provisions of this Plan. |
2 | Grant of Options |
Persons to whom Options may be granted
2.1 | Options may be granted to Group Employees selected by the Committee. |
2.2 | No person shall be entitled as of right to be granted an Option. |
Period for granting Options
2.3 | Options may be granted within a period of 42 days commencing on the Adoption Date. |
2.4 | Except for Options granted under Rule 2.3 and Replacement Options granted under Rule 6, Options may only be granted in a Grant Period unless: |
(a) | the Grantor is prevented from granting Options in a Grant Period by a Dealing Restriction; or |
(b) | there are exceptional circumstances that the Committee considers justify granting Options outside a Grant Period |
in which case the Grantor may grant Options within the 42 day period commencing on the Dealing Date immediately following the lifting of such Dealing Restriction or within the 42 day period commencing on the occurrence of the exceptional circumstances.
2.5 | Options may not be granted after the Termination Date. |
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Procedure for granting Options
2.6 | Options shall be granted by either resolution, contract or deed of the Grantor. If the Option is granted by deed, the Date of Grant shall be the date the deed is executed. If the Option is granted by resolution or contract, the Date of Grant shall be the date the Acceptance Notice is signed. |
2.7 | If an Option is granted by resolution, the Grantor shall either execute the Option Certificate as a deed or by way of a contract between the Grantor and the Participant. |
2.8 | A Participant shall not be required to pay for the grant of an Option unless entered into as a contract, in which case, the manner of any payment is to be decided by agreement between the Grantor and Participant. |
2.9 | The Grantor may determine, on or before the Date of Grant, that the right to exercise an Option is conditional on the Participant: |
(a) | entering into a NIC Agreement; or |
(b) | entering into a NIC Election. |
2.10 | The Grantor may determine, on or before the Date of Grant, that the Participant’s ability to transfer the Shares that they acquire on the exercise of their Option will be restricted. Any restrictions imposed pursuant to this Rule 2.10 must be fair and reasonable and must not prevent the Participant from selling such number of Shares as may be necessary to satisfy the Exercise Price (if applicable) and/or the Tax Liability. |
Option may be subject to conditions
2.11 | The right to exercise an Option may be subject to the satisfaction of one or more Performance Conditions or other conditions. |
2.12 | Any Performance Conditions or other conditions must be determined by the Committee on or before the Date of Grant and, in the case of any Performance Conditions, should be objective. |
2.13 | The Grantor may waive or vary a Performance Condition or other condition if events happen which cause the Committee to consider that the Performance Condition or other condition has ceased to be a fair measure of performance. The varied Performance Condition or other condition must, in the opinion of the Committee, be materially no more or less difficult to satisfy. |
Option Certificate
2.14 | The Grantor shall as soon as reasonably practicable send the following to each Participant to whom an Option has been granted: |
(a) | a Grant Letter; |
(b) | an Option Certificate; and |
(c) | an Acceptance Notice. |
2 | .15 | The Option Certificate shall contain the following information: |
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(a) | the Date of Grant; |
(b) | the number of Shares subject to the Option; |
(c) | the Exercise Price, if applicable; |
(d) | details of any Performance Conditions, the Performance Period and any other conditions that must be met before the Option can be exercised; |
(e) | details of when the Option may be exercised; |
(f) | a statement that the Option may not be transferred, assigned or charged; |
(g) | details of the agreement in respect of the Tax Liability that a Participant who accepts an Option is making under Rule 10; |
(h) | reference to any NIC Agreement or NIC Election that needs to be made under Rule 2.9; |
(i) | details of the consents in respect of data protection law and provision of information that a Participant who accepts an Option is making under Rule 11; |
(j) | details of any restrictions which may be imposed on the Participant’s ability to transfer any of the Shares that they acquire on the exercise of their Option. |
2.16 | The Grant Letter shall state the address and deadline for returning the Acceptance Notice. |
Non-transferability of Options
2.17 | No Option may be transferred, assigned or charged and any purported transfer, assignment or charge shall cause the Option to lapse immediately. |
2.18 | Rule 2.17 shall not prevent the Option of a deceased Participant being exercisable by his personal representatives. |
Renunciation of Options
2.19 | A Participant may renounce his Option in whole or in part at any time by giving notice to that effect and returning the relevant Option Certificate to the Grantor. |
2.20 | A renounced Option shall lapse immediately. |
2.21 | Where a Participant renounces an Option within 30 days of the Date of Grant, the Option shall be treated for all purposes as if it was never granted. |
Options void unless accepted
