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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 20-F

 

 

(Mark One)

¨ REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934

or

 

x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2014

or

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

or

 

¨ SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Commission file number 1-14978

 

 

Smith & Nephew plc

(Exact name of Registrant as specified in its charter)

 

 

England and Wales

(Jurisdiction of incorporation or organization)

15 Adam Street, London WC2N 6LA

(Address of principal executive offices)

 

 

Securities registered or to be registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Name on each exchange on which registered

American Depositary Shares

Ordinary Shares of 20¢ each

 

New York Stock Exchange

New York Stock Exchange*

 

* Not for trading, but only in connection with the registration of American Depositary Shares, pursuant to the requirements of the Securities and Exchange Commission.

Securities registered or to be registered pursuant to Section 12(g) of the Act: None.

Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None.

 

 

Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report: 951,021,116 Ordinary Shares of 20¢ each

Indicate by check mark if the registrant is a well seasoned issuer, as defined in Rule 405 of the Securities Act    Yes   x     No   ¨

If this Report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934    Yes   ¨     No   x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days:    Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   ¨     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer:

Large Accelerated Filer   x                  Accelerated Filer   ¨                  Non-accelerated filer   ¨

Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing.

 

¨   U.S. GAAP

     x   International Financial Reporting Standards as issued by the International Accounting Standards Board    ¨   Other

If “Other” has been checked to the previous question indicate by check mark which financial statement item the registrant has elected to follow:    Item 17   ¨     Item 18   ¨

If this is an annual report, indicated by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   x

 

 

 


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What’s in this report

 

 

 

Strategic Report

 

4

 

Financial highlights

5

Chairman’s statement

6

Chief Executive Officer’s review

8

Smith & Nephew today

14

Strategic performance

16

Chief Financial Officer’s overview

18

Our marketplace

21

Our business

26

Advanced Surgical Devices

30

Advanced Wound Management

34

Financial review and principal risks

40

Sustainability

 

 

 

Supporting Healthcare professionals

 

42

 

 

Case studies

 

 

 

Corporate Governance

 

54

 

Our Board of Directors*

58

Our Executive Officers*

62

Corporate Governance Statement*

75

Audit Committee Report*

81

 

Directors’ Remuneration report

 

 

 

Financial statements
and other information

 

103

 

Directors’ responsibilities for the accounts*

105

Independent auditor’s US reports

106

Independent auditor’s UK report

110

Group accounts

117

Notes to the Group accounts

166

Company accounts

167

Notes to the Company accounts

170

Group information*

174

Other financial information*

184

Information for shareholders*

200  

Smith & Nephew heritage

 

 

*   These sections and pages 111, 113 and 115 form the Directors’ Report.

 

 

 

 

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Our mission

 

 

 

Delivering advanced medical

technologies that help healthcare

professionals, our customers,

improve the quality of life for

their patients

 

 

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and this will drive our performance

 

 

$4 . 6bn

$1 , 055m $749m

Revenue 1 up 2%

Trading profit 1,2 up 3%

 

Operating profit 1 down 8%

 

    

 

 

   

 

   

 

 
83 . 56 . 29 .

Adjusted earnings per share 2 up 8%

 

Earnings per share down 9%

 

Dividends per share up 8%

 

 

  1 The underlying percentage increases/decreases are after adjusting for the effect of currency
     translation and the inclusion of the comparative impact of acquisitions and exclusion of disposals.
  2 Explanations of these non-GAAP financial measures are provided on pages 176 to 179.

 

 

 

 

 

 

    

 

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STRATEGIC REPORT

Financial highlights

 

 

Continuing to improve

our performance

 

 

LOGO   LOGO   LOGO   LOGO
 

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1  The underlying percentage increases/decreases are after adjusting for the effects of currency translation and the inclusion of the comparative impact of acquisitions and exclusion of disposals.

2  These are non-GAAP measures and exclude restructuring/rationalisation costs, acquisition and disposal-related costs, amortisation of acquisition intangibles and other transactions which affect short-term profitability. An explanation of these measures is provided on pages 176 to 179.

 

 

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Chairman’s statement

 

 

 

 

Dear Shareholder, Board changes First impressions

I joined Smith & Nephew in December 2013, and succeeded Sir John Buchanan as Chairman in April 2014. In my first letter to you I am pleased to report that Smith & Nephew made good progress last year, delivering strong earnings growth and enhanced value for shareholders. We did this whilst making major investments to reshape the Group for future success such as the acquisition of ArthroCare Corporation for $1.5 billion net.

 

Revenue was $4,617 million, up 2% on an underlying basis or 6% on a reported basis. Trading profit was $1,055 million, up 3% on an underlying basis or 7% on a reported basis. The trading profit margin of 22.9% was 20bps up on the previous year. The Board is pleased to propose a Final Dividend for the year just gone of 18.6¢ per share, giving a total dividend for 2014 of 29.6¢, up 8% year-on-year.

Sir John Buchanan retired as Chairman in April at the 2014 Annual General Meeting, after nine years of outstanding service. On behalf of the Board and the whole of Smith & Nephew I thank him for his leadership.

 

Richard (‘Dick’) de Shutter also retired at the Annual General Meeting. In his role as Senior Independent Director, Dick provided wise counsel through a period of significant growth and change. Ajay Piramal retired in March, having provided valuable insight into the emerging markets as we built our presence there. Pamela Kirby retired from the Board in July. She also made a major contribution – particularly as Chairman of the Ethics & Compliance Committee. I thank Dick, Ajay and Pamela for their service.

 

It is a credit to the growing strength and reputation of the Company that we have attracted top global talent to succeed these individuals. Vinita Bali joined the Board in December following an impressive career at blue-chip global corporations such as The Coca-Cola Company in multiple geographies including India, Africa, South America, the US and UK. Her strong appreciation of customer service and marketing will bring deep insight to Smith & Nephew as we continue to develop innovative ways to serve our markets. Erik Engstrom, the CEO of Reed Elsevier, joined the Board in January 2015. His understanding of how technology can be used to transform a business will be invaluable.

My first impression of Smith & Nephew was of a Company with strong leadership, a clear strategy and sound financial platform. The open communication between the Board and the executive team is a real strength of the business. I was particularly impressed with the execution of the ArthroCare acquisition, especially the thoroughness of our due diligence and how well the team is managing the integration.

 

I have also been able to spend time visiting our sites and meeting employees, including attending a Sports Medicine procedure to witness how our highly-skilled reps assist surgeons in improving outcomes. I have consistently found a business with a strong culture, particularly in areas of ethics and compliance, and people who are proud of their work supporting healthcare professionals.

 

Looking ahead I see many exciting opportunities – in the Established Markets where we are challenging the status quo through new commercial models, in the Emerging & International Markets where we have a leadership platform – and from recent acquisitions. In 2015, I believe we will begin to see more clearly the benefits of the transformational work that has been undertaken at Smith & Nephew, and I look forward to sharing more news of these achievements next year.

 

Yours sincerely,

 

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Roberto Quarta

Chairman

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“Smith & Nephew made

 good progress last year,

 delivering strong earnings

 growth and enhanced

 value to shareholders.”

 

 

 

 

    

 

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STRATEGIC REPORT

Chief Executive Officer’s review

 

 

A good financial performance while strengthening the business

 

 

 

“The journey to reshape

 Smith & Nephew continues

 and I am excited by our

 prospects for accelerating

 growth in 2015 and beyond.”

 

 

 

 

Dear Shareholder

 

Smith & Nephew proudly supports healthcare professionals in their daily efforts to improve the lives of their patients. We do this by taking a pioneering approach to the design of our products and services, by striving to ensure wider access to our advanced technologies, and by enabling better outcomes for patients and healthcare systems. In doing so, we drive growth and create value for our stakeholders.

 

In 2014, we made great progress. We drove a much improved performance in US Hip and Knee Implants and maintained our momentum in Sports Medicine Joint Repair and Trauma & Extremities. Advanced Wound Bioactives, acquired at the end of 2012, again produced double-digit growth. Our continued investment in Emerging & International Markets drove revenues up 17%.

 

Performance in Europe was weaker and Advanced Wound Management was held back by a distribution hold on RENASYS à in the US, and I am confident that we have taken actions that will deliver a better 2015 across these areas. Additionally, the Phase 3 trial results for HP802 were a disappointment, but we remain committed to developing pioneering Advanced Wound Bioactives treatments.

 

The Group generated a good increase in revenues and trading profit, and an 8% uplift in EPSA. I am pleased by the changing mix of the business, as we successfully rebalance by strengthening our higher growth platforms. These now represent more than half of our revenue, up from just 35% three years ago.

 

Pioneering design

 

Smith & Nephew has a long history of pioneering design, dating back to our foundations in the 19th century. In 2014, we launched many exciting products, including a cruciate retaining version of our JOURNEY à II natural-motion knee, a first-of-its-kind DYONICS à PLAN surgical planning tool for hip arthroscopy, and the HAT-TRICK Lesser Toe Repair System. We continued to invest more in R&D, over 5% of revenue, and have a strong pipeline for 2015 and beyond.

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For us, innovation is not just about products. It is also about how we do business. We seek new ways to serve our customers. In 2014, we pioneered a new commercial solution for Orthopaedic Reconstruction that fulfils the unmet needs of customers searching for a different value proposition. Called Syncera à , this offers clinically proven primary hip and knee implants combined with cutting-edge technology to streamline the extensive support process. Syncera has the potential to generate significant savings for the customer. We are encouraged by the contracts signed and prospective customers.

 

Widening access

 

In the Emerging & International Markets we have built an entrepreneurial business resourced to maximise the significant opportunities we see. In 2014, it generated more than $600 million revenue, with China, our largest market, growing revenue at over 30%. 15% of Group revenue came from these markets in 2014, up from 8% in 2010.

 

In 2014, we established a new commercial structure to market and expand our mid-tier value product ranges. This will provide wider access to our advanced technologies, helping us support an ever greater number of customers in delivering affordable healthcare.

 

Enabling better outcomes

 

We provide high quality products and medical education to help drive better clinical outcomes. During 2014, we saw strong and rising demand for unique products such as our hard-wearing VERILAST à Hips and Knees, VISIONAIRE à patient-matched instrumentation and the PICO à portable disposable Negative Pressure Wound Therapy system. These, and many other advanced Smith & Nephew products, also enable healthcare professionals to treat more patients faster, improving the economic outcome for the healthcare system payers.

 

Strengthening our platform

 

In recent years, we have successfully supplemented our organic growth through acquisitions. Healthpoint Biotherapeutics gave us a leading position in Advanced Wound Bioactives, the fastest growing segment of Advanced Wound Management. We have also completed a number of acquisitions in the Emerging & International Markets, strengthening our platform by adding products, manufacturing, distribution and sales teams.

ArthroCare, completed in May 2014, has strengthened our Sports Medicine business. Its technology and products significantly enhance our portfolio, and we will use our global presence to drive substantial new growth. The integration is progressing well.

 

Enhanced efficiency

 

By simplifying and improving our operating model we are increasing our agility and efficiency. In 2011, we announced a programme to generate annual savings of $150 million. By 31 December 2014, we had achieved annualised savings of $146 million, enabling investment in the Emerging & International Markets, R&D and other growth opportunities.

 

In 2014, we announced a further programme to realise at least another $120 million of annual savings. This work is progressing well. For instance, we are rationalising our global property portfolio and found major savings through better procurement processes. These savings will more directly benefit the bottom line.

 

Great Place to Work

 

Achieving recognition as a Great Place to Work is important to me. It means having a workplace where employees are proud and excited to come each day because they are doing work that makes a difference for customers and patients. During 2014, I was proud to congratulate our colleagues in Spain for being the first country to achieve this distinction from the Great Place to Work Institute – and it will not be the last. Also, our sustainability performance was recognised again as we retained our rankings in both the FTSE4Good and Dow Jones Sustainability indices. Acting sustainably and responsibly to deliver long-term benefits to society is important. It is our employees who earn these awards, and I thank them for their efforts.

 

I am pleased with our momentum in 2014 as we delivered a good financial performance while strengthening the business, and you will find more details on our successful actions on pages 42 to 53. Whilst the journey to reshape Smith & Nephew continues, we enter 2015 stronger and more efficient and I am excited by our prospects for accelerating growth in 2015 and beyond.

 

Sincerely,

 

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Olivier Bohuon

Chief Executive Officer

 

 

Our results

 

22 . 9%

 

Trading margin 1 up 20bps

 

83 .

 

EPSA 1 up 8%

 

 

 

 

 

 

1   Explanations of these non-GAAP financial measures are provided on pages 176 to 179.

 

 

 

 

 

    

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STRATEGIC REPORT

Smith & Nephew today

 

 

Our marketplace is growing

Demand for healthcare continues to increase worldwide. This is driven by increased longevity, more

prevalence of obesity and associated disease states, greater expectation of an active lifestyle, improved

awareness of treatment options and the increasing affluence of the emerging markets.

 

 

 

Advanced Surgical Devices

Advanced Wound Management    
Total segment value Total segment value
$24bn $7bn
+5% +4%

 

Our products are used by surgeons and nurses to help

repair and heal the human body throughout a person’s life

Global population

 

 

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Source: United Nations – World Population Prospects, The 2012 Revision.

 

 

 

 

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Served by our global businesses

Our global franchises design, develop and deliver our advanced medical technologies to customers in more than 100 countries globally.

 

 

 

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Advanced Surgical Devices global

 

  

 
 

1. Orthopaedic Reconstruction

 

 
 

Specialist hip and knee implant systems.

 

 
  Revenue 1  
   

 

     
  $1,527m   +2%      
   

 

     
 

2013  $1,518m

 

  

 
 

2. Trauma & Extremities

 

 
 

Internal and external devices used in the stabilisation of severe fractures and deformity correction procedures.

 

   

 
  Revenue 1  
   

 

     
  $506m   +4%      
   

 

     
 

2013  $486m

 

  

 
 

3. Sports Medicine Joint Repair

 

 
 

Instruments, technologies and implants necessary to perform minimally invasive surgery of joints.

 

   

 
  Revenue 1  
   

 

     
  $576m   +8%      
   

 

     
 

2013  $496m

 

  

 
 

4. Arthroscopic Enabling Technologies

 

 
 

Cutting, visualisation and fluid management technologies necessary for Sports Medicine Joint Repair.

 

   

 
  Revenue 1  
   

 

     
  $542m   +1%      
   

 

     
 

2013  $441m

 

  

 
 

5. Other ASD

 

 
 

ENT and gynaecology instrumentation.

 

 
  Revenue 1  
   

 

     
$147m   +10%    
 

 

   
2013  $74m   
 

 

Advanced Wound Management global

 

 
 

1. Advanced Wound Care

 

 
 

Products for the treatment of acute and chronic wounds, including leg, diabetic and pressure ulcers, burns and post-operative wounds.

 

 
  Revenue 1  
   

 

   
  $805m –4%   
   

 

   
 

2013   $843m

 

 
 

2. Advanced Wound Devices

 

 
 

Traditional and single-use Negative Pressure Wound Therapy (‘NPWT’) and hydrosurgery systems.

 

 
  Revenue 1  
   

 

   
  $192m –9%   
   

 

   
 

2013   $213m

 

 
 

3. Advanced Wound Bioactives

 

 
 

Bioactive technologies that provide unique approaches to debridement and dermal repair and regeneration.

 

 
  Revenue 1  
   

 

   
  $322m +15%   
   

 

   
 

2013   $280m

 

 
   
   

 

 

 

 

 

  1 The underlying percentage increases/decreases are after adjusting for the effect of currency translation and the inclusion of the comparative impact of acquisitions and exclusion of disposals.
 

 

 

    

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STRATEGIC REPORT

Smith & Nephew today continued

 

 

 

Our business model

delivers value

 

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Our Capital Allocation Framework

 

              
 

 

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Maintain a strong balance sheet to ensure solid investment grade credit metrics

 

 

 

 

  
    

Resource utilised

 

$7 . 3bn $235m 13 , 468 15 $245m
Total Assets Investment in R&D Employees

Manufacturing

plants worldwide

 

Corporation tax paid

 

 

 

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With a strategy to

drive our performance

 

    

 

Our strategic priorities

 

 

 

Established Markets

 

 

Build upon existing strong positions, win market share through greater product and commercial

innovation and drive efficiencies to liberate resources.

 

 
   
 

 

Emerging & International Markets

 

 

Deliver thought leadership in the Emerging & International Markets by building strong, direct customer

relationships, widening access to our premium products and developing portfolios designed for the mid-tier population.

 

 
     
 

 

Innovate for value

 

 

Accelerate our rate of innovation by investing more in research & development to support

projects that will move clinical and cost boundaries and deliver maximum value.

 

 
     
 

 

Simplify and improve our operating model

 

 

Pursue maximum efficiency in everything we do, streamline our operations and manufacturing,

remove duplication and build strong global functions to support our commercial teams.

 

 
     
 

 

Supplement organic growth with acquisitions

 

 

Build our platform by acquiring complementary technologies, manufacturing and distribution in the

emerging markets and complementary products or businesses in our higher growth segments.

 

 

 

 

u  Read more about our strategy in action on pages 42 – 53

 

 

 

 

 

 

 

    

 

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STRATEGIC REPORT

Strategic performance

 

 

How we performed

 

 

 

Established Markets

 

Performance

 

Established Markets for Smith & Nephew are Australia, Canada, Europe, Japan, New Zealand and the US.

 

Our combined businesses in the Established Markets delivered flat growth for the year. Headwinds in Europe impacted our performance and offset the positive growth we achieved across the US, Japan, Australia & New Zealand.

 

In Advanced Wound Management, our performance was slightly below estimated global segment growth, despite a 15% growth in Advanced Wound Bioactives. While Trauma & Extremities, Hip Implants and Knee Implants growth were also slightly below the market, these franchises performed better than last year and demonstrated an improving trend in the second half of the year as a result of our investments in marketing, medical education and new products. In the higher growth Sports Medicine Joint Repair segment we delivered growth at around market rate and saw the first benefits of the ArthroCare acquisition.

 

Global Outlook

 

While there are some signs of improvement in economic conditions, overall the Established Markets continue to experience a challenging environment. We have responded by realigning our business models and made focused investments to enhance our performance and efficiency in these markets.

 

 

Emerging &

International Markets

 

Performance

 

Emerging & International Markets represent those outside of the Established Markets including the fast growing BRIC group of Brazil, China, India and Russia.

 

Our Emerging & International Markets grew at 17%, building further on the double-digit growth of 2013. These geographies now represent 15% of the Group’s overall revenue, up from 11% in 2011.

 

During 2014:

 

–   Our success in China continued with growth of over 30%, for a second year in a row, as our investment in training and infrastructure continue to show results.

 

–   Our Latin American markets, which include Brazil and Mexico, are set for improvement going forward as we spent the year integrating acquisitions and making organisational and strategic changes.

 

–   The execution of our mid-tier market strategy continues with the establishment of an independent commercial structure and increased investment in building a suitable product portfolio.

 

Global Outlook

 

The healthcare environment in our regions continues to rapidly expand and with the right investments combined with strategic execution will provide sustained growth opportunities for the Group.

 

 

Innovate for value

 

Performance

 

For Smith & Nephew ‘Innovate for value’ means having a pioneering approach to creating both products and new commercial models to bring products and services to our customers.

 

Consistent with 2013, R&D investment represented over 5% of revenue, bringing a wide range of products to market across all our franchises. More detail on individual products is set out on pages 21 to 22 and on pages 27 and 31.

 

In addition we have made investments in two venture funds as part of our search for future disruptive technologies.

 

We have also been investing in an innovative commercial solution for Orthopaedic Reconstruction that fulfils the unmet needs of customers searching for a different value proposition. Called Syncera, it offers customers clinically proven primary hip and knee implants combined with cutting-edge technology that streamlines the supply chain and logistics and enables technical support in the operating room. This new model has the potential to generate significant savings for the customer.

 

A pioneering approach to products and services provides competitive advantages. Smarter, easier to use, cost-efficient products and services can offset pricing pressures, disrupt markets and challenge the status quo, which will be required to meet the new and expanding demands for healthcare customers globally.

     
     
     
     
     
     
     
     
     
     
     
     
     
     
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Simplify and improve

our operating model

 

Performance

 

Trading profit grew by 3% and trading profit margin increased by 20bps while investing in our commercial operations and meeting market and pricing pressures.

 

Key initiatives included:

 

–   Continuing to deliver our $150 million per annum efficiency savings programme, of which we have achieved annualised savings of $146 million as at 31 December 2014.

 

–   Commencing a further $120 million annualised Group Optimisation plan through a one-off investment of $150 million, which is progressing well.

 

–   Moving to a single Managing Director model in markets outside of the US, combining the commercial organisations to leverage scale and better serve customers.

 

By simplifying and improving our operating model we have been able to liberate resources to invest in growth opportunities, meet the persistent price pressure and improve our financial returns. A simpler and more efficient organisation allows us to make faster and better decisions.

 

 

 

 

Supplement organic

growth with acquisitions

 

Performance

 

In 2014, we completed five acquisitions and investments, including our largest deal to date, the $1.7 billion acquisition of ArthroCare Corporation. This brings the total over the last 4 years to 15 transactions for a combined consideration of $2.8 billion, including the $782 million acquisition of Healthpoint Therapeutics in late 2012.

 

ArthroCare was a compelling opportunity to add unique technology and highly complementary products to further strengthen our sports medicine business. We will be able to generate significant additional revenue from the more comprehensive portfolio. We will use our global presence to drive substantial new growth. The transaction accelerates our strategy to rebalance Smith & Nephew towards higher growth opportunities.

 

We regularly review acquisitions to ensure they are meeting our expectations, and use IRRs and ROCE to confirm performance is on track to deliver the required return. During 2014 we continued to integrate our recent emerging markets acquisitions, whilst Healthpoint performed strongly in its second full year in Smith & Nephew.

 

Acquisitions and partnerships are important elements which supplement organic investment and provide increased opportunity for high growth and value creation.

 

    

 

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1 The underlying percentage increases/decreases are after adjusting for the effect of currency translation and the inclusion of the comparative impact of acquisitions and exclusion of disposals.

2 Explanations of these non-GAAP financial measures are provided on pages 176 to 179.

 

 

 

 

    

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STRATEGIC REPORT

Chief Financial Officer’s overview

 

 

We made significant

progress in 2014 ...

 

 

 

Our results

 

$4 , 617m

Revenue 1 up 2%

 

 

$1 , 055m

Trading profit 1,2 up 3%

 

 

 

 

 

 

 

1   The underlying percentage increases/decreases are after adjusting for the effect of currency translation and the inclusion of the comparative impact of acquisitions and exclusion of disposals.

2   Explanations of these non-GAAP financial measures are provided on pages 176 to 179.

Dear Shareholder,

 

Smith & Nephew made significant progress in 2014 and continued to deliver good revenue and earnings growth. Our growth trajectory is being enhanced by the integration of our acquisitions, greater Group efficiency, and tax improvement – combining with strong cash generation and disciplined capital allocation to accelerate value creation for shareholders.

 

Strong earnings growth

 

In the full year 2014, we generated revenue of $4,617 million (2013: $4,351 million), an increase of 2% on an underlying basis and 6% on a reported basis. Acquisitions added 5% to the reported growth rate, while currency was a -1% headwind.

 

Trading profit was $1,055 million (2013: $987 million), up 3% underlying and 7% on a reported basis. The trading profit margin was 22.9% (2013: 22.7%), a 20bps increase despite the headwind from the US RENASYS distribution hold announced in June.

 

Operating profit for 2014 was $749 million (2013: $810 million), reflecting acquisition costs largely relating to ArthroCare, as well as restructuring and rationalisation costs, amortisation of acquisition intangibles and legal and other items incurred. The net interest charge and other financing costs for 2014 were $33 million (2013: $7 million). Profit before tax was therefore $714 million (2013: $802 million).

 

The tax charge of $213 million reflects an effective tax rate of 27.7% for the full year (2013: 29.2%) on Trading results.

 

EPSA was 83.2¢ (166.4¢ per ADS) (2013: 76.9¢). Reported basic earnings per share was 56.1¢ (112.2¢ per ADS) (2013: 61.7¢).

 

Trading cash flow was $781 million (2013: $877 million), reflecting a trading profit to cash conversion ratio of 74% (2013: 89%).

 

Net debt at the year-end was $1,613 million reflecting our acquisitions of ArthroCare and in the emerging markets. This represents a reported net debt/EBITDA ratio of 1.2x.

Reinvestment & Group optimisation

 

During 2014, we launched a programme to target further efficiencies. We have identified four main areas of activity:

 

1  Globalising functions such as Finance, HR, IT and Legal to ensure that we are operating most effectively to support business growth.

 

2  Driving procurement savings to get the most value from the money we spend.

 

3  Rationalising our footprint to simplify the way we work.

 

4  Further simplifying our operating model, including establishing a single operating structure under a single managing director in all markets outside the US so that we can make decisions more quickly and effectively.

 

All areas of the programme are progressing well. Overall, we are on target to deliver benefits of over $120 million over a four-year period, with the majority of this expected to benefit margin over time.

 

Acquisitions

 

We acquired ArthroCare Corporation in 2014 for a net $1.5 billion. This has strengthened our Sports Medicine business. Its technology and products will significantly enhance our portfolio, and we will use our global presence to drive substantial new growth. The integration is progressing well.

 

The financial rationale for this transaction was strong, and we expect to realise cost and revenue synergies of around $85 million of additional annual trading profit in 2017.

 

Our other recent acquisitions continue to perform well. The Advanced Wound Bioactives business acquired at the end of 2012 delivered strong 15% growth in 2014. Our emerging markets acquisitions in Brazil, Turkey and India are now bedded in and delivering increasing benefits. And Bioventus, our orthobiologic therapies development vehicle, completed a successful external refinancing and repaid a $160 million loan-note, plus $28 million of accrued interest, to us in October.

 

 

 

 

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Table of Contents

 

 

... and continued to deliver good

revenue and earnings growth .

 

 

 

Segment reporting

 

As we simplify our operating model and move to one commercial organisation in all countries barring the US, we are updating our segmental reporting to reflect this, providing disclosure consistent with the financial information used by senior management to run the business. This means that from 1 January 2015 we will continue to disclose revenue performance by franchise, but other financial data, such as trading margin and assets, will no longer be split between two divisions – Advanced Surgical Devices (‘ASD’) and Advanced Wound Management (‘AWM’), since they are now part of one operating unit.

 

Outlook

 

We have made material progress in reshaping Smith & Nephew for higher growth since 2011. Whilst the journey to transform Smith & Nephew continues, increasingly we expect to benefit from the actions and investments we have made.

 

We expect the Group to deliver higher underlying revenue growth in 2015 than in 2014. We also expect to deliver a further improvement in trading profit margin.

 

Additionally, we expect the effective corporate tax rate on trading results to reduce to slightly above 27% in 2015, absent any changes to tax legislation. This is incremental to the 220bps reduction achieved in the last two years.

 

We believe the Group is at the start of a new and exciting phase in its 158-year history.

 

Sincerely,

 

LOGO

 

Julie Brown

Chief Financial Officer

We expect the Group to

  deliver higher underlying

  revenue growth in 2015

  than in 2014 . We also

  expect to deliver a further

  improvement in trading

  profit margin .

 

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LOGO

 

 

 

 

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STRATEGIC REPORT

Our marketplace

 

 

Changing demands

 

 

Market trends

 

The combination of ageing populations and increasing prevalence of obesity and associated chronic illness is expanding the gap between the demand for healthcare and ability of governments to supply it. The changing balance in ageing populations also means that there is a potential decrease in funds available for healthcare raised through taxes on the working population. Consequentially, governments and healthcare providers are looking for various ways to constrain their healthcare expenditure.

 

Cost and Outcomes

 

Healthcare providers, in an effort to reduce spending, are increasingly focusing on the cost of the whole treatment, rather than the individual components. This is leading governments and hospitals to seek greater transparency of product pricing.

 

As a result, health economic data is being used to obtain reimbursement or justify product pricing. Health economic data currently forms an integral part in shaping the recommendations from the National Institute for Health and Care Excellence (NICE) in the UK and in the US, the Affordable Care Act has committed budget spend to carry out comparative effectiveness research on treatments.

 

As well as the focus on suppliers of healthcare products, some providers are also implementing incentives for better health outcomes to reduce the costs associated with repeated patient treatments or reduced hospital stay.

 

Governments are beginning to impose penalties on healthcare facilities for acute patient re-admissions or for infections acquired within the health system which present an additional economic burden on health care systems.

  

 

 

 

 

 

In the US, healthcare-acquired infections cost almost $10 billion annually, with surgical site infections being the largest contribution to overall cost.

 

Product innovation has been the primary response by some suppliers in meeting patient and healthcare provider demands to improve outcomes, simplify procedures and reduce cost.

 

New commercial models, together with product innovation, are being adopted by health systems as a solution to improving resource allocation. There is a recent trend by health systems to shift towards ‘payment for performance’ schemes in an effort to promote high quality care and increase the effectiveness of treatments. Additionally, suppliers of healthcare products and devices are providing lower cost or reduced service offerings to those segments of the market more sensitive to price.

 

The healthcare industry is also seeing protectionism/localisation playing a part in the product selection process as some jurisdictions are implementing laws to show bias towards locally manufactured products. This already exists in Brazil for major tender offers and China is considering incentives to encourage hospitals to use locally made medical devices.

 

The increased demand for healthcare products and the limitation of available resources is widening the funding gap. Providing technologies that deliver value by improving clinical outcomes while reducing the consumption of overall healthcare resources is vital for the success and sustainability of medical device businesses.

Self-Care and Prevention

 

Self-care and prevention is regarded as an important element of healthcare in that it will help protect society from potential health threats by minimising the risk factors that cause them. Governments have been investing in programmes and providing tools to encourage and support healthier behaviour to reduce the strain on healthcare systems from ‘lifestyle’ diseases. Additionally, pressure is gradually being applied on the food industry to reduce saturated fats, sugar and salt in products and increase nutritional labelling in an effort to tackle rising rates of obesity and diabetes.

 

Regulatory standards

and compliance in the

healthcare industry

 

The international medical device industry is highly regulated. Regulatory requirements are important in determining whether substances and materials can be developed into safe and effective products and done so in an environmentally sustainable way.

 

National regulatory authorities administer and enforce a complex series of laws and regulations that govern the design, development, approval, manufacture, labelling, marketing and sale of healthcare products. They also review data supporting the safety and efficacy of such products. Of particular importance is the requirement in many countries that products be authorised or registered prior to the placement on market and that such authorisation or registration be subsequently maintained. The major regulatory agencies for Smith & Nephew’s products include the Food and Drug Administration (‘FDA’) in the US, the Medicines and Healthcare products Regulatory Agency in the UK, the Ministry of Health, Labour and Welfare in Japan, the China Food and Drug Administration and the Australian Therapeutic Goods Administration.

 

 

 

 

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In general, with the aforementioned industry trends, safety standards and regulations in the medical device industry are becoming more stringent. Regulatory agencies are intensifying audits of manufacturing facilities and the approval time for new products has lengthened. Legislation covering corruption and bribery such as the UK Bribery Act and the US Foreign Corrupt Practices Act business also apply to all our global operations.

 

We are committed to assuring a high level of regulatory compliance and to doing business with integrity and welcome the trend to higher standards in the healthcare industry. We and other companies in the industry are subject to regular inspections and audits by regulatory agencies and notified bodies, and in some cases, remediation activities have and will continue to require significant financial and resource investment. See ‘Legal proceedings’ on page 146.

 

Dependence on government

and other funding

 

In most markets throughout the world, expenditure on medical devices is ultimately controlled to a large extent by governments. Funds may be made available or withdrawn from healthcare budgets as a result of government policy. We are therefore largely dependent on future governments providing increased funds commensurate with the increased demand arising from demographic trends.

 

Pricing of our products is largely influenced in most developed markets by governmental reimbursement authorities. Initiatives sponsored by government agencies, legislative bodies and the private sector to limit the growth of healthcare costs, including price regulation, excise taxes and competitive pricing, are ongoing in markets where we operate. This control may be exercised by determining prices for an individual product

or for an entire procedure. We are exposed to changes in reimbursement policy, tax policy and pricing which may have an adverse impact on revenue and operating profit. There may be an increased risk of adverse changes to government funding policies arising from the deterioration in macro-economic conditions in some of our markets.

 

Competitors

 

Competition exists among healthcare providers to gain patients on the basis of quality, service and price. Providers are under pressure to reduce the total cost of healthcare delivery. In order to achieve this there has been some consolidation in our customer base, as well as amongst our competitors, and these trends are expected to continue in the long term. We compete against both local and multinational corporations, including some with greater financial, marketing and other resources.

 

LOGO

Manufacturing facility in Suzhou, China.

 

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STRATEGIC REPORT

Our marketplace continued

 

 

 

Smith & Nephew estimates that the global orthopaedic reconstruction segment is worth approximately $14 billion and increased by approximately 3% in 2014. Competitors in the orthopaedic reconstruction segment include Biomet, DePuy Synthes (a division of Johnson & Johnson), Stryker and Zimmer.

 

Smith & Nephew estimates that the global orthopaedic trauma segment is worth approximately $5 billion and grew by approximately 6% in 2014. Competitors in the orthopaedic trauma segment include Biomet, DePuy Synthes, Stryker and Zimmer.

 

Smith & Nephew estimates that the global sports medicine segment (representing access, resection and repair products) is worth approximately $5 billion and grew by approximately 8% in 2014. Competitors in the

sports medicine segment include Arthrex, Conmed, DePuy Mitek (a division of Johnson & Johnson) and Stryker.

 

Smith & Nephew estimates that the global wound management segment is worth approximately $7 billion and grew by 4% in 2014. Global competitors vary across our product areas and geographies and include Acelity, Coloplast, ConvaTec, 3M and Molnlycke.

 

Customers

 

In certain parts of the world, including the UK, much of Continental Europe, Canada and Japan, the healthcare providers are largely government organisations funded by tax revenues. In the US, our major customers are public and private hospitals,

which receive revenue from private health insurance and government reimbursement programmes. Medicare is the major source of reimbursement in the US for knee and hip reconstruction procedures and for wound treatment regimes. In the emerging markets, demand is driven by self-pay patients.

 

Seasonality

 

Orthopaedic and sports medicine procedures tend to be higher in the winter months when accidents and sports related injuries are highest. Conversely, elective procedures tend to slow down in the summer months due to holidays.

 

Due to the nature of our product range, there is little seasonal impact on the Advanced Wound Management business.

 

 

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STRATEGIC REPORT

Our business

 

 

LOGO

 

Delivering advanced medical technologies

 

Smith & Nephew’s business model, set out on page 12, supports our mission to deliver advanced medical technologies to help healthcare professionals, our customers, improve the quality of life for their patients.

 

Through it we create value. This value creation process is actioned through five streams of activity.

 

–  Research & Development

 

–  Ethics & Compliance

 

–  Manufacturing

 

–  Medical Education

 

–  Sales & Marketing

 

Our business model is underpinned by our Capital Allocation Framework. This enables us to invest for the future, both in organic growth and through acquisitions, whilst also generating value for shareholders today through a progressive dividend policy and commitment to return any excess capital.

Research and Development

 

We have a deep knowledge of the needs of surgeons, physicians and nurses, we understand the economic pressures healthcare payers work under, and we recognise that patients are demanding better treatment options to restore quality of life.

 

These factors inform our Research and Development (‘R&D’) strategy, which is at the heart of our business model.

 

In 2014, we launched many exciting products, including a cruciate retaining version of our JOURNEY II natural-motion knee, a first-of-its-kind DYONICS PLAN surgical planning tool for hip arthroscopy, and the HAT-TRICK Lesser Toe Repair System. We have a strong new product pipeline for 2015, with many innovations scheduled.

 

These new products, and many more currently in development, are a result of our focus on R&D. We invested $235 million in this area in 2014, in-line with our commitment, stated in 2011, to increase our investment level to around 5% of revenue.

 

We are highly disciplined in project selection. Our R&D experts in the UK, US, Europe, China and India have extensive customer and sector knowledge, which is augmented by ongoing interaction with our marketing teams.

Strict criteria are applied to ensure new products fulfil an unmet clinical need, have a strong commercial case, and are technologically feasible. Our R&D teams also work closely with manufacturing and supply chain management to ensure we can produce new products to clinical, cost and time specification. Our products undergo clinical and health economic assessment both during their development and post launch.

 

Open innovation

 

As part of our R&D strategy, Smith & Nephew supports and works with numerous small companies looking for help with developing and commercialising new technologies. We scout globally for new technologies and services to meet the needs of our customers.

 

We are a primary sponsor of the Massachusetts Medical Device Development Center (‘M2D2’) New Venture Competition, supporting entrepreneurial product development by early-stage medical device companies. We also work with MassChallenge, a global start-up competition and accelerator programme, to support emerging companies that fit with our strategic areas of interest.

 

 

 

 

    

 

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Smith & Nephew Annual report 2014              21

    

 


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STRATEGIC REPORT

Our business continued

 

 

We continued in 2014 as the commercial partner in SWAN-iCare, an EU-funded initiative to bring multidisciplinary European research teams together to deliver a next generation integrated autonomous solution for monitoring and adapting personalised therapy of foot and leg ulcers.

 

Smith & Nephew also welcomes new product concepts from surgeons. Through our InVentures programme we collaborate to bring ideas to reality. InVentures evaluates surgeon concepts for technical and market viability and our development team works hand-in-hand with surgeons to deliver new products that advance healing. Commercialised products benefit from the global selling power of Smith & Nephew.

 

In addition, Smith & Nephew invests in early stage technologies relevant to our business. Recent examples include UK-based Michelson Diagnostics that is developing a point-of-care tissue-imaging system that for the first time allows users to see below the surface of the skin; and an incubator fund investing in orthopaedic technologies close to commercial launch.

 

We continue to scout for further opportunities where we can access new disruptive technologies in our areas of specialism. These investments are typically in technologies that are not yet ready for acquisition but that we believe hold great promise. As well as funding, we may bring R&D, management and manufacturing expertise, and gain privileged access to or rights to the technology. We aim to accelerate the journey to market and may ultimately acquire the business.

 

Intellectual property

 

We protect the results of our research and development through patents and other forms of intellectual property. The Group’s patent portfolio currently includes in excess of 5,000 patents and patent applications. Patent protection for our products is sought routinely in our principal markets.

 

We also have a policy of protecting our products by registering trademarks under the local laws of markets in which such products are sold. We vigorously protect our trademarks against infringement.

 

In addition to protecting our market position by filing and enforcing patents and trademarks, we may oppose third party patents and trademark filings where appropriate in those areas that might conflict with our business interests.

 

In the ordinary course of business, we enter into a number of licensing arrangements with respect to our products. None of these arrangements individually is considered material to our current operations and financial results.

Ethics and compliance

 

Code of conduct and

business principles

 

Smith & Nephew earns trust with patients, customers, healthcare professionals, authorities and the public by acting in an honest and fair manner in all aspects of its operations.

 

We expect the same from those with whom we do business, including distributors and independent agents that sell our products. Our Code of Conduct and Business Principles (‘Code’) governs the way we operate to achieve these objectives.

 

Smith & Nephew takes into account ethical, social, environmental, legal and financial considerations as part of its operating methods. We have a robust whistle-blowing system in all jurisdictions in which Smith & Nephew operates. We are committed to upholding our promise in our Code that we will not retaliate against anyone who makes a report in good faith.

 

New employees receive training on our Code, and we assign annual compliance training to employees. In 2014, we updated our Code training. The new module is more interactive, role-based and allows individuals to apply the Code in different scenarios. Individuals can earn ‘trust points’ and ‘achievement badges’ if they make the right choices in the scenarios. Individuals who show an understanding of the Code by selecting the right behaviour in a scenario can move through the module more quickly than individuals who choose the incorrect behaviour and are then subject to remediation.

 

Global compliance programme

 

Smith & Nephew has implemented what we believe is a world-class Global Compliance Programme that helps our businesses comply with laws and regulations. Our comprehensive compliance programme includes global policies and procedures; on-boarding and annual training for employees and managers; monitoring and auditing processes; and reporting channels.

 

Through a global intranet website, we provide resources and tools to guide employees to make decisions that comply with the law and our Code and earn trust. We conduct advance review and approval for significant interactions with healthcare professionals or government officials. We regularly assess existing and emerging risks in the countries in which we operate.

Managing Directors complete an annual certification to the CEO to confirm implementation of required programmes. Managers and employees make an annual compliance certification, and executive management, managers and employees have a compliance performance objective customised to their level in the organisation.

 

In 2014, we developed and piloted a face-to-face course for new managers, which supplements the on-line manager certification training. In 2015, all new managers will be required to complete both the on-line and the face-to-face course.