2.22 | Where a Participant does not return a signed Acceptance Notice to the Grantor within 30 days of the Grantor sending him his Option Certificate, his Option shall be treated as renounced for the purposes of this Plan, unless the Grantor determines otherwise before that date. |
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3 | Plan limits |
10 percent in 10 years dilution limit
3.1 | A Grantor may not grant an Option if it would cause the total number of Relevant Shares to exceed 10 percent of the issued ordinary share capital of the Company. |
Definitions used in dilution limits
3.2 | Relevant Shares means all shares that have been issued or are issuable by the Company in satisfaction of: |
(a) | Options granted under this Plan in the preceding 10 years; and |
(b) | options granted or awards made in the preceding 10 years under any other employees’ share scheme adopted by the Company. |
3.3 | Rule 3.2 includes shares issued or issuable to the trustees of an employee trust in order for the trustees to satisfy options or awards. |
3.4 | Treasury shares shall be treated as issued or issuable unless the Investment Management Association amends its guidelines on remuneration so that the guidelines no longer state that companies should take account of treasury shares for the purposes of dilution limits. |
Individual limit
3.5 | Subject to Rule 3.6, an Option shall be limited and take effect so that no Participant is granted Options in any financial year of the Company over Shares with an aggregate Market Value in excess of 200% of his Remuneration at the relevant Date of Grant. |
3.6 | If there are exceptional circumstances that the Committee considers justify granting Options in excess of the limit referred to in Rule 3.5, a Participant may be granted Options in a financial year of the Company over Shares with an aggregate Market Value in excess of the said limit. |
3.7 | In determining the aggregate Market Value of Shares under Option for the purpose of Rules 3.5 and 3.6, the Market Value shall be measured as at the Date of Grant of each Option, by reference to the number of Shares over which that Option is granted. |
4 | Right to exercise Options |
Events giving a right to exercise
4.1 | Subject to this Rule 4 and to Rules 5, 7.1 and 7.2, an Option may be exercised by the Participant at the time of or following the earliest of the following events: |
(a) | the third anniversary of the Date of Grant or such other date or dates as is specified in the Option Certificate; |
(b) | if (and only if) the Committee so determines under Rule 4.7, the Participant becoming a Good Leaver; |
(c) | subject to Rule 6.4, an event specified in Rule 5; and |
(d) | the occurrence of any other event that the Committee considers justifies the Option becoming exercisable early. |
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Performance Conditions
4.2 | An Option may only be exercised to the extent that any applicable Performance Conditions and/or other conditions imposed under Rule 2.11 (as amended, if relevant, under Rule 2.13) have been satisfied. Any part of the Option that does not become exercisable, as a result of a Performance Condition or other condition not being satisfied in full, shall lapse. |
4.3 | Subject to Rule 4.4, the Committee shall determine the extent to which any applicable Performance Conditions and/or conditions imposed under Rule 2.11 (as amended, if relevant, under Rule 2.13) have been satisfied as soon as practicable following the end of the Performance Period or where an Option has become capable of exercise pursuant to Rule 4.1 prior to the end of the Performance Period relating to the Option, the event triggering early exercise of the Option and shall notify a Participant of its determination as soon as reasonably practicable thereafter. |
4.4 | Where the Committee considers it likely that an Option will become exercisable as a result of an event specified in Rule 5, it may make its determination for the purposes of Rule 4.3 prior to and conditional on the relevant event occurring. |
4.5 | Where an Option becomes capable of exercise pursuant to Rule 4.1 prior to the end of the Performance Period relating to the Option the Committee shall assess the Performance Conditions and/or conditions imposed under Rule 2.11 (as amended, if relevant, under Rule 2.13) on such modified basis as it reasonably thinks fit taking into account the curtailed Performance Period. |
Pro-rating on early exercise
4.6 | Subject to Rule 4.8, if an Option becomes exercisable under Rules 4.1(c) or 4.1(d) prior to the end of the Performance Period relating to the Option, the Option shall be pro-rated (unless otherwise determined by the Committee), so that after having regard to any applicable Performance Conditions and/or other conditions imposed under Rule 2.11, the proportion of the Option, if any, that becomes exercisable corresponds to the proportion that the period of time that has elapsed between the Date of Grant and the date of the event which triggers early exercise of the Option bears to the period of time between the Date of Grant of the Option and the date that the Option would normally have become exercisable under Rule 4.1(a). |
Good Leavers
4.7 | The Committee may determine, in relation to any particular Option that becoming a Good Leaver causes the Option to become exercisable early under Rule 4.1(b). Any such determination must be made and notified in writing to the Participant within 30 days of the Participant becoming a Good Leaver. Where no such determination is made under this Rule 4.7, if a Participant with an Option that is not yet exercisable becomes a Good Leaver, he shall retain the Option until the lapse date specified in Rule 8. A Good Leaver’s Option may become exercisable under Rule 4.1(a), 4.1(c) or 4.1(d) after he has ceased to be a Group Employee. |
4.8 |
Where a Good Leaver’s Option becomes exercisable after he has ceased to be a Group Employee, the Option shall
(unless otherwise determined by the Committee) be pro-rated so that, after having regard to any applicable Performance
Conditions and/or other conditions imposed under Rule 2.11 (as amended, if relevant, under Rule 2.13), the
proportion of the Option,
if any, that becomes exercisable corresponds to the proportion that the period of time that has elapsed between the Date of Grant
and the date when the Participant ceased to be a Group Employee (determined in accordance with Rules 4.10 and 4.11) bears
to the period of time between the Date of Grant of the Option and:
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(a) | the date the Option becomes exercisable under Rule 4.1(a), where the Option becomes exercisable under Rule 4.1 (a); or |
(b) | the date the Option would normally have become exercisable under Rule 4.1(a), where the Option becomes capable of exercise under Rule 4.1(b), 4.1(c) or 4.1(d). |
Meaning of Good Leaver
4.9 | For the purposes of this Plan, a Good Leaver is a Participant who ceases to be a Group Employee: |
(a) | by reason of death; |
(b) | by reason of injury, ill-health or disability provided that the Committee is satisfied, on production of such evidence as it may reasonably require, that: |
(i) | the individual has ceased to exercise and, by reason of injury, ill-health or disability, is incapable of exercising that employment (and not as the result of drug or alcohol abuse); and |
(ii) | the individual is likely to remain so incapable for the foreseeable future; or |
(c) | for a reason other than provided elsewhere in this Rule 4.9 if the Committee determines within 30 days of his cessation of employment that he should be treated as a Good Leaver. |
4.10 | For the purposes of this Plan, a Participant shall cease to be a Group Employee when he gives notice or is given notice of the termination of his employment such that he will no longer be a Group Employee, provided that there are no arrangements for him to commence a new employment with any Group Company. |
4.11 | A female Participant only ceases to be a Group Employee due to pregnancy when she no longer has any right to return to work. |
Determination of Good Leaver status
4.12 | If a Participant ceases to be a Group Employee for a reason other than those stated in Rules 4.9(a) and 4.9(b) his Option shall: |
(a) | become incapable of exercise with effect from the date of cessation of employment; and |
(b) | remain incapable of exercise unless and until the Committee determines that, and notifies the Participant in writing that, he is to be treated as a Good Leaver under Rule 4.9(c). |
Notification to the Trustee
4.13 | If the Grantor is the Trustee, the Committee shall send a copy of any notification given to Participants under this Rule 4 to the Trustee. |
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5 | Change of Control and winding-up |
Right to exercise on change of Control
5.1 | Subject to Rule 6.4, an Option shall become exercisable under Rule 4.1(c) as a result of an event specified in Rule 5.2, but only to the extent the Performance Condition and/or other conditions imposed by Rule 2.11 (and as amended, if relevant, under Rule 2.13) are satisfied and to the extent provided by Rule 4.6 or Rule 4.8, as appropriate. Any part of the Option that does not become exercisable as a result of a Performance Condition and/or other condition not being satisfied in full and/or the application of Rules 4.6 or 4.8, as appropriate, shall lapse. |
5.2 | For the purposes of Rule 5.1, the events specified are where: |
(a) | a General Offer becomes or is declared unconditional in all respects; |
(b) | the court sanctions a Scheme of Arrangement pursuant to which a person will acquire Control of the Company or substantially the whole of the Company’s undertaking and property; |
(c) | a person becomes bound or entitled to acquire shares in the Company under Sections 979 to 982 of the Companies Act 2006; or |
(d) | a person (either alone or together with persons acting in concert with him) otherwise obtains Control of the Company. |
Exercise period on a change of Control
5.3 | Subject to Rule 5.5, on the occurrence of an event specified in Rule 5.2, an Option exercisable in accordance with Rule 5.1 shall become exercisable on the following date: |
(a) | where Rule 5.2(a) applies, on the date that the General Offer becomes or is declared unconditional in all respects; |
(b) | where Rule 5.2(b) applies, on the date that the court sanctions the Scheme of Arrangement, provided that an Option exercise shall be deemed never to have taken place if the Scheme of Arrangement does not become effective; |
(c) | where Rule 5.2(c) applies, on the date that the relevant person becomes bound or entitled to acquire shares in the Company under Sections 979 to 982 of the Companies Act; or |
(d) | where Rule 5.2(d) applies, on the date that the relevant person obtains Control of the Company. |
5.4 | Except for Replacement Options granted under Rule 6, all Options that do not lapse earlier under any other provision of this Plan shall lapse and become incapable of exercise on the earliest of the dates falling: |