 

New distributors and other higher risk third parties are subject to screening and are contractually obligated to comply with applicable laws and our Code. Their management is required to take compliance training and certify that they will ensure their employees and agents comply with the law and our Code. They also receive a CD-ROM with tools to assist them with their own compliance programmes. We have expanded our oversight of independent agents and distributors with on-site assessments to check compliance controls and monitoring visits to review a sample of transactions from their books and records.

 

In 2014, Smith & Nephew filed its first report in compliance with the US Physician Payments Sunshine Act, which comprised over 22,000 transactions with nearly $18 million in payments and expenses to reportable individuals and entities.

 

In early 2015, Smith & Nephew submitted the final report to the US Department of Justice (‘DoJ’) and the US Securities and Exchange Commission (‘SEC’) required under the Company’s Foreign Corrupt Practices Act settlement agreement. We also filed our first report under the deferred prosecution agreement we inherited with the ArthroCare acquisition (see Note 17.3 of the Notes to the Group accounts).

 

 

 

 

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LOGO          

LOGO

 

High quality manufacturing

An employee at our manufacturing plant in

Tuttlingen, Germany, working on a polished

cementless hip stem.

 

Manufacturing

 

We operate manufacturing facilities in a number of countries across the globe, and a number of central distribution facilities in key geographical areas in which we operate. Products are shipped to individual country locations which hold small amounts of inventory locally for immediate supply to meet customer requirements. We have a defined manufacturing and facility footprint plan in-line with our commercial strategy which we review on a regular basis.

 

We continue to implement improved processes such as ‘Lean Manufacturing’ throughout our factories, the global supply chain and the supporting operations to improve and sustain the levels of safety, quality, delivery, productivity and efficiency. We have numerous Core Competences including: materials technology; precision machining, high volume and automated manufacturing for both our Advanced Surgical Devices and Advanced Wound Management products.

 

We procure raw materials, components, finished products and packaging materials from key suppliers. These purchases include metal forgings and stampings for orthopaedic products, optical and electronic subcomponents for sports medicine products, active ingredients and semi-finished goods for Advanced Wound Management as well as packaging materials across all product ranges.

 

Suppliers are selected, and standardised contracts negotiated, by a centralised procurement team wherever possible, with a view to ensure value for money based on the total spend across the Group.

We outsource certain parts of our manufacturing processes where necessary to obtain specialised expertise or gain lower cost without undue risk to our intellectual property. Suppliers of outsourced products and services are selected based on their ability to deliver products and services to our specification, and adhere to and maintain an appropriate quality system. Our specialist teams work with and monitor suppliers through on-site assessments and performance audits to ensure the required levels of quality, service and delivery.

 

Our largest manufacturing operation for Advanced Surgical Devices is based in Memphis (Tennessee, US), with additional production and assembly plants based in Mansfield (Massachusetts, US), Oklahoma City (Oklahoma, US), Austin (Texas, US), Aarau (Switzerland), Tuttlingen (Germany), Beijing (China), Calgary (Canada), Warwick (UK), Heredia (Costa Rica) and Sangameshwar (India).

 

The Memphis facilities produce key products and instrumentation in our Knee Implants, Hip Implant and Trauma franchises. These include the JOURNEY II and LEGION à knees, the ANTHOLOGY à Primary Hip System and key Trauma products such as the PERI-LOC à Ankle Fusion Plating System and TRIGEN à Intramedullary Nails. In addition to this, Memphis is the home to the design and manufacturing process of the VISIONAIRE patient matched instrumentation sets.

 

The Mansfield facility focuses on sports medicine related products for minimally invasive surgery including the FAST FIX à 360 Meniscal Repair System, FOOTPRINT à PK Suture Anchor, DYONICS Platinum Shaver Blades, ENDOBUTTON à CL Ultra and the HEALICOIL à PK suture anchor.

The Aarau, Tuttlingen, Beijing and Warwick facilities produce a large number of products including key trauma products, the PLUS à knee and hip range and the BIRMINGHAM à Hip Resurfacing System. The facility in Oklahoma City deals mainly with the assembly of surgical digital equipment, such as HD560 à Camera.

 

We operate three main holding warehouses, one in each of Memphis (Tennessee, US), Baar (Switzerland) and Singapore. These facilities consolidate and ship to local country and distributor facilities.

 

The Advanced Wound Management manufacturing is primarily managed from our factory and offices in Hull (UK). Wound Management products are also made at our facilities in Suzhou (China), Curaçao (Dutch Caribbean), Alberta (Canada) and Oklahoma City (Oklahoma, US).

 

The products made at the Hull site cover the therapies of Exudate management (Foam products – principally ALLEVYN à ), Burns treatment (ACTICOAT à ) and Wound Closure (OPSITE à film products). Several products produced in Hull, such as JELONET à and BACTIGRAS à , transitioned to Suzhou in 2014, as part of our global footprint optimisation programme.

 

 

 

 

    

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STRATEGIC REPORT

Our business continued

LOGO

 

OPSITE Post-Op Visible

A waterproof, bacteria-proof dressing with

see-through absorbant pad. Unique design allows

continual monitoring of the incision site without the

need to disrupt the healing process.

 

 

LOGO

A key base material used in the production of a large number of dressings is the intermediate bulk rolls of film which are manufactured in the Gilberdyke (UK) facility. The facility in Alberta (Canada) provides specific expertise in the addition of silver coatings onto the ACTICOAT burns range prior to shipping to Hull for the final conversion process into finished dressings. The facility in Gilberdyke (UK) was sold in 2014, and will continue to supply sub components to other facilities until 2016. The processes at the Alberta facility are being transferred to the Hull site during 2015.

 

The Suzhou facility opened in 2009 initially to manufacture some Foam products within Exudate management. It has since expanded to take on production of some Film Wound Closure products.

 

The majority of the NPWT components are bought in from third parties and assembled in the Advanced Surgical Devices Oklahoma City facility, with the exception of the dressings used for the PICO product which are manufactured in Hull.

 

Manufacturing for Advanced Wound Bioactives takes place in Curaçao, and at various third party facilities in the US. The products are distributed from a third party logistics facility in San Antonio (Texas, US). Advanced Wound Bioactives has facilities for the development and possible production of cell based therapies in Fort Worth (Texas, US).

Advanced Wound Management distribution hubs are located in Neunkirchen (Germany) and Derby (UK) for international distribution, Bedford (UK) for UK domestic distribution and Lawrenceville (Georgia, US) for US distribution.

 

Medical education

 

Smith & Nephew is dedicated to helping healthcare professionals improve the quality of care for patients. We are proud to support the professional development of surgeons and nurses by providing them with medical education and training on our Advanced Surgical Devices and Advanced Wound Management products.

 

Every year thousands of customers attend our state-of-the-art training centres in the US, UK and China and Smith & Nephew courses at multiple hospitals and facilities around the world.

 

In 2014, we provided training to more than 25,000 surgeons. Working under expert guidance, attendees refine techniques and learn new skills, whilst experiencing the safe and effective use of our products. We also support healthcare professionals through our on-line resources such as the Global Wound Academy, The Wound Institute and, for surgeons, our Education and Evidence website.

Sales and marketing

 

Our customers are the providers of medical and surgical treatments and services in over 100 countries worldwide.

 

The largest single customer worldwide is a purchasing group based in the UK that represented less than 5% of our worldwide revenue in 2014.

 

In our Established Markets, our Advanced Surgical Devices are principally shipped and invoiced directly to healthcare providers, hospitals and other healthcare facilities. Certain Advanced Wound Management products are shipped and invoiced to wholesale distributors and others are consigned to distributors that lease the devices to healthcare providers, hospitals and other healthcare facilities and end-users.

 

Our US sales forces consist of a mixture of independent contract workers and employees. Sales agents are contractually prohibited from selling products that compete with our products. In most other Established Markets country-specific commercial organisations manage employee sales forces directly.

 

In our Emerging & International Markets we operate through direct selling and marketing operations, and through distributors. In these markets, our Advanced Surgical Devices franchises frequently share sales resources. The Advanced Wound Management sales force may be separate where it calls on different customers.

 

 

 

 

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Our people

 

Smith & Nephew is committed to attracting, engaging, developing and retaining employees. In 2014, we had more than 14,000 employees dedicated to our core values of Innovation, Trust and Performance. These values represent the foundation of our culture, and underpin our commitment to be an employer of choice as well as a responsible corporate citizen.

 

Investing in our people and communities helps ensure the long-term sustainability of our business. Smith & Nephew strives to create a more engaged and productive workforce and focuses on measures to drive employee engagement. These include an understanding of the Group’s mission and direction, sense of employee involvement, focus and adaptability to customers and market place. We continue to listen to our employees, via regular surveys and focus groups, and we value their opinions. In 2014, we conducted a Global Employee survey to measure progress against our actions and were named Great Place to Work in Spain.

 

Attracting the best talent and developing and engaging our employees are critical to achieving and sustaining our business objectives and overall performance. Employee advancement is merit-based, based on performance as well as demonstration of core competencies which include our core values with an emphasis on ethics and integrity. We prioritise the development and promotion of our existing employees whenever possible.

 

Each year, Smith & Nephew conducts a comprehensive global development and capability review process to identify high-potential employees and ensure they have robust career development plans. Talented employees are provided with opportunities to develop their skills and career through new assignments and on the job experiences. Current programmes include our Chief Executive Officer (CEO) Forum – where small groups of high potential and emerging talent are given the opportunity to learn more about the business from the Company’s most senior leaders and to benefit from peer mentorship – and the annual Managing Director’s Meeting where country and regional commercial leaders begin the year in alignment with the Group’s strategy and goals. In addition, the Board reviews succession plans for key executive roles and succession plans are in place for critical positions across our business.

 

Our performance management process ensures all employees set objectives which align to our overall business goals and have clear line-of-sight to how their individual contributions benefit the Company. Our performance management system assesses and rewards both performance and behaviour, in line with our Code of Conduct. All employees have a specific annual objective to adhere to the Code of Conduct and to complete training and certify their adherence to this Code.

   

Smith & Nephew strives to create a highly engaged and productive workforce. We foster this goal with targeted initiatives to ensure understanding of the Company’s mission and direction, encourage employee involvement, and ensure focus and adaptability to our customers and market place. We seek employee feedback via regular surveys and focus groups, and we act on this feedback in the spirit of continuous improvement.

 

Diversity at Smith & Nephew

 

Smith & Nephew believes that diversity fuels innovation. We are committed to employment practices based on equality of opportunity, regardless of colour, creed, race, national origin, sex, age, marital status, sexual orientation or mental or physical disability unrelated to the ability of the person to perform the essential functions of the job.

 

Smith & Nephew has a Human Resource Global Standard for diversity and inclusion in the workplace and is committed to creating an inclusive environment that embraces and promotes diversity.

 

The Board and Executive officers continue to recognise the importance of diversity and over the last two years have expanded their own diversity profile: three of our ten Board members are female.

 

On 31 December 2014, Smith & Nephew had the following breakdown of employees:

 

   

We aim to provide an open, challenging, productive and participative environment based on constructive relationships.

 

We maintain open and transparent communication with employees through regular and timely information and consultation. We clearly communicate our business goals and performance standards, and provide the training, information and authority needed to achieve them. We provide fair recognition and reward based on performance. Our annual CEO Award, open to all employees worldwide, recognises employees who deliver exceptional results in line with our core values, encouraging innovation and a spirit of continuous improvement at all levels. We are committed to working with employees to develop each individual’s talents, skills and abilities. We provide encouragement to learn and continuously improve. We recruit, employ and promote employees on the sole basis of the qualifications and abilities needed for the work to be performed. We do not tolerate discrimination on any grounds and provide equal opportunity based on merit.

 

We are committed to building diversity in a working environment where there is mutual trust and respect and where everyone feels responsible for the performance and reputation of our Company. We are committed to providing healthy and safe working conditions for all employees. We achieve this by ensuring that health and safety and the working environment are managed as an integral part of the business, and we recognise employee involvement as a key part of that process.

 

We do not use any form of forced, compulsory or child labour. We support the Universal Declaration of Human Rights of the United Nations. This means we respect the human rights, dignity and privacy of the individual and the right of employees to freedom of association, freedom of expression and the right to be heard.

         
   

   Number of Employees  1

 

       
   

 

 

   Board of

   Directors

 

       
   

 

   Male

 

 

 

7  

 

   
   

 

   Female

 

 

 

3  

 

   
   

 

   Total

 

 

 

1 0   

   
   

 

   Senior Managers and above 2

   
   

 

   Male

 

 

 

562  

 

   
   

 

   Female

 

 

 

168  

 

   
   

 

   Total

 

 

 

730   

 

   
   

 

   Total employees

       
   

 

   Male

 

 

8,485  

 

   
   

 

   Female

 

 

 

5,757  

 

   
   

 

   Total

 

 

 

14,242  

 

   
       
   

1   Number of employees as at 31 December 2014 including part time employees and employees on leave of absence.

2   Senior Managers and above includes all employees classed as Directors, senior Directors, Vice Presidents and Executive officers and includes all statutory Directors of our subsidiary companies.

   
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       

 

 

    

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Smith & Nephew Annual report 2014              25

    

 


Table of Contents

 

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Table of Contents

 

 

Overview

 

In Advanced Surgical Devices (‘ASD’) we develop, manufacture and sell products in the areas of Orthopaedic Reconstruction, Trauma & Extremities, Sports Medicine Joint Repair, Arthroscopic Enabling Technologies, and others such as Gynaecology and Ear, Nose and Throat.

Orthopaedic Reconstruction

 

Smith & Nephew offers a range of specialist products for orthopaedic reconstruction in its Knee Implants and Hip Implants franchises.

 

Implant bearing surfaces such as the proprietary OXINIUM à Oxidized Zirconium continue to be a point of differentiation for Smith & Nephew. OXINIUM Technology combines the enhanced wear resistance of a ceramic bearing with the superior toughness of a metallic bearing. When combined with highly cross-linked polyethylene (‘XLPE’) it results in our proprietary VERILAST Technology. In Hip Implants, the combination of a ceramicised metal head and a highly cross-linked polyethylene lined cup have been shown in various national joint replacement registries to have displayed best in class survivorship rates when compared to implants made from any other materials. In Knee Implants, the LEGION Primary Knee with VERILAST Technology is the only knee implant that has been laboratory-tested to 30-years of simulated wear. While lab testing is not the same as clinical performance, the tests showed significant reduction in wear compared to conventional technologies.

 

Knee Implants

 

Smith & Nephew offers a range of products for specialised knee procedures. In 2014, Smith & Nephew launched the JOURNEY II Cruciate Retaining (‘CR’) knee implant extending the JOURNEY II Active Knee System to procedures that preserve the posterior cruciate ligament (‘PCL’) which account for approximately half of all knee replacement procedures.

 

The LEGION/GENESIS à II Total Knee System is a comprehensive system designed to allow surgeons to address a wide range of knee procedures from primary to revision.

These systems also feature VERILAST Technology, our advanced bearing surface and also utilise VISIONAIRE Patient-Matched Instrumentation.

 

With VISIONAIRE Instrumentation, a patient’s MRI and X-rays are used to create customised cutting blocks that allow the surgeon to achieve optimal mechanical axis alignment of the new implant. In addition, VISIONAIRE also helps save time by reducing the number of procedural steps and instruments used in the operating room.

 

In 2014, Smith & Nephew entered into a commercial agreement with Blue Belt Technologies (‘BBT’), makers of the Navio ® Orthopaedic Surgical System, the next generation of orthopaedic robotic surgical navigation. Under this agreement, surgeons using the Navio system will be able to implant Smith & Nephew’s JOURNEY UNI partial knee.

 

We also announced an agreement with OrthoSensor, the leader in intelligent orthopaedics, that will enable surgeons to benefit from OrthoSensor’s VERASENSE TM Sensor Assisted Surgery Technology for soft tissue balancing when implanting our JOURNEY II and LEGION Total Knee Systems. VERASENSE utilises advanced sensor technologies to enable evidence-based surgical decisions regarding component position, limb alignment and soft tissue balance to optimise outcomes in total knee replacement.

 

Hip Implants

 

For Hip Implants, core systems include the ANTHOLOGY Hip System, SYNERGY à Hip System, the SMF à Short Modular Femoral Hip System, the R3 à Acetabular System, the POLARCUP à Dual Mobility Hip System and the SL-PLUS à Hip Family System.

 

In 2014, we introduced the POLARSTEM à HA Cementless Stem System in the US for state-of-the-art minimally invasive surgical techniques that preserve bone and soft tissue, with good functionality and reproducible results.

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Smith & Nephew Annual report 2014              27

    

 


Table of Contents

STRATEGIC REPORT

Segment performance: Advanced Surgical Devices continued

 

 

For US patients, our successful VERILAST knee consumer campaign was expanded to include hips in 2014. Thanks to the combination of a well-established brand, a compelling call-to-action and our position as the first company to advertise differentiating technology to this audience, we were able to mirror the successes of our earlier knee campaigns by driving potential patients to our consumer-facing RediscoverYourGo website and its surgeon locator.

 

Trauma & Extremities

 

Our Trauma & Extremities franchises offer both internal and external fixation and tissue repair devices, as well as other products used in the stabilisation of severe fractures and deformity correction procedures.

 

For extremities and limb restoration, the franchise offers the TAYLOR SPATIAL FRAME à Circular Fixation System as well as a range of plates, screws, arthroscopes, instrumentation, resection, and suture anchor products for orthopaedic surgeons including foot and ankle, hand and wrist, and trauma surgeons. For Trauma, the principal internal fixation products are the TRIGEN à family of IM nails (TRIGEN META-NAIL System, TRIGEN Humeral Nail System, TRIGEN SURESHOT à , and TRIGEN INTERTAN à ) and the PERI-LOC à Plating System.

 

2014 saw the introduction of the D-RAD à SMART PACK System for treating distal radius fractures. The new system – which includes complete, sterile, single-use instrument kits with implants, and a tray of sterile packaged fasteners and templates – allows hospital operating room staff to reduce the typical time and expense involved with reprocessing traditional plate and screw systems.

 

In wrist repair, we introduced a new solution for triangular fibrocartilage (‘TFCC’), a complex repair that leverages our FAST-FIX à  360 technology and provides an all arthroscopic repair which eliminates knot stack.

 

Smith & Nephew also announced its entry into the forefoot market in 2014, with the launch of the HAT-TRICK Lesser Toe Repair System. Comprised of three separate repair options, the HAT-TRICK System includes products for metatarsophalangeal (‘MTP’) ligament repair and reconstruction, a metatarsal osteotomy guide, and a revisable, all-PEEK implant for Proximal Inter-Phalanges (‘PIP’) fusion, also known as hammer-toe correction.

In hip repair, we introduced INTERTAN à Gold instrumentation that is designed to streamline the surgical steps and improve clinical outcomes by offering a more efficiently designed set. In addition, the INTERTAN 10S was launched to meet the unique needs of smaller-stature patients by offering a more appropriate size for this population.

 

We launched the EVOS à MINI Plating System for use in complex fractures of the long bones of the arms and legs. Designed specifically for traumatologists, this long-bone-specific system includes the variety of mini, flat plates and screw sizes necessary to address both fracture reduction and short-term fixation while the final, load-bearing repair is being completed.

 

Sports Medicine Joint Repair

 

The Sports Medicine Joint Repair franchise offers surgeons a broad array of instruments, technologies and implants necessary to perform minimally invasive surgery of the joints, including knee, hip and shoulder repair.

 

Our global position within the Sports Medicine Joint Repair market was strengthened significantly in 2014, with the May acquisition of ArthroCare Corporation. The transaction adds technology and highly complementary products to our existing portfolio, including new shoulder anchor innovation.

 

In 2014, Smith & Nephew launched its SUTUREFIX à Ultra soft suture anchor for hip and shoulder labral repair to surgeons in the US. The new anchor’s small, soft construct, and superior pull-out strength, allow surgeons to more precisely place fixation points around the joint to more accurately re-approximate the patient’s native anatomy.

 

2014 also saw the launch of the N8TIVE à ACL (anterior cruciate ligament) System which helps surgeons create highly anatomic ACL Reconstructions. N8TIVE allows surgeons to restore the size, shape, and location of the native femoral and tibial ACL insertion points.

 

Arthroscopic Enabling

Technologies (‘AET’)

 

Our Arthroscopic Enabling technologies franchise now includes the latest generation COBLATION à radio frequency (‘RF’) technology acquired from ArthroCare, as well as electromechanical and mechanical blades and hand instruments for the removal of damaged tissue. Additionally, the franchise offers fluid management equipment for surgical access and high definition cameras, digital image capture, scopes, light sources and monitors to assist with visualisation inside the joint.

Key AET products include DYONICS shaver blades, ACUFEX à handheld instruments, and a wide range of RF probes. The ArthroCare acquisition brought us the latest generation of RF technology – the internationally patented COBLATION technology – which offers ablation, resection, and coagulation of soft tissue and hemostasis of blood vessels. The DYONICS Platinum Series Shaver Blades are single-use blades that provide superior resection due to their sharpness and virtually eliminate clogging through their improved debris evacuation capabilities. The DYONICS PLAN Hip Impingement Planning System was launched in 2014. This interactive, 3D software system uses data from low-dose 1 CT scans to help surgeons visualise, assess and plan each patient’s unique Femoroacetabular Impingement (‘FAI’) surgery before they enter the operating room.

 

Other ASD

 

The Other ASD franchise includes smaller businesses such as Gynaecology and our newly acquired Ear, Nose and Throat (‘ENT’) business.

 

The main Gynaecology product is the TRUCLEAR à System, a first-of-its-kind hysteroscopic tissue removal system, providing safe and efficient removal of endometrial polyps and submucosal fibroids. The business also sells a hysteroscopic fluid management system, which provides uterine distension and clear visualisation during hysteroscopic procedures.

 

Our ENT business develops, manufactures, and markets products for the ENT market space. We offer a wide variety of products in this area including our COBLATION technology and our RAPIDRHINO à carboxymethylcellulose (‘CMC’) technology which is featured in dissolvable nasal and sinus dressings, removable nasal and sinus dressings, and epistaxis treatment products.

 

1 Low-dose scan protocol reduces radiation by approximately 50% compared to standard CT protocol.
  CT Protocol Report, HIPS. Document number 15001984, 2013. Data on file at Smith & Nephew.

 

 

28              Smith & Nephew Annual report 2014


Table of Contents

 

LOGO

 

LOGO

VERILAST Technology for Hip

Replacement

The proprietary technology combines

innovation with long-term performance.

Regulatory approvals

 

In 2014, regulatory clearances/approvals were obtained for several key products and instrumentations.

 

In the US, 510(k) clearances were given to the D-RAD à SMART PACK, VLP à MINI-MOD Plates and Screws, EVOS Mini-Fragment Plating System, JOURNEY II BCS Constrained Articular Inserts, BIOSURE HEALICOIL à PK screw, Cannulated Captured Screw, N8TIVE ACL Anatomic Reconstruction System and NasaStent à CMC Nasal Dressing. Additional 510(k) clearances were also granted for our VISIONAIRE software revisions as well as the Q-Fix à Suture Anchor, the Multi-Fix à S Knotless Fixations System and the Topaz à EZ Microdebrider COBLATION Wand.

 

In Canada, approvals were granted for our LEGION Narrow OXINIUM and CoCr Femoral Components, HEALICOIL REGENESORB à Suture Anchor, the SUTUREFIX à ULTRA Suture Anchor, TFCC FAST-FIX Kit, TRUEPASS à Suture Passer, DYONICS PLAN, ULTRATAPE à , N8TIVE ACL Reconstruction System, BIOSURE HEALICOIL PK screw, KVac à and Ambient KVac COBLATION Wands, Q-Fix Suture Anchor System and MediENT à Turbinate Implant.

In Australia, LEGION Narrow OXINIUM, HEALICOIL REGENESORB, LEGION Hinge Knee System, KVac COBLATION Wand, N8TIVE ACL Reconstruction System, SpeedLock à Hip Knotless Fixation System, Multi-Fix S Knotless Fixation Device, Q-Fix Suture Anchor System, Ventera à Sinus Dilation System and Serpent à Articulating ENT Instrument were approved.

 

In Latin America, the Quantum à 2 COBLATION System and the Magnum à 2 Knotless Fixation Device were approved in Argentina; the Speedfix à Suture System and the Titan à Suture Anchor were approved in Brazil; and the RAPIDRHINO System was approved in Mexico.

 

In Europe, the following products obtained regulatory clearance: HEALICOIL REGENSORB Suture Anchor, VLP MINI-MOD Plates and Screws, the EVOS Mini-Fragments Plates and Screws, the LEGION Hinge Knee System and the JOURNEY II CR Knee System.

 

In Japan, the ANTHOLOGY HA Coated Hip stem, SMF à Hip Stem, Osteoraptor à OS Suture Anchor, HEALICOIL REGENESORB Suture Anchor, SUTUREFIX ULTRA Suture Anchor, TFCC à FAST-FIX Kit, OSTEORAPTOR à HA curved, TRUEPASS Suture Passer, DYONICS PLAN, and ULTRATAPE were all approved.

 

Other approvals include the Speedlock Hip Knotless Fixation System in Singapore and the ENT Irrigation Pump à in Korea.

 

 

 

 

    

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Smith & Nephew Annual report 2014              29

    

 


Table of Contents

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Table of Contents

 

 

Overview

 

In Advanced Wound Management (‘AWM’) we offer products from initial wound bed preparation through to full wound closure. These products are targeted at chronic wounds associated with the elderly population, such as pressure sores and venous leg ulcers. There are also products for the treatment of acute wounds such as burns and invasive surgery that impact the wider population.

 

The main products within the AWM business are for management of wound exudate, treatment and prevention of wound infections, negative pressure wound therapy (‘NPWT’) and bioactive therapies. The portfolio is grouped into disposable wound care products (Advanced Wound Care), electrical equipment for wound therapy (Advanced Wound Devices) and bioactives (Advanced Wound Bioactives).

 

Advanced Wound Care

 

Exudate management

 

Exudate management products focus on effectively and efficiently managing wound fluid and creating an optimal healing environment to promote improved healing outcomes. Our key brands in this space are ALLEVYN foam dressings and DURAFIBER à gelling fibre dressings.

 

In 2014, we continued to invest in the development and commercialisation of our flagship ALLEVYN brand, with significant sales and marketing efforts in key countries. The ALLEVYN brand is evolving towards ALLEVYN Life, our latest innovation in foam dressings, which was designed to provide a better patient experience, and greater wear time. This leads to improved patient outcomes and economic savings for payers, which has now been demonstrated in several studies.

  

We have also experienced a significant increase in the utilisation of ALLEVYN Life as a prophylactic measure to help prevent pressure ulcers, driven by the dressing’s unique multi-layer design which gives it superior pressure redistribution properties.

 

Throughout 2014, we have continued to invest in customer insights and the generation of meaningful clinical and health economic evidence to ensure that our ALLEVYN portfolio is in a sustainable, category leading position and delivers to our customers’ expectations.

 

Infection management

 

AWM has two significant technologies in its infection management portfolio, silver (ACTICOAT, DURAFIBER Ag and ALLEVYN Ag) and iodine (IODOSORB à ). The iodine-based IODOSORB product has continued to gain interest due to the unique properties of the cadexomer iodine molecule and their impact on biofilms, which have become a well-recognised barrier to healing in wound care. IODOSORB benefits from one of the most comprehensive evidence bases in wound care.

 

We are also experiencing strong interest in ACTICOAT, particularly in post-surgical wounds to prevent the complications associated with surgical site infection and in delayed healing chronic wounds.

 

Other

 

AWM offers a wide range of other wound care products, resulting in Smith & Nephew having one of the most comprehensive ranges of wound care solutions in the industry. These products include our film and post-operative dressings, skincare products and gels.

 

IV3000 à : AWM’s specialist breathable premium IV dressing, utilising REALTIC à film technology and unique patterned adhesive, continues to perform well, particularly driven by emerging markets. In 2014, the IV3000 range benefited from several product upgrades reinforcing its differentiation as a premium offering. Success in the emerging markets has created an opportunity for a mid-tier offering, which will be introduced in 2015.

 

 

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ALLEVYN Life

An innovative multi-layered dressing designed for people living their everyday lives.

 

 

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Smith & Nephew Annual report 2014              31

    

 


Table of Contents

STRATEGIC REPORT

Segment performance: Advanced Wound Management continued

 

 

 

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OPSITE Post-Op Visible: This is our innovative dressing that combines the qualities of a premium dressing with the ability to see and monitor the incision. This unique product continues to deliver strong growth in both our Established Markets and Emerging & International Markets, supported by investment in clinical evidence.

 

Advanced Wound Devices

 

Advanced Wound Devices consists of two categories of products: NPWT and VERSAJET à .

 

NPWT

 

Our NPWT solutions include traditional NPWT products (RENASYS products) and the single-use portfolio (PICO and KALYPTO à products).

 

We are also progressing with launch plans for our next-generation traditional NPWT product.

 

During 2014, we were required to initiate a distribution hold in the US on RENASYS products as the FDA indicated new regulatory clearances were required in respect of certain design enhancements. We are working to obtain these and RENASYS remains available outside of the US.

 

The PICO system, our single-use, canister-free solution, is revolutionising NPWT. As familiar and easy to use as an advanced wound dressing, PICO provides an active intervention to help promote optimal healing for early discharge and enhanced outcomes in complex cases. PICO simplifies the delivery of negative pressure, which benefits patients and caregivers alike.

    

VERSAJET

 

The VERSAJET II Hydrosurgery system is a mechanical debridement device used by surgeons to excise and evacuate non-viable tissue, bacteria and contaminants from wounds, burns and soft tissue injuries.

 

Advanced Wound Bioactives

 

Smith & Nephew is the global market share leader in the bioactives segment, which is the fastest growing category of wound therapeutics. Our diversified biotherapeutic portfolio offers differentiated, cost-effective solutions for tissue repair and healing, addressing the full spectrum of hard-to-heal wounds.

 

Currently, our leading bioactive brand is Collagenase SANTYL à Ointment, the only FDA-approved biologic enzymatic debriding agent for chronic dermal ulcers and severe burns. In 2014, Smith & Nephew launched a new 90g package size to bring convenience and economy to providers and patients treating large dermal ulcers and burns with SANTYL. In addition, consistent with Smith & Nephew’s scientific leadership strategy, new clinical data highlighting the benefits of using SANTYL adjunctively with sharp debridement was released early in the year and was closely followed by initiation of a larger, follow-on study of similar design to corroborate the initial findings.

 

REGRANEX à Gel is the first and only FDA approved recombinant platelet-derived growth factor indicated for use as an adjunct to good ulcer care in the treatment of lower extremity diabetic neuropathic ulcers. Physicians increased their prescribing of REGRANEX throughout the year, in part due to REGRANEX 360, a novel programme launched by Smith & Nephew to help patients maximise the benefits of the brand by informing about insurance coverage, shipping the medication directly to the patient’s home or office and providing expert consultation on how to use the brand appropriately.

    

 

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Collagenase SANTYL Ointment

The only enzymatic debrider approved by the FDA for use in the US. It selectively removes necrotic tissue without harming surrounding healthy tissue.

    

 

 

 

32               Smith & Nephew Annual report 2014


Table of Contents

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OASIS à , a family of naturally-derived, extracellular matrix replacement products indicated for the management of both chronic and traumatic wounds completes Smith & Nephew’s bioactive portfolio.

In October 2014, we announced the top-line results of the Phase 3 study of HP802-247, a living cell spray-on therapy designed to stimulate healing of venous leg ulcers. HP802-247 did not meet the primary endpoint in this trial and we have taken the decision to stop the Phase 3 programme. We remain committed to investing in developing pioneering Advanced Wound Bioactive treatments.

 

Regulatory approvals

In 2014, regulatory clearance was obtained for both ALLEVYN Life and DURAFIBER in Japan making the latest absorbent dressing technologies available to this important market.

PICO, our single use NPWT system was approved for the first time in Japan. In addition, a significant enhancement to the PICO product, in the form of the new Soft Port dressing and tubing set, was approved in the EU and Australia.

Other registration activities during the year include expanding the geographic footprint of established products within the emerging markets and the ongoing expansion of Smith & Nephew Medical (Suzhou) as a new supply site for multiple wound care products.

 

 

 

 

 

    

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Smith & Nephew Annual report 2014              33

    

 


Table of Contents

STRATEGIC REPORT

Financial review and principal risks

 

 

The Group finished 2014 set to

benefit from the actions and

investments we have made

 

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1 The underlying percentage increases/decreases are after adjusting for the effect of currency translation and the inclusion of the comparative impact of acquisitions and execution of disposals.
2 Explanation of these non-GAAP financial measures are provided on pages 176 to 179.

 

 

 

34              Smith & Nephew Annual report 2014


Table of Contents

 

 

 

Revenue by market

The underlying increase in each division’s revenues, by market, reconciles to reported growth, the most directly comparable financial measure calculated in accordance with IFRS, as follows:

 

   
 
2014
      $ million
  
  
 
 
2013
$ million
  
  
   
 
 
 
Reported
growth in
revenue
%
  
  
  
  
 
 
 

 

 

Constant
currency
exchange

effect

%

  
  
  

  

  

 
 
 

 

Acquisition/
Disposal
effect

%

  
  
  

  

 
 
 

 

Underlying
growth in
revenue

%

  
  
  

  

Advanced Surgical Devices

US

  1,558      1,391      12           (10   2   
Other Established Markets   1,229      1,204        2      2      (4     

Established Markets

  2,787      2,595      7      1      (7   1   
Emerging & International Markets   511      420        22      3      (8   17   
Advanced Surgical Devices   3,298      3,015        9      1      (7   3   
                                                            

Advanced Wound Management

US

  454      471      (4             (4
Other Established Markets   699      722        (3   (1        (2

Established Markets

  1,153      1,193      (3             (3
Emerging & International Markets   166      143        16      3      (5   14   
Advanced Wound Management   1,319      1,336        (1   1      (1   (1

 

Advanced Surgical Devices

 

Revenue

 

ASD revenue increased by $283 million (9% on a reported basis) from $3,015 million in 2013 to $3,298 million in 2014. The underlying increase of 3% is after adjusting for a 7% impact from the acquisition of ArthroCare Corp in May 2014 and a 1% unfavourable foreign currency translation.

 

In the US, revenue increased by $167 million to $1,558 million in 2014 from $1,391 million in 2013 (12% on a reported basis). The underlying increase of 2% is after adjusting 10% for the impact of the ArthroCare Corp acquisition in May 2014. In Other Established Markets, revenue was $1,229 million in 2014, an increase of $25 million from $1,204 million in 2013 (2% on a reported basis). The underlying increase was flat after adjusting for 2% from favourable foreign currency translation and the impact of 4% from acquisitions. Our Emerging & International Markets revenue increased by $91 million to $511 million in 2014 from $420 million in 2013 (22% increase on a reported basis). The underlying increase was 17% after adjusting for 3% for unfavourable foreign currency translation and the impact of 8% from acquisitions.

 

In the global Knee Implant franchise, revenue increased by $8 million from $865 million in 2013 to $873 million in 2014 (1% on a reported basis), representing a 2% underlying revenue increase after 1% of unfavourable currency translation. Growth has been impacted by exposure to a weakening European market with conditions continuing to deteriorate in Germany, our largest European market, and our position in the product life cycle versus our peers. Growth improved driven by sales of the JOURNEY II BCS Knee System.

 

Global revenue from the Hip Implant franchise increased by $1 million from $653 million in 2013 to $654 million in 2014 (flat on a reported basis), which represented an underlying revenue increase of 1% after

1% unfavourable foreign currency translation. Sales in our VERILAST Hip and direct anterior approach portfolio contributed to the increase.

 

Trauma & Extremities revenue increased by $20 million from $486 million in 2013 to $506 million in 2014 (4% on a reported basis), representing underlying revenue growth of 4% after adjusting for a 1% impact from the acquisition of a Brazilian distributor and 1% of unfavourable foreign currency translation.

 

Sports Medicine Joint Repair revenue increased by $80 million from $496 million in 2013 to $576 million in 2014 (16% on reported basis), representing underlying revenue growth of 8% after adjusting for a 8% impact from the acquisition of ArthroCare Corp, 1% from the acquisition of a Brazilian distributor and 1% of unfavourable foreign currency translation.

 

Global revenue from Arthroscopic Enabling technologies increased by $101 million from $441 million in 2013 to $542 million in 2014 (23% on a reported basis). This increase represents an underlying revenue increase of 1% after adjusting for the 22% impact from the acquisition of ArthroCare Corp, 1% from the acquisition of a Brazilian distributor and 1% of unfavourable foreign currency translation.

 

The revenue in the Other ASD (including Gynaecology and ENT) franchise increased by $73 million from $74 million in 2013 to $147 million in 2014 following the acquisition of ArthroCare Corp in 2014. Excluding the impact of this acquisition, underlying revenue in the Other ASD franchise, which includes gynaecology, grew by 10%.

 

 

 

 

    

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Smith & Nephew Annual report 2014              35

    

 


Table of Contents

STRATEGIC REPORT

Financial review and principal risks continued

 

 

Trading and operating profit

 

Operating profit, the most directly comparable financial measure under IFRS, reconciles to trading profit as follows:

 

  

   

Trading and operating profit

 

Operating profit, the most directly comparable financial measure under IFRS, reconciles to trading profit as follows:

 

  

   

 

     

 

 
   
 
2014 
$ million 
  
  
   
 
2013 
$ million 
  
  
       
 
2014
$ million
  
  
   
 
2013 
$ million 
  
  

 

     

 

 

Operating profit

  626       620     Operating profit   123      190    

 

Acquisition-related costs

  107          Acquisition-related costs   11      24    

 

Restructuring and rationalisation costs

  33       44     Restructuring and rationalisation costs   28      14    

 

Amortisation of acquisition intangibles

and impairments

  78       41     Amortisation of acquisition intangibles and impairments   51      47    

 

Legal and other

  (34)      –     Legal and other   32      –    

 

     

 

 
Trading profit   810       712     Trading profit   245      275    

 

     

 

 

 

Trading profit margin increased from 23.6% to 24.6%. Trading profit increased by $98 million to $810 million from $712 million in 2013. This increase reflects the benefits from our structural efficiency programme.

 

Operating profit increased by $6 million from $620 million in 2013 to $626 million in 2014. This comprises the increase in trading profit of $98 million discussed above offset by increases in acquisition-related costs of $100 million and amortisation of acquisition intangibles of $37 million and partially offset by a decrease in restructuring and rationalisation costs of $11 million and credit relating to the US pension settlement and closure.

 

Advanced Wound Management

 

Revenue

 

AWM revenue decreased by $17 million (-1% on a reported basis), from $1,336 million in 2013 to $1,319 million in 2014. The underlying decrease of 1% is after adjusting for an increase of 1% for acquisitions completed in the year and a 1% unfavourable foreign currency translation.

 

In the US, revenue decreased by $17 million to $454 million in 2014 from $471 million in 2013 (-4% on a reported basis). The underlying decrease was also 4%. In Other Established Markets, revenue was $699 million in 2014, a decrease of $23 million from $722 million in 2013 (-3% on a reported basis). The underlying revenue decrease was 2% with 1% of unfavourable foreign currency translation. Our Emerging & International Markets revenue increased by $23 million in 2014 (16% on a reported basis). The underlying increase was 14% after adjusting 2% for unfavourable foreign currency translation.

 

Advanced Wound Care revenue decreased by $38 million (-5% on a reported basis) to $805 million in 2014 from $849 million in 2013. The underlying decline of 4% is after adjusting for foreign currency translation. Conditions across many European markets remain challenging but the introduction of the ALLEVYN Life range continues to make good progress across Europe following product introductions and investment in marketing.

 

Advance Wound Devices revenue decreased from $213 million in 2013 to $192 million in 2014, a reported decrease of $21 million and 10%. The underlying decrease of 9% is after adjusting for unfavourable foreign currency translations of 1%. This decline was due to the hold of RENASYS in the US due to regulatory issues and competitive pressures in traditional canister-based NPWT in Europe.

 

Advanced Wound Bioactives revenue increase to $322 million in 2014 from $280 million in 2013 (15% reported growth). The underlying increase was also 15%.

    

      

  

  

    

        

      

      

   

 

Trading profit margin decreased from 20.6% to 18.6%. Trading profit decreased by $30 million to $245 million from $275 million in 2013. The decrease in the year is primarily attributable to the RENASYS hold.

 

Operating profit decreased by $67 million from $190 million in 2013 to $123 million in 2014. This comprises of the decrease in trading profit of $30 million discussed above, costs relating to the hold on RENASYS and cessation of the HP802 trials amounting $52 million, offset by a decrease in acquisition-related costs of $13 million, due to the integration of the Healthpoint acquisition which completed in December 2012, an increase in restructuring and rationalisation costs of $14 million and an increase of $4 million in amortisation of acquisition intangibles.