(a) | six months after an event specified in Rule 5.2(a) or 5.2(d); |
(b) | two months after an event specified in Rule 5.2(a) or 5.2(d) in the case of an Internal Reconstruction; |
(c) | 42 days after a Scheme of Arrangement as a result of which any person acquires Control of the Company or substantially the whole of the Company’s undertaking and property becomes effective; and |
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(d) | 30 days after the date of service of the first notice of compulsory acquisition where any person becomes bound or entitled to acquire shares in the Company under Sections 979 to 982 of the Companies Act 2006. |
Advance Exercise Notice
5.5 | Where the Committee considers it likely that an event specified in Rule 5.2 will occur, the Committee may request in writing that Participants give an Exercise Notice in advance of the relevant event. |
5.6 | Where an Exercise Notice is given in advance of a relevant event following receipt of a request made by the Committee pursuant to Rule 5.5, the Option exercise shall only take effect immediately before the relevant event occurs or, if earlier, immediately before a related change of Control of the Company. |
5.7 | If a Participant fails to give an advance Exercise Notice after being requested to do so under Rule 5.5, his Option shall lapse on the relevant event occurring. |
5.8 | If an Exercise Notice is given following a request made by the Committee pursuant to Rule 5.5 and the relevant event in question does not occur, such Exercise Notice shall be deemed never to have been given. |
Right to exercise on a winding-up
5.9 | Subject to Rules 5.10 to 5.15, where notice is given of a general meeting of the Company at which a resolution for the voluntary winding-up of the Company will be proposed or notice is given of an equivalent written resolution, an Option shall become exercisable under Rule 4.1(c) but only to the extent the Performance Condition and/or other conditions imposed by Rule 2.11 (and as amended, if relevant, under Rule 2.13) are satisfied and to the extent provided by Rule 4.6 or Rule 4.8, as appropriate. |
5.10 | At the same time that the Company sends notice to members calling the meeting to consider such resolution or sends notice of the written resolution, the Company shall notify all Participants and invite them to give an Exercise Notice on or after the date of such notice and in advance of the passing of the resolution. If applicable, the Company shall also notify the Trustee. |
5.11 | If an Exercise Notice is received by the Company following an invitation made by the Company pursuant to Rule 5.10 and the resolution for voluntary winding-up is duly passed the Option exercise shall take effect immediately before the resolution for the voluntary winding-up of the Company is passed. |
5.12 | If an Exercise Notice is received by the Company following an invitation made by the Company pursuant to Rule 5.10 and the resolution for voluntary winding-up is defeated or withdrawn or the general meeting is cancelled or adjourned to an unspecified future date, then such Exercise Notice shall be deemed never to have been given and the Option shall cease to be exercisable as a result of Rule 5.9 |
5.13 | If an Exercise Notice is received by the Company following an invitation made by the Company pursuant to Rule 5.10 and a general meeting is adjourned to a specified future date, if the resolution for voluntary winding-up is duly passed at the adjourned meeting, the Option exercise shall take effect immediately before the resolution for the voluntary winding-up of the Company is passed. |
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5.14 | If a general meeting is adjourned to an unspecified future date, the Company must give a further notification to Participants and, if applicable, the Trustee under Rule 5.10 at the same time that notice of the adjourned meeting is given to members. |
5.15 | Unless it lapses earlier under any other provision of this Plan, an Option shall lapse on the date that a resolution for the voluntary winding-up of the Company is passed. |
6 | Replacement Options |
Grant of Replacement Options
6.1 | A Replacement Option may be granted if another company (referred to as the Acquiring Company): |
(a) | obtains Control of the Company as a result of making a General Offer; |
(b) | obtains Control of the Company or substantially the whole of the Company’s undertaking and property pursuant to a Scheme of Arrangement; or |
(c) | otherwise obtains Control of the Company (either alone or together with persons acting in concert with him). |
6.2 | A Replacement Option over shares in the Acquiring Company or another body corporate determined by the Acquiring Company may only be granted if the Acquiring Company, the Committee, the Trustee, if applicable, and the Participant all consent. |
6.3 | To the extent reasonably practicable, an Acquiring Company shall determine whether Replacement Options shall be offered on or before: |
(a) | the date the Acquiring Company obtains control of the Company as a result of a General Offer and any condition subject to which the General Offer was made has been satisfied; |
(b) | the date the Acquiring Company obtains control of the Company or substantially the whole of the Company’s undertaking and property as a result of a Scheme of Arrangement; or |
(c) | the date the Acquiring Company otherwise obtains Control of the Company |
and in any event, it shall make any such determination within the 30 days following such event.