 

Principal risks and risk management

 

As an integral part of planning and review Group, business area and functional management seek to identify the significant risks involved in the business, and to review the risk management action plans for those risks. The Group Risk Committee, which is comprised of the Chief Executive Officer and senior executives, meets twice a year to review the risks identified by the businesses and corporate functions and any risk management actions being taken. As appropriate, the Risk Committee may re-categorise risks or require further information on the risk management action plans. The Risk Committee reports to the Board on an annual basis detailing all principal risks. In addition, the Board considers risk as part of the development of strategy. Internal audit reviews and the Audit Committee reports on the effectiveness of the operation of the risk management process.

 

There are known and unknown risks and uncertainties relating to Smith & Nephew’s business. The following pages provide an overview of what the Board considers the most significant risks that could cause the Group’s business, financial position and results of operations to differ materially and adversely from expected and historical levels, and how these risks relate to the Group’s strategic priorities. Additional detail is set forth under Risk Factors in the Group information section of this report. In addition, other factors not listed here that Smith & Nephew cannot presently identify or does not believe to be equally significant, could also materially adversely affect Smith & Nephew’s business, financial position or results of operations.

    

       

  

           

         

 

 

 

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Product Portfolio Development

 

The medical devices industry has a rapid rate of new product introduction. The Group must be adept at monitoring the landscape for technological advances, have an efficient and valuable product development pipeline and secure protection for its intellectual property. The Group may also seek to acquire businesses as part our business strategy to augment the product portfolio or business scale in a certain geography.

 

 
   

 

   
 

Specific risks we face

 

Risk management actions

 

Possible impacts

 

 
   

 

   
 

 

–  Competitors may introduce a disruptive technology, or obtain patents or other intellectual property rights, that affect the Group’s competitive position

 

–  Claims by third parties regarding infringement of their intellectual property rights

 

–  Lack of innovation due to low R&D investment, R&D skills gap or poor product development execution for Established and Emerging & International markets

 

–  Failure to receive regulatory approval to successfully commercialise a pipeline product

 

 

–  Processes focused on identifying new products and potential disruptive technologies (internal and external)

 

–  Improved productivity, prioritisation and allocation of R&D funds

 

–  Increasing R&D investment to enhance clinical capability and invest in biomaterials

 

–  Strengthen intellectual property rights and monitor and defend against infringement

 

–  Global strategic marketing programmes

 

–  Support an Emerging & International Market product portfolio

 

 

–  Loss of market share, profit and long-term growth

 

 

Link to Strategic Priority

 

    

 

Innovate for value

    

 

Established Markets

 

    

 

Emerging & International Markets

 

    

 

Supplement organic growth

through acquisitions

 

 

 

 

 

Acquisitions and Business Development

 

The Group may seek to acquire businesses or products as part of our strategy to augment the product portfolio or generate business scale in certain geographies. These acquisitions must deliver the expected returns and not create significant liability exposures or the Group may not meet its financial targets.

 

 
   

 

   
 

Specific risks we may face

 

Risk management actions

 

Possible impacts

 

 
   

 

   
 

 

–  Ineffective acquisition due diligence

 

–  Inflated forecasts or projections may cause over-valuation of transaction

 

–  Lack of timely adoption of Group standards policies and financial controls during integration could create additional liabilities

 

–  Acquisitions in emerging markets may identify practices that must be ceased to meet Group standards

 

–  Strong resources and processes to ensure rigorous review and integration of acquisitions or product related investments

 

–  Mergers & Acquisitions Council consisting of senior executives that reviews acquisitions and business development transactions

 

–  Board of Directors review of all significant transactions

 

–  Detailed compliance due diligence and integration reporting processes

 

–  Robust Internal Audit and Group Finance Controls

 

–  Post acquisition review programme

 

–  Loss of market share, profit and long-term growth

 

 

Link to Strategic Priority

 

    

 

Emerging & International Markets

 

 

    

 

Supplement organic growth

 

through acquisitions

 

    

 

Established Markets

 

 

 

    

LOGO

 

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STRATEGIC REPORT

Financial review and principal risks continued

 

 

 

 

Government Action, Pricing and Reimbursement Pressure

 

In most markets throughout the world, expenditure on medical devices is controlled to a large extent by governments, many of which are facing increasingly intense budgetary constraints. The Group is therefore largely dependent on governments providing increased funds commensurate with the increased demand arising from demographic trends. Reimbursement rates may be set in response to perceived economic value of the devices, based on clinical and other data relating to cost, patient outcomes and comparative effectiveness. Political upheaval in the countries where the Group operates or surrounding regions could adversely affect Group operations or turnover.

 

Group operations are affected by transactional exchange rate movements. The Group’s manufacturing cost base is situated in the US, UK, Costa Rica, China and Switzerland and finished products are exported worldwide.

 

 
   
   

 

   
 

 

Specific risks we face

 

 

Risk management actions

 

 

Possible impacts

 

 
   

 

   
 

 

–  Reduced reimbursement levels and increasing pricing pressures

 

–  Reduced demand for elective surgery

 

–  Lack of compelling health economics data to support reimbursement requests

 

–  Government policies favouring lower priced and locally sourced products

 

–  Political upheavals prevent selling of products, receiving remittances of profit from a member of the Group or future investments in that country

 

–  The Group is exposed to fluctuations in exchange rates. If the manufacturing country currencies strengthen against the selling currencies, the trading margin may be affected

 

–  Economic downturn impacts demand and collections

 

–  Develop innovative economic product and service solutions for both Established and Emerging & International markets (‘Syncera’)

 

–  Incorporate health economic component into design and development of new products

 

–  Enhanced expertise supporting reimbursement strategy and guidance

 

–  Optimise cost to serve to protect margins and liberate funds for investment

 

–  Streamline Cost of Goods Sold, Stock Keeping Units and inventory management

 

–  The Group transacts forward foreign currency commitments when firm purchase orders are placed to reduce exposure to currency fluctuations

 

–  Loss of revenue, profit and cash flows

 

 

 

 

 

Link to Strategic Priority

 

 

Simplify and improve

our operating model

 

 

Established Markets

 

 

Emerging & International Markets

 

 

 

 

Business Operations and Business Continuity

 

Unexpected events could disrupt the business by affecting either a key facility or system or a large number of employees. The business is also reliant on certain key suppliers of raw materials, components, finished products and packaging materials.

 

The Group manages a large product portfolio and a large product inventory. Sales and operation planning and supply chain management must ensure the products needed are available at the right place and time.

 

In a fast changing, complex, global business, high performing talent in key positions is a business critical requirement.

 

 
   

 

   
 

 

Specific risks we face

 

 

Risk management actions

 

 

Possible impacts

 

 
   

 

   
 

 

–  Catastrophe could render one of the Group’s production facilities out of action

 

–  A significant event could impact key leadership or a large number of employees

 

–  Issues with a single source supplier of a key component and failure to secure critical supply

 

–  A severe IT fault or cyber crime could disable critical systems and cause loss of sensitive data

 

–  Over-production of product inventory and instrument sets may occur due to inadequate portfolio planning

 

–  Poor retention of high performing and high potential staff could jeopardise achieving objectives

 

–  Crisis response/business continuity plans at major facilities and for key products and key suppliers

 

–  Audit programme for critical suppliers and second sources or increased inventories for critical components

 

–  Enhanced travel security and protection programme

 

–  IT disaster and data recovery plans in place to support overall business continuity plans

 

–  Mobile device and cyber security protection plan

 

–  Improved sales and operations processes and inventory management with dedicated teams and key performance indicators

 

–  Robust talent systems and processes with focus on identifying key roles and successors

 

–  Loss of revenue, profit and cash flows

 

 

 

 

Link to Strategic Priority

 

 

Simplify and improve

our operating model

 

 

Established Markets

 

 

Emerging & International Markets

 

 

 

 

 

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Product Safety, Regulation, and Litigation

 

National regulatory authorities enforce a complex series of laws and regulations that govern the design, development, approval, manufacture, labelling, marketing and sale of healthcare products. They also review data supporting the safety and efficacy of such products and may also inspect for compliance with appropriate standards, including those relating to Quality Management Systems (‘QMS’) or Good Manufacturing Practice (‘GMP’) regulations. Design or manufacturing defects in products could result in product recalls and liability claims and impact revenues, profits and reputation.

 

 
   

 

   
 

 

Specific risks we face

 

 

Risk management actions

 

 

Possible impacts

 

 
   

 

   
 

 

–  Defective products supplied to Smith & Nephew or failure in design or manufacturing process

 

–  New technology, product or processes changed by Smith & Nephew or supplier result in product deficiencies

 

–  Failure to implement programmes and supporting resources to ensure product quality and regulatory compliance

 

–  Failure to manage, process and analyse customer complaints and adverse event data

 

 

–  Global QARA organisation to create a single Quality Management System

 

–  Standardised Group quality management and practice

 

–  Monitoring and auditing programmes to assure compliance

 

–  Group-wide product complaint and registration systems

 

–  Group-wide practices to drive design, and production line performance and dependability

 

–  Design for manufacture in product development

 

–  Post launch review of product safety and complaint data

 

–  Loss of revenue, profit and reduction in share price

 

–  Negative impact on brand/ reputation

 

 

 

Link to Strategic Priority

 

Simplify and improve

our operating model

 

Established Markets

 

 

Emerging & International Markets

 

 

 

 

 

Compliance with Laws and Ethical Behaviour

 

Business practices in the healthcare industry are subject to increasing scrutiny by government authorities. The trend in many countries is towards increased enforcement activity for bribery and corruption. The Group is also subject to increased scrutiny under US healthcare laws (e.g. False Claims Act) and in the EU for data protection. Acquisitions and expansion into emerging markets may require additional compliance controls.

 

 
   

 

   
 

 

Specific risks we face

 

 

Risk management actions

 

 

Possible impacts

 

 
   

 

   
 

 

–  Violation of anti-corruption, healthcare, or data privacy laws could result in fines, loss of reimbursement and harm reputation

 

–  Cultures in certain geographies and in acquired businesses may not fully support the Group value to Earn Trust

 

–  Rapid growth in Emerging & International Markets with increasing numbers of distributors

 

–  Third parties retained by the Group may be involved in improper activities which result in penalties or loss of reputation.

 

–  Failure to conduct adequate due diligence or to integrate appropriate internal controls into acquired businesses could result in fines and impact return on investment

 

–  Strong Board and Executive oversight bodies supported by a global Office of Ethics & Compliance

 

–  Code of Conduct/Global Policies and Procedures (‘GPPs’) providing guidelines for ethical behaviour and controls for significant compliance risks

 

–  Training and e-resources to guide employees and third parties with ethical and compliance responsibilities

 

–  Monitoring and auditing programmes to verify implementation

 

–  Minimum acceptable financial procedures adopted by all businesses wholly owned by the Group

 

–  Independent reporting channels for employees and third parties to report concerns with confidentiality

 

–  Robust investigation procedures to ensure adequate reviews and documentation with significant issues escalated to and monitored by legal and compliance heads

 

–  Controls for significant interactions with Health Care Professionals and Government Officials

 

–  Higher risk third parties including distributors and agents subject to screening, compliance requirements, training and oversight processes

 

–  Due diligence reviews and integration plans and reporting for acquisitions

 

–  Risk assessments to determine resources and controls for higher risk markets

 

–  Loss of profit and reduction in share price

 

–  Negative impact on brand/ reputation

 

 

 

Link to Strategic Priority

 

Simplify and improve

our operating model

 

Emerging & International Markets

 

Established Markets

 

 

 

 

    

LOGO

 

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STRATEGIC REPORT

Sustainability

 

 

Protecting the future

 

 

We care about our customers and helping improve people’s lives. We also care about the people who work for us, the environment in which we operate and the societies in which we do business. Addressing unmet social need with more affordable products gathered pace in 2014 with the introduction of our Syncera range and further growth and consolidation of our mid-tier products. As part of our commitment to build trust we increased our engagement with suppliers to increase assurance around compliance and ethics.

 

This is a summary of our sustainability activities and progress in 2014. Our Sustainability Report will be published in April 2015.

 

In 2014, there were no employee or contractor fatalities and our Lost Time Injury Frequency Rate (‘LTIFR’) fell again for the fourth successive year, this time by 20%. Compared to the previous year, total waste increased by 13%, however waste disposed to landfill fell by 19% as we found new ways to recycle.

 

Energy consumption has increased by 9% since 2011. However, after adjusting for the transient effect of transferring some production to China and the impact of newly acquired businesses, there was a net fall in energy consumption of 2%.

 

After three consecutive years of increases, water consumption reduced by 7% in 2014 compared to the previous year.

 

As part of the Great Place to Work strategy, substantially more of our employees enjoyed the benefits of wellness programmes.

 

We donated approximately $9 million in philanthropic activities, of which $2 million was in product donations and charitable gifts. Volunteering programmes were active in most of the territories where we work and the benefits to society and the level of employee involvement continued to increase.

LOGO

 

Safety

 

LOGO

 

The continuous improvement in safety performance is underpinned by committed leadership and a sharp focus on managing risks. Making health and safety a priority for all of our employees and contractors was an imperative in 2014. This was supported by the progressive rollout of our integrated management system and the wide introduction of behavioural based safety programmes.

 

 

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Water

 

LOGO

Reducing water consumption continued to be a challenge in 2014, however there was a reduction of 7% achieved as a result of a breakthrough in water consumption at our Memphis manufacturing facility where 66% of Smith & Nephew’s water is consumed.

Waste

 

LOGO

The annual increase of 13% in total waste was offset by moving landfill waste to recycling or energy recovery. A transient increase created by commissioning new capacity in China and the one-off event of disposing of waste arising from the Hull flood increased the total waste by 8%. In 2014, we carried out a thorough waste audit in order to implement more initiatives to manage and reduce our waste.

Energy and CO 2

 

LOGO

The energy increase of 15.2 GWh (9%) since 2011 has been dominated by the transient impact of commissioning new manufacturing capacity in China accounting for 10 GWh whilst continuing production in the UK. The effect of recently acquired businesses accounted for 8.7GWh of the increase.

The underlying reduction of 3.5 GWh (2%) reflects the implementation of efficiency improvements in our manufacturing facilities.

Transferring manufacturing to China from the UK and acquiring capacity in India has resulted in higher emissions factors and increased CO 2 emissions.

Greenhouse gases

Methodology, materiality and scope

The data reported relates to areas of largest environmental impact including manufacturing sites, warehouses, research and offices. Smaller locations representing less than 2% of our overall emissions are not included. Acquisitions completed before 2014 are included in the data.

All emissions fall within the scope of our consolidated financial statement and we have used the Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard (Revised Edition) as guidance for this process. Primary data from energy suppliers has been used wherever possible. The Biotherapeutics and the Sushrut Adler acquisitions are included in the data for 2014 for the first time. Data from the ArthroCare acquisition is excluded and is in line with our established policy for integration of acquired assets.

Our emissions have been calculated by using specific emissions factors for each country outside the US and regional factors within the US. We have used the US EPA ‘Emissions & Generation Resource Integrated Database’ (eGRID) for US regions and the UK Government DEFRA Conversion Factors for Greenhouse Gas Reporting for elsewhere. The emissions from all years have been recalculated using the most up-to-date factors available in 2014. Fugitive emissions are included from the manufacturing and research locations and arise from the losses of refrigerant gases.

 

    2014      2013   

CO 2 e Emissions (tonnes) from:

 

Direct emissions

  11,213      10,152   

 

Indirect emissions

  74,797      68,795   

 

Total

 

 

 

 

 

86,010

 

 

  

 

 

 

 

 

78,947

 

 

  

 

Intensity ratio

 

CO 2 e (t) per $m revenue*

  19.5      19.4   

 

CO 2 e (t) per full-time employee*

 

 

 

6.9

 

  

 

 

 

7.5

 

  

 

Revenue data: 2014 – $4.4 billion, 2013 – $4.1 billion

Full-time employee data: 2014 – 12,437, 2013 – 10,520

 

* Notes: 2013 data adjusted to exclude Healthpoint (Biotherapeutics) and 2014 data adjusted to exclude ArthroCare.

By order of the Board, 25 February 2015

 

LOGO

Susan Swabey

Company Secretary

 

 

 

    

LOGO

 

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LOGO

At the top of

their game

 

 

Sports Medicine is the treatment of injuries to the soft tissues through keyhole surgery – typically ligaments, tendons and cartilage in the joints. These injuries can affect anyone, not just athletes. Sports Medicine helps patients recover function as well as minimise disability and recovery time.

 

Smith & Nephew is a global leader in Sports Medicine. In 2014, nearly a quarter of our revenue came from this area, and our Joint Repair business delivered revenue growth of 8%.

 

It is a $4.6 billion global market, and a strong area of focus and opportunity for Smith & Nephew.

We expect to see long-term global growth driven by delivering both clinical benefits and strong health economics. Repairing injuries today prevents them becoming more debilitating as patients get older, which reduces future demands on healthcare systems. In the emerging markets we are helping to widen access to these advanced treatments through delivering medical education.

 

Sports Medicine is a great place to innovate. We are investing more in R&D to improve existing treatments, and to develop new instrumentation to enable surgeons to better treat their patients.

LOGO

 

 

 

 

 

LOGO

 

 

 

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24%

 

$5bn

Nearly a quarter of Smith & Nephew revenue Global Sports Medicine market with Smith & Nephew

came from Sports Medicine in 2014

 

having 24% market share in 2014 (see page 20)

 

 

 

 

LOGO

 

 

 

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LOGO

Better by

design

 

   

 

We have a deep knowledge of the needs of surgeons and nurses, we understand the economic pressures healthcare payers work under, and we recognise that patients are demanding better treatment options to restore quality of life. These factors drive our new product development programmes. In 2014, we launched a number of exciting new products, expanding our portfolios in our Established Markets and Emerging & International Markets.

 

We also invested $235 million in R&D in 2014, over 5% of revenue, and have a strong pipeline of innovation to come. Our experts in Europe, US, China and India keep us close to our customers and ensure our programmes target unmet clinical needs, have strong financials and are technologically feasible. They also work closely with manufacturing to ensure we can produce new products to clinical, cost and time specifications.

 

JOURNEY II

 

The JOURNEY II Cruciate Retaining (CR) knee replacement extends the JOURNEY II Total Knee System to procedures that preserve the posterior cruciate ligament (PCL), which accounts for approximately half of all knee replacement procedures. The JOURNEY II CR knee, like the JOURNEY II Bi-cruciate Stabilized (BCS) knee that was launched last year, sets a new standard in knee implant performance by restoring more normal motion for patients.

 

 

LOGO

 

   

 

 

HAT-TRICK

 

The HAT-TRICK Lesser Toe Repair System is our entry into the high-growth forefoot market, where we believe there are significant opportunities for us to enhance the surgeon experience, simplify the procedures and, most importantly, improve patient outcomes.

 

 

LOGO

 

   

 

 

EVOS

 

EVOS MINI Plating System for use in complex fractures of the long bones of the arms and legs. Designed specifically for traumatologists, this long-bone-specific system includes the variety of mini, flat plates and screw sizes necessary to address both fracture reduction and short-term fixation while the final, load-bearing repair is being completed.

 

 

LOGO

   

 

 

PICO

 

PICO, Smith & Nephew’s disposable, canister-free Negative Pressure Wound Therapy system has been named Most Innovative Product 2014 at The Irish Medical and Surgical Trade Association Awards. The award was judged by a panel of top clinicians, health service executives and medical companies.

 

 

LOGO

 

 

 

 

 

 

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Realising

potential

 

The ability to attract and retain talented employees is essential to achieving our business goals. This is why one of our strategic imperatives is to be recognised as, a great place to work.

 

For Smith & Nephew, being a great place to work means having a workplace where employees are proud and excited to come each day because they are doing work that makes a difference for customers and patients.

 

It is a place where employees are valued for their performance and achievements, and a place that values trust above all else.

 

To qualify as a Great Place to Work, a company must complete the Great Place to Work Trust Index survey and its management must participate in a Culture Audit. Both evaluate the company’s performance on key dimensions of engagement: Credibility, Respect, Fairness, Pride and Camaraderie.

   

We aim to provide an open, challenging, productive, diverse, healthy, safe and participative environment based on constructive relationships.

 

   

 

Diverse

 

Smith & Nephew believes that diversity fuels innovation. We are committed to employment practices based on equality of opportunity, regardless of colour, creed, race, national origin, sex, age, marital status, sexual orientation or mental or physical disability unrelated to the ability of the person to perform the essential functions of the job. Diversity & Inclusion continues to be a key focus for us and we have a Global Steering team sponsored by the CEO with local councils established across the business. 30% of our Board of Directors and 23% of senior managers are female.

 

   

 

Healthy

 

We strongly believe we perform better when our employees are healthy, motivated and focused. The support we provide our employees when they experience a health concern is a critical factor in how well and how quickly they are able to get back to peak. During 2014, Smith & Nephew signed up to the UK’s Time to Change programme, showing our employees being open about mental health concerns will lead to support, not discrimination, and embarked on a global wellness initiative to support all employees.

 

 

   

 

Safe

 

We are committed to providing healthy and safe working conditions for all employees. We achieve this by ensuring that health and safety and the working environment are managed as an integral part of the business, and we recognise employee involvement as a key part of that process. During 2014, we reduced the lost time injury frequency by 20%, reflecting a sharp focus of leadership on identifying and managing workplace risk.

14,000    

Our employees support healthcare

professionals in more than 100 countries

 

   
23%    

of our senior managers are female

 

   

 

 

 

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CORPORATE GOVERNANCE

Our Board of Directors

 

 

LOGO       LOGO       LOGO

 

 

Roberto Quarta (65)

     

 

 

Olivier Bohuon (56)

     

 

 

Julie Brown (52)

Chairman

     

Chief Executive Officer

     

Chief Financial Officer

 

Joined the Board in December 2013 and appointed Chairman following election by shareholders on 10 April 2014. He was also appointed Chairman of the Nomination & Governance Committee and a Member of the Remuneration Committee on that day.

 

Career and Experience

Roberto is a graduate and a former Trustee of the College of the Holy Cross, Worcester (MA), US. He started his career as a manager trainee at David Gessner Ltd, before moving on to Worcester Controls Corporation and then BTR plc, where he was a divisional Chief Executive. Between 1985 and 1989 he was Executive Vice President of Hitchiner Manufacturing Co. Inc., where he helped the company to expand internationally. He returned to BTR plc in 1989 as Divisional Chief Executive, where he led the expansion in North America and was appointed to the main board. From here he moved to BBA Aviation plc, as CEO from 1993 to 2001 and then as Chairman, until 2007. He has held several board positions, including Non-executive Director of Powergen plc, Equant N.V., BAE Systems plc and Foster Wheeler AG. His previous Chairmanships include Italtel Group S.p.A. and Rexel S.A. He is currently Chairman Designate of WPP plc, and will shortly retire as Chairman of IMI plc, the global engineering group as soon as a suitable replacement is appointed. He is a partner at Clayton, Dubilier & Rice and he is a member of the Investment Committee of Fondo Strategico Italiano Spa.

 

Skills and Competencies

Roberto’s career in private equity brings valuable experience to the Board, particularly when evaluating acquisitions and new business opportunities. He has an in-depth understanding of differing global governance requirements having served as a director and Chairman of a number of UK and international companies. Since his appointment as Chairman in April 2014, he has conducted a comprehensive review into the composition of the Board, and conducted the search for new Non-executive Directors resulting in the appointment of Vinita Bali and Erik Engstrom.

 

Nationality

 

LOGO   American/Italian

 

     

Joined the Board and was appointed Chief

Executive Officer in April 2011. He is a Member of the Nomination & Governance Committee.

 

 

 

Career and Experience

Olivier has had a highly successful career in the pharmaceutical industry. He holds a doctorate from the University of Paris and an MBA from HEC, Paris. His career has been truly global. He started his career in Morocco with Roussel Uclaf and then, with the same company, held a number of positions in the Middle East with increasing levels of responsibility. He joined Abbott in Chicago as head of their anti-infective franchise with Abbott International, before becoming Pharmaceutical General Manager in Spain. He subsequently spent 10 years with GlaxoSmithKline, rising to Senior Vice President & Director for European Commercial Operations. He then re-joined Abbott as President for Europe, became President of Abbott International (all countries outside of the US), and then President of their Pharmaceutical Division, which was a $20 billion business, encompassing manufacturing, R&D and commercial operations. He joined Smith & Nephew from Pierre Fabre, where he was Chief Executive.

 

Skills and Competencies

Olivier has extensive international healthcare leadership experience within a number of significant pharmaceutical and healthcare companies. His global experience provides the skillset required to innovate a FTSE100 company with a deep heritage and provide inspiring leadership. He is a Non-executive Director of Virbac group.

 

Nationality

 

LOGO   French

 

     

Joined the Board as Chief Financial Officer in February 2013.

 

 

 

 

Career and Experience

Julie is a graduate, Chartered Accountant and Fellow of the Institute of Taxation. She trained with KPMG before working at AstraZeneca PLC, where she served as Vice President Group Finance, and ultimately, as Interim

Chief Financial Officer. Prior to that she was

Regional Vice President Latin America, Marketing Company President AstraZeneca Portugal, and Vice President Corporate

Strategy and R&D Chief Financial Officer. In both Julie’s country and regional roles, trading margins increased significantly, improving the efficiency and profitability of the business. Her experience encompasses many areas of the healthcare value chain including Commercial, Operations, R&D and Business Development. She has led multi-billion dollar cost saving and restructuring programmes in Operations, R&D and the Commercial organisations and led major refinancing programmes, including the issuance of $2 billion US bonds. Julie has so far in her career, fulfilled two Non-executive

Directorships with the NHS in the UK and the Board of the British Embassy.

 

Skills and Competencies

Julie has deep financial expertise and understanding of the healthcare sector, which has enabled her to lead a major transformation project at Smith & Nephew designed to simplify and improve the organisation and deliver margin accretion. She is a recognised leader with a proven ability to build teams. Her commercial experience in Latin America is of particular benefit as we continue to grow in emerging markets. She has held a number of senior commercial roles as well as financial positions, making her a versatile Chief Financial Officer.

 

Nationality

 

LOGO   British

 

 

 

 

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LOGO       LOGO       LOGO

 

 

Vinita Bali (59)

Independent Non-executive Director

     

 

 

Ian Barlow (63)

Independent Non-executive Director

     

 

 

The Rt. Hon Baroness Virginia Bottomley of Nettlestone DL (66)

Independent Non-executive Director

Appointed Independent Non-executive Director in April 2012. She is a Member of the Remuneration Committee and joined the Nomination & Governance Committee on 10 April 2014.

 

Appointed Independent Non-executive Director on 1 December 2014. She will join the Remuneration and Ethics & Compliance Committees on 1 April 2015.      

Appointed Independent Non-executive Director in March 2010 and Chairman of the Audit Committee in May 2010. He was appointed a Member of the Ethics & Compliance Committee on 2 October 2014.

 

     

Career and Experience

Vinita holds an MBA from the Jamnalal Bajaj Institute of Management Studies, University of Bombay and a bachelor’s degree in economics from the University of Delhi. She commenced her career in India with the Tata group, and then joined Cadbury India, subsequently working with Cadbury Schweppes plc in the UK, Nigeria and South Africa. From 1994, she held a number of senior global positions in marketing and general management at The Coca-Cola Company based in the US and South America, becoming President of the Andean Division in 1999 and Vice President, Corporate Strategy in 2001. In 2003, she joined the consultancy, Zyman Group as Managing Principal, again based in the US. Until recently, Vinita was Managing Director and Chief Executive Officer of Britannia Industries Ltd, a leading Indian publicly listed food company. Currently, Vinita is a Non-executive Director of Syngenta AG, Titan Company Ltd and CRISIL (Credit Rating Information Services of India) Ltd. She is also a board member of GAIN (Global Alliance for Improved Nutrition).

 

Skills and Competencies

Vinita has an impressive track record of achievement with blue-chip global corporations in multiple geographies including India, Africa, South America, the US and UK, all key markets for Smith & Nephew. Additionally, her strong appreciation of customer service and marketing brings deep insight to the Company as we continue to develop innovative ways to serve our markets and grow our business.

 

Nationality

 

LOGO   Indian

 

     

Career and Experience

Ian is a Chartered Accountant with considerable financial experience both internationally and in the UK. He was a Partner at KPMG, latterly Senior Partner, London, until 2008. At KPMG, he was Head of UK tax and legal operations, and acted as Lead Partner for many large international organisations operating extensively in North America, Europe and Asia. Ian’s previous appointments include Non-executive Director and Chairman of the Audit Committee of PA Consulting Group and Non-executive Director of Candy & Candy. He was Chairman of WSP Group plc and of Think London, the inward investment agency. He is currently Lead Non-executive Director chairing the Board of Her Majesty’s Revenue & Customs; Non-executive Director of The Brunner Investment Trust PLC; Non-executive Director of Foxtons Group plc; Board Member of the China-Britain Business Council and Chairman of The Racecourse Association.

 

Skills and Competencies

Ian’s longstanding financial and auditing career and extensive board experience add value to his role as Chairman of the Audit Committee. It was of particular benefit when leading the selection process for the new external auditor in 2014. His appointment as an additional member of the Ethics & Compliance Committee recognises the close links between the activities and oversight role of both committees. His work for a number of international companies gives added insight when reviewing our global businesses.

 

Nationality

 

LOGO   British

 

     

Career and Experience

Virginia gained her MSc in Social Administration from the London School of Economics and Political Science following her first degree. She was appointed a Life Peer in 2005 following her career as a Member of Parliament between 1984 and 2005. She served successively as Secretary of State for Health and then Culture, Media and Sport. Virginia was formerly a director of Bupa and Akzo Nobel NV. She is currently a director of International Resources Group Limited, member of the International Advisory Council of Chugai Pharmaceutical Co., Chancellor of University of Hull and Sheriff of Hull, Pro Chancellor of the University of Surrey, Governor of the London School of Economics and Trustee of The Economist Newspaper.

 

Skills and Competencies

Virginia’s extensive experience within government, particularly as Secretary of State for Health brings a unique insight into the healthcare system both in the UK and globally, whilst her experience on the Board of Bupa brings an understanding of the private healthcare sector and an insight into the needs of our customers. Her long association with Hull, the home of many of our UK employees also brings an added perspective.

 

Nationality

 

LOGO   British

 

 

 

 

 

    

LOGO

 

Smith & Nephew Annual report 2014              55

    

 


Table of Contents

CORPORATE GOVERNANCE

Our Board of Directors continued

 

 

LOGO LOGO LOGO

 

 

Erik Engstrom (51)

 

 

Michael Friedman (71)

 

 

Brian Larcombe (61)

Independent Non-executive Director

Independent Non-executive Director

Independent Non-executive Director

Appointed Independent Non-executive Director on 1 January 2015 and Member of the Audit Committee.

 

 

 

Career and Experience

Erik is a graduate of the Stockholm School of Economics (BSc) and of the Royal Institute of Technology in Stockholm (MSc). In 1986, he was awarded a Fulbright scholarship to Harvard Business School, from where he graduated with an MBA in 1988. Erik commenced his career at McKinsey & Co. and then worked in publishing, latterly as President and Chief Operating Officer of

Random House, Inc. and as President and

Chief Executive Officer at Bantam Doubleday

Dell, North America. In 2001, he moved on to be a partner at General Atlantic Partners, a private equity investment firm focusing on information technology, internet and telecommunications businesses. Between 2004 and 2009, he was Chief Executive of Elsevier, the division specialising in scientific and medical information and then from 2009 Chief Executive of Reed Elsevier.

 

Skills and Competencies

Erik has successfully reshaped Reed Elsevier’s business in terms of portfolio and geographies. He brings a deep understanding of how technology can be used to transform a business and insight into the development of new commercial models that deliver attractive economics.

 

Nationality

 

LOGO   Swedish

Appointed Independent Non-executive Director in April 2013. He was appointed Chairman of the Ethics & Compliance Committee on 1 August 2014.

 

 

Career and Experience

Michael graduated with a Bachelor of Arts degree, magna cum laude from Tulane University and a Doctorate in Medicine from the University of Texas. He completed postdoctoral training at Stanford University and the National Cancer Institute, and is board certified in Internal Medicine and Medical Oncology. In 1983, he joined the Division of Cancer Treatment at the National Cancer Institute and went on to become the Associate Director of the Cancer Therapy Evaluation Program. Michael was most recently Chief Executive Officer of City of Hope, the prestigious cancer research and treatment institution in California. He also served as Director of the institution’s Cancer Centre and held the Irell & Manella Cancer Center Director’s Distinguished Chair. He was formerly Senior Vice President of research, medical and public policy for Pharmacia Corporation and also Deputy Commissioner and Acting Commissioner at the US Food and Drug Administration (FDA). He has served on a number of boards in a non-executive capacity, including Rite Aid Corporation. Currently, Michael is a Non-executive Director of Celgene Corporation and Non-executive Director of MannKind Corporation.

 

Skills and Competencies

Michael understands the fundamental importance of research, which is part of Smith & Nephew’s value creation process. His varied career in both the public and private healthcare sector has given him a deep insight and a highly respected career. In particular his work with the FDA and knowledge relating to US compliance provides the skillset required to Chair the Ethics & Compliance Committee and resulted in a smooth handover during 2014.

 

Nationality

 

LOGO   American

 

Appointed Independent Non-executive Director in March 2002, Member of the Audit Committee, Nomination & Governance Committee and Remuneration Committee, and appointed Senior Independent Director on 10 April 2014.

 

Career and Experience

Brian graduated with a Bachelor of Commerce degree from Birmingham University. He spent most of his career in private equity with 3i Group. After leading the UK investment business for a number of years, he became Finance Director and then Chief Executive of the Group following its flotation. He has held a number of Non-executive Directorships. He is currently Non-executive Director of gategroup Holding AG and Non-executive Director of Kodak Alaris Holdings Limited.

 

Skills and Competencies

Brian’s experience in private equity is particularly useful to us when evaluating acquisitions and new business opportunities. His long service as a Non-executive Director has provided continuity throughout a period of change and his corporate memory and wise counsel continues to support our new Chairman. As Senior Independent Director and member of the Nomination & Governance Committee, he plays an active role in succession planning and the search for new Non-executive Directors. In 2014, he led an insightful review into the effectiveness of the Board.

 

Nationality

 

LOGO   British

 

 

 

 

56               Smith & Nephew Annual report 2014


Table of Contents

 

 

 

 

LOGO LOGO

 

Joseph Papa (59)

 

Susan Swabey (53)

Independent Non-executive Director

Company Secretary

Appointed Independent Non-executive Director in August 2008 and Chairman of the Remuneration Committee in April 2011, Member of the Audit Committee and Ethics & Compliance Committee.

 

 

 

Career and Experience

Joe graduated with a Bachelor of Science degree in Pharmacy from the University of Connecticut and Master of Business Administration from Northwestern University’s Kellogg School of Management. In 2012, he received an Honorary Doctor of Science degree from the University of Connecticut School of Pharmacy. He began his commercial career at Novartis International AG as an Assistant Product Manager and eventually rose to Vice President, Marketing, having held senior positions in both Switzerland and the US. He moved on to hold senior positions at Searle Pharmaceuticals and was later President & Chief Operating Officer of DuPont Pharmaceuticals and then Watson Pharma Inc. Between 2004 and 2006, he was Chairman and Chief Executive Officer of the Pharmaceutical Technologies Services Segment of Cardinal Health, Inc. Joe is currently Chairman and Chief Executive of Perrigo Company plc, one of the largest over-the-counter pharmaceutical companies in the US.

 

Skills and Competencies

With over 30 years’ experience in the global pharmaceutical industry, Joe brings deep insight into the wider global healthcare industry and the regulatory environment. As Chairman and Chief Executive of a significant US Company, Joe has a comprehensive understanding both of how to attract and retain global talent and use remuneration arrangements that incentivise performance, leading to maximum returns for investors.

 

Nationality

 

LOGO   American

Appointed Company Secretary in May 2009.

 

 

 

Skills and Experience

Susan has 30 years’ experience as a company secretary in a wide range of companies including Prudential plc, Amersham plc and RMC Group plc. Her work has covered board support, corporate governance, corporate transactions, share registration, listing obligations, corporate social responsibility, pensions, insurance and employee and executive share plans. Susan is joint Vice-Chair of the GC100 Group, a member of the CBI Companies Committee and is a frequent speaker on corporate governance and related matters. She is also a trustee of ShareGift, the share donation charity.

 

Nationality

 

LOGO   British

 

 

 

 

    

 

LOGO

 

Smith & Nephew Annual report 2014              57

    

 


Table of Contents

CORPORATE GOVERNANCE

Our Executive Officers

 

 

Olivier Bohuon is supported in the day-to-day management of the Group by a strong team of Executive Officers:

LOGO LOGO

 

Julie Brown (52)

 

Rodrigo Bianchi (55)

Chief Financial Officer

President, IRAMEA

Joined the Board as Chief Financial Officer in February 2013. Julie is a graduate, Chartered Accountant and Fellow of the Institute of Taxation. She is based in London.

 

Skills and Competencies

Julie’s experience in the healthcare sector

includes 25 years with AstraZeneca PLC in

progressively senior roles and four years with KPMG. Most recently, she served as Interim Chief Financial Officer of AstraZeneca. She has international experience and a deep understanding of the healthcare sector gained through her previously held Vice President Finance positions in all areas of the healthcare value chain including Commercial, Operations, R&D and Business Development. Julie has also led commercial organisations, being Country President and Regional Vice President in AstraZeneca.

 

Nationality

 

LOGO   British

 

Joined Smith & Nephew in July 2013 with responsibility for Greater China, India, Russia, Asia, Middle East and Africa, focusing on continuing our strong momentum in these regions. He is based in Dubai.

 

Skills and Experience

Rodrigo’s experience in the healthcare industry includes 26 years with Johnson & Johnson in progressively senior roles. Most recently, he was Regional Vice President for the Medical Devices and Diagnostics division in the Mediterranean region and prior to that President of Mitek and Ethicon. He started his career at Procter & Gamble Italy.

 

Nationality

 

LOGO   Italian

 

LOGO

 

LOGO

 

Helen Maye (55)

 

Diogo Moreira-Rato (53)

Chief Human Resources Officer

President, Europe and Canada

Joined Smith & Nephew in July 2011 and leads the Global Human Resources and Internal Communications functions. Since 2013, she has also led the Sustainability, Health, Safety & Environment functions. She is based in London.

 

Skills and Experience

Helen has more than 35 years’ experience across a variety of international and global roles in medical devices and pharmaceuticals, including manufacturing, supply chain and human resources. Previously, she was Divisional Vice President of Human Resources at Abbott Laboratories.

 

Nationality

 

LOGO   Irish

Joined Smith & Nephew in May 2014 with responsibility for leading all of our commercial business in Europe and Canada. He is based in Baar, Switzerland.

 

Skills and Experience

Diogo’s experience in the healthcare industry includes 31 years with Johnson & Johnson in progressively senior roles. Most recently, Diogo was President, DePuy Synthes, EMEA, where he led the merger and integration of DePuy and Synthes in EMEA. Prior roles included International Vice President for the Medical Devices and Diagnostics business, President DePuy Orthopaedics and Managing Director of Portugal.

 

Nationality

 

LOGO   Portuguese

 

 

 

58               Smith & Nephew Annual report 2014


Table of Contents

 

 

 

LOGO LOGO LOGO

 

Jack Campo (60)

 

Michael Frazzette (53)

 

Gordon Howe (52)

Chief Legal Officer

President, Advanced Surgical Devices

President, Global Operations

Joined Smith & Nephew in June 2008 and heads up the Global Legal function. Initially based in London, he has been based in Andover, Massachusetts since late 2011.

 

Skills and Experience

 

Prior to joining Smith & Nephew, Jack held a number of senior legal roles within the General Electric Company, including seven years at GE Healthcare (GE Medical Systems) in the US and Asia. He began his career with Davis Polk & Wardwell.

 

Nationality

 

LOGO   American

Joined Smith & Nephew in July 2006 as President of the Endoscopy business. Since July 2011, he has headed up the Advanced Surgical Devices Division and is responsible for the Orthopaedic Reconstruction, Trauma and Endoscopy business units. Since 2014 he is also responsible for all of our commercial business in Latin America. He is based in Andover, Massachusetts.

 

Skills and Experience

 

Mike has held a number of senior positions within the US medical devices industry. He was Chief Executive Officer of Micro Group, a privately held manufacturer of medical devices. Prior to that, he spent 15 years at Tyco Healthcare in various leadership roles including President of the Patient Care Division, Health Systems, and Tyco Healthcare Group Canada.

 

Nationality

 

LOGO   American

 

Joined Smith & Nephew in 1998 and, since 2013, is responsible for manufacturing, supply chain and procurement, IT systems and Regulatory and Quality Affairs. Prior to that, he headed up the Global Planning and Business Development teams. He is based in Memphis, Tennessee.

 

Skills and Experience

 

Gordon has held a number of senior management positions within the Smith & Nephew Group, firstly in the Orthopaedics division and more recently at Group Level. Prior to joining the Company, he held senior roles at United Technologies Corporation.

 

Nationality

 

LOGO   American

LOGO

Cyrille Petit (44)

LOGO

Glenn Warner (52)

Chief Corporate Development

Officer

President, Advanced Wound Management

 

Joined Smith & Nephew in 2012 and leads the Corporate Development function. He is based in London.

 

Skills and Experience

 

Cyrille spent the previous 15 years of his career with General Electric Company, where he held progressively senior positions beginning with GE Capital, GE Healthcare and ultimately as the General Manager, Global Business Development of the Transportation Division. Cyrille’s career began in investment banking at BNP Paribas and then Goldman Sachs.

 

Nationality

 

LOGO   French

 

Joined Smith & Nephew in June 2014 with responsibility for Advanced Wound Management’s global franchise strategy, marketing and produce development, as well as its US commercial business.

 

Skills and Experience

 

Glenn has a broad-based background in pharmaceuticals and medical products including extensive international experience, having served most recently as AbbVie Vice President and Corporate Officer, Strategic Initiatives, where he was responsible for the development and execution of pipeline and asset management strategies. Prior to that he was President and Officer, Japan Commercial Operations in Abbott’s international pharmaceutical business and Executive Vice President, TAP Pharmaceutical Products, Inc. Additional senior level roles included international positions in Germany and Singapore for Abbott’s Diagnostics business.

 

Nationality

 

LOGO   American

 

 

    

LOGO

 

Smith & Nephew Annual report 2014              59

    

 


Table of Contents

CORPORATE GOVERNANCE

Chairman’s letter

 

 

Good Governance lies at the heart of a well-run Company

 

Dear Shareholder,

I am delighted to present my first Corporate Governance Statement as your Chairman following my appointment at the Annual General Meeting in April 2014. I feel very strongly that good corporate governance lies at the heart of a well-run company. Openness and transparency, accountability and responsibility should run through everything that we do, both as a Board and throughout the business as a whole. The Board and I aim to set the tone at the top which should pervade throughout the rest of the organisation.

Later in this statement, as well as all the standard corporate governance disclosures we are required to make, you will find reports from Ian Barlow, Michael Friedman, myself and Joseph Papa, the Chairmen of our Board Committees on the activities of those committees throughout the year. These reports will explain to you where we have focused our work in 2014. Firstly, however I should like to explain the key issues that we, as a Board, have been handling:

Board succession planning

As mentioned in my letter on page 5, Sir John Buchanan, Richard De Schutter, Ajay Piramal and Pamela Kirby all retired from the Board during 2014. One of my first tasks in assuming the role of Chairman therefore was to refresh the Board to take the Company into our next stage of development. The report from the Nomination & Governance Committee on page 70 discusses the process we followed to identify the gaps in Board skills and experiences left by the departing directors and to commence the search for our new Non-executive Directors, Vinita Bali, who joined the Board on 1 December 2014, and Erik Engstrom, who joined us on 1 January 2015. I believe that we have a well-balanced Board with the skills we need for the future and I welcome our new Board members. This, however, is an ongoing process and we shall keep the Board composition under constant review in the years ahead, making changes where necessary to adapt to the changing needs of the Company.

 

 

LOGO

Mergers and acquisitions

Following the successful acquisition of our Biotherapeutics business in 2012, we continued to make further acquisitions throughout 2013 of the Adler business in India, two distributorships in Brazil and one in Turkey. In January 2014, we announced the acquisition of ArthroCare Corporation and this deal completed in May. You will read elsewhere in this Annual Report about the successful integration of ArthroCare into our Company. We also undertook post acquisition reviews of the transaction and earlier acquisitions to monitor actual performance against expected performance at the time of acquisition and we continued to review and evaluate other potential acquisitions for the future to support our Strategic Priorities.

Succession planning below Board level

We believe that succession planning below Board level is crucially important for the long-term future of the Company. In October, the Board therefore reviewed management succession plans both for the Executive Board members and also for their direct reports. We recognised that whilst there were some gaps, there were also plans in place to address these gaps and develop the next tier of management to become Board-ready in the medium-term. The Board also takes the opportunity to meet with local management teams when undertaking site visits and senior executives below Board level frequently present to the Board and its Committees. This helps us to get to know executives who could well become Board members in the future.

Understanding the business more deeply

Corporate governance does not exist in isolation and cannot be reduced to compliance with checklists and codes. In order for the Board to be able to review strategy, to determine our approach to risk and to respond to events, we need to have a thorough understanding of the business in which we operate.

During the year, the Board received a number of presentations from the businesses covering corporate development activity, the ArthroCare integration progress and our investment in Bioventus LLP. In October, we visited our Biotherapeutics facility in Fort Worth, Texas, where we met with management and toured the R&D facility.

In September, we held our annual Strategy Review in Singapore and met with members of our ASEAN management team and discussed their opportunities and challenges.

 

 

 

The Board is committed to the highest standards of corporate governance and we comply with all of the provisions of the UK Corporate Governance Code 2012 (‘the Code’). The Company’s American Depositary Shares are listed on the New York Stock Exchange (NYSE) and we are therefore subject to the rules of the NYSE as well as to the US securities laws and the rules of the Securities Exchange Commission (SEC) applicable to foreign private issuers. We comply with the requirements of the NYSE and SEC except that the Nomination & Governance Committee is not comprised wholly of Independent Directors as required by the NYSE, but consists of a majority of Independent Directors in accordance with the Code. We shall explain in this Corporate Governance Statement and in the reports on the Audit Committee, the Nomination & Governance Committee, the Ethics & Compliance Committee and the Remuneration Committee, how we have applied the provisions and principles of the Financial Conduct Authority’s (FCA) Listing Rules, Disclosure & Transparency Rules (DTRs) and the Code throughout the year.

 

The Directors report comprises pages 54 to 80, 103, 111, 113, 115 and pages 170 to 193 of the Annual Report.

 
   
   
 

 

60              Smith & Nephew Annual report 2014


Table of Contents

 

 

Working together as a Board

 

Given the number of changes at Board level in 2014, we decided that our review into the Board’s effectiveness would focus on how we worked together as a Board and how we worked with the Executive Team. This review was led by Brian Larcombe, our Senior Independent Director. He asked the Directors and key members of the Executive team a series of open-ended questions about their views on the role of the Board and its Committees and how we worked together. The results of his review have proved to be very interesting and we are now working on ways to work together even more effectively. This is explained in greater detail on page 68.

 

Yours sincerely,

 

LOGO

 

Roberto Quarta

Chairman

 

 

 

 

Overview

 

The Board is committed to the highest standards of corporate governance. We maintain these standards through a clear definition of our roles, continuing development and evaluation and accountability through the work of the Board Committees.

 

LOGO

 

 

    

LOGO

 

Smith & Nephew Annual report 2014              61

    

 


Table of Contents

CORPORATE GOVERNANCE

Corporate Governance Statement

 

 

Leadership  LOGO

Diversity and experience

 

 

LOGO

Role of Directors

 

 

Whilst we all share collective responsibility for the activities of the Board, some of our roles have been defined in greater detail. In particular, the roles of the Chairman and the Chief Executive Officer are clearly defined.

 

 
 

 

 
   
  Chairman

Building a well-balanced Board

 

 
 

Chairing Board meetings and setting Board agendas

 

 
 

Ensuring effectiveness of Board and enabling the annual review of effectiveness

 

 
 

Encouraging constructive challenge and facilitating effective communication between Board members

 

 
 

Promoting effective Board relationships

 

 
 

Ensuring appropriate induction and development programmes

 

 
 

Ensuring effective two-way communication and debate with shareholders

 

 
 

Promoting high standards of corporate governance

 

 
 

Maintaining appropriate balance between stakeholders.

 

 
 

 

 
  Chief Executive Officer

Developing and implementing Group strategy

 

 

Recommending the annual budget and five-year strategic and financial plan

 

 
 

Ensuring coherent leadership of the Group

 

 
 

Managing the Group’s risk profile and establishing effective internal controls

 

 
 

Regularly reviewing organisational structure, developing executive team and planning for succession

 

 
 

Ensuring the Chairman and Board are kept advised and updated regarding key matters

 

 

Maintaining relationships with shareholders and advising the Board accordingly

 

Setting the tone at the top with regard to compliance and sustainability matters

 

Day-to-day running of the business.

 

 

62               Smith & Nephew Annual report 2014


Table of Contents

 

 

Role of Directors continued

 

 

 

The roles of the Non-executive Directors, Senior Independent Director and the Company Secretary are defined as follows:

 

 
   

 

   
  Non-executive Directors Providing effective challenge to management  
       

 

   
  Assisting in development and approval of strategy  
       

 

   
  Serving on the Board Committees  
       

 

   
  Providing advice to management.  
   

 

   
  Senior Independent Director Chairing meetings in the absence of the Chairman  
       

 

   
  Acting as a sounding board for the Chairman on Board-related matters  
       

 

   
  Acting as an intermediary for the other Directors where necessary  
       

 

   
  Available to shareholders on matters which cannot otherwise be resolved  
       

 

   
  Leading the annual evaluation into the Board’s effectiveness  
     

 

   
Leading the search for a new Chairman, if necessary.  
 

 

 
Company Secretary Advising the Board on matters of corporate governance
     

 

 
Supporting the Chairman and Non-executive Directors
     

 

 
Point of contact for investors on matters of corporate governance
     

 

 
Ensuring good governance practices at Board level and throughout the Group.

Changes to the Board

 

     
   

 

   
  Chairman  
   

 

   
  Roberto Quarta replaced Sir John Buchanan on 10 April 2014  
        
   

 

   
  Independent Non-executive Directors  
   

 

   
  Left the Board during 2014  
  Ajay Piramal (resigned 24 March 2014)  
  Richard De Shutter (retired 10 April 2014)  
  Pamela Kirby (retired 31 July 2014)  
   

 

   
  Joined the Board during 2014  
Vinita Bali (appointed 1 December 2014)  
Erik Engstrom (appointed 1 January 2015, since year-end)
 

 

 
  Role changed during 2014
Brian Larcombe replaced Richard De Schutter as Senior Independent Director on 10 April 2014
Michael Friedman replaced Pamela Kirby as Chairman of the Ethics & Compliance Committee on 31 July 2014

 

 

    

LOGO

 

Smith & Nephew Annual report 2014              63

    

 


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CORPORATE GOVERNANCE

Corporate Governance Statement continued

Leadership

 

 

Corporate Governance Framework

The Board is responsible to shareholders for approving the strategy of the Group, for overseeing the performance of the Group and evaluating and monitoring the management of risk.

Each member of the Board has access collectively and individually to the Company Secretary and is also entitled to obtain independent professional advice at the Company’s expense, should they decide it is necessary in order to fulfil their responsibilities as Directors.

The day-to-day running of the business is delegated to Olivier Bohuon, the Chief Executive Officer, and his executive team comprising the Executive Officers who are shown on pages 58 to 59.

The Executive Officers form the Commercial and Operations Committee which advises the Chief Executive Officer in decisions relating to the commercial and operational aspects of the business.

The Chief Executive Officer in turn delegates the day-to-day management of the Group functions and regional commercial operations divisions to the Executive Officers, who are assisted in their decision making by their own leadership teams and other committees and councils.

 

 

LOGO

 

64               Smith & Nephew Annual report 2014


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Independence of Directors

 

We require our Non-executive Directors to remain independent from management so that they are able to exercise independent oversight and effectively challenge management. We therefore continually assess the independence of each of our Non-executive Directors. The Executive Directors have determined that all our Non-executive Directors are independent in accordance with both UK and US requirements. None of our Non-executive Directors or their immediate families has ever had a material relationship with the Group. None of them receives additional remuneration apart from Directors’ fees, nor do they participate in the Group’s share plans or pension schemes. None of them serve as directors of any companies or affiliates in which any other Director is a director.

 

More importantly, each of our Non-executive Directors is prepared to question and challenge management, to request more information and to ask the difficult question. They insist on robust responses both within the Boardroom and sometimes, between meetings. The Chief Executive Officer is open to challenge from the Non-executive Directors and uses this positively to provide more detail and to reflect further on issues.

 

We acknowledge that Brian Larcombe has served as an independent Non-executive Director for a period of 13 years, which is a period of time that some might regard as likely to impact his independence. We do not believe this to be the case as Brian Larcombe continues to maintain an independent view within Board discussions. Furthermore, his experience on the Board, wise counsel and corporate memory has been most useful to Roberto Quarta in his first year as Chairman of the Company, particularly in a year when a number of other long-serving directors have left the Board and new Non-executive Directors have been appointed.

 

Management of Conflicts of Interest

 

None of our Directors or their connected persons, has any family relationship with any other Director or Officer, nor has a material interest in any contract to which the Company or any of its subsidiaries are, or were, a party during the year or up to 23 February 2015.

 

Each of us as a Director has a duty under the Companies Act 2006 to avoid a situation in which we have or may have a direct or indirect interest that conflicts or might conflict with the interests of the Company. This duty is in addition to the existing duty owed to the Company to disclose to the Board any interest in a transaction or arrangement under consideration by the Company.

 

If any Director becomes aware of any situation which might give rise to a conflict of interest, they inform the rest of the Board immediately and the Board is then permitted under the Company’s Articles of Association to authorise such conflict. This information is then recorded in the Company’s Register of Conflicts, together with the date on which authorisation was given. In addition, each Director certifies on an annual basis that the information contained in the Register is correct.

 

When the Board decides whether or not to authorise a conflict, only the Directors who have no interest in the matter are permitted to participate in the discussion and a conflict is only authorised if the Board believes that it would not have an impact on the Board’s ability to promote the success of the Company in the long term. Additionally, the Board may determine that certain limits or conditions must be imposed when giving authorisation. No actual conflicts have been identified, which have required approval by the Board. However, six situations have been identified which could potentially give rise to a conflict of interest and these have been duly authorised by the Board and are reviewed on an annual basis.

 

Outside Directorships

 

We encourage our Executive Directors to serve as a Non-executive Director of a maximum of one external company. Olivier Bohuon is a Non-executive Director of Virbac group and Julie Brown does not hold such a position.

Re-appointment of Directors

 

In accordance with the Code, all Directors offer themselves to shareholders for re-election annually, except those who are retiring immediately after the Annual General Meeting. Vinita Bali and Erik Engstrom, who were appointed to the Board on 1 December 2014 and 1 January 2015 respectively, will offer themselves for election at the Annual General Meeting. Each Director may be removed at any time by the Board or the shareholders.

 

Director Indemnity Arrangements

 

Each Director is covered by appropriate directors’ and officers’ liability insurance and there are also Deeds of Indemnity in place between the Company and each Director. These Deeds of Indemnity mean that the Company indemnifies Directors in respect of any proceedings brought by third parties against them personally in their capacity as Directors of the Company. The Company would also fund ongoing costs in defending a legal action as they are incurred rather than after judgment has been given. In the event of an unsuccessful defence in an action against them, individual directors would be liable to repay the Company for any damages and to repay defence costs to the extent funded by the Company.

 

Liaison with shareholders

 

The Board meets with retail investors at the Annual General Meeting and responds to many letters and emails from shareholders throughout the year.

 

The Executive Directors also meet regularly with institutional investors to discuss the Company’s business and financial performance both at the time of the announcement of results and at industry investor events. During 2014, the Executive Directors held meetings with institutional investors, including investors representing approximately 46% of the share capital as at December 2014.

 

Since joining the Company, Roberto Quarta, the new Chairman has taken the opportunity to meet with investors to hear from them their views of the Company and also to talk about his first impressions of the Company and management. He held 12 meetings with investors holding approximately 22% of the share capital. These meetings have been a useful part of his induction process in understanding the Company from the investor perspective.

 

Joseph Papa, the Chairman of the Remuneration Committee also offered to meet with key institutional investors towards the end of 2014. Most investors were overwhelmingly supportive of our remuneration arrangements and we have made no changes to these arrangements over the year. He therefore met with four investors holding around 2% of the share capital. These were useful discussions giving insight into current investor thinking.

 

Ian Barlow, the Chairman of the Audit Committee also offered to meet with institutional investors to discuss audit related matters and in particular, the tender process we had followed to select new auditors. The meetings held with five investors holding around 5.45% of the issued share capital were interesting and useful and we welcomed some insightful comments on possible improvements to the Audit Committee Report.

 

Members of the Board are always happy to engage with investors, if they have matters they wish to raise with the Non-executive team.

 

A short report on our major shareholders and any significant changes in their holdings since the previous meeting is reviewed at each Board meeting. The Chairman and Non-executive Directors report back to the Board following their meetings with investors. Olivier Bohuon and Julie Brown routinely report on any concerns or issues that shareholders have raised with them in their meetings. Copies of analyst reports on the Company and its peers are also circulated to Directors.

 

 

    

LOGO

 

Smith & Nephew Annual report 2014              65

    

 


Table of Contents

CORPORATE GOVERNANCE

Corporate Governance Statement continued

 

 

Effectiveness LOGO

Board timetable

 

LOGO

 

Responsibility of the Board

The work of the Board falls into the following key areas:

 

 

 

Strategy

 

–   Approving the Group strategy including major changes to corporate and management structure

 

–   Approving acquisitions, mergers, disposals, capital transactions in excess of $50 million

 

–   Setting priorities for capital investment across the Group

 

Risk

 

–   Overseeing the Group’s risk management programme

 

–   Regularly reviewing the risk register

 

–   Overseeing risk management processes (see pages 36 to 39 for further details).

 
 

 

–   Approving annual budget, financial plan, five-year business plan

 

–   Approving major borrowings and finance and banking arrangements

 

–   Approving changes to the size and structure of the Board and the appointment and removal of Directors and the Company Secretary

 

–   Approving Group policies relating to corporate social responsibility, health and safety, Code of Conduct and Code of Share Dealing and other matters

 

–   Approving the appointment and removal of key professional advisers.

 

Shareholder Communications

 

–   Approving preliminary announcement of annual results, the publication of the Annual Report, the half-yearly report, the quarterly financial announcements, the release of price sensitive announcements and any listing particulars, circulars or prospectuses

 

–   Approving the Sustainability Report prior to publication

 

–   Maintaining relationships and continued engagement with shareholders.

 
 

 

Performance

 

–   Reviewing performance against strategy, budgets and financial and business plans

 

–   Overseeing Group operations and maintaining a sound system of internal control

 

–   Determining the dividend policy and dividend recommendations

 

–   Approving the appointment and removal of the external Auditor on the recommendation of the Audit Committee

 

 

Providing Advice

 

–   Using experience gained within other companies and organisations to advise management both within and between Board meetings.

 

The Schedule of Matters Reserved to the Board describes the role and responsibilities of the Board more fully and can be found on our website at www.smith-nephew.com

 

–   Approving significant changes to accounting policies or practices

 

–   Overseeing succession planning at Board and Executive Officer level.

 

–   Approving the use of the Company’s shares in relation to employee and executive share incentive plans on the recommendation of the Remuneration Committee.

 

 

 

66               Smith & Nephew Annual report 2014


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What we did

 

                  
   

 

   
  Month  
   

 

   
  January Considered and approved acquisition of ArthroCare Corporation  
    (acquisition of ArthroCare)             
   

 

Early February

(Approval of Preliminary

Announcement)

 

 

  

 

Reviewed the results for the full year 2013 and the preliminary announcement and approved the final dividend to be recommended to shareholders for approval

   
          
         Reviewed and approved the annual risk management report    
         Approved the Budget for 2014 and the five-year Plan for 2014 to 2018    
         Approved the continuation of the share buy-back programme to repurchase shares issued in connection with share plans on a quarterly basis    
        

Reviewed the results of the review into the effectiveness of the Board in 2013 and agreed action points for 2014

 

   
   

 

Late February

(by telephone) (Approval of Financial Statements)

 

 

  

 

Reviewed and approved the Annual Report and Accounts for 2013, having determined that they were fair, balanced and understandable

   
        

Reviewed and approved the Notice of Annual General Meeting and related documentation

 

   
   

 

Early April

 

 

  

 

Noted, considered and approved the new Commercial organisation structure

   
         Received a presentation on SYNCERA, the new ‘value’ range for our ASD division    
         Approved the Sustainability Report    
        

Prepared for the Annual General Meeting to be held later that day

 

   
   

 

Late April

(by telephone)

(Approval of Q1 results)

 

 

 

  

 

Reviewed the results for the first quarter 2014 and approved the Q1 announcement

   
            
            
   

 

July

(Approval of H1 results)

 

 

  

 

Reviewed the results for the first half 2014 and approved the H1 announcement, having considered management’s judgement in a number of areas and approved payment of interim dividend

   
          
         Received and considered a report analysing the progress of recent acquisitions against expectations at the time of acquisition    
         Received and discussed annual review of defence planning    
         Received update reports from Group Taxation and Group Treasury    
         Approved the appointment of Deutsche Bank as ADR Depositary Bank and the change of the ratio of ADR to ordinary shares    
         Updated and approved the Schedule of Matters Reserved to the Board    
   

 

Early October

(Strategy Review)

 

Singapore

 

 

  

 

Approved the Strategic Plan for 2015 to 2019 over a two-day Strategy Review with the executive team

   
         Approved the renewal of the Directors’ and Officers’ Liability insurance    
        

Authorised the executive team to arrange the private placement of debt

 

   
   

 

Late October

(Approval of Q3 Results)

 

Fort Worth, Texas

 

 

 

  

 

Reviewed the results for the third quarter 2014 and approved the Q3 announcement

   
         Received and considered the annual report from the executive team on executive Succession Planning    
         Received an update on the progress of the integration of ArthroCare    
         Approved the appointment of Vinita Bali as a Non-executive Director    
 

 

December

(Approval of Budget)

 

 

  

 

Approved the Budget for 2015

 
       Authorised the executive team to conduct a selection process for new corporate brokers  
       Received a report on the progress of our investment in Bioventus LLP  
       Received an update on the HR transformation project  
       Received an update on the Commercial structure within Europe  

We also agreed to appoint Erik Engstrom as Non-executive Director by written resolution.

Since the year end, we have also approved the Annual Report and Accounts for 2014 and have concluded that, taken as a whole, they are fair, balanced and understandable. We have approved the Notice of Annual General Meeting, recommended the final dividend to shareholders and have received and discussed the report on the effectiveness of the Board in 2014.

Each meeting was preceded by a meeting between the Chairman and the Non-executive Directors without Executive Directors and management in attendance. Unless otherwise stated, meetings are held in London.

At each meeting, we approved the minutes of the previous meetings, reviewed matters arising and received reports and updates from the Chief Executive Officer, the Chief Financial Officer, the Chief Business Development Officer, the Chief Legal Officer and the Company Secretary. We also received reports from the chairmen of the Board Committees on the activities of these Committees since the previous meeting.

 

 

    

LOGO

 

Smith & Nephew Annual report 2014              67

    

 


Table of Contents

CORPORATE GOVERNANCE

Corporate Governance Statement continued

Effectiveness

 

 

Board and Committee Attendance

 

                                
   

 

   
     Board Meetings

Audit

Committee Meetings

Remuneration
Committee Meetings
Nomination & Governance
Committee Meetings
Ethics & Compliance
Committee Meetings
  
    Director   (9 meetings)   (8 meetings)    (4 meetings)    (3 meetings)    (4 meetings)    
   

 

   
  Roberto Quarta 9 / 9 2 / 2 7 3 / 3  
   

 

   
  Olivier Bohuon 9 / 9 3 / 3  
   

 

   
  Julie Brown 9 / 9  
   

 

   
  Vinita Bali 1 1 / 1  
   

 

   
  Ian Barlow 9 / 9 8 / 8 1 / 1 9  
   

 

   
  Virginia Bottomley 9 / 9 4 / 4 2 / 2 8  
   

 

   
  Sir John Buchanan 2 3 / 4 1 / 1  
   

 

   
  Michael Friedman 3 8 / 9 4 / 4  
   

 

   
  Pamela Kirby 4 6 / 6 3 / 3 3 / 3  
   

 

   
  Brian Larcombe 9 / 9 8 / 8 4 / 4 3 / 3  
   

 

   
  Joseph Papa 9 / 9 8 / 8 4 / 4 4 / 4  
   

 

   
  Ajay Piramal 5 1 / 3  
   

 

   
  Richard De Schutter 6 4 / 4 3 / 3 2 / 2 1 / 1 2 / 2  
 

 

1   Vinita Bali was appointed to the Board on 1 December 2014

2   Sir John Buchanan retired from the Board on 10 April 2014

3   Michael Friedman was unable to attend one Board telephone update due to a flight delay

4   Pamela Kirby retired from the Board on 31 July 2014

 

5   Ajay Piramal retired from the Board on 24 March 2014

6   Richard De Schutter retired from the Board on 10 April 2014

7   Roberto Quarta joined the Remuneration Committee on 10 April 2014

8   Virginia Bottomley joined the Nomination & Governance Committee on 10 April 2014

9   Ian Barlow joined the Ethics & Compliance Committee on 2 October 2014

 

 

 

In the event that a Director is unable to attend a Board or Board Committee meeting, they ensure that they are familiar with the matters to be discussed and make their views known to the Chairman of the Board or Board Committee prior to the meeting.

 

 

 

Dear Shareholder,

 

The Chairman asked me as Senior Independent Director to conduct the review into the effectiveness of the Board in 2014. I interviewed all the members of the Board, the Company Secretary and the Head of Human Resources towards the end of 2014, basing our discussions around a short questionnaire prepared by the Company Secretary.

 

The Board scores highly on all the key assessments of our responsibilities for approving strategy, monitoring performance, determining risk, diligence of members’ attendance and quality of discussion. Roberto Quarta, Chairman of the Board is universally respected for his professionalism, chairmanship skills and for

 

 

developing an excellent working relationship with Olivier. He has invested the time to understand the business, getting to know the senior executives and the major shareholders and has made excellent progress in strengthening the Board with appointment of new Non-executive Directors. The Committees of the Board were also found to be operating effectively.

 

There has been some healthy discussion around the role played by the Board, with the Non-executives eager to play a more active role in agenda planning, setting the strategy, organisational change and management succession and the appointment of advisers.

 

The Board discussed the results of my findings at our Board meeting in February 2015 and agreed the following actions for 2015:

 
    Action identified    
   

 

Make more effective use of the annual Board Planner to ensure that all key strategic issues were timetabled appropriately throughout the year

 

   
   

 

Encourage the executive team to access the diverse competencies of the Non-executive Directors more between Board meetings

 

   
   

 

Continue the practice of inviting members of the executive team to present regularly to the Board

 

   
   

 

The review into the Board’s effectiveness in 2015 will be facilitated externally as although we undertake an annual review, the last externally facilitated review was in 2012. The areas for attention identified in the 2013 review have been addressed as follows:

 

   
    Progress made in 2014 against the Areas for Attention identified in the 2013 review    
   

 

Succession Planning at Non-executive Director level would be a key priority following the retirement of a number of long serving Non-executive Directors during the year.

 

  

 

Nomination & Governance Committee undertook a comprehensive search for new Non-executive Directors leading to the appointment of Vinita Bali on 1 December 2014 and of Erik Engstrom on 1 January 2015. This process is ongoing. Details of the full search process are given in the Nomination & Governance Committee Report on page 70.

 

   

 

Timing and length of the Board and Committee meetings could be reviewed to consider whether the current pattern of meetings was most effective.

 

 

The timing and frequency of Board meetings has been reviewed by the Chairman and the Chief Executive Officer, who have concluded that the current pattern of meetings is appropriate for the Company and fits in well with the programme of executive activities throughout the year. The reporting schedule inhibits changing the Board timetable.

Yours sincerely,

Brian Larcombe

Senior Independent Director

 

68              Smith & Nephew Annual report 2014


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Board Development Programme

 

Our Board Development Programme is directed to the specific needs and interests of our Directors. We focus the development sessions on facilitating a greater awareness and understanding of our business rather than formal training in what it is to be a Director. We value our visits to the different Smith & Nephew sites around the world, where we meet with the local managers of our businesses and see the daily operations in action. Meeting our local managers helps us to understand the challenges they face and their plans to meet those challenges. We also take these opportunities to look at our products and in particular the new products being developed by our R&D teams. This direct contact with the business in the locations in which we operate around the world helps us to make investment and strategic decisions. Meeting our local managers also helps us when making succession planning decisions below Board level.

 

During the course of the year, we receive updates at the Board and Committee meetings on external corporate governance changes likely to impact the Company in the future.

In 2014, we particularly focused on the changes to Narrative Reporting and reporting on Remuneration as well as the changes incorporated in the UK Corporate Governance Code 2014 and the Financial Reporting Council’s Audit Quality Thematic Review into fraud risks and laws and regulations. New Directors receive tailored induction programmes when they join the Board. In 2014, Vinita Bali commenced her induction programme with a series of meetings with key senior executives and a briefing on UK Company Law and Corporate Governance delivered jointly by our corporate lawyers, Freshfields and our Company Secretary, Susan Swabey. Since the year end, Vinita Bali and Erik Engstrom have continued meeting with key senior executives and a series of visits to our major facilities is planned for them both over the next few months. All Non-executive Directors are encouraged to visit our overseas businesses, if they happen to be travelling for other purposes. Our local management teams enjoy welcoming Non-executive Directors to their business and it emphasises the interest the Board takes in all our operations. The Chairman regularly reviews the development needs of individual Directors and the Board as a whole.

Development activities

The following development sessions covering both the Smith & Nephew business and wider market issues were held during the year:

 

                  
   

 

   
    Month   Activity    
   

 

   
  February Individual cyber profiling sessions with each Director  
  Presentation from external consultants on the current state of the Medical Devices industry across Europe  
   

 

   
  April Presentation on new SYNCERA range  
   

 

   
  July Joint presentation from our corporate brokers on equity markets and investor perceptions of Smith & Nephew  
   

 

   
  September Meetings with our ASEAN management team in Singapore with presentations from the local Managing Directors in Singapore, Malaysia and Thailand  
  Presentation from a leading Indian hip surgeon on the challenges in the Indian market  
  Presentations from the entire Executive team as part of the Board’s Strategy review  
  Board discussion on Risk as part of the Board’s Strategy discussions  
   

 

   
  October Visit to the Biotherapeutics facility in Fort Worth, Texas and meetings with the Biotherapeutics research and development teams  
  Series of presentations from our Advanced Wound Management US Commercial team on the challenges faced by the business, our strategy and initiatives to meet these challenges and an update on progress made since the previous year  

 

Succession Planning

 

The Board is responsible for ensuring that there are effective succession plans in place to ensure the orderly appointment of directors to the Board, as and when vacancies arise. The report from the Nomination & Governance Committee on pages 70 to 71 explains the process the Board and the Nomination & Governance Committee followed in 2014 to build a balanced board for the future in undertaking the search for new Non-executive Directors.

 

Building a successful executive team is the responsibility of the Chief Executive Officer, although this process is also overseen by the Board. The Chief Executive Officer and Chief Human Resources Officer present a report to the Board on Succession Planning on an annual basis, at which the performance and potential of members of the executive team are discussed and considered. The Board is also given a number of opportunities during the course of the year to meet key

members of the executive team at the Strategy Review held annually in September and at the site visits held in October each year. Executive Officers and their direct reports also make regular presentations on different aspects of the business. The Board recognises the importance of getting to know the executive team below Board level both for the purpose of understanding the business better but also in order to plan for executive succession.

 

By order of the Board, on 25 February 2015

 

LOGO

 

Roberto Quarta

Chairman

 

 

 

 

    

LOGO

 

Smith & Nephew Annual report 2014              69

    

 


Table of Contents

CORPORATE GOVERNANCE

Accountability

 

 

Accountability LOGO

 

   

 

Nomination & Governance

Committee Report

 

 

LOGO

 

Dear Shareholder

 

I am pleased to present our Report on the role and activities of the Nomination & Governance Committee in 2014.

 

Current Members in 2014

   
         
   

 

Roberto Quarta

 

 

 

Committee Chairman

 

   
   

 

Brian Larcombe

 

 

 

Senior Independent Non-executive Director

 

   
   

 

Virginia Bottomley (from 10 April 2014)

 

 

 

Independent Non-executive Director

 

   
   

 

Olivier Bohuon

 

 

 

Chief Executive Officer

 

   
   

 

1  Sir John Buchanan and Richard De Schutter left the Committee on 10 April 2014 on their retirement from the Board.

   
   

 

Key activities

 

   
   

–  Review the composition of the Board and make recommendations to the Board regarding the appointment of Directors.

 

   
   

–  Oversee governance aspects of the Board and its Committees.

   
 

 

2015 focus

 

 
 

–  Continue to search for one more Non-executive Director with financial expertise.

 

 

Role of the Nomination & Governance Committee

Our work falls into the following two areas:

Board Composition

 

Reviewing the size and composition of the Board

 

Overseeing Board succession plans

 

Recommending the appointment of Directors

 

Monitoring Board diversity.

Corporate Governance

 

Overseeing governance aspects of the Board and its Committees

 

Overseeing the review into the effectiveness of the Board

 

Considering and updating the Schedule of Matters Reserved to the Board and the Terms of Reference of the Board Committees

 

Monitoring external corporate governance activities and keeping the Board updated

 

Overseeing the Board Development Programme and the induction process for new Directors.

The terms of reference of the Nomination & Governance Committee describe our role and responsibilities more fully and can be found on our website at www.smith-nephew.com

Activities of the Nomination & Governance Committee in 2014 and since the year end

In 2014, we held four physical meetings. Each meeting was attended by all members of the Committee. The Company Secretary, the Head of Human Resources and external search agents also attended by invitation. In between each meeting, various discussions were held between members of the Nominations & Governance Committee and the external search agent. Our programme of work in 2014 was as follows:

Early February (Activities related to the year end)

 

Considered and approved the re-appointment of directors who had completed three or six years’ service and the annual appointment of directors serving in excess of nine years

 

Reviewed and updated the Schedule of Matters Reserved to the Board and the Terms of Reference of the Board Committees

 

Considered and discussed the results of the annual review into the effectiveness of the Board

 

Noted an update on corporate governance matters relating to reporting and disclosure requirements.

Early September (Appointment of Vinita Bali)

 

Reviewed the long list of candidates for the position of Non-executive Director and discussed the outcome of meetings already held with candidates who had been shortlisted

 

Agreed to recommend to the Board that Vinita Bali be appointed Non-executive Director.

 

 

 

70              Smith & Nephew Annual report 2014


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End October (Appointment of Erik Engstrom)

 

    

 

–  Further reviewed the longlist and shortlist of Non-executive Director candidates and discussed the outcome of meetings held with candidates

 

    

–  Agreed to recommend to the Board that Erik Engstrom be appointed Non-executive Director

 

 

    

 

–  Agreed to hold further meetings with other candidates.

 

Early December (Appointment of Non-executive Directors)

 

    

 

–  Further reviewed the longlist and shortlist of Non-executive Director candidates and discussed the outcome of meetings held with candidates.

 

Since the year end, we have also considered the outcomes of the Board Effectiveness review and discussed the future structure of the Board.

 

Non-executive Directors

 

During 2014, there were a number of changes to the composition of the Board. Sir John Buchanan retired as Chairman of the Board at the Annual General Meeting after nine years’ service to the Company. Richard De Schutter also retired at the Annual General Meeting following 13 years’ service and Pamela Kirby retired after 12 years’ service in July. Earlier in the year, Ajay Piramal also retired from the Board in March due to the pressure of other commitments. These departures left a number of positions on the Board to be filled. We therefore undertook a search programme to identify suitable new Board members, which resulted in the appointment of Vinita Bali as Non-executive Director with effect from 1 December 2014 and of Erik Engstrom with effect from 1 January 2015. The process we followed was as follows:

 

–  I worked with Olivier Bohuon, Chief Executive Officer, the Company Secretary and the Head of Human Resources to analyse the skills and experiences we felt that we needed on the Board to implement our Strategy over the next five years. We also analysed the skills and experiences of those Directors who would be remaining on the Board

 

–  From this review, we identified that we would wish to search for up to three new Non-executive Directors, each with a combination of one or more of the following skills, experiences or backgrounds:

 

–  Experience of one or more of the Emerging Markets in which we operate;

 

–  Digital experience – we later modified this to leading a company through a period of considerable technological change;

 

–  Experience as a Chief Executive Officer in another listed company;

 

–  At least one new female Non-executive Director;

 

–  The Board reviewed this analysis and endorsed the skills and experiences against which we would be searching

 

–  The Nomination & Governance Committee selected Russell Reynolds to undertake the search for new Non-executive directors, having reviewed three firms suggested by the Head of Human Resources and the Company Secretary

 

–  Russell Reynolds prepared a long list of candidates satisfying one or more of the above criteria and Brian Larcombe and I met with them to discuss the longlist and select a shortlist of suitable candidates

 

 

–  Members of the Nomination & Governance Committee then met individually with a number of candidates. Additional Board members were also asked to meet certain candidates where there were particular interests or experiences

–  The Nomination & Governance Committee agreed to recommend that the Board appoint Vinita Bali and Erik Engstrom as Non-executive Directors.

 

The Nomination & Governance Committee selected Vinita Bali to be a Non-executive Director because of her experience as a very senior commercial executive in a wide range of Emerging Markets across India, Africa and South America.

 

We selected Erik Engstrom because of his experience in his role as Chief Executive Officer leading his company Reed Elsevier through significant technological change and his ability to add value to our Audit Committee.

 

Russell Reynolds also undertook succession planning assessments on behalf of management. The Committee is satisfied that their advice is objective and independent.

 

Diversity

 

We aim to have a Board which represents a wide range of backgrounds, skills and experiences. We also value a diversity of outlook, approach and style in our Board members. We believe that a balanced Board is better equipped to consider matters from a broader perspective and therefore come to decisions that have considered a wider range of issues and perspectives than would be the case in a more homogenous Board. Diversity is not simply a matter of gender, ethnicity or other easily measurable characteristic. Diversity of outlook and approach is harder to measure than gender or ethnicity but is equally important. A Board needs a range of skills from technical adherence to governance or regulatory matters for an understanding of the business in which we operate. It needs some members with a long corporate memory and others who bring new insights from other fields. There needs to be both support and challenge on the Board as well as a balance of gender, commercial and international experience. When selecting new members for the Board, we take these considerations into account, as well as professional background. A new Board member needs to fit in with their fellow Board members, but also needs to provide a new way of looking at things.

 

In 2012, we stated that our expectation would be that by 2015, 25% of our Board would be female and we have met this expectation. 30% of our Board is female. We do not regard this as a fixed percentage as the number of Board members will fluctuate from time to time and we would not necessarily expect to replace any retiring Director with a new Director of the same gender. We will still continue to appoint Directors on merit, valuing the unique contribution that they will bring to the Board, regardless of gender.

 

Governance

 

During the year, the Nomination & Governance Committee also addressed a number of governance matters. We also received updates from the Company Secretary on new developments in corporate governance and reporting in both the UK and Europe. We reviewed the independence of our Non-executive Directors, considered potential conflicts of interest and the diversity of the Board and made recommendations concerning these matters to the Board.

 

Yours sincerely,

 

LOGO

 

Roberto Quarta

Chairman of the Nomination & Governance Committee

 

 

    

LOGO

 

Smith & Nephew Annual report 2014              71

    

 


Table of Contents

CORPORATE GOVERNANCE

Accountability continued

 

 

   

 

Ethics & Compliance

Committee Report

 

 

LOGO

 

Dear Shareholder

 

I am pleased to present our Report on the role and activities of the Ethics & Compliance Committee in 2014.

 

Current Members in 2014

   
         
   

 

Michael A. Friedman (from 31 July 2014)

 

 

 

Committee Chairman

 

   
   

 

Ian Barlow (from 2 October 2014)

 

 

 

Independent Non-executive Director

 

   
   

 

Joseph Papa

 

 

 

Independent Non-executive Director

 

   
   

 

1  Richard De Schutter left the Committee on 10 April 2014 on their retirement from the Board.

   
   

2  Pamela Kirby left the Committee on 31 July 2014 on her retirement from the Board.

   
   

3  Vinita Bali will join the Committee on 1 April 2015.

   
   

 

Key activities

 

   
   

–  Reviews ethics and compliance processes and practices across the Group.

 

   
   

–  Oversees quality and regulatory matters.

 

   
   

–  Monitors significant compliance, quality and regulatory issues or failures as they arise.

   
   

 

2015 focus

 

   
   

–  Develop a deeper oversight of quality and regulatory matters.

 

   
 

–  Continue to focus on compliance issues within the context of our acquisition programme.

 

 
 

–  Continue to enhance the compliance processes and practices of our third party distributors.

 

 

Role of the Ethics & Compliance Committee

Our work falls into the following two general areas:

Ethics & Compliance

 

Overseeing ethics and compliance programmes

 

Monitoring ethics and compliance policies and training programmes

 

Reviewing compliance performance based on monitoring, auditing and investigations data

 

Reviewing allegations of significant compliance issues

 

Overseeing the Group’s internal and external communications relating to ethics and compliance matters

 

Reviewing external developments and compliance activities

 

Receiving reports from the Group’s Ethics & Compliance Committee meetings and from the Chief Compliance Officer and the Chief Legal Officer.