Lapse of Option unless Replacement Option accepted
6.4 | If a Participant is or will be offered a Replacement Option, the Committee may notify a Participant in writing that his Option may not be exercised under Rule 4.1(c). |
6.5 | If a Participant is offered a Replacement Option the original Option shall lapse on the expiry of 30 days following the date the offer of the Replacement Option is made in writing to the Participant unless the Replacement Option is accepted. |
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Terms of Replacement Options
6.6 |
Unless the Acquiring Company determines otherwise, if the original Option was subject to any Performance Conditions, the
Replacement Option shall be subject to performance conditions that, in the reasonable opinion of the Acquiring Company, are
equivalent, so far as practicable, to any original Performance Conditions.
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6.7 | In the case of an Internal Reconstruction, if the original Option was subject to any Performance Conditions the Replacement Option must be subject to replacement performance conditions. |
6.8 | The Committee and the Acquiring Company, acting reasonably, shall determine the number of shares subject to any Replacement Option taking into account: |
(a) | the Market Value of the Shares subject to the Option; and |
(b) | the market value of the shares subject to the Replacement Option. |
6.9 | Unless the context otherwise requires, the Replacement Option shall be exercisable in the same manner as the original Option and shall be governed by these Rules as if: |
(a) | references to Shares were references to the shares subject to the Replacement Option; and |
(b) | references to the Company, except for the purposes of Rules 2 and 12, were references to the Acquiring Company or to the body corporate whose shares are subject to the Replacement Option. |
6.10 | If a Replacement Option is granted, a Participant’s rights in respect of the original Option shall lapse. |
6.11 | The Replacement Option shall be treated as granted at the same time as the original Option and shall be treated as the same option except that the Replacement Option shall not become exercisable or lapse by reason of the event pursuant to which it was granted. |
Replacement Option certificate
6.12 | Where a Replacement Option is granted, the Acquiring Company shall, as soon as reasonably practicable, send or procure the sending of a Replacement Option certificate to each Participant to whom a Replacement Option has been granted. |
6.13 | The Replacement Option certificate shall contain the information required to be included in an Option Certificate except that no Acceptance Notice is required. |
7 | Manner of exercise |
Restrictions on exercise
7.1 | An Option that has become exercisable under Rule 4 may be exercised at any time provided that: |
(a) | a Participant has complied with any requirement to enter into a NIC Agreement or NIC Election imposed by Rule 2.9; |
(b) | a Participant has made arrangements, satisfactory to the Committee, to satisfy the Tax Liability that arises as a result of the exercise of the Option (where applicable); |
(c) | exercise is not prevented by a Dealing Restriction; and |
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(d) | the Option has not lapsed under Rule 8. |
7.2 | Unless the Grantor permits otherwise, an Option can only be exercised in full. |
Procedure for Exercise
7.3 | In order to exercise an Option the Participant shall deliver to the Grantor (or other person nominated by the Committee for this purpose) an Exercise Notice and, if an Exercise Price is payable, the aggregate Exercise Price payable for all the Shares over which the Option has been exercised, unless the Participant has elected for cashless exercise under Rule 7.14. |
Exercise Date
7.4 | Where the Option is exercised following the receipt of a request from the Company pursuant to Rule 5.5 or 5.10, the Exercise Date will be the date specified in Rule 5.6 or Rule 5.11 or Rule 5.13, as applicable. |
7.5 | Where the Option is being exercised in any circumstances other than those mentioned in Rule 7.4, the Exercise Date will be the date that the Grantor or other person nominated for this purpose receives: |
(a) | a validly completed and submitted Exercise Notice; and |
(b) | where an Exercise Price is payable, satisfactory payment of the aggregate Exercise Price payable on the exercise of the Option unless the Participant elects for cashless exercise under Rule 7.14. |
Period for satisfying exercised Options
7.6 | Subject to Rules 7.7 and 8.4 and provided the Participant meets his obligations under Rule 10 in relation to the Tax Liability, the Grantor shall satisfy an Option as soon as reasonably practicable following, and in any event within 30 days of, the Exercise Date. |
7.7 | If the Grantor is prevented from satisfying an Option in accordance with the time period prescribed in Rule 7.6 by a Dealing Restriction, the Grantor shall satisfy an Option as soon as reasonably practicable following, and in any event within 14 days of, the lifting of that Dealing Restriction. |
Manner of satisfying exercised Options
7.8 | The Grantor shall satisfy an Option by issuing or transferring or procuring the issue or transfer of Shares to the Participant. |
7.9 | The number of Shares issued or transferred shall, subject to Rules 7.14 and 10, be equal to the number of Shares in respect of which the Option has been exercised. |
7.10 | The Grantor shall be responsible for the payment of any stamp duty or stamp duty reserve tax that may arise on any transfer of Shares. |
7.11 | The Grantor shall arrange for the delivery of evidence of title to any Shares issued or transferred to the Participant as soon as reasonably practicable. |
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7.12 |
All Shares allotted under this Plan shall rank equally in all respects with Shares of the same
class then in issue except for any rights attaching to Shares by reference to a record date prior to the date of allotment. Shares
transferred on the exercise of an Option shall be transferred without the benefit of any rights attaching to the Shares by reference
to a record date preceding the date of such exercise.