Quality Assurance and Regulatory Assurance

 

Overseeing the processes by which regulatory and quality risks relating to the Company and its operations are managed

 

Receiving and considering regular functional reports and presentations from the SVP Quality Assurance and Regulatory Assurance (QARA).

The terms of reference of the Ethics & Compliance Committee describe our role and responsibilities more fully and can be found on our website at www.smith-nephew.com

 

 

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Activities of the Ethics & Compliance Committee in 2014 and since the year end

In 2014, we held four physical meetings. Each meeting was attended by all members of the Committee. The Company Secretary, the Chief Legal Officer, the Chief Compliance Officer and the SVP Quality Assurance and Regulatory Assurance also attended by invitation. Our programme of work in 2014 included the following:

February

 

Noted that the SEC and DOJ had confirmed the termination of the independent monitorship in January 2014 and that the Company was now subject to self-reporting. Discussed and noted the requirements of self-reporting

 

Noted the ethics and compliance due diligence and integration work being undertaken in respect of recent transactions in India, Turkey and Brazil and the Biotherapeutics business

 

Noted the preparations being made in capturing data to be filed under the US Sunshine Act and considered the Sunshine legislation in other territories.

April

 

Reviewed the processes in place to ensure oversight over third party sellers

 

Noted the ethics and compliance due diligence and integration work being undertaken in respect of recent transactions in India, Turkey and Brazil and ArthroCare

 

Noted that the first aggregate payment report under the US Sunshine Act had been filed in March 2014 and considered the Sunshine legislation in other territories.

July

 

Noted that the Company’s first self-reporting report would be filed with the SEC and DOJ in July 2014.

October

 

Reviewed the results of 2014 ethics survey

 

Noted the data recently published under the US Sunshine Act in respect of both the Company and its competitors

 

Received a report from the SVP Quality Assurance and Regulatory Assurance on the activities of the QARA function, reviewing the quality and regulatory challenges faced across the Company and initiatives to address them.

At each meeting we noted and considered the activities of enforcement agencies and investigation of possible improprieties. We also reviewed a report on the activities of the Group Ethics & Compliance Committee and reviewed the progress of the Global Compliance Programme.

Since the year end, we have also reviewed the work of the Group Ethics & Compliance Committee meeting held in November 2014, considered the compliance implications of recent acquisitions and continued our oversight of the Quality Assurance and Regulatory Assurance function.

Employee Compliance Programme

New employees are trained on our Code of Conduct, which sets out the basic legal and ethical principles for conducting business. A copy of the Code of Conduct can be found on our website at www.smith-nephew.com

Further support is provided through a comprehensive set of tools and resources located on our global intranet platform. These tools and resources are regularly updated.

The Code of Conduct includes our whistle-blower policy, which enables employees and members of the public to contact us anonymously through an independent provider (where allowed by local law). Individuals can also report any concern to their direct manager or a manager in Compliance, Legal or Human Resources. All calls and contacts are investigated and the appropriate action taken, including reports for senior management or the Board, where warranted. As stated in the Code of Conduct, we also enforce our non-retaliation policy with respect to anyone who makes a report in good faith. The Ethics & Compliance Committee is advised of any potentially significant improprieties from time to time, and the Company’s response.

In 2014, we continued to work to enhance the employee compliance training programme. New employees receive training on our Code of Conduct (‘Code’), and we assign annual compliance training to employees. In 2014, we updated our Code training. The new module is more interactive, role-based and allows individuals to apply the Code in different scenarios.

We also developed and piloted a face-to-face course for new managers, supplementing the on-line manager certification training. In 2015, all new managers will be required to complete both the on-line and the face-to-face course.

 

 

 

    

LOGO

 

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Accountability continued

 

 

 

Compliance Programme for Third Parties

 

We continually review our compliance programme with third party sellers (such as distributors and sales agents), particularly in higher risk markets. This programme includes due diligence, contracts with compliance terms and compliance training. To increase oversight, we have augmented monitoring and auditing programmes in 2014.

 

We expanded our oversight of third party sellers with site assessments to check compliance controls and monitoring visits to review books and records.

 

We have continued to strengthen controls over other third parties engaged by us to provide services other than selling our products, such as customs, registration and travel agents. In 2014, we focused on potentially higher risk third parties. We have established a policy and process requiring that managers prioritise our oversight of third parties and take appropriate steps, including performing a risk assessment, conducting due diligence and assigning training, based on third party type and risk profile.

 

Compliance implications around acquisitions

 

In both 2013 and 2014, there has been increased strategic acquisition activity across the Group. In all cases, we undertake comprehensive due diligence evaluation prior to acquisition and implement compliance integration plans from the point of executing the acquisition. This is to ensure that new businesses are integrated into the Smith & Nephew compliance culture as soon and consistently as possible and that all new employees are immediately made aware of how we do things at Smith & Nephew.

Oversight of Quality Assurance and Regulatory Assurance Function

 

During the course of 2014, it was agreed that primary oversight of the Quality Assurance and Regulatory Assurance Function (QARA) would move from the Audit Committee to the Ethics & Compliance Committee. Product safety is at the heart of our business and regulatory authorities enforce a complex series of laws and regulations that govern the design, development, approval, manufacture, labelling, marketing and sale of healthcare products, including review of the safety and efficacy of such products. Jerry Porreca, SVP Quality Assurance and Regulatory Assurance presented to the Ethics & Compliance Committee in October 2014, explaining the new structure of the QARA function and the current focuses and initiatives being addressed by the function. The QARA function is built on four pillars – quality assurance, regulatory affairs, customer complaints and quality systems and regulatory compliance.

 

Going forward, the Ethics & Compliance Committee will monitor the work of the QARA function on a quarterly basis, approve the QARA annual programme of work, as outlined in their 3-Year QARA Plan, consider any quality or regulatory issues that arise during the year, and approve any appropriate remedial action.

 

Yours sincerely,

 

LOGO

 

Michael A. Friedman

Chairman of the Ethics & Compliance Committee

 

 

 

 

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Audit Committee Report

 

 

LOGO  

 

Dear Shareholder

 

I am pleased to present our Report on the role and activities of the Audit Committee in 2014.

 

Current Members in 2014

      

 

Role of the Audit Committee

 

Our work falls into the following five areas:

 

Financial Reporting

–  Reviewing significant financial reporting judgments and accounting policies and compliance with accounting standards

 

–  Ensuring the integrity of the financial statements and their compliance with UK and US statutory requirements

 

–  Ensuring the Annual Report and Accounts are fair, balanced and understandable and recommending their adoption by the Board

 

 

–  Monitoring announcements relating to the Group’s financial performance.

 

Internal Controls and Risk Management

 

–  Monitoring the effectiveness of internal controls and compliance with the UK Corporate Governance Code 2012 and the Sarbanes Oxley Act, specifically sections 302 and 404

 

–  Reviewing the operation of the Group’s risk management processes and the control environment over financial risks.

 

Fraud and Whistle-blowing

–  Receiving reports on the processes in place to prevent fraud and to enable whistle-blowing

 

–  If required, receiving reports of fraud incidents.

 

Internal Audit

–  Agreeing internal audit plans and reviewing reports of internal audit work

 

–  Monitoring the effectiveness of the internal audit function.

 

External Audit

–  Overseeing the Board’s relationship with the external auditor

 

–  Monitoring and reviewing the independence and performance of the external auditor and evaluating their effectiveness

 

–  Making recommendations to the Board for the appointment or re-appointment of the external auditor.

 

The terms of reference of the Audit Committee describe our role and responsibilities more fully and can be found on our website at www.smith-nephew.com

            
    Ian Barlow   Committee Chairman and designated financial expert       
    Erik Engstrom
(from 1 January 2015)
  Independent Non-executive Director       
    Brian Larcombe   Senior Independent Non-executive Director       
    Joseph Papa   Independent Non-executive Director       
   

 

1  Richard De Schutter left the Committee on 10 April 2014 on his retirement from the Board.

      
   

 

Key activities

 

      
   

–  Undertake independent assessment of the financial affairs of the Company.

      
   

 

–  Oversee system of control and risk management throughout the Group.

      
   

 

–  Undertake detailed work to support the Board’s approval of the financial results.

      
   

 

2015 focus

 

      
 

–  Consideration of how to address the requirement to publish a Viability Statement in the 2015 Annual Report and more detailed risk management reporting.

    
 

 

–  Monitor the roll-out of enhanced consistently applied financial controls across the Group.

 

    

 

 

    

 

LOGO

 

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Accountability continued

 

 

Activities of the Audit Committee in 2014 and since the year end

In 2014, we held five physical meetings and three meetings by telephone. Each meeting was attended by all members of the Committee. The Chief Executive Officer, the Chief Financial Officer, the Head of Internal Audit (following her appointment in May 2014), the external auditor and key members of the finance function, the Company Secretary and Deputy Company Secretary also attended by invitation. We also met regularly with the external auditor without management present. Our programme of work in 2014 was as follows:

 

                  
   

 

   
  Month Activity  
   

 

   
 

Early February

(Approval of Preliminary

Announcement)

Reviewed the results for the full year 2013 and the preliminary announcement and recommend them for adoption by the Board  
  Reviewed the effectiveness of financial controls and of the risk management process and concluded they were operating effectively
  Received the Internal Audit Report and approved the Internal Audit work programme for 2014  
  Received the Quality Assurance Report and approved the Quality Assurance work programme for 2014  
  Received the fraud report and reviewed whistle-blowing procedures  
  Approved external audit fees and the policy for pre-approval of EY non-audit tax fees and noted consulting fees paid to other major audit firms  
 

Late February

(by telephone) (Approval of Financial Statements)

Reviewed and approved the Annual Report and Accounts for 2013, having considered whether they were fair balanced and understandable, and recommended them for adoption by the Board  
  Considered the effectiveness of the external auditor and concluded that their work had been effective  
  Agreed to put the audit out to tender for the financial year 2015  
 

Early April

(Presentations from

prospective audit firms)

Confirmed the detailed plan for the audit tender and appointed the Audit Tender Steering Committee  
  Received a presentation from the three audit firms planning to participate in our audit tender process  
   
 

Late April

(by telephone) (Approval of Q1 results)

Reviewed the results for the first quarter 2014 and approved the Q1 announcement  
   
   
 

Early July

(by telephone)

(Appointment of

new Auditors)

Considered and approved the recommendation of the Audit Tender Steering Committee to appoint KPMG LLP as the Company auditors for the year ending 31 December 2015  
 
   
   
  Late July Reviewed the results for the first half 2014 and approved the H1 announcement  
  (Approval of H1 results) Reviewed the Progress Report from Internal Audit which included an update on the status of the 2014 Internal Audit plan  
  Received the fraud report and reviewed whistle-blowing procedures  
Reviewed and discussed the due diligence process for acquisitions, noting improvements made to this process in the past year  
Reviewed and approved the external Auditor’s Audit Plan for 2014  
  October Reviewed the results for the third quarter 2014 and approved the Q3 announcement  
  (Approval of Q3 Results) Approved the terms of the engagement letter of EY as Auditors for the financial year 2014  
  Reviewed the Progress Report from Internal Audit, the status of the 2014 Internal Audit plan and two internal audit reports.  
  Approved the Group Risk management programme conducted in 2014  
  Considered and discussed the updated UK Corporate Governance Code issued by the Financial Reporting Council  
  Considered and discussed the Financial Reporting Council’s Audit Quality Thematic Review - Fraud risks and laws and regulations.  
  Received the fraud report and reviewed whistle-blowing processes
  Noted the progress of the European IT SAP implementation project  
  Reviewed the inspection reports on EY from the Financial Reporting Council (UK) and the Public Company Accounting Oversight Board (US)  
  Reviewed and discussed the roll-out of the Minimum Acceptable Practices for Finance and other control focussed initiatives  
  December Reviewed and updated the terms of reference of the Audit Committee  
  (Review of Functional Considered and approved critical accounting policies and judgments in advance of the 2014 year end  
Reports) Considered and approved the external audit plan for 2015
Reviewed and approved the layout and design of the Annual Report 2014
Received and discussed a report on the Finance transformation project and reports from the Head of Taxation, the Group Treasurer and the Chief Information Officer on Disaster Recovery and IT risk. These reports focused on the respective controls and risks within each function

During the year, we also approved our Policy on the use of Conflict Minerals by written resolution.

Since the year end, we have also reviewed the Annual Report and Accounts for 2014 and have concluded that taken as a whole, they are fair balanced and understandable and have advised the full Board accordingly. In coming to this conclusion, we have considered the description of the Group’s strategy and key risks, the key elements of the business model, which is set out on page 12, and the key performance indicators and their link to the strategy.

 

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Significant matters related to the financial statements

We considered the following key areas of judgement in relation to the 2014 accounts and at each reporting quarter end, which we discussed in all cases with management and the external auditor:

 

Area of judgement   Our action
Valuation of inventories    
A feature of the orthopaedic business model (whose finished goods inventory makes up 81% of the Group total finished goods inventory) is the high level of product inventory required, some of which is located at customer premises and is available for customers’ immediate use. Complete sets of product, including large and small sizes have to be made available in this way. These sizes are used less frequently than standard sizes and towards the end of the product life cycle are inevitably in excess of requirements. Adjustments to carrying value are therefore required to be made to orthopaedic inventory to anticipate this situation. At each quarter end, we received reports from and discussed with management the level of provisioning and material areas at risk. The provisioning level was 21.5% at 31 December 2014 (26.0% as at 31 December 2013). We concluded that the proposed levels were appropriate.
Liability provisioning    
The recognition of provisions for legal disputes is subject to a significant degree of estimation. Provision is made for loss contingencies when it is considered probable that an adverse outcome will occur and the amount of the loss can be reasonably estimated. In making its estimates, management takes into account the advice of internal and external legal counsel. Provisions are reviewed regularly and amounts updated where necessary to reflect developments in the disputes. The ultimate liability may differ from the amount provided depending on the outcome of court proceedings or settlement negotiations or if new facts come to light. The level of provisioning for contingent and other liabilities is an issue where management and legal judgements are important. As members of the Board, we receive regular updates from the Chief Legal Officer. These updates form the basis for the level of provisioning. These judgements have not moved materially during the year, with some cases having been resolved, and we have determined that the proposed levels at year end of $74 million in 2014 ($86 million in 2013) were appropriate in the circumstances.
Impairment    
In carrying out impairment reviews of goodwill, intangible assets and property, plant and equipment, a number of significant assumptions have to be made when preparing cash flow projections. These include the future rate of market growth, discount rates, the market demand for the products acquired, the future profitability of acquired businesses or products, levels of reimbursement and success in obtaining regulatory approvals. If actual results should differ or changes in expectations arise, impairment charges may be required which would adversely impact operating results. We reviewed management’s reports on the key assumptions with respect to goodwill, acquisition intangible assets and investments in associates – particularly the forecast future cash flows and discount rates used to make these calculations. We have also considered the disclosure surrounding these reviews, and concluded that the review and disclosure were appropriate.
Taxation    
Provisioning for potential current tax liabilities and the level of deferred tax asset recognition in relation to accumulated tax losses are underpinned by a range of judgments about the future statutory profitability of constituent entities of the Group. We annually review our processes and approve the principles for management of tax risks. We review quarterly reports from management evaluating existing risks and tax provisions, concluding that the levels of provisions was appropriate.
Business combinations    
The Group has identified ‘growth through acquisitions’ as one of its Strategic Priorities. During 2014, we acquired ArthroCare Corporation; the determination of the balance sheet fair value acquired is dependent upon understanding the circumstances at acquisition and estimates of the future results of the acquired business and management judgement is a factor in making these determinations.

For completed acquisitions, we received a report from management setting out the significant assets and liabilities acquired, details of the provisional fair value adjustments applied, an analysis of the intangible assets acquired, the assumptions behind the valuation of these acquired intangible assets and the proposed useful economic life of each intangible asset class. For material acquisitions, management engage third party specialists to perform a detailed analysis, summaries of which are included in management reports. We reviewed, discussed and approved these reports.

 

We note that within the External Audit report there is a principal risk associated with the timing of revenue recognition and measurement of related reserves as required by auditing standards. We have considered this and have concluded that we have appropriate procedures and controls in place not to include this as a significant area of judgement.

 

 

    

 

LOGO

 

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Accountability continued

 

 

External Auditor

Independence of External Auditors

The independence of our external auditors is critical for the integrity of the audit. Our Auditor Independence Policy, which ensures that this independence is maintained, is available on the Company’s website. We believe that the implementation of this policy helps ensure that auditor objectivity and independence is safeguarded. The policy governs our approach when we require our external auditor to carry our non-audit services, and all such services are strictly governed by this policy. During 2014, fees paid to Ernst & Young LLP, our external auditor, for non-audit work totalled $1.8 million, representing 35% of total audit fees. Full details are shown in Note 3.2 of the Notes to the Group accounts. During 2014, fees paid to KPMG LLP, who will be appointed as our external auditors at the Annual General Meeting, amounted to $3.9 million. The provision of non-audit services by KPMG will be subject to our Auditor Independence Policy and the level of these services will be monitored closely. It is not expected that the level of non-audit services provided by KPMG will be as high in 2015.

The Auditor Independence Policy also governs the policy regarding audit partner rotation. In 2014, Les Clifford who had been our audit partner for five years was replaced by Michael Rudberg.

Effectiveness of External Auditors

Although EY will cease to be the Company’s external auditors at the Annual General Meeting, we felt that it would still be useful to carry out a review of the effectiveness of the external audit process and the quality of the audit, as the findings could be of use to KPMG, the incoming external auditor. We therefore conducted a review into the effectiveness of the external audit as part of the 2014 year-end process, in line with previous years. We sought the views of key members of the finance management team, considered the feedback from this process and shared it with management, EY and KPMG.

During the year, we also considered the inspection reports from the Audit Oversight Boards in the UK and US and determined that we were satisfied with the audit quality provided by EY.

The Audit Quality Review Team of the Financial Reporting Council in the UK reviewed the 2013 audit EY performed of the Company. We have discussed the results of this inspection with EY and are satisfied that the points raised by the review have been appropriately addressed in the 2014 audit.

Overall therefore, we concluded that EY had carried out their audit for 2014 effectively.

Appointment of External Auditors at Annual General Meeting

Ernst & Young LLP will be retiring as the Company’s external auditor at the Annual General Meeting. The reports of Ernst & Young LLP on the Company’s financial statements for the past two fiscal years did not contain an adverse opinion or a disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope, or accounting principles. In connection with the audits of the Company’s financial statements for each of the two fiscal years ended 2013 and 2014, and in the subsequent interim period to 23 February 2015, there were no disagreements with Ernst & Young LLP on any matters of accounting principles or practices, financial statement disclosure, or auditing scope and procedures which, if not resolved to the satisfaction of Ernst & Young LLP would have caused Ernst & Young LLP to make reference to the matter in their report.

Resolutions will be put to the Annual General Meeting to be held on 9 April 2015 proposing the appointment of KPMG LLP as the Company’s Auditors and authorising the Board to determine their remuneration, on the recommendation of the Audit Committee.

Disclosure of Information to the Auditors

In accordance with Section 418 of the Companies Act 2006, the Directors serving at the time of approving the Directors’ Report confirm that, to the best of their knowledge and belief, there is no relevant audit

information of which the Auditor, Ernst & Young LLP, are unaware and the Directors also confirm that they have taken reasonable steps to be aware of any relevant audit information and, accordingly, to establish that the Auditor is aware of such information.

Audit and Professional Fees paid to the Auditor

Fees for professional services provided by Ernst & Young LLP, the Group’s independent auditor in each of the last two fiscal years, in each of the following categories were:

 

    2014   2013  
    $ million   $ million  
Audit   3   3  
Audit-related fees     –  
Tax   2   3  
Other     –  
Total   5   6  

Internal Audit

Our Internal Audit function reports directly to the Audit Committee and is headed by Jenny Morgan, Senior Vice President Internal Audit, whom we appointed in May 2014. She has subsequently restructured her team to meet the requirements of the evolving nature of our business, particularly in Emerging Markets and new acquisitions.

The internal Audit function carries out work in the following three areas:

 

Financial systems and processes;

 

Systems that ensure compliance with our Code of Conduct, regulation and laws; and

 

Quality management systems in our manufacturing activities.

In all three areas, they act as a third line of defence behind operational management’s front line and the Company’s internal assurance activities within Group Finance Compliance and Quality Assurance. During the year, they completed 26 reviews across the business. The Audit Committee receives a quarterly report of the activities of the Internal Audit function and reviews the results of the Internal Audit reports, looking in detail at any reports with unsatisfactory ratings. We also receive a quarterly report detailing any unremediated and overdue control recommendations and oversee the effective and timely remediation of any recommendations.

Specific activities of the Internal Audit function in 2014 were the review of the design of the post-deal acquisition review process and the calculation of the benefits and costs associated with the Group Optimisation programme. In addition site specific audits were conducted of the China commercial business and the new acquisitions in Turkey and India to ensure that integration efforts were in line with approved plans.

In 2015, we will continue to monitor Internal Audit’s scope of work and operational methods to ensure that it continues to play a full role in providing assurance over the Group’s identification and management of risk and its associated controls.

During 2014, KPMG carried out an external review into the effectiveness of the Internal Audit function. The review made a number of recommendations regarding the role and remit of internal audit, the resourcing of the function and the development of integrated working with other functions to provide a more holisitc approach to risk and assurance across the Group. These recommendations were accepted and are being implemented.

Since this review, the Internal Audit function has been strengthened by the appointment of Jenny Morgan, the new Senior Vice President Internal Audit who has in turn restructured the function as detailed above.

 

 

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Tender of External Audit Services

 

EY and their predecessor firms have been the Company’s auditors since the Company listed in 1937. We have been very satisfied with the effectiveness of the external audit process and the quality of the audit and have undertaken a number of measures to ensure that the external auditor has continued to maintain its independence. However, in common with a number of other companies, as we explained in our Audit Committee Report last year, we recognised in 2014, that it was the right time to put the external audit out to tender.

 

During the early summer of 2014, I led a process to select a new external auditor for the year ending 31 December 2015. I worked with the Group’s procurement function and established a Steering Committee comprising myself, Brian Larcombe, member of the Audit Committee and Senior Independent Director, Julie Brown, the Chief Financial Officer, Susan Swabey, the Company Secretary and Dan Baker, Senior Vice President Group Finance. Given the size, complexity and geographical scope of the business, we invited Deloitte, KPMG and PwC to take part in the tender for carrying out our external audit. In addition, in light of the emerging rules from Europe, we reached mutual agreement with EY that they would not take part in the tender process.

 

    identification, audit approach to risks audit scope. These written tenders also included the proposed audit fee, as we believed that as well as ensuring the quality of the audit, we also needed to have regard to the sensible containment of costs.

 

5. Early July – In the week leading up to the presentation, each audit firm was asked to prepare a response to an audit query, the same query for each firm, to simulate real life working and allow the Steering Committee to assess how well they responded to a request at short notice and how they interacted with the Committee on a technical issue.

 

6. Early July – Each firm was asked to make a presentation to the Steering Committee explaining why we should select them as our external auditors.

 

7. Early July – Following the presentations and further discussions, the Audit Committee met and considered the recommendation of the Steering Committee and agreed to appoint KPMG LLP as our external auditors for the 2015 financial year. A resolution to this effect will be submitted to shareholders for approval at the Annual General Meeting.

 
 

 

Prior to the commencement of the tender process, each firm was invited to make a presentation to the early April Audit Committee meeting on a project on which they had recently been working with the Company. This was to ensure that each firm had sufficient exposure to the Audit Committee prior to the financial tender.

 

We were conscious that the audit tender process is time and resource consuming, both for the firms involved and for the Company, and were therefore determined to have a concise yet thorough process, ensuring equivalent access to management for each firm. We undertook the following process over just six weeks:

 

1. Late May – Issued the request for tender.

Throughout the process, we were mindful of the need to preserve the independence of the external audit. As part of the tender, each firm was required to disclose all existing relationships with the Company and explain their proposals for ensuring that these relationships would not cause any conflict of interest after 1 January 2015. Given that up until 2008, I was Senior Partner in London with KPMG, we were aware that there might be some concerns about my independence. In order to address this, our Chairman Roberto Quarta joined the Steering Committee for the final stage of presentations to ensure impartiality was maintained. We also noted that other senior members of the finance team had recently joined the Company from other tendering firms.

 

 
 

2. Late May – Participating firms attended a joint workshop over a period of two days. This included a group meeting with all firms with a series of presentations from key members of management, explaining their key expectations from the external audit process, as well as a series of individual meetings with management.

 

3. Late May – Each firm was granted access to key senior members of management in a structured programme following the workshop, and then given access to senior managers and finance staff throughout the Group to help them understand the business further.

 

4. End June – Each firm submitted their written tender document covering predetermined areas of focus, including risk

We chose KPMG to be our external auditors as we felt that they had demonstrated that they understood our business and risks well and could work both constructively and in a challenging manner with our management and provide the Audit Committee with the assurances we would need to fulfil our role.

 

The audit of the 2014 Annual Report and Accounts will therefore be the last external audit to be conducted by EY. I should therefore like to record my thanks to EY and their partners and staff for their many years of excellent service to the shareholders of Smith & Nephew. As Chairman of the Audit Committee for the past five years, I have enjoyed working with them and have valued the insights and professionalism they have brought to the Audit Committee meetings.

 

 

Risk Management and Internal Control

On behalf of the Board, we reviewed the system of internal financial control and satisfied ourselves that we are meeting required standards both for the year ended 31 December 2014 and up to the date of approval of this Annual Report. No concerns were raised with us in 2014 about possible improprieties in matters of financial reporting.

In coming to this conclusion:

 

We received regular reports from the Internal Audit and Group Finance functions on their findings from the reviews undertaken throughout the year, both from an internal audit perspective and also with regard to compliance with the Sarbanes-Oxley Act.

 

  We requested and reviewed a report mapping Group level risks and related control assurance.

 

  We requested various reports from management relating to specific risks identified through the risk management process. Our Risk Management Framework is underpinned by Business and Functional Risk Registers that highlight the risks identified and the probability and impact of risk to the Group, as well as mitigation plans. The most significant of these risks are considered by the Group Risk Committee for inclusion on a Group Risk Register. The effectiveness of the framework is reviewed annually by Internal Audit and by the Audit Committee. In 2014, the Audit Committee concluded that the framework was effective.
 

 

 

    

 

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Accountability continued

 

 

Evaluation of Internal Controls

Management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a–15 (f) and 15d–15(f) under the US Securities Exchange Act of 1934.

There is an established system of internal control throughout the Group and our Divisions. The main elements of the internal control framework are:

 

 

The management of each Division is responsible for the establishment and review of effective financial controls within their Division.

 

The Group Finance manual sets out, amongst other things, financial and accounting policies and minimum internal financial control standards.

 

The Internal Audit function agrees an annual work plan and scope of work with the Audit Committee.

 

The Audit Committee reviewed reports from Internal Audit on their findings on internal financial controls.

 

The Audit Committee reviews the Group whistle-blower procedures.

 

The Audit Committee reviews regular reports from the Senior Vice President, Group Finance and the heads of the Financial Controls and Compliance, Taxation and Treasury functions.

 

This system of internal control has been designed to manage rather than eliminate material risks to the achievement of our strategic and business objectives and can provide only reasonable, and not absolute, assurance against material misstatement or loss. Because of inherent limitation, our internal controls over financial reporting may not prevent or detect all misstatements. In addition, our projections of any evaluation of effectiveness in future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. The system of internal control is not applied to the entities in which the Group does not hold a controlling interest. This process complies with the Financial Reporting Council’s ‘Internal Control: Revised Guidance for Directors on the Combined Code’ and additionally contributes to our compliance with the obligations under the Sarbanes-Oxley Act 2002 and other internal assurance activities. Other than the integration of ArthroCare there has been no change in the Group’s internal control over financial reporting during the period covered by this Annual Report that has materially affected, or is reasonably likely to materially affect, the Group’s internal control over financial reporting.

The Board is responsible overall for reviewing and approving the adequacy and effectiveness of the risk management framework and the system of internal controls over financial, operational including quality management and ethical compliance processes operated by the Group. The Board has delegated responsibility for this review to the Audit Committee. The Audit Committee, through the Internal Audit function, reviews the adequacy and effectiveness of internal control procedures and identifies any weaknesses and ensures these are remediated within agreed timelines. The latest review covered the

financial year to 31 December 2014 and included the period up to the approval of this Annual Report.

The main elements of this annual review are as follows:

 

 

The Chief Executive Officer and Chief Financial Officer have evaluated the effectiveness of the design and operation of the Group’s disclosure controls and procedures as at 31 December 2014. Based upon this evaluation, the Chief Executive Officer and Chief Financial Officer concluded on 23 February 2015 that the disclosure controls were effective as at 31 December 2014.

 

Management is responsible for establishing and maintaining adequate internal control over financial reporting. Management assessed the effectiveness of the Group’s internal control over financial reporting as at 31 December 2014 in accordance with the requirements in the US under s404 of the Sarbanes-Oxley Act. In making that assessment, they used the criteria set forth by the Committee of Sponsoring Organisations of the Treadway Commission in Internal Control-Integrated Framework. Based on their assessment, management concluded and reported that, as at 31 December 2014, the Group’s internal control over financial reporting is effective based on those criteria.

 

Having received the report from management, the Audit Committee reports to the Board on the effectiveness of controls.

 

Ernst & Young LLP. An independent registered public accounting firm issued an audit report on the Group’s internal control over financial reporting as at 31 December 2014. This report appears on page 105.

 

Code of Ethics for Senior Financial Officers

We have adopted a Code of Ethics for Senior Financial Officers, which applies to the Chief Executive Officer, the Chief Financial Officer, the Senior Vice President Group Finance and the Group’s senior financial officers. There have been no waivers to any of the Code’s provisions nor have there been any amendments to the Code during 2013 or up until 23 February 2015. A copy of the Code of Ethics for Senior Financial Officers can be found on our website at www.smith-nephew.com.

In addition every individual in the finance function certifies to the Chief Financial Officer that they have complied with the Finance Code of Conduct.

Evaluation of Effectiveness of the Audit Committee

The effectiveness of the Audit Committee was evaluated as part of the review into the effectiveness of the Board conducted at the end of 2014. The results of this review are described on pages 66 to 67 of this Annual Report.

Yours sincerely,

 

LOGO

Ian Barlow

Chairman of the Audit Committee

 

 

80              Smith & Nephew Annual report 2014


Table of Contents

CORPORATE GOVERNANCE

Remuneration report

 

 

Remuneration

 

Dear Shareholder,

The Board focuses on the long-term future of the Company. We are delivering on our strategy to rebalance Smith & Nephew by strengthening our higher growth platforms, which now represent more than half the business, up from just 35% in 2011. In 2014, we undertook a number of important actions to accelerate this transformation:

 

We drove a much improved performance in US Hip and Knee Implants, and maintained our momentum in Sports Medicine Joint Repair and Trauma & Extremities.

 

We strengthened our higher growth platforms, acquiring ArthroCare to give us a broader sports medicine portfolio.

 

We created new growth platforms, the mid-tier portfolio for Emerging markets, and Syncera, as well as delivering double-digit growth from our recent acquisition Advanced Wound Bioactives.

The role of the Remuneration Committee is to design a remuneration strategy that drives performance aligned to the strategic priorities.

Our performance in 2014 reflected the choices we made to continue investing to transform Smith & Nephew and, as a result, the Group enters 2015 stronger, more efficient, and set for higher growth. However, these choices did impact profit and cash performance in 2014 and consequently performance against the financial measures in the Annual Incentive Plan and the resulting payouts under this plan are accordingly lower than in previous years. The Remuneration Committee recognises that the Executive Directors made the right decisions for the long-term future of the Company and for the benefit of shareholders, and performed well against their business objectives.

In devising our remuneration arrangements, we aim to have a clear line of sight between the performance of the Company and how our Directors and senior executives are paid. We do this by setting the fixed elements of pay, notably base salary and benefits, in line with what our Executive Directors would be paid at another company of a comparable size, complexity and geographical spread. For the variable elements of pay, we select performance measures that are linked to one or more of our Strategic Priorities as detailed on page 13 of the Annual Report. These performance measures are summarised on the following page.

Our remuneration arrangements have essentially remained unchanged from last year and we will therefore not be asking shareholders to vote on a new remuneration policy. We have however chosen to replicate the policy you approved last year following the annual report on remuneration for ease of reference.

During the year, Richard De Schutter and Pamela Kirby ceased to be members of the Remuneration Committee on their retirement from the Board. We value the contribution they each made to the work of the Committee during the years they served and thank them both for their work.

We welcome the opportunity we have had during the year to meet with our investors to discuss our remuneration arrangements and we thank the shareholders who met with us for their valuable contributions and insights into the way we think about remuneration. We were delighted to have received the ICSA Excellence in Governance Award for “Best Remuneration Report” in FTSE 100 in 2014.

Yours sincerely,

 

LOGO

Joseph Papa

Chairman of the Remuneration Committee

 

LOGO

 

 

 

    

 

LOGO

 

Smith & Nephew Annual report 2014              81

    

 


Table of Contents

CORPORATE GOVERNANCE

Remuneration report continued

 

 

 

Measure in our Variable Pay Plans

 

  

 

Link to Strategic Priorities

 

 

Financial measures in Annual Incentive Plans

 

 

Revenue, Trading profit, Cash

  

 

We need to generate cash in our Established Markets to be able to invest in Emerging & International Markets, innovation, organic growth and acquisitions in order to continue to grow in the future. Cash flow is therefore important and this in turn is derived from increased revenues and healthy trading profits.

 

 

Business objectives in Annual Incentive Plans

 

 

Business process

  

 

We need to release resources from the businesses through improved structures, efficiencies and business processes in order to re-invest in our higher growth areas, including Emerging & International Markets, innovation, organic growth and acquisitions.

 

 

People

 

  

 

We need to attract and retain the right people to achieve our strategy through improving our operating model.

 

 

Customer

  

 

Our mission is to deliver advanced medical technologies that help healthcare professionals, our customers, improve the quality of life of their patients.

 

 

Performance measures in our Performance Share Plan

 

 

Free Cash flow

  

 

Cash flow from our Established Markets is necessary in order to fund growth in Emerging & International Markets, innovation, organic growth and acquisitions.

 

 

Revenue in Emerging &
International markets

 

  

 

Our long-term strategy depends on our ability to grow in Emerging & International Markets.

 

TSR

  

 

If we execute our strategy successfully, this will lead to an increased return for our shareholders.

 

 

 

   

 

Compliance statement

 

We have prepared this Directors’ remuneration report (the ‘Report’) in accordance with The Enterprise and Regulatory Reform Act 2012-2013 (clauses 81-84) and The Large and Medium-Sized Companies and Groups (Accounts and Reports) (Amendment) Regulations 2013 (the ‘Regulations’). The Report also meets the relevant requirements of the Financial Conduct Authority (‘FCA’) Listing Rules.

 

   
   

The first part of the Report (pages 83 to 93) is the annual report on remuneration (the ‘Implementation Report’). The Implementation Report will be put to shareholders for approval as an advisory vote at the Annual General Meeting on 9 April 2015. The Implementation Report explains how the remuneration policy was implemented during 2014 and also how it is currently being implemented in 2015. Pages 85, and 88 to 90 have been audited by Ernst & Young LLP.

 

   
       
  The second part of the Report (pages 94 to 102) is the Directors’ Remuneration Policy Report (the ‘Policy Report’) which was approved by shareholders at the Annual General Meeting held in 2014. The Policy Report describes our remuneration policy as it relates to the Directors of the Company. All payments we make to any Director of the Company will be in accordance with this remuneration policy. We intend that this remuneration policy will remain in place unchanged for at least the next two years and will next be put to shareholder vote at the Annual General Meeting to be held in 2017. We will bring the policy report back to shareholders earlier in the event that we make any material change to the remuneration policy or shareholders do not approve the annual report on remuneration. The level of base salary and benefits paid and performance measures shown in the Policy Report are as at 2014, when the Policy Report was approved by shareholders. Full details of any changes to these details since then, in accordance with the Policy Report are given in the Implementation Report.  
   

 

 

 

82               Smith & Nephew Annual report 2014


Table of Contents

 

 

 

The Implementation Report

 

    

 

Remuneration Committee

 

LOGO

    

Role of the Remuneration Committee

 

Our work falls into the following three areas:

 

Determination of Remuneration Policy and Packages

 

 

 

–  Determination of remuneration policy for Executive Directors and senior executives

 

 

 

–  Approval of individual remuneration packages for Executive Directors and Executive Officers at least annually and any major changes to individual packages throughout the year

 

 

–  Consideration of remuneration policies and practices across the Group

 

 

 

–  Approval of appropriate performance measures for short-term and long-term incentive plans for Executive Directors and senior executives

 

 

 

–  Determination of pay-outs under short-term and long-term incentive plans for Executive Directors and senior executives.

 

Oversight of all Company Share Plans

 

 

 

–  Determination of the use of long-term incentive plans and oversees the use of shares in all executive and all-employee plans.

 

Reporting and Engagement with shareholders on

Remuneration Matters

 

 

 

–  Approval of Directors’ remuneration report ensuring compliance with related governance provisions

 

 

 

–  Continuance of constructive engagement on remuneration issues with shareholders.

 

The terms of reference of the Remuneration Committee describe our role and responsibilities more fully and can be found on our website at www.smith-nephew.com

    

 

The Remuneration Committee presents the annual report on remuneration, (the ‘Implementation Report’), which together with the annual statement from the Chairman of the Remuneration Committee will be put to shareholders as an advisory vote at the Annual General Meeting to be held on 9 April 2015.

    
    

 

Current Members in 2014

 

    
    

Joseph Papa

 

    

Committee Chairman

 

        
    

Virginia Bottomley

 

    

Independent Non-executive Director

 

        
    

Brian Larcombe

 

    

Senior Independent Non-executive Director

 

        
    

Roberto Quarta (from 10 April 2014)

 

    

Chairman of the Board

 

        
    

1. Richard De Schutter left the Committee on 10 April 2014 on his retirement from the Board.

    
    

2. Pamela Kirby left the Committee on 31 July 2014 on her retirement from the Board.

    
    

3. Vinita Bali will join the Committee on 1 April 2015.

    
    

 

Key activities

    
    

 

–  Setting the remuneration policy and packages for Executive Directors and Executive Officers.

    
    

–  Approval of all share plans operating throughout the Group.

 

2015 focus

 

    
    

–  Determination of payouts under cash incentive and long-term incentive plans vesting in 2015.

    
    

–  Determine targets to apply to cash incentive and share plan awards in 2015.

    
    

–  Review the overall structure of our remuneration policies to ensure they still support our business strategy.

    

 

 

    

 

LOGO

 

Smith & Nephew Annual report 2014              83

    

 


Table of Contents

CORPORATE GOVERNANCE

Remuneration report continued

 

 

Activities of the Remuneration Committee in 2014 and since the year end

In 2014, we held four physical meetings and determined four matters by written resolution. Each meeting was attended by all members of the Committee. The Chief Executive Officer, the Chief Human Resources Officer and the Senior Vice President, Global Reward, key members of the finance function and the Company Secretary also attended all or part of some of the meetings, except when their own remuneration was being discussed. We also met with the independent Remuneration Consultants, Towers Watson without management present. Our programme of work in 2014 was as follows:

 

                  
   

 

   
    Month   Activity    
   

 

   
  Early February –  

Noted the financial results for 2013 against the targets under the short-term and long-term incentive plans

 
   

(Approval of salaries,

awards and payouts in 2014)

     Agreed the targets for the short-term and long-term incentive plans for 2014, approving the third performance measure for the Performance Share Plan  
         Approved the quantum of cash payments to Executive Directors and Executive Officers under the Annual Incentive Plan and awards under the Equity Incentive Programme and the Performance Share Programme    
         Approved the vesting of options and share awards granted in 2011 and reviewed the performance of long-term awards granted in 2012 and 2013    
         Reviewed benchmark data increases to salaries across the Group and approved salary increases for Executive Directors and Executive Officers with effect from 1 April 2014    
         Approved the text of the Remuneration report    
     

 

  

Reviewed and approved the business plan for the Remuneration Committee for 2014.

 

   
   

 

Late February

 

 

  

 

Approved the final targets for the short-term and long-term incentive plans for 2014

   
   

(by telephone)

(Final approval of

Remuneration report)

 

     Approved the final text of the Remuneration report.    
   

 

Late July

(Mid-year Review of

Remuneration

Arrangements)

 

 

  

 

Reviewed the shareholder response and support for the Remuneration Policy and Report at the Annual General Meeting

   
         Reviewed adherence to shareholding guidelines by Executive Directors, Executive Officers and Senior Executives  
         Monitored dilution limits and the number of shares available for use in respect of executive and all-employee share plans    
         Approved the schedule of share awards made since the previous meeting    
         Approved minor changes to the rules of various share plans in line with local legislative changes    
        

Reviewed the performance of long-term awards granted in 2012, 2013 and 2014.

 

   
   

 

December

(Review of

Remuneration Strategy)      

 

 

  

 

Received a report from the Chairman of the Remuneration Committee on recent engagement with shareholders

   
         Approved the Remuneration Strategy for 2015    
        

Considered the first draft of the Remuneration report for 2014

   
         Reviewed and considered the principles for determining payouts under the short-term and long-term plans due to vest in 2015    
         Approved the schedule of share awards made since the previous meeting.    
   

 

Four written resolutions were approved during the year relating to the approval of two leaver and two recruitment arrangements for Executive Officers.

 

Since the year end, we have also reviewed the financial results for 2014 against the targets under the short-term and long-term incentive arrangements jointly with the Audit Committee, and have agreed the targets for the short-term and long-term incentive plans for 2015. We have also approved increases to the salaries of Executive Directors and Executive Officers and determined cash payments under the Annual Incentive Plan, awards under the Equity Incentive Programme and the Performance Share Programme, and the vesting of awards under the Performance Share Programme granted in 2012. Finally, we approved the wording of this Directors’ remuneration report.

 

During the year, the Remuneration Committee received information and advice from Towers Watson, an independent executive remuneration consultancy firm appointed by the Remuneration Committee in 2011 following a full tender process. They provided advice on market trends and remuneration issues in general, attended Remuneration Committee meetings, assisted in the review of the Directors’ remuneration report and in determining the third performance measure for the Performance Share Programme. The fees paid to Towers Watson for Remuneration Committee advice during 2014, charged on a time and expense basis was £39,745 in total. Towers Watson also provided other human resources and compensation advice to the Company for the level below the Board. Towers Watson comply with the Code of Conduct in relation to Executive Remuneration Consulting in the United Kingdom and the Remuneration Committee is satisfied that their advice is objective and independent.

   

 

 

 

 

 

84              Smith & Nephew Annual report 2014


Table of Contents

 

 

Single total figure on remuneration – Executive Directors

 

                         
   

 

   
               Annual              Other items in the nature          
         

Fixed pay

  

variable pay

  

Hybrid

  

Long-term variable pay

  

of remuneration

         
               Payment        Annual    Annual              All-               
               in lieu   Taxable    Incentive    Incentive    Performance    Share    Employee    One-Off          
    Director    Base salary    of pension   benefits    Plan – cash    Plan – equity    Share Plan    Option Plan    Share Plans    Awards    Total    
   

 

   
 

Olivier Bohuon

 
 

Appointed 1 April 2011

 
   

 

   
 

2014

$1,464,515 $439,354 $286,341 $952,318 $811,006 $2,641,455 $6,594,989  
   

 

   
 

2013

$1,425,559 $427,668 $112,637 $1,793,584 $933,410 0 0 $4,692,858  
   

 

   
 

Julie Brown

 
 

Appointed 4 February 2013

 
   

 

   
 

2014

$840,487 $252,146 $38,494 $470,373 $465,437 $2,066,938  
   

 

   
 

2013

$708,450 $212,536 $22,510 $858,978 $390,800 $5,684 $838,266 $3,037,224  
   

 

   

These figures have been calculated as follows:

Base salary: the actual salary receivable for the year.

Payment in lieu of pension: the value of the salary supplement paid by the Company in lieu of a pension.

Benefits: the gross value of all taxable benefits (or benefits that would be taxable in the UK) received in the year. Prior years are restated to reflect amounts not known at the date of signing the previous annual report.

Annual Incentive Plan – cash: the value of the cash incentive payable for performance in respect of the relevant financial year.

Annual Incentive Plan – equity: the value of the equity element awarded in respect of performance in the relevant financial year, but subject to an ongoing performance test as described on pages 87 and 88 of this report.

Performance Share Plan: the value of shares vesting that were subject to performance over the three-year period ending on 31 December in the relevant financial year, based on an estimated share price of 1,053 pence per share, which was the average price of a share over the last quarter of 2014.

Share Option Plan: the embedded gain of options vesting that were subject to performance over the three-year period ending on 31 December in the relevant financial year.

All-Employee Share Plans: the gain on the date of grant for SAYE awards (these are only subject to an employment condition and therefore the total value is captured in the year of grant), reflecting the 20% discount at which options are granted in the relevant financial year.

One-off awards: the total face value of shares awarded to Julie Brown on appointment in 2013 as described on page 89 of this report (these awards are only subject to an employment condition and therefore the total value is captured in the year of award).

Total: the sum of the above elements.

The amounts for 2014 have been converted into US$ for ease of comparability using the exchange rates of £ to US$1.6464 and to US$1.3263, and for the prior years using exchange rates disclosed in previous years’ accounts.

 

Base salary

With effect from 1 April in each year, Executive Directors were paid the following base salaries:

 

                 
   

 

     
         2013     2014       
   

 

     
  Olivier Bohuon   1,081,500      €1,111,782     
   

 

     
  Julie Brown   £500,000      £514,000     
   

 

     

In February 2015, we reviewed the base salaries of the Executive Directors, having considered general economic conditions and average salary increases across the rest of the Group, which have averaged at 3%. The Remuneration Committee has therefore agreed that the Executive Directors’ base salaries will increase by 3% with effect from 1 April 2015 to the following:

 

 

 
Olivier Bohuon   1,145,135   
Julie Brown   £529,420   

 

 

Payment in lieu of pension

In 2014, both Olivier Bohuon and Julie Brown received a salary supplement of 30% of their basic salary to apply towards their retirement savings, in lieu of membership of one of the Company’s pension schemes. The same arrangement will apply in 2015.

Benefits

In 2014, both Olivier Bohuon and Julie Brown received death in service cover of seven times basic salary, of which four times salary is payable as a lump sum with the balance used to provide for any spouse and dependent persons. They also received health cover for themselves and their families, a car allowance and financial consultancy advice. Oliver Bohuon also received assistance with travel costs between London and Paris. The same arrangements will apply in 2015. The following table summarises the value of benefits on an element-by-element basis in respect of 2013 and 2014.

 

             
   

 

   
        

Olivier Bohuon

 

Julie Brown

    
      2013   2014   2013   2014    
   

 

   
 

Health Cover

£12,088 £20,642 £1,130 £1,144  
   

 

   
  Car and fuel allowance 18,050 18,751 £13,270 £14,640  
   

 

   
 

Financial

£4,893 £24,053  
  consultancy advice  (ii) 19,816 101,926 £0 £7,597  
   

 

   
 

Travel costs

£19,407 £28,537 £0 £0  
   

 

   
 

Subscriptions

£3,504  (i) £3,473 £0 £0  
   

 

   

 

(i) Previous years are restated to reflect amounts not known at the date of signing of the previous Annual Report.
(ii) The level of financial consultancy advice fees for Olivier Bohuon in 2014 reflects that he is a French national working in a global role of a company headquartered in the UK.
 

 

 

    

LOGO

 

Smith & Nephew Annual report 2014              85

    

 


Table of Contents

CORPORATE GOVERNANCE

Remuneration report continued

 

 

Annual Incentive Plan

During 2014, the Annual Incentive Plan for Executive Directors was based on the achievement of specific financial and business objectives as follows:

 

                               
    Financial objectives                   70%       
    Revenue 30%              
    Trading profit 30%              
    Trading cash 10%              
    Business objectives                   30%       
   

Re-investment and

Group Optimisation

      
 
Olivier Bohuon
5%
  
  
      
 
Julie Brown
10%
  
  
   
             Olivier Bohuon           Julie Brown       
    Business              
    People                          
 

Customer

       25%           20%     

The Board have considered whether it would be in the best interests of the Company and its shareholders to disclose the precise targets agreed for each of the performance measures in 2014. The targets for each year are set within the context of the Group’s five-year plan, which is updated at least annually. If we were to disclose the precise targets for one year of the plan, this would give information to our competitors about our long-term plans, which they could use to compete against us, for example by re-timing the launch of new products or extension into new growth areas. This could be detrimental to our commercial performance both in 2015 and going forward. The Board has concluded that even though the actual results for 2014 are known and published, it would be commercially sensitive to disclose what the precise targets determined at the beginning of 2014 were. At present, the Board would not be in a position to declare these targets at a later date, but will keep this under review.

In early 2015, the Remuneration Committee conducted an assessment of the Executive Directors against their 2014 financial and business objectives. In doing so the Remuneration Committee focused on the need to balance short-term growth whilst building the platform to deliver sustainable strong performance and greater shareholder value over the medium-term.

In summary, the performance of the Executive Directors against the targets set for 2014 was as follows:

 

      

 

Below

threshold

  

  

    
 
 
Between
target and
threshold
  
  
  
    
 
 
 
Between
target
and
maximum
  
  
  
  
    
 
Above
maximum
  
  

Revenue (30%)

              X                     

Trading profit (30%)

     X                              

Trading cash (10%)

     X                              

Business

objectives (30%)

           

Olivier Bohuon

                       X            

Business

objectives (30%)

           

Julie Brown

                       X            

Multiplier (+/- 10%)

    
 
 
The Remuneration Committee agreed not to apply
the multiplier to the annual incentive assessment in
respect of 2014.
  
  
  

Olivier Bohuon

  

Multiplier (+/- 10%)

  

Julie Brown

  

Financial Objectives

Over the period, revenue was $4,617 million, trading profit was $1,055 million and trading cash flow $781 million. When set against the financial objectives for 2014, revenue performance was between target

and threshold, while trading profit and trading cash performance was below threshold.

The Committee believes, whilst some of the underperformance on trading profit and cash is attributable to the RENASYS hold in the US, the financial outturn partly reflects the impact of important strategic decisions to invest more in the business during 2014 to deliver longer-term, sustainable value. Decisions to invest in R&D, Emerging & International Markets, the sales force, particularly in wound, and new, disruptive business models in 2014 all impacted profitability for the year, but strengthened the platform for future growth. Trading cash flow was impacted as we made significant investment in instrument sets to support growth rebuilt our wound safety stock following flooding in our Hull, UK factory and increased the holdings of Advanced Wound Bioactives products to meet anticipated demand.

Business Objectives

Under Olivier’s strong leadership, and consistent with the strategic plan he initiated in 2011, the Group made significant progress in 2014.

Olivier is delivering on his strategy to rebalance Smith & Nephew by strengthening our higher growth platforms, which currently represent more than half the business, up from just 35% three years ago. Advanced Wound Bioactives delivered strong double-digit growth, Sports Medicine Joint Repair performed well, Trauma & Extremities made good progress, and the Emerging & International Markets business increased underlying revenue by 17%. He also oversaw a successful turnaround in US Orthopeadic Reconstruction and addressed issues in Europe and AWM where we faced headwinds.

In addition to maintaining an increased level of investment in R&D and supporting new products, he introduced new, disruptive commercial models in orthopaedic reconstruction and the Emerging & International Markets to position Smith & Nephew to fulfil the unmet needs of customers.

Finally, he continues to deliver on our strategic priority to supplement organic growth through acquisition. He led the acquisition of ArthroCare Corporation for $1.7 billion, Smith & Nephew’s largest deal to date. This has strengthened our Sports Medicine business and we will use our global presence to drive substantial new growth. He also oversaw the integration of our recent Emerging & International Markets acquisitions.

The Remuneration Committee has therefore determined that Olivier performed between target and maximum in 2014 with regard to his business objectives.

Under Julie’s stewardship we continued our disciplined approach to finance, applying our cash allocation framework, managing trading cash effectively to support investments and initiating a major Group optimisation programme. Led by Julie, this will realise at least $120 million of annual savings. This is progressing as planned, with early results including rationalising our global property portfolio and making major savings through better procurement processes. She led a successful private placement and has overseen an improvement in our corporate tax rate with further progress expected.

She is leading a finance transformation project, establishing new transactional systems across Europe and new Business Information tools, which is improving visibility and consistency of financial information in the business.

The Remuneration Committee has therefore determined that Julie performed between target and maximum in 2014 with regard to her business objectives.

It is not appropriate to disclose the precise personal targets set as a number of the measurements continue to apply into 2015 and would be commercially sensitive if known by our competitors. At present, the Board would not be in a position to declare these targets at a later date, but will keep this under review. The Remuneration Committee did highlight a number of their achievements as follows:

 

 

86              Smith & Nephew Annual report 2014


Table of Contents

 

 

Commentary on 2014 performance

 

Reinvestment and Group Optimisation    

Olivier Bohuon

Increased business agility and efficiency, he has delivered annualised savings of $146 million for reinvestment in higher-growth platforms, including Emerging & International Markets. Ensured higher investment levels maintained in R&D and strong pipeline of new products including expanding JOURNEY II knee system and new Sports Medicine and Trauma & Extremities systems. Initiated Group optimisation programme to achieve further savings, including optimising locations.

 

 

Julie Brown

Leading implementation of new Group optimisation programme to achieve $120 million of annual savings, with programme on plan at year-end. Oversaw tax improvement with 220bps reduction in full-year effective rate achieved since the end of 2012 and further progress expected.

Business objectives    

Olivier Bohuon

Completed $1.7 billion acquisition of ArthroCare Corporation, strengthening our Sports Medicine business with technology and products and strategy to drive substantial new growth through our global platform. Implemented leaner corporate structure, including one managing director across markets outside of the US, to enable better focus on the customer.

 

 

Julie Brown

Maintained rigorous oversight of investment performance across recent acquisitions including Advanced Wound Bioactives business acquired at the end of 2012, which delivered 15% growth in 2014 and Emerging & International Markets acquisitions in Brazil, Turkey and India, and the acquisition of ArthroCare.

People    

Olivier Bohuon

Employee engagement surveys demonstrated significant improvements in Strategic Direction, Empowerment, Cross-business Coordination and Customer Focus across the Group. Achieved first Great Place to Work accreditation.

 

 

Julie Brown

Delivered structural and cultural transformation programme across finance function, and improved quality of management information to support decision making across the Group.

Customer    

Olivier Bohuon

Delivered new business models to meet the unmet needs of the customer including Syncera, a new commercial solution for Orthopaedic Reconstruction, and a mid-tier organisation for the Emerging & International Markets. These challenge the status quo, widening access to market and giving customers new economic options as they seek to improve the quality of life for their patients. Set the tone from the top and ensured strong ethics and compliance performance across the Group.

 

 

Julie Brown

Represented the Group with investors and financial analysts, gaining strongly positive feedback. Hosted CFO roundtable events in New York City, and presented at investor and other high-profile conferences. Introduced new financial disciplines with the development of group-wide Minimum Acceptable Practices. Refinanced the Company through US Private Placement, term loans and revolving credit facility.

The Remuneration Committee also considered whether to apply the multiplier to the annual incentive assessment of Olivier Bohuon and Julie Brown and agreed that no multiplier was appropriate in respect of 2014.

In summary, as a result of the performance described above, the Remuneration Committee determined that the following awards be made under the Annual Incentive Plan in respect of performance in 2014:

 

 

Executive Director

  Cash Component     Equity Component  
    

 

  % of salary

    Amount       % of salary     Amount  

Olivier Bohuon

    65        718,026        55        611,480   

Julie Brown

    56        £285,698        55        £282,700   

As a result of the 2014 performance assessment for both Olivier Bohuon and Julie Brown, the first tranche of the Equity Incentive Award made in 2014, the second tranche of the Equity Incentive Award made in 2013 and the third tranche of the Equity Incentive Award made in 2012 (to Olivier Bohuon only) will vest.

Annual Incentive Plan 2015

The Remuneration Committee has also reviewed the Annual Incentive Plan arrangements for 2015 and has determined that the following performance measures and weightings will apply to the financial and business objectives in 2015:

 

Financial objectives

    70%   

Revenue 30%

 

Trading profit 30%

 

Trading cash 10%

 

Business objectives

    30%   

Business process

 

People

 

Customer

       

The Board has determined that the disclosure of performance targets at this time is commercially sensitive. As explained on page 96, these targets are determined within the context of a five-year plan and the disclosure of these targets could give information to our competitors about details of our strategy which would enable them to compete more effectively with us to the detriment of our performance. At present, the Board would not be in a position to declare these targets at a later date, but will keep this under review.

For the financial performance measures, ‘Target’ is set at target performance as approved by the Board in the Budget for 2015. ‘Threshold’ and ‘Maximum’ are set at +/–3% from the target for revenue and trading profit measures and at +/–10% for the cash flow measure.

Details of awards made under the Equity incentive Programme

Details of conditional awards over shares, granted as part of the Annual Equity Incentive Programme to Executive Directors under the rules of the Global Share Plan 2010 in 2014 are shown below. The performance conditions and performance periods applying to these awards are detailed above.

 

Date granted     

Number of shares

under award

  Date vesting

Olivier Bohuon

          
       1/3 on 7 March 2015
       1/3 on 7 March 2016

7 March 2014

     61,683 ordinary shares   1/3 on 7 March 2017

Julie Brown

          
       1/3 on 7 March 2015
       1/3 on 7 March 2016

7 March 2014

     26,497 ordinary shares   1/3 on 7 March 2017
 

 

 

    

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Remuneration report continued

 

 

The precise awards granted in 2015 in respect of service in 2014 will be announced when the awards are made and will be disclosed in the 2015 Annual Report.

Performance Share Programme – grants

Performance share awards in 2014 were made to Executive Directors under the Global Share Plan 2010 to a maximum value of 190% of salary (95% for target performance). Performance will be measured over the three financial years beginning in 2014 and will vest subject to performance and continued employment in 2017. 50% of the award will vest subject to free cash flow performance, 25% to revenue in Emerging & International Markets and 25% to TSR.

Free cash flow is defined as net cash inflow from operating activities, less capital expenditure. Free cash flow is the most appropriate measure of cash flow performance because it relates to cash generated to finance additional investments in business opportunities, debt repayments and distribution to shareholders. This measure includes significant elements of operational financial performance and helps to align Executive Director awards with shareholder value creation.

The 50% of the award that will be subject to free cash flow performance will vest as follows:

 

Cumulative free cash flow   Award vesting as % of salary

Below $1.64bn

  Nil

$1.64bn

  23.75%

$1.88bn

  47.5%

$2.12bn or more

  95%

Awards will vest on a straight-line basis between these points.

Revenue in Emerging & International Markets is defined as cumulative revenue over a three-year period opening 1 January 2014 from our Emerging & International Markets. The 25% of the award that will be subject to revenue in Emerging & International Market performance will vest as follows:

 

             
   

Revenue in Emerging &

International Markets

  Award vesting as % of salary    
    Below Threshold   Nil    
    Threshold   11.875%    
    Target   23.75%    
    Maximum or above   47.5%    

It is not possible to disclose precise targets for revenue growth in Emerging & International Markets as this will give commercially sensitive information to our competitors concerning our growth plans in Emerging & International Markets, which they could use against us to launch new products and enter new markets. This would be detrimental to our business in Emerging & International Markets, which are key to our success overall. ‘Target’ is set at target cumulative revenues from Emerging & International Markets in the corporate plan approved by the Board for the three years commencing 1 January 2014. ‘Threshold’ and ‘Maximum’ are set at +/– 15% from target. At present, the Board would not be in a position to declare these targets at a later date, but will keep this under review.

25% of the award will vest based on the Company’s Total shareholder Return (TSR) performance relative to a bespoke peer group of companies in the medical devices sector over a three-year period commencing 1 January 2014 as follows:

 

Relative TSR ranking   Award vesting as % of salary

Below median

  Nil

Median

  11.875%

Upper quartile

  47.5%

Awards will vest on a straight-line basis between these points. If the Company’s TSR performance is below median, none of this part of the award will vest.

The bespoke peer group for the 2014 awards comprises of the following companies: Baxter, Becton Dickinson, Boston Scientific, CR Bard, Coloplast, Conmed, Covidien, Edwards life Sciences, Medtronic, Nobel Biocare, Nuvasive, Orthofix, Stryker, St Jude Medical, Wright Medical and Zimmer.

The Group’s TSR performance and its performance relative to the comparator group is independently monitored and reported to the remuneration Committee by Towers Watson. TSR is calculated in common currency using a three-month averaging period at the start and end of the performance period. The Company has established protocols for dealing with companies that cease to be listed or merger and acquisition activity within the peer group.

Performance Share Programme 2015

Performance share awards will be made in 2015 to Executive Directors under the Global Share Plan 2010 to a maximum value of 190% of salary (95% for target performance). Performance will be measured over the three financial years commencing 1 January 2015 and will vest subject to performance and continued employment in 2018. Vesting will be subject to the same three performance measures as applies to the awards made in 2014 using the same definitions and same comparator group. 50% of the award will vest subject to free cash flow performance, 25% to revenue in Emerging & International Markets and 25% to TSR.

The 50% of the award that will be subject to free cash flow performance will vest as follows:

 

Cumulative free cash flow   Award vesting as % of salary

Below $1.58bn

  Nil

$1.58bn

  23.75%

$1.81bn

  47.5%

$2.05bn or more

  95%

The free cash flow performance measure target for 2015 is lower than the same target in 2014, primarily due to exchange rate movement, as well as the continued impact of the RENASYS hold in the US and restructuring charges associated with the Group Optimisation Plan, both of which were not factored in when setting the prior year target.

Vesting of Awards made in 2012

Since the end of the year, the Remuneration Committee has reviewed the vesting of conditional awards made to Executive Directors under the Global Share Plan 2010 in 2012. Vesting of the conditional awards made in 2012 was subject to performance conditions based on TSR and cumulative free cash flow measured over a three-year period commencing 1 January 2012.

50% of the award was based on the Company’s TSR performance relative to a bespoke peer group of companies in the medical devices sector. Over the three-year period ending 31 December 2014, the Company was ranked 7th out of 17 companies in the comparator group. This part of the award therefore vested at 58.5%.

50% of the award was based on free cash-flow performance. Over the same three-year period, the adjusted cumulative cash free cash-flow was $1.642 billion. These adjustments include items such as Board approved M&A including the acquisition of Healthpoint and ArthroCare but do not include items such as the proceeds of the sale of the Gilberdyke business or the repayment of the Bioventus loan which are excluded from free cash. This part of the award therefore vested at 55.5%.

Overall therefore, the conditional awards made in 2012 will vest at 57% on 8 March 2015 as follows:

 

Director    Date of grant    Number of shares
under award
   Number vesting       

Olivier Bohuon

   8 March 2012    267,304    152,363       
 

 

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Summary of scheme interests awarded during the financial year

 

 

    Olivier Bohuon    Julie Brown
 

 

  

 

Basis on which award is made   Number of shares   Face value    Number of shares    Face value

 

Annual Equity Incentive Award (see page 86)        
  61,683 702,975 26,497 £250,000
Performance Share Award (see page 88)        
190% base salary at maximum 180,304 2,054,850 100,688 £950,000
95% base salary at target 90,152 1,027,425 50,344 £475,000

Please see Policy Table on pages 96 to 97 for details of how the above plans operate. The number of shares is calculated using the closing share price on the day before the grant, which for the awards granted on 7 March 2014 was 943.5 pence.

Details of awards made under the Performance Share Programme

Details of conditional awards over shares granted to Executive Directors subject to performance conditions are shown below. These awards were granted under the Global Share Plan 2010. The performance conditions and performance periods applying to these awards are detailed on pages 96 to 97.

 

 

  Date granted   Number of ordinary shares under award            Date of vesting

 

Olivier Bohuon 8 March 2012 (i) 267,304         8 March 2015
 

 

7 March 2013 240,928         7 March 2016
 

 

7 March 2014 180,304         7 March 2017

 

Julie Brown 7 March 2013 132,866         7 March 2016

 

7 March 2014 100,688         7 March 2017

 

(i) On 3 February 2015, 43% of the award granted to Olivier Bohuon lapsed following completion of the performance period.

Details of option grants under the All-Employee ShareSave Plan

Details of options held by Executive Directors under the Smith & Nephew ShareSave Plan (2012) are shown below.

 

 

Director       Date granted  

Number of shares

under option

  Date of vesting   Exercise period   Option price

 

1 November 2018 to
Julie Brown     17 September 2013 2,400 ordinary shares 1 November 2018 30 April 2019 £6.25

Details of one-off awards

Details of the award granted to Julie Brown on joining the Company to compensate her for shares forfeited on leaving her former company are shown below. This award was made under Listing Rule 9. There are no performance conditions attaching to these shares other than continued service.

 

 

Director   Date granted   Number of shares under award   Date of vesting

 

Julie Brown 7 March 2013 25,000 ordinary shares 4 February 2016

Single total figure on remuneration – Chairman and Non-executive Directors

 

                     
   

 

   
    Director   Basic annual fee (i)  

  Senior Independent Director/

Committee fee

  Intercontinental travel fee   Total    
   

 

   
  2013 2014 2013 2014 2013 2014 2013 2014  
   

 

   
  Roberto Quarta (ii) £4,846 £334,673 N/A N/A £0 £7,000 £4,846 £341,673  
   

 

   
  Vinita Bali (iii) N/A £5,250 N/A N/A N/A £3,500 N/A £8,750  
   

 

   
  Ian Barlow £66,150 £66,150 £15,000 £15,000 £7,000 £7,000 £88,150 £88,150  
   

 

   
  Virginia Bottomley £66,150 £66,150 N/A N/A £7,000 £7,000 £73,150 £73,150  
   

 

   
  Sir John Buchanan (iv) £420,000 £112,307 N/A N/A N/A N/A £420,000 £112,307  
   

 

   
  Michael Friedman $126,000 $126,000 N/A $11,250 $28,000 $35,000 $154,000 $172,250  
   

 

   
  Pamela Kirby (v) £66,150 £36,750 £15,000 £8,750 £7,000 N/A £88,150 £45,500  
   

 

   
  Brian Larcombe £66,150 £66,150 N/A £10,865 £7,000 £7,000 £73,150 £84,015  
   

 

   
  Joseph Papa $126,000 $126,000 $27,000 $27,000 $28,000 $35,000 $181,000 $188,000  
   

 

   
Ajay Piramal (vi) £66,150 £10,500 N/A N/A £10,500 N/A £76,650 £10,500
 

 

 
Richard De Schutter (vii) $126,000 $33,692 $27,000 $7,580 $35,000 $14,000 $188,000 $55,273
 

 

 

 

(i) The basic annual fee includes shares purchased for the Chairman and Non-executive Directors in lieu of part of the annual fee, details of which can be found on the table on page 101.
(ii) Appointed to the Board on 4 December 2013 and as Chairman of the Company on 10 April 2014.  (iii) Appointed to the Board on 1 December 2014.  (iv) Retired from the Board on 10 April 2014.
(v) Retired from the Board on 31 July 2014  (vi) Retired from the Board on 24 March 2014  (vii) Retired from the Board on 10 April 2014  (vi) Erik Engstrom is not included in the table because he joined the Board on 1 January 2015.

 

 

    

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CORPORATE GOVERNANCE

Remuneration report continued

 

 

Chief Executive Officer’s remuneration compared to employees generally

The percentage change in the remuneration of the Chief Executive Officer between 2013 and 2014 compared to that of employees generally is as follows:

 

                                          
             Base salary           Benefits           Annual cash bonus       
             % change 2014           % change 2014           % change 2014       
    Chief Executive Officer        3.0           154.0           -46.9       
    Average for all employees        3.0           N/A                 

 

(i) The average cost of wages and salaries for employees generally increased by 1.57% in 2014 (see Notes 2.4 and 3.1 of the Notes to the Group accounts.) Figures for annual cash bonuses are included in the numbers.

Payments made to past Directors

No payments were made to former directors in the year.

Payments for loss of office

No payments were made in respect of a Director’s loss of office in 2014.

Outside Directorships

Olivier Bohuon is a Non-executive Director of Virbac SA and received 21,000 in respect of this appointment in 2014.

Directors’ interests in ordinary shares

Beneficial interests of the Executive Directors in the ordinary shares of the Company are as follows:

 

                  Olivier Bohuon                                  Julie Brown                    
    

 

 

      

 

 

 
         1 January 2014           31 December 2014           23 February 2015 (i)          1 January 2014           31 December 2014           23 February 2015 (i)  

Ordinary shares

       111,238           210,974           210,974 (iii)          0           25,000           38,211 (iv)  

Share options

       151,698           0           0           2,400           2,400           2,400 (v)  

Performance share awards (ii)

       735,779           688,536           573,595           132,886           233,554           233,554   

Equity Incentive awards

       143,387           147,114           147,114           0           26,497           26,497   

Other awards

       66,666           0           0           75,000           50,000           25,000   

 

(i) The latest practicable date for this Annual Report.
(ii) These share awards are subject to further performance conditions before they may vest, as detailed on pages 96 to 97.
(iii) The ordinary shares held by Olivier Bohuon on 23 February 2015 represent 304.9% of his base annual salary.
(iv) The ordinary shares held by Julie Brown on 23 February 2015 represent 87.8% of her base annual salary.
(v) This option was granted under the Smith & Nephew ShareSave Plan (2012).

The beneficial interest of each Executive Director is less that 1% of the ordinary share capital of the Company. In addition, Olivier Bohuon holds 50,000 deferred shares. Following the redenomination of ordinary shares into US dollars on 23 January 2006, the Company issued 50,000 deferred shares. These shares are normally held by the Chief Executive Officer and are not listed on any Stock exchange and have extremely limited rights attached to them.

Beneficial interests of the Chairman and Non-executive Directors in the ordinary shares of the Company are as follows:

 

Director       
 
1 January 2014 (or date of
appointment) if later
  
  
      
 
31 December (or date of
retirement if earlier)
  
  
       23 February 2015 (i)          
 
Shareholding as % of
annual  fee (ii)
  
  

Roberto Quarta

       0           15,136           15,136           44.7%   

Vinita Bali

       0           0           0           0%   

Ian Barlow

       18,232           18,403           18,403           328.6%   

Virginia Bottomley

       17,820           18,056           18,056           322.4%   

Sir John Buchanan

       166,337           166,337                       

Erik Engstrom

       N/A           15,000           15,000           267.8%   

Michael Friedman (iii)

       8,624           8,822           8,822           127.7%   

Pamela Kirby

       15,232           15,232                       

Brian Larcombe

       40,212           40,368           40,368           720.7%   

Joseph Papa (iii)

       12,799           12,997           12,997           188.2%   

Ajay Piramal

       240           240                       

Richard De Schutter

       220,299           220,299                       

 

(i) The latest practicable date for this Annual Report.
(ii) Calculated using the closing share price of 1,181p per ordinary share and $36.49 per ADS on 23 February 2015, and an exchange rate of £1/$1.5449.
(iii) Michael Friedman and Joseph Papa hold some of their shares in the form of ADS.

The beneficial interest of each Non-executive Director is less that 1% of the ordinary share capital of the Company.

 

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Relative importance of spend on pay

The following table sets out the total amounts spent in 2014 and 2013 on remuneration, the attributable profit for each year and the dividends declared and paid in each year.

 

     For the year to 31 December 2014   For the year to 31 December 2013   % change

Attributable profit for the year

 

$501m

 

$556m

 

-9.89%

Dividends paid during the year

 

$250m

 

$239m

 

4.60%

Share buyback (i)

 

$75m

 

$226m

 

-66.81%

Total Group spend on remuneration

 

$1,237m

 

$998m

 

23.95%

 

(i) Share buy-back programme ceased during 2014 following the acquisition of ArthroCare. Shares are bought in the market in respect of shares issued as part of the executive and employee share plans.
  See note 19.2 on page 154 for further information.

Total Shareholder Return

A graph of the Company’s TSR performance compared to that of the FTSE 100 index is shown below in accordance with Schedule 8 to the Regulations.

Six Year Total Shareholder Return

(measured in UK sterling, based on monthly spot values)

 

LOGO

However, as we compare the Company’s performance to a tailored sector peer group of medical devices companies (see page 88, when considering TSR performance in the context of the Global Share Plan 2010, we feel that the following graph showing the TSR performance of this peer group is also of interest.

Six Year Total Shareholder Return

(measured in US dollars, based on monthly spot values)

 

LOGO

 

 

    

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CORPORATE GOVERNANCE

Remuneration report continued

 

 

Table of historic data

The following table details information about the pay of the Chief Executive Officer in the previous five years:

 

Long-term incentive vesting

rates against maximum opportunity

  

  

Year     Chief Executive Officer       
 
Single figure of
            total remuneration
  
  
   
 
 
Annual Cash Incentive
payout against maximum
%
  
  
  
     Performance shares %                     Options %   
2014     Olivier Bohuon        $6,594,989        65         57         N/A   
2013     Olivier Bohuon        $4,692,858 (iv)       84         N/A         N/A   
2012     Olivier Bohuon        $4,956,771        84         N/A         N/A   
2011     Olivier Bohuon (i),(iii)       $7,442,191        68         N/A         N/A   
2011     David Illingworth (ii)       $3,595,787        37         27         27   
2010     David Illingworth        $4,060,707        57         70         61   
2009     David Illingworth        $4,406,485        59         46         59   

 

(i) Appointed Chief Executive Officer on 1 April 2011
(ii) Resigned as Chief Executive Officer on 1 April 2011
(iii) Includes recruitment award of 1,400,000 cash and a share award over 200,000 ordinary shares with a value of 1,410,000 on grant
(iv) Prior years are restated to reflect amounts not known at the date of signing the previous annual report.

Implementation of remuneration policy in 2015

The Remuneration Committee proposes to make no changes to the way that the remuneration policy is implemented in 2015 from how it was implemented in 2014, other than increasing base salaries in line with salary increases across the Group, as explained on page 85 and setting new targets for the Annual Incentive Plan and the Performance Share Programme, as explained on page 88.

 

Statement of voting at Annual General Meeting held in 2014

At the Annual General Meeting held on 10 April 2014, votes cast by proxy and at the meeting and votes with-held in respect of the two votes on the Directors’ Remuneration Policy and the Directors’ remuneration report were as follows:

 

Resolution        Votes for           % for           Votes against           % against        Total votes validly cast           Votes withheld   
Approval of Directors’ Remuneration Policy        586,941,104           93.50%           40,818,512           6.50%        627,759,616           1,990,842   
Approval of Directors’ remuneration report        615,870,158           97.97%           12,774,146           2.03%        628,644,304           1,106,154   

Joseph Papa, Chairman of the Remuneration Committee has met with a number of shareholders in previous years to discuss remuneration matters and met and held calls with the holders of around 28% of the shares in 2013. In 2014, he offered again to meet with shareholders to discuss remuneration matters. Very few shareholders accepted his invitation to meet, acknowledging that shareholders were broadly happy with our remuneration arrangements and had no concerns that they wished to discuss. He did however meet with shareholders holding around 2% of the share capital, who also indicated their broad support for our remuneration arrangements. Joseph Papa is always happy to meet and talk to shareholders who wish to discuss remuneration matters with him.

 

 

 

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Other remuneration matters

Senior Management remuneration

The Group’s administrative, supervisory and management body (the ‘Senior Management’) is comprised for US reporting purposes, of Executive Directors and Executive officers. Details of the current Executive Directors and Executive Officers are given on pages 54 to 59.

Compensation paid to Senior Management in respect of 2014, 2013 and 2012 was as follows:

 

      2012           2013           2014   
Total compensation (excluding pension emoluments, but including cash payments under the performance-related incentive plans)     $15,249,000           $14,186,000           $12,725,000   
Total compensation for loss of office     $0           $0           $2,664,000   
Aggregate increase in accrued pension scheme benefits     $229,000           $257,000           $16,000   
Aggregate amounts provided for under supplementary schemes     $537,000           $414,000           $507,000   

As at 23 February 2015, the Senior Management owned 376,202 shares and 100,855 ADSs, constituting less than 0.1% of the share capital of the Company.

Details of share awards granted during the year and held as at 23 February 2015 by members of Senior Management are as follows:

 

      Share awards granted during the year       
 
                 Total share awards held as at
23 February 2015
  
  
Equity Incentive awards     209,623        400,695   
Performance Share awards     582,474        1,397,597   
Conditional share awards under the Global Share Plan 2010     11,596        87,830   
Options under Employee ShareSave plans and under the Global Share Plan 2010     2,042        4,442   

Dilution headroom

The Remuneration Committee ensures that at all times the number of new shares which may be issued under any share-based plans, including all-employee plans, does not exceed 10% of the Company’s issued share capital over any rolling ten-year period (of which up to 5% may be issued to satisfy awards under the Company’s discretionary plans). The Company monitors headroom closely when granting awards over shares taking into account the number of options or shares that might be expected to lapse or be forfeited before vesting or exercise. In the event that insufficient new shares are available, there are processes in place to purchase shares in the market to satisfy vesting awards and to net-settle option exercises.

Over the previous 10 years (2005 to 2014), the number of new shares issued under our share plans has been as follows:

 

 

All-employee share plans   7,991,875 (0.89% of issued share capital as at 23 February 2015)
Discretionary share plans   37,853,815 (4.23% of issued share capital as at 23 February 2015)

 

By order of the Board, on 25 February 2015

 

LOGO

Joseph Papa

Chairman of the Remuneration Committee

 

 

    

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CORPORATE GOVERNANCE

Remuneration report continued

 

 

The Policy Report

The Remuneration Committee presents the Directors’ remuneration policy report, which was approved by shareholders at the Annual General Meeting held on 10 April 2014.

Future policy table

Executive Directors

The following table and accompanying notes explain the different elements of remuneration we pay to our Executive Directors:

All figures in this policy table are as at 2014 when the Policy Report was approved by shareholders

 

 

How the component supports the short-  

and long-term strategy of the Company

 

  How the component operates

Base salary and benefits

 

   

Base salary

 

   

 

We are a FTSE 50 listed company, operating in over 100 countries around the world. Our strategy to generate cash from Established Markets in order to invest for growth in Emerging Markets means that we are competing for international talent and our base salaries therefore need to reflect what our Executive Directors would receive if they were to work in another international company of a similar size, complexity and geographical scope.

 

 

Salaries are normally reviewed annually, with any increase applying from 1 April.

 

Salary levels and increases take account of:

 

 

–   market movements within a peer group of similarly sized UK listed companies;

 

 

–   scope and responsibility of the position;

 

 

–   skill/experience and performance of the individual Director;

 

 

–   general economic conditions in the relevant geographic market; and

 

 

–   average increases awarded across the Company, with particular regard to increases in the market in which the Executive is based.

 

 

Payment in lieu of pension

 

   

 

In order to attract and retain Executive Directors with the capability of driving our corporate strategy, we need to provide market-competitive retirement benefits similar to the benefits they would receive if they were to work for one of our competitors.

 

 

 

Current Executive Directors receive an allowance in lieu of membership of a Company-run pension scheme.

 

Base salary is the only component of remuneration that is pensionable.

At the same time, we seek to avoid exposing the Company to defined benefit pension risks, and where possible will make payments in lieu of providing a pension.

 

 

 

Benefits

 

   

In order to attract and retain Executive Directors with the capability of driving our corporate strategy, we need to provide a range of market-competitive benefits similar to the benefits they would receive if they were to work for one of our competitors.

 

It is important that our Executive Directors are free to focus on the Company’s business without being diverted by concerns about medical provision, risk benefit cover or, if required, relocation issues.

 

A wide range of benefits may be provided depending on the benefits provided for comparable roles in the location in which the Executive Director is based. These benefits will include, as a minimum, healthcare cover, life assurance, long-term disability, annual medical examinations, company car or car allowance. The Committee retains the discretion to provide additional benefits where necessary or relevant in the context of the Executive’s location.

 

Where applicable, relocation costs may be provided in line with Company’s relocation policy for employees, which may include removal costs, assistance with accommodation, living expenses for self and family and financial consultancy advice. In some cases such payments may be grossed up.

 

 

All-employee arrangements

 

   

 

All-employee share plans

 

   

 

To enable Executive Directors to participate in all-employee share plans on the same basis as other employees.

 

 

ShareSave Plans are operated in the UK and 27 other countries internationally. In the US, an Employee Stock Purchase Plan is operated. These plans enable employees to save on a regular basis and then buy shares in the Company. Executive Directors are able to participate in such plans on a similar basis to other employees, depending on where they are located.

 

 

 

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Maximum levels of payment

 

 

 

Framework in which performance is assessed

 

   

    

 

   
 

    

 

 
   

The base salary of the Executive Directors with effect from 1 April 2014 will be as follows:

 

Olivier Bohuon 1,111,782

 

Julie Brown £514,000

 

The factors noted in the previous column will be taken into consideration when making increases to base salary and when appointing a new Director.

 

In normal circumstances, base salary increases for Executive Directors will relate to the geographic market and peer group. In addition, the average increases for employees across the Group will be taken into account. The Remuneration Committee retains the right to approve higher increases when there is a substantial change in the scope of the Executive Director’s role. A full explanation will be provided in the Implementation Report should higher increases be approved in exceptional cases.