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7.13 | If necessary, the Company shall apply for Shares issued to a Participant to be admitted to trading on the relevant Recognised Exchange. |
Cashless exercise
7.14 | The Company may establish a cashless exercise facility to enable a Participant to provide funds to pay the Exercise Price and/or the Tax Liability. Such arrangements may include, without limitation, authorising the sale on the Participant’s behalf of such number of Shares as will be required, net of selling costs, to cover the aggregate Exercise Price and/or the Tax Liability. |
7.15 | Any excess of such sale proceeds over and above the aggregate Exercise Price and/or Tax Liability shall be refunded to the Participant promptly and in any event within 30 days of the sale. |
8 | Lapse of Options |
General
8.1 | An Option shall lapse and become incapable of exercise on the earliest of the following dates: |
(a) | if the Participant becomes a Good Leaver and the Committee has exercised its discretion to allow the Option to be exercised early under Rule 4.1(b), the date falling six months after the date of cessation of employment, determined in accordance with Rules 4.10 and 4.11; |
(b) | if the Participant becomes a Good Leaver and the Committee has not exercised its discretion to allow the Option to be exercised early under Rule 4.1(b), the date falling six months after the date the Option first became exercisable; |
(c) | the last date on which the Committee may determine that the Participant is a Good Leaver under Rule 4.11(d), where no such determination is made and the Participant has ceased to be a Group Employee for a reason other than those stated in Rules 4.9(a) and 4.9(b); |
(d) | on the occurrence of an event specified in Rule 5.2: |
a. | the relevant lapse date specified in Rule 5.4, unless a Replacement Option is granted; |
b. | the lapse date specified in Rule 5.7 if a Participant fails to give an advance Exercise Notice by the relevant date; or |
c. | the lapse date specified in Rule 6.5 and a Replacement Option is offered but is not accepted; |
(e) | a resolution for the voluntary winding-up of the Company being passed, as specified in Rule 5.15 or an order being made by the court for the compulsory winding-up of the Company; |
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(f) | where there is an event that the Committee considers justifies Options becoming exercisable for the purposes of Rule 4.1(d), a lapse date that the Committee determines to be reasonable, having regard to the event in question; |
(g) | the date that the Option is renounced by the Participant; |
(h) | the date of any purported transfer, assignment or charge of the Option by the Participant; |
(i) | the date that the Participant is adjudicated bankrupt or does or omits to do anything as a result of which he is deprived of the legal and beneficial ownership of the Option; and |
(j) | the tenth anniversary of the Date of Grant or such earlier date determined by the Committee and specified in the Option Certificate. |
8.2 | The balance of an Option shall lapse to the extent that the whole or any part does not become exercisable due to the provisions in Rules 4.2, 4.6 or 4.8. |
Exercise prevented by a Dealing Restriction
8.3 | If a Dealing Restriction prevents the Participant exercising his Option at any time before it lapses under Rule 8.1(a), (b), (d), (e) or (f), it shall not lapse until 14 days after such Dealing Restriction is lifted, provided that the latest date on which an Option lapses shall be the tenth anniversary of the Date of Grant. |
Lapse of leaver’s Option for misconduct
8.4 | An Option shall lapse and shall not be exercisable or satisfied if a Participant who has ceased to be a Group Employee commits or has at any time committed a material breach of his contract of employment or any compromise agreement entered into in relation to his cessation of employment. |
9 | Variation of share capital |
Adjustment to Options
9.1 | If there is: |
(a) | a variation of the share capital of the Company including, without limitation, any capitalisation, rights issue, open offer, consolidation, sub-division or reduction of capital; or |
(b) | a capital distribution, special dividend, distribution in specie, demerger or other event having a material impact on the value of the Shares |
subject to Rule 9.2, the Grantor may make such adjustment to the number of Shares subject to an Option and/or to the Exercise Price, as the Committee reasonably considers appropriate.