 

  Performance in the prior year is one of the factors taken into account and poor performance is likely to lead to a zero salary increase.
   

    

 

   
 

 

Up to 30% of base salary.

 

 

The level of payment in lieu of a pension paid to Executive Directors is not dependent on performance.

 

 

   

    

 

   
 

The policy is framed by the nature of the benefits that the Remuneration Committee is willing to provide to Executive Directors. The maximum amount payable will depend on the cost of providing such benefits to an employee in the location at which the Executive Director is based. shareholders should note that the cost of providing comparable benefits in different jurisdictions may vary widely.

 

As an indication, the cost of such benefits provided in 2013 was as follows:

 

Olivier Bohuon 80,705

 

Julie Brown £14,400

 

The maximum amount payable in benefits to an Executive Director, in normal circumstances, will not be significantly more than amounts paid in 2013 (or equivalent in local currency). The Remuneration Committee retains the right to pay more than this should the cost of providing the same underlying benefits increase or in the event of a relocation. A full explanation will be provided in the Implementation Report should the cost of benefits provided be significantly higher.

 

  The level and cost of benefits provided to Executive Directors is not dependent on performance but on the package of benefits provided to comparable roles within the relevant location.
   

    

 

   
   

    

 

   
   

 

Executive Directors may currently invest up to £250 per month in the UK ShareSave Plan. The Remuneration Committee may exercise its discretion to increase this amount up to the maximum permitted by the HM Revenue & Customs. Similar limits will apply in different locations.

 

 

 

The potential gains from all-employee plans are not based on performance but are linked to growth in the share price.

 

 

    

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CORPORATE GOVERNANCE

Directors’ remuneration report continued

 

 

Future policy table

Executive Directors continued

 

 

How the component supports the short-

and long-term strategy of the Company

 

 

How the component operates

 

 

Annual incentives

 

   

 

Annual Incentive Plan – Cash Incentive

 

   

To motivate and reward the achievement of specific annual financial and business objectives related to the Company’s strategy and sustained through a clawback mechanism explained more fully in the notes.

 

The objectives which determine the payment of the annual cash incentive and the level of the annual equity award are linked closely to the Group strategy.

 

The financial measures of revenue, trading profit and cash flow underlie our strategy for growth and the need to generate cash to fund future growth.

 

The business objectives are also linked to the Group strategy. These change from year to year to reflect the evolving strategy, but will typically be linked to the Strategic Priorities set out in this Annual Report. The Implementation Report each year will explain how each objective is linked to a specific strategic priority.

 

For example, a Reinvestment objective links to the priority of improving the efficiency of the business model and investment in higher growth segments and geographies and Processes and People objectives link to developing the right organisation.

 

 

The Annual Incentive Plan comprises a cash and an equity component, both based on the achievement of financial and business objectives set at the start of the year.

 

The cash component is paid in full after the end of the performance year.

 

At the end of the year, the Remuneration Committee determines the extent to which performance against these has been achieved and sets the award level.

 

Annual Incentive Plan – Equity Incentive

 

   
To drive share ownership and encourage sustained high standards through the application of a ‘malus’ provision over three years, explained more fully in the notes.  

The equity award component comprises conditional share awards (made at the time of the cash award), with vesting phased over the following three years.

 

The equity component vests  1 3 ,  1 3 ,  1 3 on successive award anniversaries, only if performance remains satisfactory over each of these three years; otherwise the award will lapse.

 

Participants will receive an additional number of shares equivalent to the amount of dividend payable per vested share during the relevant performance period.

 

 

Long-term incentives (awards actively being made)

 

   

 

Performance Share Programme

 

   

To motivate and reward longer term performance linked to the long-term strategy and share price of the Company.

 

The performance measures which determine the level of vesting of the Performance Share Awards are linked to our corporate strategy.

 

Our strategy requires the generation of cash in order to invest for growth. Cash flow is therefore a key performance measure in our performance share plan.

 

Growth in our Emerging & International Markets is a key part of our strategy. Revenue in our Emerging & International Markets is therefore included as one of our performance share plan measures.

 

If our strategy succeeds, the total return to our shareholders will also increase and therefore we include a relative TSR measure in our long-term share plan.

 

 

 

The Performance Share Programme comprises conditional share awards which vest after three years, subject to the achievement of stretching performance targets linked to the Company’s strategy.

 

Awards may be subject to clawback in the event of material financial misstatement or misconduct.

 

Participants will receive an additional number of shares equivalent to the amount of dividend payable per vested share during the relevant performance period.

 

One-off share awards

 

   

In order to implement our Group strategy, we recognise that it is not always possible to promote from within the Company. In the event that we recruit an Executive Director who is currently employed by another company, we recognise that we might be required to compensate that Executive Director for cash or share awards, they may forfeit on leaving their former employer. Our policy regarding such awards is detailed in the notes.

 

  One-off share awards may be made under the provisions of Listing Rule 9.4.2 to facilitate the appointment of a new Executive Director. Such awards will be made on a case-by-case basis depending on the circumstances at the time to take account of amounts forfeited elsewhere on accepting appointment.

 

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Maximum levels of payment

     

 

Framework in which performance is assessed

   

    

 

           
   

    

 

           
 

 

The total maximum payable under the Annual Incentive Plan is 215% of base salary (150% Cash Incentive and 65% Equity Incentive).

 

50% salary awarded for threshold performance.

 

100% salary awarded for target performance.

 

150% salary awarded for maximum performance.

 

Performance assessed against individual objectives and Group financial targets.

   

 

The cash and share awards are subject to malus and clawback as detailed in the notes following this table.

 

70% of the cash component is based on financial performance measures, which currently include revenue, trading profit and trading cash. The Remuneration Committee retains the discretion to adopt any financial performance measure that is relevant to the Company.

 

30% of the cash component is based on other business goals linked to the Company’s strategy, which could include financial and non-financial measures.

 

The Remuneration Committee has the discretion to apply a multiplier, adjusting the outcome up or down by 10% to reward or penalise conduct in respect of leadership, corporate reputation, ethics, organisational behaviours and representing the Company both internally and externally.

 

The maximum opportunity shown to the left cannot be exceeded through the application of the multiplier.

 

   

    

 

           
 

 

0% of salary awarded for performance below target.

 

50% of salary awarded for target performance.

 

65% of salary awarded for maximum performance.

 

Performance assessed against individual performance which includes an element of Group financial targets.

   

 

The Remuneration Committee will use their judgement of the individual’s performance in determining the level of equity award that may be awarded within the range of 50% to 65% of salary.

 

The equity component will vest in three equal tranches over a three-year period, provided that the annual performance conditions set at the beginning of each year continue to be met.

 

   

    

 

           
   

    

 

           
 

 

Annual awards:

   

Currently:

 

 

 

47.5% of salary for threshold performance.

 

95% of salary for target performance.

 

190% of salary for maximum performance.

      50% of the award vests on achievement of a three-year cumulative free cash-flow target
     

 

 

 

25% of the award vests subject to three-year Total Shareholder Return (‘TSR’) at median performance relative to industry peers

     

 

 

 

25% of the award vests subject to the achievement of revenue targets in Emerging & International Markets

     

 

 

 

These measures are described in more detail in the notes and the targets and performance against them will be disclosed in the Implementation Report if appropriate

     

 

 

 

The Performance Share Award will vest on the third anniversary of the date of grant, depending on the extent to which the performance conditions are met over the three-year period commencing in the year the award was made

     

 

 

 

The Remuneration Committee retains the discretion to change the measures and their respective weightings to ensure continuing alignment with the Company’s strategy

     

 

 

 

The cash and share awards are subject to malus and clawback as detailed in the notes following this table.

     

 

Awards made prior to 2014 were subject to TSR and cash flow targets.

 

   

    

 

           
   

 

Each award will be determined on a case-by-case basis. In normal circumstances such awards will be no more beneficial than the value of amounts forfeited by the Executive Director on leaving a previous company to join the Board.

     

 

The Remuneration Committee has the discretion to apply performance conditions to one-off awards if appropriate. However, if it is impossible to replicate the vesting conditions applicable to awards granted by other companies, awards may be made without performance conditions.

 

 

 

    

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Remuneration report continued

 

 

Notes to Future policy table – Executive Directors

Changes to remuneration policy

The remuneration policy described in the future policy table – Executive Directors is the same remuneration policy in respect of Executive Directors that has been in force since the beginning of 2012. It is anticipated that this policy will apply at least until the Annual General Meeting in 2017. The only change made has been to introduce a third performance measure to our Performance Share Programme.

Performance measures – Annual Incentive Plan

The performance measures which apply to the Annual Incentive Plan for Executive Directors comprise 70% financial measures and 30% business goals linked to the Company’s strategy, which could include financial and non-financial measures.

The financial measures may differ from year to year to provide continued alignment with the Company strategy. Measures to be used in 2014 are detailed in the Implementation Report. Each year the measures are chosen in order to relate to our Strategic Priorities and in turn to our key performance indicators, which are set out in this Annual report. The performance targets are set by taking into account the strategy of the Company and are designed to be realistic yet stretching.

The business measures will differ from year to year as the evolving corporate strategy means that we will wish to set Executive Directors different business objectives in order to meet the current corporate needs. The business objectives are personal to each Executive Director, and are tailored to reflect their role and responsibilities during the year. These are set at the start of the year and reflect the most important areas of strategic focus for the Company. The Remuneration Committee sets annual measurement criteria (performance targets) that are appropriate to motivate and measure an Executive Director’s performance in any one year. The factors taken into consideration include the three-year strategic plan, prior years’ delivered performance and budgeted performance. In the past, measures have included R&D investment, succession planning, employee engagement, compliance, development of product portfolio, M&A activity and shared services implementation.

Performance measures –

Performance Share Programme

The performance measures which apply to the Performance Share Programme awards made in 2014 relate to cumulative free cash flow, revenue in Emerging & International Markets and Total Shareholder Return. We have chosen three measures which are relevant for the long-term success of the Company.

The free cash flow measure is important for us in a period of growth, when we need to generate cash to fund both organic and inorganic investment.

Revenue in Emerging & International Markets is important for us when we are seeking to generate profitable revenue in new markets and from new products.

The Total Shareholder Return measure, which compares our long-term performance against that of our peers, seeks to align the payout of the Performance Share Programme with the experience of our shareholders. This helps Executive Directors relate to the shareholder experience and ensure that vesting is aligned to the out-performance of our sector.

The Remuneration Committee will keep these performance measures under review and retains the discretion to alter the measures or their respective weightings to ensure continuing alignment to the corporate strategy.

Malus and clawback

The Remuneration Committee may determine that an unvested award or part of an award may not vest (regardless of whether or not the performance conditions have been met) or may determine that any cash bonus, vested shares, or their equivalent value in cash be returned to the Company in the event that any of the following matters is discovered:

 

A material misstatement of the Company’s financial results; or

 

A material error in determining the extent to which any performance condition has been satisfied; or

 

A significant adverse change in the financial performance of the Company, or a significant loss at a general level or at the division or function in which a participant worked; or

 

Inappropriate conduct (for example reputational issues), capability or performance by a participant, or within a team business area or profit centre.

These provisions apply to share awards under the Global Share Plan 2010 and cash amounts under the Annual Cash Incentive Plan.

 

 

 

 

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Illustrations of the application of the remuneration policy

The following charts show the potential split between the different elements of the Executive Directors’ remuneration under three different performance scenarios:

Figures as at salary levels in 2014, when the Policy report was approved by shareholders

Chief Executive Officer

 

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Chief Financial Officer

 

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Total Remuneration by Performance Scenario for 2014 Financial Year

Chief Executive Officer  Chief Financial Officer

 

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Data for the Chief Executive Officer assumes an exchange rate of 1 = £0.8494.

Policy on recruitment arrangements

Our policy on the recruitment of Executive Directors is to pay a fair remuneration package for the role being undertaken and the experience of the Executive Director appointed. In terms of base salary, we will seek to pay a salary comparable, in the opinion of the Committee, to that which would be paid for an equivalent position elsewhere. The Remuneration Committee will determine a base salary in line with the policy and having regard to the parameters set out on in the future policy table. Incoming Executive Directors will be entitled to pension, benefit and incentive arrangements which are the same as provided to existing Executive Directors. On that basis, awards would not exceed 405% of base salary.

We recognise that in the event that we require a new Executive Director to relocate to take up a position with the Company, we will also pay relocation and related costs as described in the future policy table, which is in line with the relocation arrangements we operate across the Group.

We also recognise that in many cases, an external appointee may forfeit sizeable cash bonuses and share awards if they choose to leave their former employer and join us. The Remuneration Committee therefore believes that we need the ability to compensate new hires for incentive awards they give up on joining us. The Committee will use its discretion in setting any such compensation, which will be decided on a case-by-case basis. We will only provide compensation which is no more beneficial than that given up by the new appointee and we will seek evidence from the previous employer to confirm the full details of bonus or share awards being forfeited. As far as possible, we will seek to replicate forfeited share awards using Smith & Nephew incentive plans or through reliance on 9.4.2 in the Listing Rules, whilst at the same time aiming for simplicity.

If we appoint an existing employee as an Executive Director of the Company, pre-exisiting obligations with respect to remuneration, such as pension, benefits and legacy share awards, will be honoured. Should these differ materially from current arrangements, these will be disclosed in the next Implementation Report.

We will supply details via an announcement to the London Stock Exchange of an incoming Executive Director’s remuneration arrangements at the time of their appointment.

Service contracts

We employ Executive Directors on rolling service contracts with notice periods of up to 12 months from the Company and six months from the Executive Director. On termination of the contract, we may require the Executive Director not to work their notice period and pay them an amount equivalent to the base salary and payment in lieu of pension and benefits they would have received if they had been required to work their notice period.

Under the terms of the Executive Director’s service contract, Executive Directors are restricted for a period of 12 months after leaving the employment of the Company from working for a competitor, soliciting orders from customers and offering employment to employees of Smith & Nephew. The Company retains the right to waive these provisions in certain circumstances. In the event that these provisions are waived and the former Executive Director commences employment earlier than at the end of the notice period, no further payments shall be made in respect of the portion of notice period not worked. Directors’ service contracts are available for inspection at the Company’s registered office: 15 Adam Street, London WC2N 6LA.

 

 

 

    

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Remuneration report continued

 

 

Policy on payment for loss of office

Our policy regarding termination payments to departing Executive Directors is to limit severance payments to pre-established contractual arrangements. In the event that the employment of an Executive Director is terminated, any compensation payable will be determined in accordance with the terms of the service contract between the Company and the Executive Director, as well as the rules of any incentive plans.

Under normal circumstances (excluding termination for gross misconduct) all leavers are entitled to receive termination payments in lieu of notice equal to base salary, payment in lieu of pension, and benefits. In some circumstances additional benefits may become payable to cover reimbursement of untaken holiday leave, repatriation and outplacement fees, legal and financial advice.

In addition, we may also in exceptional circumstances exercise our discretion to pay the Executive Director a proportion of the annual cash incentive they would have received had they been required to work their notice period. Any entitlement or discretionary payment may be reduced in line with the Executive Director’s duty to mitigate losses, subject to applying our non-compete clause.

We will supply details via an announcement to the London Stock Exchange of a departing Executive Director’s termination arrangements at the time of departure.

In the case of a change of control which results in the termination of an Executive Director or a material alteration to their responsibilities or duties, within 12 months of the event, the Executive Director would be entitled to receive 12 months’ base salary plus payment in lieu of pension and benefits. In addition, the Remuneration Committee has discretion to pay an Executive Director in these circumstances an annual cash incentive. For Directors appointed prior to 1 November 2012, an automatic annual cash incentive is payable at target.

In the event that an Executive Director leaves for reasons of ill-health, death, redundancy or retirement in agreement with the Company, then the vesting of any outstanding annual cash incentive and equity incentive awards will generally depend on the Remuneration Committee’s assessment of performance to date. Performance share awards will be pro-rated for the time worked during the relevant performance period, and will remain subject to performance over the full performance period.

For all other leavers, the annual cash incentive will generally be forfeited and outstanding equity incentive awards and performance share awards will lapse.

One-off awards granted on appointment will normally lapse on leaving except in cases of death, retirement, redundancy, or ill-health. The Remuneration Committee has discretion to permit such awards to vest in other circumstances and will be subject to satisfactorily meeting performance conditions if applicable.

The Remuneration Committee retains discretion to alter these provisions on a case-by-case basis following a review of circumstances and to ensure fairness for both shareholders and Executive Directors.

We will supply details via an announcement to the London Stock Exchange of an out-going Executive Director’s remuneration arrangements around the time of leaving.

Policy on shareholding requirements

The Remuneration Committee believes that one of the best ways our Executive Directors can have a greater alignment with shareholders is for them to hold a significant number of shares in the Company. Executive Directors are therefore expected to build up a holding of Smith & Nephew shares worth two-times their base salary. In order to reinforce this expectation, we require them to retain 50% of all shares vesting under the Company share plans (after tax) until this holding has been met recognising that differing international tax regimes affect the pace at which an Executive Director may fulfil the shareholding requirement. When calculating whether or not this requirement has been met, we will include ordinary shares or ADRs held by the Executive Director and their immediate family and the intrinsic value of any vested but unexercised options.

Statement of consideration of employment conditions elsewhere in the Company and differences to the Executive Director Policy

All employees across the Group including the Executive Directors are incentivised in a similar manner. Although the salary levels and maximum opportunities under bonus and share plans differ, generally speaking the same targets and performance conditions relating to the Company’s strategy apply throughout the organisation.

Executive Director base salaries will generally increase at a rate in line with the average salary increases awarded across the Company. Given the diverse geographic markets within which the Company operates, the Committee will generally be informed by the average salary increase in both the market local to the Executive and the UK, recognising the Company’s place of listing, and will also consider market data periodically.

A range of different pension arrangements operate across the Group depending on location and/or length of service. Executive Directors and Executive Officers either participate in the legacy pension arrangements relevant to their local market or receive a cash payment of 30% of salary in lieu of a pension. Senior Executives who do not participate in a local Company pension plan receive a cash payment of 20% of salary in lieu of pension. Differing amounts apply for lower levels within the Company.

The Company has established a benefits framework under which the nature of benefits varies by geography. Executive Directors participate in benefit arrangements similar to those applied for employees within the applicable location.

All employees are set objectives at the beginning of each year, which link through to the objectives set for the Executive Directors. Annual cash incentives payable to employees across the Company depend on the satisfactory completion of these objectives as well as performance against relevant Group and divisional financial targets relating to revenue, trading profit and trading cash, similar to the financial targets set for the Executive Directors.

Executive Officers and Senior Executives (72 as at 2014) participate in the annual Equity Incentive Programme and the Performance Share Programme. The maximum amounts payable are lower, but the performance conditions are the same as those that apply to the Executive Directors.

No specific consultation with employees has been undertaken relating to Director remuneration. However, regular employee surveys are conducted across the Group, which cover a wide range of issues relating to local employment conditions and an understanding of Group-wide strategic matters. As at 2014, over 4,500 employees in 32 countries participate in one or more of our global share plans.

 

 

 

 

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Future policy table

Chairman and Non-executive Directors

The following table and accompanying notes explain the different elements of remuneration we pay to our Chairman and Non-executive Directors. No element of their remuneration is subject to performance. All payments made to the Chairman are determined by the Remuneration Committee, whilst payments made to the Non-executive Directors are determined by the Directors who are not themselves Non-executive Directors, currently the Chairman, the Chief Executive Officer and the Chief Financial Officer.

 

 

How the component supports the short-

and long-term strategy of the Company

 

 

How the component operates

 

 

Maximum levels of payment

 

Annual fees        
Basic annual fee        

 

To attract and retain Directors by setting fees at rates comparable to what would be paid in an equivalent position elsewhere.

 

A proportion of the fees are paid in shares in the third quarter of each year in order to align Non-executive Directors’ fees with the interest of shareholders.

 

 

Fees will be reviewed periodically. In future, any increase will be paid in shares until 25% of the total fee is paid in shares.

 

Fees are set in line with market practice for fees paid by similarly sized UK listed companies.

 

Annual fees are set and paid in UK sterling or US dollars depending on the location of the Non-executive Director. If appropriate, fees may be set and paid in alternative currencies.

 

 

Annual fees are currently as follows:

 

£63,000 in cash plus £3,150 in shares; or

 

$120,000 in cash plus $6,000 in shares.

 

Chairman fee:

 

£400,000 plus £20,000 in shares (to April 2014).

 

£300,000 plus £100,000 in shares (from April 2014).

 

Whilst it is not expected to increase the fees paid to the Non-executive Directors and the Chairman by more than the increases paid to employees generally, in exceptional circumstances, higher fees might become payable.

 

The total maximum aggregate fees payable to the Non-executive Directors will not exceed £1.5m as set out in the Company’s articles of association.

 

Fee for Senior Independent Director and Committee Chairmen

 

To compensate Non-executive Directors for the additional time spent as Committee Chairmen or as the Senior Independent Director.

 

 

A fixed fee is paid, which is reviewed periodically.

 

 

£15,000 in cash; or

 

$27,000 in cash.

 

Whilst it is not expected that the fees paid to the Senior Independent Director or Committee Chairman will exceed the increases paid to employees generally, in exceptional circumstances, higher fees might become payable.

 

Intercontinental travel fee

 

To compensate Non-executive Directors for the time spent travelling to attend meetings in another continent.

 

 

A fixed fee is paid, which is reviewed periodically.

 

 

£3,500 in cash; or

 

$7,000 in cash.

 

Whilst it is not expected to increase these fees by more than the increases paid to employees generally, in exceptional circumstances, higher fees might become payable.

 

Figures as at salary levels in 2014, when the Policy report was approved by shareholders

 

 

    

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Remuneration report continued

 

 

Notes to Future policy table – Non-executive Directors

Changes to remuneration policy

The Board has altered the policy regarding the payment of Non-executive Directors and to the Chairman in one respect in 2013, by introducing the payment of a proportion of the fees in the form of shares. The fees paid to the Non-executive Directors and to the Chairman were reviewed in July 2013 and it was agreed that the basic fee should be increased by 5% (there having been no increase to these fees since August 2011) and that the increase be paid in the form of shares. The amount of the increase less applicable taxes was used to purchase shares in the market on 15 August 2013. Going forward any increase in the level of fees paid to a Non-executive Director will be paid in the form of shares until 25% of the Non-executive Director’s fee is paid in the form of shares. We have made this change in order to align the fees paid to Non-executive Directors with the experience of our shareholders. With the appointment of Roberto Quarta as Chairman of the Company with effect from the Annual General Meeting, we have taken the opportunity to pay 25% of his fees in the form of shares immediately.

Policy on recruitment arrangements

Any new Non-executive Director shall be paid in accordance with the current fee levels on appointment, in line with the policy set out above. With respect to the appointment of a new Chairman, fee levels will take into account market rates, the individual’s profile and experience, the time required to undertake the role and general business conditions. In addition, the Remuneration Committee retains the right to authorise the payment of relocation assistance or an accommodation allowance in the event of the appointment of a Chairman not based within the UK.

Letters of appointment

The Chairman and Non-executive Directors have letters of appointment which set out the terms under which they provide their services to the Company and are available for inspection at the Company’s registered office: 15 Adam Street, London WC2N 6LA. The appointment of Non-executive Directors is not subject to a notice period, nor is there any compensation payable on loss of office, for example, should they not be re-elected at an Annual General Meeting. The appointment of the Chairman is subject to a notice period of six months.

The Chairman and Non-executive Directors are required to acquire a shareholding in the Company equivalent in value to one times their basic fee within two years of their appointment to the Board.

Statement of consideration of shareholder views

This policy report sets out the remuneration policy in relation to Executive Directors, which has been in place since 2012. As this policy evolved at the end of 2011 and during 2012, we engaged actively with shareholders to explain our remuneration arrangements and to discuss their views on our proposals. At the time, Joseph Papa, the Chairman of the Remuneration Committee and members of the Senior Executive Team met with the holders of around 30% of our shares, including collectively with a number of smaller engaged investors, as well as shareholder advisory bodies. We discussed the structure of our remuneration package, our policies on termination, recruitment, shareholding requirements and the operation of Annual Incentive Plan. The Directors’ remuneration report was approved by 96% of shareholders who voted at the Annual General Meeting in 2013 and we received feedback from shareholders around the time of this meeting that they understood and approved of our remuneration arrangements. Although the remuneration policy has remained essentially unchanged as in previous years, given the changes in remuneration reporting, we also conducted an engagement programme with our larger shareholders in 2013. Joseph Papa met with the holders of around 20% of our shares, and with a number of shareholder advisory bodies. He has also been available to discuss any aspect of our remuneration programme with shareholders throughout the year. The shareholders who have engaged with us have all been supportive of our approach to remuneration, recognising the link between the corporate strategy and executive reward.

 

 

 

 

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Directors’ responsibilities for the accounts

 

 

 

 

The Directors are responsible for preparing the Group and Company accounts in accordance with applicable UK law and regulations. As a consequence of the Company’s ordinary shares being traded on the New York Stock Exchange (in the form of American Depositary Shares) the Directors are responsible for the preparation and filing of an annual report on Form 20-F with the US Securities and Exchange Commission.

The Directors are required to prepare Group accounts for each financial year, in accordance with the International Financial Reporting Standards (‘IFRS’) as adopted by the European Union which present fairly the financial position of the Group and the financial performance and cash flows of the Group for that period. In preparing those Group accounts, the Directors are required to:

 

select suitable accounting policies in accordance with IAS 8 Accounting Policies, Changes in Accounting Estimates and Errors and then apply them consistently;

 

present information, including accounting policies, in a manner that provides relevant, reliable, comparable and understandable information;

 

provide additional disclosures when compliance with the specific requirements in IFRS is insufficient to enable users to understand the impact of particular transactions, other events and conditions on the Group’s financial position and financial performance; and

 

state that the Group has complied with IFRS, subject to any material departures disclosed and explained in the accounts.

Under UK law the Directors have elected to prepare the Company accounts in accordance with UK Generally Accepted Accounting Practice (UK Accounting Standards and applicable law), which are required by law to give a true and fair view of the state of affairs of the Company and of the profit or loss of the Company for that period. In preparing the Company accounts, the Directors are required to:

 

select suitable accounting policies and then apply them consistently;

 

make judgements and estimates that are reasonable and prudent;

 

state whether applicable UK Accounting Standards have been followed, subject to any material departures disclosed and explained in the accounts; and

 

prepare the accounts on a going concern basis unless it is inappropriate to presume that the Company will continue in business.

The Directors confirm that they have complied with the above requirements in preparing the accounts.

The Directors are responsible for keeping proper accounting records that disclose with reasonable accuracy at any time the financial position of the Group and the Company and enable them to ensure that the accounts comply with the Companies Act 2006 and, in the case of the Group accounts, Article 4 of the IAS Regulation. They are also responsible for safeguarding the assets of the Group and the Company and hence for taking reasonable steps for the prevention and detection of fraud and other irregularities.

The Directors are responsible for the maintenance and integrity of the corporate and financial information included on the Group’s website. It should be noted that information published on the internet is accessible in many countries with different legal requirements. Legislation in the UK governing the preparation and dissemination of accounts may differ from legislation in other jurisdictions.

Fair, Balanced and Understandable

As required by the UK Corporate Governance Code, the Directors confirm that they consider that the Annual Report, taken as a whole, is fair, balanced and understandable and provides the information necessary for shareholders to assess the Company’s performance, business model and strategy. When arriving at this conclusion the Board was assisted by a number of processes including:

The Annual Report is drafted and comprehensively reviewed by appropriate senior management with overall co-ordination by the Head of Financial Reporting;

 

An extensive verification process is undertaken to ensure factual accuracy, with third party review by legal advisers; and

 

The final draft is reviewed by the Audit Committee prior to consideration by the Board.

Directors’ responsibility statement pursuant to disclosure and transparency Rule 4

The Directors confirm that, to the best of each person’s knowledge:

 

the Group accounts in this report, which have been prepared in accordance with IFRS as adopted by the European Union and those parts of the Companies Act 2006 applicable to companies reporting under IFRS, give a true and fair view of the assets, liabilities, financial position and profit of the Group taken as a whole;

 

the Company accounts in this report, which have been prepared in accordance with UK Generally Accepted Accounting Practice and the Companies Act 2006, give a true and fair view of the assets, liabilities, financial position and profit of the Company; and

 

the ‘Financial review and principal risks’ section and commentary on pages 34 to 39 contained in the accounts includes a fair review of the development and performance of the business and the financial position of the Company and the Group taken as a whole, together with a description of the principal risks and uncertainties that they face.

Going concern

The Group’s business activities, together with the factors likely to affect its future development, performance and position are set out in the ‘Financial review and principal risks’ section on pages 34 to 39. The financial position of the Group, its cash flows, liquidity position and borrowing facilities are described under ‘Commentary on the Group cash flow statement’ section set out on page 115.

In addition, the Notes to the Group accounts include the Group’s objectives, policies and processes for managing its capital; its financial risk management objectives; details of its financial instruments and hedging activities; and its exposure to credit risk and liquidity risk.

The Group has considerable financial resources and its customers and suppliers are diversified across different geographic areas. As a consequence, the directors believe that the Group is well placed to manage its business risk successfully despite the on-going uncertain economic outlook.

The directors have a reasonable expectation that the Group has adequate resources to continue in operational existence for the foreseeable future. Thus they continue to adopt the going concern basis for accounting in preparing the annual financial statements.

Management also believes that the Group has sufficient working capital for its present requirements.

Directors’ Report

The Directors’ Report has been prepared in accordance with the requirements of the Companies Act 2006.

By order of the Board, 25 February 2015

 

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Susan Swabey

Company Secretary

 

 

 

    

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FINANCIAL STATEMENTS

Critical accounting policies

 

 

The Group prepares its consolidated financial statements in accordance with IFRS as issued by the IASB and IFRS as adopted by the EU, the application of which often requires judgements to be made by management when formulating the Group’s financial position and results. Under IFRS, the Directors are required to adopt those accounting policies most appropriate to the Group’s circumstances for the purpose of presenting fairly the Group’s financial position, financial performance and cash flows.

In determining and applying accounting policies, judgement is often required in respect of items where the choice of specific policy, accounting estimate or assumption to be followed could materially affect the reported results or net asset position of the Group; it may later be determined that a different choice would have been more appropriate.

The Group’s significant accounting policies are set out in Notes 1 to 23 of the Notes to the Group accounts. Of those, the policies which require the most use of management’s judgement are as follows:

Valuation of inventories

A feature of the Orthopaedic Reconstruction and Trauma & Extremities franchises (whose finished goods inventory makes up approximately 79% of the Group total finished goods inventory) is the high level of product inventory required, some of which is located at customer premises and is available for customers’ immediate use. Complete sets of products, including large and small sizes, have to be made available in this way. These sizes are used less frequently than standard sizes and towards the end of the product life cycle are inevitably in excess of requirements. Adjustments to carrying value are therefore required to be made to orthopaedic inventory to anticipate this situation. These adjustments are calculated in accordance with a formula based on levels of inventory compared with historical usage. This formula is applied on an individual product line basis and is first applied when a product group has been on the market for two years. This method of calculation is considered appropriate based on experience, but it does involve management judgements on customer demand, effectiveness of inventory deployment, length of product lives, phase-out of old products and efficiency of manufacturing planning systems.

Impairment

In carrying out impairment reviews of goodwill, intangible assets and property, plant and equipment, a number of significant assumptions have to be made when preparing cash flow projections. These include the future rate of market growth, discount rates, the market demand for the products acquired, the future profitability of acquired businesses or products, levels of reimbursement and success in obtaining regulatory approvals. If actual results should differ or changes in expectations arise, impairment charges may be required which would adversely impact operating results.

Liability provisioning

The recognition of provisions for legal disputes is subject to a significant degree of estimation. Provision is made for loss contingencies when it is considered probable that an adverse outcome will occur and the amount of the loss can be reasonably estimated. In making its estimates, management takes into account the advice of internal and external legal counsel. Provisions are reviewed regularly and amounts updated where necessary to reflect developments in the disputes. The ultimate liability may differ from the amount provided depending on the outcome of court proceedings and settlement negotiations or if investigations bring to light new facts.

Taxation

The Group operates in numerous tax jurisdictions around the world. Although it is Group policy to submit its tax returns to the relevant tax authorities as promptly as possible, at any given time the Group has unagreed years outstanding and is involved in disputes and tax audits. Significant issues may take several years to resolve. In estimating the probability and amount of any tax charge, management takes into account the views of internal and external advisers and updates the amount of provision whenever necessary. The ultimate tax liability may differ from the amount provided depending on interpretations of tax law, settlement negotiations or changes in legislation.

Business combinations

The group has identified “growth through acquisitions” as one of its Strategic Priorities. During 2014, we acquired ArthroCare Corporation; the determination of the balance sheet fair value acquired is dependent upon the understanding of the circumstances at acquisition and estimates of the future results of the acquired business and management judgement is a factor in making these determinations.

 

 

 

 

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Independent auditor’s US reports

 

Report of Independent Registered Public Accounting Firm to the Board of Directors and shareholders of Smith & Nephew plc

We have audited the accompanying group balance sheets of Smith & Nephew plc as of 31 December 2014 and 2013, and the related group income statements, group statements of comprehensive income, group cash flow statements and group statements of changes in shareholder’s equity for each of the three years in the period ended 31 December 2014. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.

Auditor’s responsibility

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

Opinion

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Smith & Nephew plc at 31 December 2014 and 2013, and the consolidated results of its operations and its cash flows for each of the three years in the period ended 31 December 2014, in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board and International Financial Reporting Standards as adopted by the European Union.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Smith & Nephew plc’s internal control over financial reporting as of 31 December 2014, based on criteria established in Internal Control – Integrated Framework issued by the Committee of Sponsoring Organisations of the Treadway Commission (2013 framework) and our report dated 25 February 2015 expressed an unqualified opinion thereon.

 

Ernst & Young LLP

London, England

25 February 2015

Report of Independent Registered Public Accounting Firm to the Board of Directors and shareholders of Smith & Nephew plc

We have audited Smith & Nephew plc’s internal control over financial reporting as of 31 December 2014, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework), (the COSO criteria). Smith & Nephew plc’s management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying ‘Evaluation of Internal Controls’. Our responsibility is to express an opinion on the company’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, Smith & Nephew plc maintained, in all material respects, effective internal control over financial reporting as of 31 December 2014, based on the COSO criteria.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the group balance sheets of Smith & Nephew plc as of 31 December 2014 and 2013, and the related group income statements, group statements of comprehensive income, group cash flow statements and group statements of changes in equity for each of the three years in the period ended 31 December 2014 of Smith & Nephew plc and our report dated 25 February 2015 expressed an unqualified opinion thereon.

 

Ernst & Young LLP

London, England

25 February 2015

 

 

 

    

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FINANCIAL STATEMENTS

Independent auditor’s UK report

 

 

Independent auditor’s report to the members

of Smith & Nephew plc

Opinion on financial statements

In our opinion:

 

the financial statements give a true and fair view of the state of the group and of the parent company’s affairs as at 31 December 2014;

 

the group financial statements give a true and fair view of the profit for the year ended 31 December 2014;

 

the group financial statements have been properly prepared in accordance with IFRSs as adopted by the European Union and IFRSs as adopted by the International Accounting Standards Board (IASB);

 

the parent company financial statements have been properly prepared in accordance with United Kingdom Generally Accepted Accounting Practice;

 

the group and the parent company financial statements have been prepared in accordance with the requirements of the Companies Act 2006; and

 

the group financial statements have been prepared in accordance with Article 4 of the IAS Regulation.

What we have audited

We have audited the financial statements of Smith & Nephew plc for the year ended 31 December 2014 which comprise:

 

 

Group

 

 

 

Company

 

 

The Group income statement

 

 

 

The Company balance sheet

 

 

The Group statement of comprehensive income

 

 

 

The related notes 1 to 9.

The Group balance sheet

 

   

 

The Group cash flow statement

 

   

 

The Group statement of changes in equity

 

   

 

The related notes 1 to 23.

 

   

As explained in Note 1 to the consolidated financial statements, the group in addition to applying IFRS as adopted by the European Union has also applied IFRS as issued by the International Accounting Standards Board (IASB). The financial reporting framework that has been applied in the preparation of the Company financial statements is the provisions of the Companies Act 2006 and United Kingdom Generally Accepted Accounting Practice.

Overview

 

 
Materiality  

Overall Group materiality of $45 million which represents 5% of adjusted profit before tax

 

 

Audit scope

 

 

We performed an audit of the complete financial information of two components and audit procedures on specific balances for a further ten components.

 

The 12 reporting components where we performed audit procedures accounted for 81% of the group’s total assets, 64% group revenue and 85% of the group’s profit before tax and 86% of the group’s adjusted profit before tax.

 

 

Areas of focus

 

 

Recognition and measurement of provisions for litigation reserves and contingent liabilities

 

Recognition and measurement of provisions for taxation

 

Existence and valuation of inventory

 

Timing of revenue recognition and measurement of related reserves

 

Judgements determining purchase price allocation on acquisitions

 

Our application of materiality

We determined materiality for the group to be $45 million (2013: $45 million), which is calculated as 5% of adjusted profit before tax. We believe that profit before tax, adjusted for the items, as described below, provides us with a consistent year on year basis for determining materiality and is the most relevant performance measure to the stakeholders of the entity. Adjustments are made to profit before tax for acquisition related costs of $118m and restructuring and rationalisation expenses of $61m as highlighted in note 2.2 of the financial statements, as well as acquisition-related finance costs of $7m. This provided a basis for identifying and assessing the risk of material misstatement and determining the nature, timing and extent of further audit procedures.

On the basis of our risk assessments, together with our assessment of the group’s overall control environment and other qualitative considerations, our judgement was that overall performance materiality (i.e. our tolerance for misstatement in an individual account or balance) for the group should be 75% (2013: 75%) of planning materiality, namely $33.75 million (2013: $33.75 million). Our objective in adopting this approach was to reduce to an appropriately low level the probability that the aggregate of total undetected and uncorrected misstatements for the accounts as a whole did not exceed our planning materiality.

Audit work at individual components is undertaken based on a percentage of our total performance materiality. The performance materiality set for each component is based on the relative size of the component and our view of the risk of misstatement at that component. In the current year the range of performance materiality allocated to components was $3.32m to $21.58m.

We agreed with the Audit Committee that we would report to the

Committee all audit differences in excess of $2.25 million (2013: $2.25 million), as well as differences below that threshold that, in our view warranted reporting on qualitative grounds.

We evaluate any uncorrected misstatements against both the quantitative measures of materiality discussed above and in the light of other relevant qualitative considerations.

 

 

This page does not form part of Smith & Nephew’s Annual Report and Form 20-F as filed with the SEC.

 

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Scope of our audit

An audit involves obtaining evidence about the amounts and disclosures in the financial statements sufficient to give reasonable assurance that the financial statements are free from material misstatement, whether caused by fraud or error. This includes an assessment of: whether the accounting policies are appropriate to the group’s circumstances and have been consistently applied and adequately disclosed; the reasonableness of significant accounting estimates made by the directors; and the overall presentation of the financial statements. In addition, we read all the financial and non-financial information in the Annual Report to identify material inconsistencies with the audited financial statements and to identify any information that is apparently materially incorrect based on, or materially inconsistent with, the knowledge acquired by us in the course of performing the audit. If we become aware of any apparent material misstatements or inconsistencies we consider the implications for our report.

Following our assessment of the risk of material misstatement to the group financial statements, we selected 12 components which represent the principal business units within the group’s two reportable segments. Two of these components were subject to a full audit and ten were subject to a partial scope audit where the extent of audit work was based on our assessment of the risks of material misstatement outlined below and the materiality of the location’s business operations relative to the group. The scope of these components may not have included testing of all significant accounts of the location but will have contributed to the coverage of significant accounts tested for the group. Partial scope component testing of significant risks is primarily focused on the inventory and revenue recognition risks as tax, litigation

and purchase price allocation risks are audited centrally. For the remaining components, we performed other procedures to test or assess that there were no significant risks of material misstatement in these components in relation to the group financial statements. The components subject to full audit or partial scope audit procedures make up 81% of the group’s total assets, 64% of the group’s revenue, 85% of the group’s profit before tax and 86% of the group’s adjusted profit before tax, although for countries where a partial scope audit was performed, not all balances that comprise these coverage percentages have been audited.

The group audit team continued to follow a programme of planned visits that has been designed to ensure that the Senior Statutory Auditor or his designate visits each of the locations where the Group audit scope was focused at least once every two years and the most significant of them at least once a year. For all full scope entities, in addition to the location visit, the group audit team participated in the component team’s planning, including the component team’s discussion of fraud and error. The group audit team have also reviewed key working papers and challenged conclusions on significant risk areas, as identified at the scoping stage, primarily inventory and revenue recognition. The group audit team visited nine locations in total over the course of the current year audit.