9.2 |
An adjustment under Rule 9.1 may only reduce the Exercise Price to less than the nominal value of any Shares to be issued
if and to the extent that arrangements to issue the Shares paid up as to nominal value are made.
|
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Effective date of adjustment
9.3 | Any adjustment to an Option made pursuant to Rule 9.1 shall take effect from the record date on which the respective variation applied to Shares or, as applicable, the date on which the demerger or other event occurred. |
9.4 | Any Options that are exercised within the period from the effective date to the date when the Options are adjusted shall be subject to the variation. |
Notification of adjustment
9.5 | The Grantor shall take such steps as it considers necessary to notify Participants of any adjustment made under this Rule 9 and may call in, cancel, endorse or reissue any Option Certificate. |
10 | Tax Liability |
Liability of Participant
10.1 | It is a condition of exercise of the Option that the Participant agrees to pay to the Company or other person nominated for this purpose an amount equal to the Tax Liability. |
Arrangements for satisfying the Tax Liability
10.2 | Unless the Participant agrees to meet the Tax Liability using a cashless exercise facility under Rule 7.14, the Participant agrees to pay the Tax Liability within 14 days of the Exercise Date. |
10.3 | If the Participant fails to make a payment required by Rule 10.2, in order to make good the due amount the Grantor or other relevant person may withhold such amount or make such other arrangements as it reasonably considers necessary to obtain an amount equal to the Tax Liability. Such arrangements may include without limitation: |
(a) | the sale of Shares resulting from the exercise of the Option on behalf of a Participant; and |
(b) | making deductions within 90 days of the Exercise Date of the necessary amount from the Participant’s salary payments or other sums due to him. |
10.4 | As a condition of exercise of the Option the Participant is deemed to give all necessary consents and authorisations and agrees to do any other thing required in relation to Rule 10.3. |
Restricted security elections
10.5 | It is a condition of exercise of the Option that the Participant agrees, in relation to Shares obtained under this Plan, to comply within the requisite time period with any request from the Company to enter into a restricted security election under Chapter 2 of Part 7 of the Income Tax (Earnings and Pensions) Act 2003. |
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11 | Administration |
Notices
11.1 | Any notice or other document given to a Group Employee or Participant shall be delivered personally or sent by post, email or fax or given via an intranet communications system or other electronic means to such address or number as the person giving the notice or document considers appropriate. |
11.2 | Any notice or other document which has to be given to any other person under or in connection with this Plan shall be delivered personally or sent by post, email or fax or given via an intranet communications system or by such other method as the Committee determines. It shall be sent to such address or number as is notified for this purpose and shall be marked for the attention of the designated person. |
11.3 | References to post include, where relevant, an organisation’s internal post system. Items sent by external post shall be pre-paid and shall be deemed to have been received 72 hours after posting or, if posted overseas, 7 days after posting or at such earlier time as receipt is acknowledged. |
11.4 | Notices sent by any method other than external post, in the absence of evidence to the contrary, shall be deemed to have been received on the day after sending. |
Disputes
11.5 | The Committee’s decision on all disputes relating to the interpretation of this Plan or as to any question or right related to this Plan shall be final and conclusive. |
Costs
11.6 | The costs of establishing and operating this Plan shall be borne by the Group Companies in such proportions as the Committee determines, to the extent permitted by Chapter 2 of Part 18 of the Companies Act 2006. |
11.7 | Any Group Company may provide money to the Trustee to enable it to acquire and hold Shares for the purposes of this Plan and may enter into any guarantee or indemnity for those purposes, to the extent permitted by Chapter 2 of Part 18 of the Companies Act 2006. |
Power to delegate functions and appoint specialists
11.8 | The Committee may delegate the exercise of its powers or discretions in relation to this Plan to any one or more persons including, but not restricted to, a sub-committee of the Committee for such period and on such conditions as the Committee may determine. |
11.9 | The Committee may at any time appoint or engage specialist service providers for the operation and administration of this Plan. |
Data protection
11.10 | By accepting any benefit in respect of the right to exercise an Option, a Participant agrees to the holding of personal information about him. He authorises the Grantor and its agents and advisers or agents or advisers of the Group to use such information for all purposes relating to the operation of this Plan including, without limitation, making information available to HM Revenue & Customs or to any other person as the Grantor or other person considers reasonable. |
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11.11 | By accepting any benefit in respect of an Option, a Participant further agrees that agents of the Grantor or the Group, wherever located, may process data concerning his participation in this Plan and transmit it outside the United Kingdom. |
Participant to provide information
11.12 | By accepting any benefit in respect of the right to exercise an Option, a Participant agrees to provide promptly any information or do any other thing reasonably required by the Grantor or other relevant person in relation to this Plan, an Option or Shares acquired under this Plan for the purpose of: |
(a) | compliance by that person with its tax affairs or other legal or regulatory obligations; or |
(b) | facilitating the operation of this Plan. |
12 | Amendment |
Power to amend
12.1 | Subject to Rule 12.2, the Board may from time to time amend these Rules as it sees fit. |
12.2 | No amendment may have a material adverse effect on a Participant with a subsisting Option except with the consent of either: |
(a) | that Participant; or |
(b) | Participants who hold a majority, by number of Shares subject to Option, of Options affected by the amendment. |
Power to create sub-plans for other jurisdictions
12.3 | Subject to Rule 12.2, the Board may make such amendments to the Rules as it considers necessary or desirable to take account of local tax, exchange control or securities law in order to operate this Plan in any jurisdictions in which Group Employees are situated. The Board may implement such amendments in the form of schedules or sub-plans to this Plan applicable to the specified jurisdiction. |
13 | Miscellaneous |
No employment rights
13.1 | The rights of any individual under the terms of his office or employment with any Group Company or former Group Company are entirely separate from and shall not be affected in any respect by his participation or prospective participation in this Plan. |
13.2 | In particular but without limiting the generality of Rule 13.1, an individual is not entitled and waives any rights he may have to compensation or damages in consequence of ceasing to have rights or benefits or prospective rights or benefits under this Plan following: |
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(a) | the termination of his office or employment or the giving of notice of termination, whether lawfully or unlawfully, for any reason; |
(b) | the exercise of a discretion or a decision taken under these Rules or any failure to exercise a discretion or take a decision even if this could be regarded as capricious or unreasonable, or could be regarded as in breach of any implied term between an individual and his employer, including any implied duty of trust and confidence; or |
(c) | the operation, suspension, termination or amendment of these Rules. |
13.3 | No benefit that may accrue to a Participant under this Plan shall form part of that Participant’s pensionable remuneration for the purposes of any pension plan or similar arrangement that may be operated by any Group Company or former Group Company. |
13.4 | The grant of Options on a particular basis or to a particular individual in any year does not create any right or expectation of the grant of Options on the same basis, or at all, or to any particular individual in that or any subsequent year. |
No rights of a shareholder
13.5 | A Participant shall not be entitled to vote, to receive dividends or to have any other rights of a shareholder in respect of Shares subject to an Option until the issue or transfer of the Shares to him. |
No limit on the Company’s powers
13.6 | This Plan and the rights of any Participants under this Plan shall not restrict the rights and powers of any Group Company or the directors or shareholders of any Group Company to take any decision or to effect or authorise any corporate act or proceeding. |
Third party rights
13.7 | Subject to Rules 1.3 and 2.18, nothing in these Rules confers any benefit, right or expectation on a person who is not a Participant. |
13.8 | No third party has any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of these Rules. |
Termination
13.9 | This Plan shall terminate on the tenth anniversary of the Adoption Date provided that the Board may resolve to terminate it on an earlier date. |
13.10 | The subsisting rights of Participants shall not be affected by the termination of this Plan. |
Governing law
13.11 | This Plan and all Options granted under it shall be governed by and construed in accordance with the laws of England and Wales. |
13.12 | Any dispute concerning the operation of this Plan shall be subject to the exclusive jurisdiction of the English courts. |
23
Exhibit 21.1
SUBSIDIARIES OF 4D PHARMA PLC.
Name of Subsidiary | Jurisdiction of Incorporation or Organization | |
4D Pharma Research Limited | United Kingdom | |
4D Pharma Leon Sociedad Limitada Unipersonal | Spain | |
4D Pharma Cork Limited | Ireland | |
4D Pharma Delaware Incorporated | Delaware | |
Dolphin Merger Sub Limited | British Virgin Islands |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use in this Amendment No.2 to the Registration Statement (No.333-250986) on Form F-4 of 4D pharma plc of our report dated November 25, 2020, relating to the consolidated financial statements of 4D pharma plc, appearing in the Proxy Statement/Prospectus, which is part of this Registration Statement.
We also consent to the reference to our firm under the heading "Experts" in such Proxy Statement/Prospectus.
/s/ RSM US LLP
Boston, MA
January 27, 2021
1
Exhibit 23.2
Independent Registered Public Accounting Firm’s Consent
We consent to the inclusion in this Registration Statement of 4D Pharma on Amendment No. 2 to Form F-4 [File No. 333-250986], of our report dated April 30, 2020, with respect to our audits of the financial statements of Longevity Acquisition Corp. as of February 29, 2020 and February 28, 2019 and for year ended February 29, 2020 and for the period from March 9, 2018 (inception) through February 28, 2019, which report appears in the Prospectus, which is part of this Registration Statement. We also consent to the reference to our Firm under the heading “Experts” in such Prospectus.
/s/ Marcum llp
Marcum llp
New York, NY
January 27, 2021