Our assessment of risks of material misstatement

We consider that the following areas present the greatest risk of material misstatement in the financial statements and consequently have had the greatest impact on our audit strategy, the allocation of resources and the efforts of the engagement team, including the more senior members of the team:

 

 

 

Principal risk area and rationale

 

 

Audit response

 

Recognition and measurement of provisions for litigation reserves and contingent liabilities

 

The development, manufacture and sale of medical devices entails risk of product liability claims and patent infringement issues due to the surgical nature of the products and the competitive nature of the industry.

 

Determining the impact and likely outcome of any litigation matters requires significant judgement due to the uncertainty of the litigation process and the level of royalty that may be payable for infringed products and raises the risk that those legal provisions may be incorrect.

 

 

 

The litigation reserve at 31 December 2014, included in legal and other provisions of $118m in note 17.1 to the financial statements, covers a number of open legal matters as described in detail in note 17.3 to the financial statements. We held discussions with in-house legal counsel to understand the status of litigation cases. We read legal invoices and corresponded directly with external legal advisors to understand the fact patterns of the cases. We reviewed management’s calculations of provisions, including their assessment of potential royalties payable for past sales and challenged and corroborated key assumptions.

 

 

Recognition and measurement of provisions for taxation

 

The tax charge of profits is determined according to complex tax laws and regulations. Where the effect of these tax laws and regulations is unclear, judgements are used in determining the liability for the tax to be paid.

 

As a multinational Company, tax audits can be ongoing in a number of jurisdictions at any point in time and tax returns are subject to possible challenge in most locations in which the Company operates.

 

There can be significant judgement involved in determining the provision for tax liabilities.

 

 

The details of the tax charge are included in note 5.1 to the financial statements.

 

We involved tax specialists in the US and the UK to assist us in assessing and challenging the assumptions and judgements made by the company in their recognition and measurement of provisions for taxation. We tested tax calculations and challenged the company’s transfer pricing arrangements, tax planning activities and status and findings from ongoing tax audits to assess the reasonableness of the provisions recorded. This included an assessment of the likelihood that known uncertain tax positions would result in a tax liability to the company.

 

This page does not form part of Smith & Nephew’s Annual Report and Form 20-F as filed with the SEC.

 

 

    

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FINANCIAL STATEMENTS

Independent auditor’s UK report continued

 

 

 

Principal risk area and rationale

 

  

 

Audit response

 

Existence and valuation of inventory

The Company has high levels of finished goods inventory, as detailed in note 12 to the financial statements, some of which are located at customer premises to be available for immediate use.

 

Complete sets of products, including outsizes, have to be made available in this way, with these sizes used less frequently. Towards the end of a product’s life cycle, these inventory levels are more than is required and therefore excess to requirements.

 

In estimating the appropriate value for inventory, management has to apply judgement on how much of the inventory on hand will ultimately be used, considering the length of product lives predicted, product usage and how quickly products will be phased out.

  

We carried out tests of controls over routine inventory processes, including cycle counts and period end counts.

 

We independently counted or confirmed inventory levels at key component locations and also reviewed the results of management’s testing results for a sample of counts that we did not attend.

 

We challenged management’s judgements and assumptions used in determining the inventory excess and obsolescence provision in order to assess that their calculation represents excess and obsolete inventory. We understood their plans for launching new product lines or discontinuing product lines to assess the adequacy of the provision, as well as reflecting on the adequacy of prior year provisions.

 

We tested management’s calculation to eliminate intercompany profit held in inventory as goods are sold between group companies, including the recalculation and vouching of margins on a sample basis.

 

 

Timing of revenue recognition and measurement of related reserves

 

Revenue recognition is one of the key areas of audit focus, particularly in respect of the risk of management override and the risk of cut-off of revenue for sales to distributors with the need for the risks and rewards of ownership to have passed before revenue is recognised.   

We carried out tests of controls over revenue recognition, including the timing of revenue recognition, as well as substantive testing, analytical procedures and assessing whether the revenue recognition policies adopted complied with IFRS as detailed in note 2.1 to the financial statements.

 

Procedures included independent confirmation with distributors, reviewing shipping terms for items despatched to test that the risk and reward of ownership had passed, cut off testing of items despatched close to the year end date and a review of returns and credit notes issued subsequent to the year end.

 

We also performed detailed trend analysis by period and by major customer to identify unusual fluctuations.

 

 

Judgements determining purchase price allocation on acquisitions

 

On 27 May 2014, the Group acquired ArthroCare Corporation for $1.7bn.

 

The acquisition accounting includes the need to determine the fair value of the acquired assets and liabilities at the acquisition date. This included complex valuation considerations and required the use of specialists.

 

The most significant judgements relate to the valuation of intangible assets acquired, the uplift to the value of inventory and property, plant and equipment and the value of any provisions recorded.

  

We focused on this area given the significant judgements involves in assessing the fair values of assets and liabilities acquired as this directly impacts the amount of goodwill recognised on acquisition. The fair values are based on valuation techniques built, in part, on assumptions around the future performance of the business. We challenged the assumptions underpinning the valuations, assessed the fair value of the identified assets and liabilities, audited the accounting differences upon IFRS conversion and evaluated the adequacy of the disclosures.

 

We also discussed the specialist valuations with the specialists and read their reports, with involvement of our own specialists to conclude on the appropriateness of the valuation.

 

 

 

This page does not form part of Smith & Nephew’s Annual Report and Form 20-F as filed with the SEC.

 

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Opinion on other matter prescribed by

the Companies Act 2006

In our opinion the information given in the Strategic Report and the Directors’ Report for the financial year for which the group financial statements are prepared is consistent with the group financial statements.

Respective responsibilities of directors and auditor

As explained more fully in the Directors’ Responsibilities Statement set out on page 103, the directors are responsible for the preparation of the group financial statements and for being satisfied that they give a true and fair view. Our responsibility is to audit and express an opinion on the group financial statements in accordance with applicable law and International Standards on Auditing (UK and Ireland). Those standards require us to comply with the Auditing Practices Board’s Ethical Standards for Auditors.

This report is made solely to the company’s members, as a body, in accordance with Chapter 3 of Part 16 of the Companies Act 2006. Our audit work has been undertaken so that we might state to the company’s members those matters we are required to state to them in an auditor’s report and for no other purpose. To the fullest extent permitted by law, we do not accept or assume responsibility to anyone other than the company and the company’s members as a body, for our audit work, for this report, or for the opinions we have formed.

Matters on which we are required to report

by exception

We have nothing to report in respect of the following:

Under the ISAs (UK and Ireland), we are required to report to you if, in our opinion, information in the annual report is:

 

materially inconsistent with the information in the audited financial statements; or

 

apparently materially incorrect based on, or materially inconsistent with, our knowledge of the Group acquired in the course of performing our audit; or

 

is otherwise misleading.

In particular, we are required to consider whether we have identified any inconsistencies between our knowledge acquired during the audit and the directors’ statement that they consider the annual report is fair, balanced and understandable and whether the annual report appropriately discloses those matters that we communicated to the audit committee which we consider should have been disclosed.

Under the Companies Act 2006 we are required to report to you if, in our opinion:

 

certain disclosures of directors’ remuneration specified by law are not made; or

 

we have not received all the information and explanations we require for our audit.

Under the Listing Rules we are required to review:

 

the directors’ statement, set out on page 103, in relation to going concern.

 

the part of the Corporate Governance Statement relating to the company’s compliance with the nine provisions of the UK Corporate Governance Code specified for our review.

Michael Rudberg (Senior statutory auditor)

for and on behalf of Ernst & Young LLP, Statutory Auditor

London

25 February 2015

 

 

 

This page does not form part of Smith & Nephew’s Annual Report and Form 20-F as filed with the SEC.

 

 

    

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FINANCIAL STATEMENTS

Group income statement

 

 

         Notes          
 
 
 
Year ended
31 December
2014
$ million
  
  
  
  
      
 
 
 
Year ended
31 December
2013
$ million
  
  
  
  
      
 
 
 
Year ended
31 December
2012
$ million
  
  
  
  

Revenue

       2           4,617           4,351           4,137   

Cost of goods sold

                  (1,162        (1,100        (1,070

Gross profit

            3,455           3,251           3,067   

Selling, general and administrative expenses

       3           (2,471        (2,210        (2,050

Research and development expenses

       3           (235        (231        (171

Operating profit

       2 & 3           749           810           846   

Interest receivable

       4           13           14           11   

Interest payable

       4           (35        (10        (9

Other finance costs

       4           (11        (11        (11

Share of results of associates

       11           (2        (1        4   

Profit on disposal of net assets held for sale

       3                               251   

Profit before taxation

            714           802           1,092   

Taxation

       5           (213        (246        (371

Attributable profit for the year (i)

                  501           556           721   

Earnings per ordinary share (i)

       6                  

Basic

            56.1¢           61.7¢           80.4¢   

Diluted

                  55.7¢           61.4¢           80.0¢   

Group statement of comprehensive income

 

         Notes          
 
 
 
Year ended
31 December
2014
$  million
  
  
  
  
      
 
 
 
Year ended
31 December
2013
$ million
  
  
  
  
      
 
 
 
Year ended
31 December
2012
$ million
  
  
  
  

Attributable profit for the year (i)

            501           556           721   

Other comprehensive income:

                   

Items that will not be reclassified to income statement

                   

Actuarial (losses)/gains on retirement benefit obligations

       18           (94        12           (5

Taxation on other comprehensive income

       5           19           (16        20   

Total items that will not be reclassified to income statement

            (75        (4        15   

Items that may be reclassified subsequently to income statement

                   

Cash flow hedges – interest rate derivatives

                   

    – losses arising in the year

            (5                    

Cash flow hedges – forward foreign exchange contracts

                   

    – gains/(losses) arising in the year

            31           8           (1

    – gains transferred to inventories for the year

            (14        (3        (6

Exchange differences on translation of foreign operations

            (196        (6        36   

Exchange on borrowings classified as net investment hedges

                                      1   

Total items that may be reclassified subsequently to income statement

                  (184        (1        30   

Other comprehensive (expense)/income for the year, net of taxation

                  (259        (5        45   

Total comprehensive income for the year (i)

                  242           551           766   

 

(i) Attributable to equity holders of the Company and wholly derived from continuing operations.

The Notes on pages 117 to 165 are an integral part of these accounts.

 

 

 

110              Smith & Nephew Annual report 2014


Table of Contents

Commentary on the Group income statement and Group statement of comprehensive income

 

 

Revenue

Group revenue increased by $266m (6% on a reported basis), from $4,351m in 2013 to $4,617m in 2014.

The underlying increase is 2%, after adjusting for the 5% impact of the acquisitions of ArthroCare and a Brazilian distributor and 1% attributable to the unfavourable impact of currency movements. Despite flat growth in the Established Markets, growth of 17% in the Emerging & International Markets contributed to this underlying increase of 2%.

Cost of goods sold

Cost of goods sold increased by $62m (6% on a reported basis) from $1,100m in 2013 to $1,162m in 2014. The underlying movement is 5% after adjusting for the net impact of 4% from the ArthroCare acquisition and 3% attributable to the unfavourable impact of currency movements. The movement in underlying costs of goods sold of 5% is largely attributable to the increase in underlying trading.

During 2014, $12m of restructuring and rationalisation expenses (2013 – $12m) and $23m of acquisition related costs (2013 – $5m) were charged to cost of goods sold.

Selling, general and administrative expenses

Selling, general and administrative expenses increased by $261m (12% on a reported basis) from $2,210m in 2013 to $2,471m in 2014. The underlying movement is 5% after adjusting for the net impact of 7% from the ArthroCare acquisition. Currency movements had no impact.

The underlying increase of 5% is due to the promotion of new product and costs associated with the RENASYS distribution hold and HP802 termination and the underlying increase in trading.

In 2014, administrative expenses included $62m of amortisation of other intangible assets (2013 – $64m), $49m of restructuring and rationalisation expenses (2013 – $46m), an amount of $129m relating to amortisation of acquisition intangibles (2013 – $88m) and $95m of acquisition related costs (2013 – $26m).

Research and development expenses

Research and development expenditure as a percentage of revenue remained broadly consistent at 5.1% in 2014 (2013 – 5.3%). Actual expenditure was $235m in 2014 compared to $231m in 2013. The Group continues to invest in innovative technologies and products to differentiate it from competitors.

Operating profit

Operating profit decreased by $61m to $749m from $810m in 2013. This comprised an increase of $6m in Advanced Surgical Devices and a decrease of $67m in Advanced Wound Management.

The movement in Advanced Surgical Devices is attributable to the continuing pressure on margins and its investment in the Emerging & International Markets. Advanced Wound Management has been adversely impacted by the costs assocaited with the RENASYS distribution hold and the impairment and costs associated with the termination of the HP802 programme.

Net interest receivable/(payable)

Net interest payable increased by $26m, from a net $4m receivable in 2013 to a net payable of $22m in 2014. This movement is primarily due to an increase in interest payable as a result of financing the ArthroCare acquisition. Interest receivable also decreased following the repayment by Bioventus LLC of their loan note in October 2014.

Other finance costs

Other finance costs in 2014 remained at $11m and principally relate to costs associated with the Group’s retirement benefit schemes.

Taxation

The taxation charge decreased, by $33m, to $213m from $246m in 2013. The rate of tax was 29.9%, compared with 30.5% in 2013.

After adjusting for specific transactions that management considers affect the Group’s short-term profitability, restructuring and rationalisation expenses, amortisation of acquisition intangibles, acquisition related costs and legal and other items) the tax rate was 27.7% (2013 – 29.2%).

 

The financial commentary on this page forms part of the business review and is unaudited.

See pages 180 to 183 for commentary on the 2013 financial year.

 

 

    

 

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Smith & Nephew Annual report 2014              111

    

 


Table of Contents

FINANCIAL STATEMENTS

Group balance sheet

 

         Notes          

 
 
 

At

31 December
2014
$ million

  

  
  
  

      
 
 
 
At
31 December
2013
$ million
  
  
  
  

Assets

                                

Non-current assets:

              

Property, plant and equipment

       7           891           816   

Goodwill

       8           2,027           1,256   

Intangible assets

       9           1,747           1,054   

Investments

       10           5           2   

Investments in associates

       11           112           107   

Loans to associates

       11                     178   

Retirement benefit asset

       18           7           5   

Deferred tax assets

       5           77           145   
                    4,866           3,563   

Current assets:

              

Inventories

       12           1,181           1,006   

Trade and other receivables

       13           1,166           1,113   

Cash at bank

       15           93           137   
                    2,440           2,256   

Total assets

                  7,306           5,819   
                                  

Equity and liabilities

                                

Equity attributable to owners of the Company:

              

Share capital

       19           184           184   

Share premium

            574           535   

Capital redemption reserve

            11           10   

Treasury shares

       19           (315        (322

Other reserves

            (64        120   

Retained earnings

                  3,650           3,520   

Total equity

                  4,040           4,047   

Non-current liabilities:

              

Long-term borrowings

       15           1,666           347   

Retirement benefit obligations

       18           233           230   

Other payables

       14           44           7   

Provisions

       17           63           65   

Deferred tax liabilities

       5           98           50   
                    2,104           699   

Current liabilities:

              

Bank overdrafts and loans

       15           39           44   

Trade and other payables

       14           838           785   

Provisions

       17           67           60   

Current tax payable

                  218           184   
                    1,162           1,073   

Total liabilities

                  3,266           1,772   

Total equity and liabilities

                  7,306           5,819   

The accounts were approved by the Board and authorised for issue on 25 February 2015 and are signed on its behalf by:

 

Roberto Quarta   Olivier Bohuon   Julie Brown    
Chairman   Chief Executive Officer   Chief Financial Officer    

The Notes on pages 117 to 165 are an integral part of these accounts.

 

 

112              Smith & Nephew Annual report 2014


Table of Contents

Commentary on the Group balance sheet

 

Non-current assets

Non-current assets increased by $1,303m to $4,866m in 2014 from $3,563m in 2013. This is principally attributable to the following:

 

Property, plant and equipment increased by $75m from $816m in 2013 to $891m in 2014. Depreciation of $222m was charged during 2014, assets with a net book value of $15m were disposed of and $14m was impaired relating to HP802. These movements were offset by $298m of additions relating primarily to instruments and other plant & machinery and $62m of additions arising on the acquisitions of ArthroCare. The balance relates to unfavourable currency movements totalling $34m.

 

Goodwill increased by $771m from $1,256m in 2013 to $2,027m in 2014. Of this movement, $829m arose on the acquisition of ArthroCare and $15m on the acquisition in Brazil. The remaining balance relates to unfavourable currency movements totalling $73m.

 

Intangible assets increased by $693m from $1,054m in 2013 to $1,747m in 2014. Intangible assets totalling $817m and $16m arose on the acquisition of ArthroCare and Brazil respectively. Amortisation of $191m was charged during the year and assets with a net book value of $1m were disposed of. A total of $77m relates to the cost of intellectual property, distribution rights and software acquired. The balance relates to unfavourable currency movements totalling $25m.

 

Investment in associates of $112m in 2014 has increased from $107m in 2013. The loan to the associate was fully repaid in the year.

 

Deferred tax assets decreased by $68m in the year from $145m in 2013 to $77m in 2014.

Current assets

Current assets increased by $184m to $2,440m from $2,256m in 2013. The movement relates to the following:

 

Inventories rose by $175m to $1,181m in 2014 from $1,006m in 2013. This movement is principally attributable to the acquisitions of ArthroCare and distributor in Brazil which increased inventory by $70m and $36m relating to the purchase of an advanced quantity of an ingredient to ensure continued supply of REGRANEX.

 

The level of trade and other receivables increased by $53m to $1,166m in 2014 from $1,113m in 2013. The movement primarily relates to the increase in underlying revenues and $54m from the ArthroCare acquisition offset by $75m of unfavourable currency movements.

 

Cash at bank has fallen by $44m to $93m from $137m in 2013.

Non-current liabilities

Non-current liabilities increased by $1,405m from $699m in 2013 to $2,104m in 2014. This movement relates to the following items:

 

Long-term borrowings have increased from $347m in 2013 to $1,666m in 2014 as a result of the $1.1bn private placements and $400m additional long-term facility use to fund the acquisition of ArthroCare.

 

The Retirement benefit obligation increased by $3m to $233m in 2014 from $230m in 2013.

 

Deferred tax liabilities increased by $48m in the year from $50m in 2013 to $98m in 2014.

Current liabilities

Current liabilities increased by $89m from $1,073m in 2013 to $1,162m in 2014. This movement is attributable to:

 

Bank overdrafts and current borrowings have decreased by $5m from $44m in 2013 to $39m in 2014.

 

Trade and other payables have increased by $53m to $838m in 2014 from $785m in 2013. This increase includes $75m of trade and other payables arising on the acquisition of ArthroCare and distributor in Brazil offset by $34m of favourable currency movements.

 

Current tax payable is $218m at the end of 2014 compared to $184m in 2013.

Total equity

Total equity decreased by $7m from $4,047m in 2013 to $4,040m in 2014. The principal movements were:

 

     
 
Total equity
$ million
  
  
1 January 2014     4,047   
Attributable profit     501   
Currency translation losses     (196
Hedging reserves     12   
Actuarial losses on retirement benefit obligations     (94
Dividends paid during the year     (250
Purchase of own shares     (75
Taxation on Other Comprehensive Income and equity items     19   
Net share-based transactions     76   
31 December 2014     4,040   
 

 

 

 

The financial commentary on this page forms part of the business review and is unaudited.

See pages 180 to 183 for commentary on the 2013 financial year.

 

 

    

 

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Smith & Nephew Annual report 2014              113

    

 


Table of Contents

FINANCIAL STATEMENTS

Group cash flow statement

 

 

         Notes          
 
 
 
Year ended
31 December
2014
$ million
  
  
  
  
      
 
 
 
Year ended
31 December
2013
$ million
  
  
  
  
      
 
 
 
Year ended
31 December
2012
$ million
  
  
  
  

Cash flows from operating activities

                                           

Profit before taxation

            714           802           1,092   

Net interest payable/(receivable)

       4           22           (4        (2

Depreciation, amortisation and impairment

            427           361           312   

Loss on disposal of property, plant and equipment and software

            11           23           12   

Distribution from investment

            1                       

Share-based payments expense

       23           32           28           34   

Share of results of associates

       11           2           1           (4

Dividends received from associates

       11                     1           7   

Profit on disposal of manufacturing facility

       21           (9                    

Profit on disposal of net assets held for sale

       3                               (251

Net movement in post retirement benefit obligations

            (81        (27        (28

(Increase)/Decrease in inventories

            (168        (99        12   

Increase in trade and other receivables

            (76        (70        (5

Increase in trade and other payables and provisions

                  86           122           5   

Cash generated from operations (i) (ii)

            961           1,138           1,184   

Interest received

            3           4           4   

Interest paid

            (36        (10        (8

Income taxes paid

                  (245        (265        (278

Net cash inflow from operating activities

                  683           867           902   

Cash flows from investing activities

                                           

Acquisitions, net of cash acquired

       21           (1,572        (74        (782

Proceeds on disposal of net assets held for sale

                                103   

Capital expenditure

       2           (375        (340        (265

Investment in associate

       11           (2                  (10

Purchase of investments

       10           (4                    

Proceeds from associate loan redemption

       11           188                       

Proceeds on disposal of manufacturing facility

       21           20                       

Cash received on disposal of associate

                            7             

Net cash used in investing activities

                  (1,745        (407        (954

Cash flows from financing activities

                                           

Proceeds from issue of ordinary share capital

            40           48           77   

Purchase of own shares

            (75        (231          

Proceeds of borrowings due within one year

       20           30           12           40   

Settlement of borrowings due within one year

       20           (52        (6        (296

Proceeds on borrowings due after one year

       20           3,390           695           415   

Settlement of borrowings due after one year

       20           (2,068        (779        (1

Proceeds from own shares

            4           3           6   

Settlement of currency swaps

       20           (11        (1        (1

Equity dividends paid

       19           (250        (239        (186

Net cash from/(used in) financing activities

                  1,008           (498        54   

Net (decrease)/increase in cash and cash equivalents

            (54        (38        2   

Cash and cash equivalents at beginning of year

       20           126           167           161   

Exchange adjustments

       20           (7        (3        4   

Cash and cash equivalents at end of year

                  65           126           167   

 

(i) Includes $60m (2013 – $54m, 2012 – $55m) of outgoings on restructuring and rationalisation expenses.

 

(ii) Includes $112m (2013 – $25m, 2012 – $3m) of acquisition-related costs and $23m (2013 – $nil, 2012 – $22m) of legal and other costs

The Notes on pages 117 to 165 are an integral part of these accounts.

 

 

114              Smith & Nephew Annual report 2014


Table of Contents

Commentary on the Group cash flow statement

 

 

The main elements of the Group’s cash flow and movements in net debt can be summarised as follows:

Net cash inflow from operating activities

Cash generated from operations in 2014 of $961m (2013 – $1,138m, 2012 – $1,184m) is after paying out $112m (2013 – $25m, 2012 – $3m) of acquisition-related costs, $60m (2013 – $54m, 2012 – $55m) of restructuring and rationalisation expenses and $23m (2013 – $nil, 2012 – $22m) relating to legal and other exceptional costs.

Capital expenditure

The Group’s ongoing capital expenditure and working capital requirements were financed through cash flow generated by business operations and, where necessary, through short-term committed and uncommitted bank facilities. In 2014, capital expenditure on tangible and intangible fixed assets represented approximately 8% of continuing Group revenue (2013 – 8%, 2012 – 6%).

In 2014, capital expenditure amounted to $375m (2013 – $340m, 2012 – $265m). The principal areas of investment were the placement of orthopaedic instruments with customers, patents and licences, plant and equipment and information technology.

At 31 December 2014, $34m (2013 – $41m, 2012 – $4m) of capital expenditure had been contracted but not provided for which will be funded from cash inflows.

Acquisitions and disposals

In the three-year period ended 31 December 2014, $2,428m was spent on acquisitions, funded from net debt and cash inflows. This comprised, $782m for Healthpoint acquired in December 2012, $74m relating to acquisitions in Turkey, Brazil and India completed in quarter four of 2013, $1,546m for ArthroCare acquired in May 2014 and $26m for the acquisition in Brazil completed in quarter one 2014.

During 2012, the Group completed the transfer of its Biologics and Clinical Therapies business (‘CT’) to Bioventus for total consideration of $367m. As part of this transaction the Group received a 49% interest in Bioventus with a value of $104m and subsequently invested a further $10m.

During 2014, the Group received repayment of the $160m loan note to Bioventus and $28m of accrued interest.

Proceeds of $20m have been received on the disposal of the Group’s manufacturing plant in Gilberdyke, UK.

Liquidity and capital resources

The Group’s policy is to ensure that it has sufficient funding and facilities in place to meet foreseeable borrowing requirements.

At 31 December 2014, the Group held $65m (2013 – $126m, 2012 $167m) in cash net of bank overdrafts. The group had committed facilities available of $2,525m at 31 December 2014 of which $1,655m was drawn. Smith & Nephew intends to repay the amounts due within one year by using available cash and drawing down on the longer term facilities. In addition, Smith & Nephew has finance lease commitments of $12m.

During the year ended 31 December 2014, the Group refinanced its principal banking facilities. The Group has signed a new five-year committed $1 billion multi-currency revolving credit facility with a maturity date of March 2019. In addition, the Group signed a $1.4 billion committed term loan facility with a maturity date of February 2016. The Group drew down its $1.4 billion committed term loan facility to fund the acquisition of ArthroCare. $1 billion of this loan was repaid during the year partly from private placement proceeds.

During the year ended 31 December 2014, the Group received the entire proceeds of the $325 million private placement debt agreement signed in December 2013. The funds have a weighted average fixed rate of 3.7% and mature between 2021 and 2026. The Group also received $800 million of proceeds from a second private placement agreement signed in November 2014. The funds have a weighted average fixed rate of 3.1% and mature between 2019 and 2024.

The principal variations in the Group’s borrowing requirements result from the timing of dividend payments, acquisitions and disposals of businesses, timing of capital expenditure and working capital fluctuations. Smith & Nephew believes that its capital expenditure needs and its working capital funding for 2015, as well as its other known or expected commitments or liabilities, can be met from its existing resources and facilities. The Group’s net debt increased from $288m at the beginning of 2013 to $1,613m at the end of 2014, representing an overall increase of $1,325m.

The Group’s planned future contributions are considered adequate to cover the current underfunded position in the Group’s defined benefit plans.

 

 

 

 

The financial commentary on this page forms part of the business review and is unaudited.

See pages 180 to 183 for commentary on the 2013 financial year.

 

 

    

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Smith & Nephew Annual report 2014              115

    

 


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FINANCIAL STATEMENTS

Group statement of changes in equity

 

 

        
 
 
Share
capital
$ million
  
  
  
      
 
 
Share
premium
$ million
  
  
  
      
 
 
 
Capital
redemption
reserve
$ million
  
  
  
  
      
 
 
Treasury
shares (ii)
$ million
  
  
  
      
 
 
Other
reserves (iii)
$ million
  
  
  
      
 
 
Retained
earnings
$ million
  
  
  
      
 
 
Total
equity
$ million
  
  
  

At 31 December 2011

       191           413                     (766        91           3,258           3,187   

Total comprehensive income (i)

                                               30           736           766   

Equity dividends declared and paid

                                                         (186        (186

Share-based payments recognised

                                                         34           34   

Cost of shares transferred to beneficiaries

                                     31                     (25        6   

Issue of ordinary share capital (iv)

       2           75                                                   77   

At 31 December 2012

       193           488                     (735        121           3,817           3,884   

Total comprehensive income (i)

                                               (1        552           551   

Equity dividends declared and paid

                                                         (239        (239

Share-based payments recognised

                                                         28           28   

Deferred taxation on share-based payments

                                                         3           3   

Purchase of own shares

                                     (231                            (231

Cost of shares transferred to beneficiaries

                                     21                     (18        3   

Cancellation of treasury shares

       (10                  10           623                     (623          

Issue of ordinary share capital (iv)

       1           47                                                   48   

At 31 December 2013

       184           535           10           (322        120           3,520           4,047   

Total comprehensive income (i)

                                               (184        426           242   

Equity dividends declared and paid

                                                         (250        (250

Share-based payments recognised

                                                         32           32   

Purchase of own shares

                                     (75                            (75

Cost of shares transferred to beneficiaries

                                     25                     (21        4   

Cancellation of treasury shares

       (1                  1           57                     (57          

Issue of ordinary share capital (iv)

       1           39                                                   40   

At 31 December 2014

       184           574           11           (315        (64        3,650           4,040   

 

(i) Attributable to equity holders of the Company and wholly derived from continuing operations.

 

(ii) Refer to Note 19.2 for further information.

 

(iii) Other reserves comprises gains and losses on cash flow hedges, foreign exchange differences on translation of foreign operations and the difference arising as a result of translating share capital and share premium at the rate ruling on the date of redenomination instead of the rate at the balance sheet date. The cumulative translation adjustments within Other Reserves at 31 December 2014 were $(78)m (2013 – $118m, 2012 – $124m).

 

(iv) Issue of ordinary share capital as a result of options being exercised.

The Notes on pages 117 to 165 are an integral part of these accounts.

 

 

 

 

 

116              Smith & Nephew Annual report 2014


Table of Contents

Notes to the Group accounts

 

 

1 Basis of preparation

Smith & Nephew plc (the ‘Company’) is a public limited company incorporated in England and Wales. In these accounts, the ‘Group’ means the Company and all its subsidiaries. The principal activities of the Group are to develop, manufacture, market and sell medical devices in the sectors of Advanced Surgical Devices and Advanced Wound Management.

As required by the European Union’s IAS Regulation and the Companies Act 2006, the Group has prepared its accounts in accordance with International Financial Reporting Standards (‘IFRS’) as adopted by the European Union (‘EU’) effective as at 31 December 2014. The Group has also prepared its accounts in accordance with IFRS as issued by the International Accounting Standards Board (‘IASB’) effective as at 31 December 2014. IFRS as adopted by the EU differs in certain respects from IFRS as issued by the IASB. However, the differences have no impact for the periods presented.

The preparation of accounts in conformity with IFRS requires management to use estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the accounts and the reported amounts of revenues and expenses during the reporting period. The accounting policies requiring management to use significant estimates and assumptions are; inventories, impairment, taxation, liability provisions and business combinations. These are discussed under Critical accounting policies on page 104. Although these estimates are based on management’s best knowledge of current events and actions, actual results ultimately may differ from those estimates. Estimates and underlying assumptions are reviewed on an ongoing basis. Revisions to estimates are recognised prospectively.

The Directors continue to adopt the going concern basis for accounting in preparing the annual financial statements. The Directors have a reasonable expectation that the Group has adequate resources to continue in operational existence for the foreseeable future.

There have been no new accounting pronouncements impacting the Group in 2014.

A number of new standards, amendments to standards and interpretations are effective for the Group’s annual periods beginning on or after 1 January 2015, and have not been applied in preparing these consolidated accounts. With the exception of IFRS 9 Financial Instruments and IFRS 15 Revenue , which the Group does not intend to early adopt and for which the extent of the impact is still being determined, none of these is expected to have a significant effect on the consolidated accounts of the Group.

Consolidation

The Group accounts include the accounts of Smith & Nephew plc and its subsidiaries for the periods during which they were members of the Group.

Subsidiaries are entities controlled by the Group. The Group controls an entity when it is exposed to, or has rights to, variable returns from its involvement with the entity and has the ability to affect those returns through its power over the entity. Subsidiaries are consolidated in the Group accounts from the date that the Group obtains control, and continue to be consolidated until the date that such control ceases. Intra-group balances and transactions, and any unrealised income and expenses arising from intra-group transactions, are eliminated on consolidation. All subsidiaries have year ends which are co-terminus with the Group’s.

When the Group loses control over a subsidiary, it derecognises the assets and liabilities of the subsidiary and any related components of equity. Any resulting gain or loss is recognised in profit or loss. Any retained interest in the former subsidiary is measured at fair value.

Foreign currencies

Functional and presentation currency

The Group accounts are presented in US Dollars, which is the Company’s functional currency.

Foreign currency transactions

Transactions in foreign currencies are translated to the respective functional currencies of Group companies at exchange rates at the dates of the transactions. Monetary assets and liabilities denominated in foreign currencies are retranslated to the functional currency at the exchange rate at the reporting date. Non-monetary items are not retranslated.

Foreign operations

Balance sheet items of foreign operations, including goodwill and fair value adjustments arising on acquisition are translated into US Dollars on consolidation at the exchange rates at the reporting date. Income statement items and the cash flows of foreign operations are translated at average rates as an approximation to actual transaction rates, with actual transaction rates used for large one off transactions.

Foreign currency differences are recognised in Other comprehensive income and accumulated in ‘Other reserves’ within equity. These include: exchange differences on the translation at closing rates of exchange of non-US Dollar opening net assets; the differences arising between the translation of profits into US Dollars at actual (or average, as an approximation) and closing exchange rates; to the extent that the hedging relationship is effective, the difference on translation of foreign currency borrowings or swaps that are used to finance or hedge the Group’s net investments in foreign operations; and the movement in the fair value of forward foreign exchange contracts used to hedge forecast foreign exchange cash flows.

The exchange rates used for the translation of currencies into US Dollars that have the most significant impact on the Group results were:

 

         2014           2013           2012   

Average rates

                                

Sterling

       1.65           1.56           1.58   

Euro

       1.33           1.33           1.28   

Swiss Franc

       1.09           1.08           1.07   

Year-end rates

                                

Sterling

       1.56           1.66           1.63   

Euro

       1.21           1.38           1.32   

Swiss Franc

       1.01           1.12           1.09   
 

 

 

    

 

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Smith & Nephew Annual report 2014              117

    

 


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FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

2 Business segment information

During 2014 for management purposes the Group was organised into two global divisions according to the nature of its products which represented two reportable business segments – Advanced Surgical Devices and Advanced Wound Management.

As part of the Reinvestment & Group Optimisation programme management have created a single unified operating structure with a single cost base, led by a managing director in each major country (outside the US). The change in structure took effect on 1 January 2015 and as such the Group will report as a single segment from this date.

The types of products and services offered by each business segment in 2014 are:

 

Smith & Nephew’s Advanced Surgical Devices (‘ASD’) business offers the following products and technologies:

 

  Orthopaedic Reconstruction which includes Hip Implants, Knee Implants and ancillary products such as bone cement and mixing systems used in cemented reconstruction joint surgery

 

  Trauma & Extremities consisting of internal and external devices used in the stabilisation of severe fractures and deformity correction procedures

 

  Sports Medicine Joint Repair, which offers surgeons a broad array of instruments, technologies and implants necessary to perform minimally invasive surgery of the joints

 

  Arthroscopy Enabling Technologies which offer healthcare providers a variety of technologies such as fluid management equipment for surgical access, high definition cameras, digital image capture, scopes, light sources and monitors to assist with visualisation inside the joints, radio frequency wands, electromechanical and mechanical blades, and hand instruments for removing damaged tissue

 

  Other ASD which includes gynaecological instrumentation and the remaining Clinical Therapies geographies which are in the process of being transferred to Bioventus.

 

Smith & Nephew’s Advanced Wound Management (‘AWM’) business offers a range of products:

 

  Advanced Wound Care includes products for the treatment of acute and chronic wounds, including leg, diabetic and pressure ulcers, burns and post-operative wounds

 

  Advanced Wound Devices consists of traditional and single-use Negative Pressure Wound Therapy and hydrosurgery systems

 

  Advanced Wound Bioactives includes biologics and other bioactive technologies that provide unique approaches to debridement and dermal repair/regeneration.

Management monitors the operating results of its business segments separately for the purposes of making decisions about resource allocation and performance assessment. Group financing (including interest receivable and payable) and income taxes are managed on a Group basis and are not allocated to business segments.

The following tables present revenue, profit, asset and liability information regarding the Group’s operating segments as they existed during the year. Investments in associates and loans to associates are segmentally allocated to Advanced Surgical Devices.

2.1 Revenue by business segment and geography

 

 

ACCOUNTING POLICY

 
 

 

Revenue comprises sales of products and services to third parties at amounts invoiced net of trade discounts and rebates, excluding taxes on revenue. Revenue from the sale of products is recognised upon transfer to the customer of the significant risks and rewards of ownership. This is generally when goods are delivered to customers. Sales of inventory located at customer premises and available for customers’ immediate use are recognised when notification is received that the product has been implanted or used. Appropriate provisions for returns, trade discounts and rebates are deducted from revenue. Rebates comprise retrospective volume discounts granted to certain customers on attainment of certain levels of purchases from the Group. These are accrued over the course of the arrangement based on estimates of the level of business expected and adjusted at the end of the arrangement to reflect actual volumes .

 

 

 

 

     
 
2014
$ million
  
  
   
 
2013
$ million
  
  
    
 
2012
$ million
  
  

Revenue by business segment

                        

Advanced Surgical Devices

    3,298        3,015         3,108   

Advanced Wound Management

    1,319        1,336         1,029   
      4,617        4,351         4,137   

There are no material sales between business segments.

 

  

     
 
2014
$ million
  
  
   
 
2013
$ million
  
  
    
 
2012
$ million
  
  

Revenue by geographic market

                        

United States

    2,012        1,862         1,651   

United Kingdom

    299        293         297   

Other Established Markets

    1,629        1,633         1,706   

Emerging & International Markets

    677        563         483   
      4,617        4,351         4,137   

Revenue has been allocated by basis of destination. No revenue from a single customer is in excess of 10% of the Group’s revenue.

 

 

 

 

118              Smith & Nephew Annual report 2014


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2.2 Trading and operating profit by business segment

Trading profit is a trend measure which presents the long-term profitability of the Group excluding the impact of specific transactions that management considers affects the Group’s short-term profitability. The Group presents this measure to assist investors in their understanding of trends. The Group has identified the following items, where material, as those to be excluded from operating profit when arriving at trading profit: acquisition and disposal related items including amortisation of acquisition intangibles and impairments; significant restructuring events; gains and losses arising from legal disputes; and significant uninsured losses. Operating profit reconciles to trading profit as follows:

 

         Notes          
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Operating profit

            749           810           846   

Acquisition-related costs

       3           118           31           11   

Restructuring and rationalisation expenses

       3           61           58           65   

Amortisation of acquisition intangibles and impairments

       9           129           88           43   

Legal and other

       3           (2                    

Trading profit

                  1,055           987           965   

Trading profit by business segment

                                           

Advanced Surgical Devices

            810           712           728   

Advanced Wound Management

            245           275           237   
                    1,055           987           965   

Operating profit by business segment reconciled to

attributable profit for the year

                                           

Advanced Surgical Devices

            626           620           632   

Advanced Wound Management

                  123           190           214   

Operating profit

            749           810           846   

Net interest (payable)/receivable

            (22        4           2   

Other finance costs

            (11        (11        (11

Share of results of associates

            (2        (1        4   

Profit on disposal on net assets held for sale

                                251   

Taxation

            (213        (246        (371

Attributable profit for the year

                  501           556           721   

2.3 Assets and liabilities by business segment and geography

 

  

                   
 
2014
$ million
  
  
      

 

2013

$ million

  

  

      

 

2012

$ million

  

  

Balance sheet

                                           

Assets:

                   

Advanced Surgical Devices

            5,368           3,684           3,518   

Advanced Wound Management

                  1,761           1,848           1,776   

Operating assets by business segment

            7,129           5,532           5,294   

Unallocated corporate assets

                  177           287           348   

Total assets

                  7,306           5,819           5,642   

Liabilities:

                   

Advanced Surgical Devices

            697           609           530   

Advanced Wound Management

                  315           308           256   

Operating liabilities by business segment

            1,012           917           786   

Unallocated corporate liabilities

                  2,254           855           972   

Total liabilities

                  3,266           1,772           1,758   

 

 

 

 

 

    

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Smith & Nephew Annual report 2014              119

    

 


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FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

2 Business segment information continued

Unallocated corporate assets and liabilities comprise the following:

 

        

 

2014

$ million

  

  

      

 

2013

$ million

  

  

      

 

2012

$ million

  

  

Deferred tax assets

       77           145           164   

Retirement benefit asset

       7           5           6   

Cash at bank

       93           137           178   

Unallocated corporate assets

       177           287           348   

Long-term borrowings

       1,666           347           430   

Retirement benefit obligations

       233           230           266   

Deferred tax liabilities

       98           50           61   

Bank overdrafts and loans due within one year

       39           44           38   

Current tax payable

       218           184           177   

Unallocated corporate liabilities

       2,254           855           972   
                                  
        
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Capital expenditure (including acquisitions)

                                

Advanced Surgical Devices

       2,045           327           188   

Advanced Wound Management

       73           124           839   
         2,118           451           1,027   

Capital expenditure segmentally allocated above comprises:

 

              
        

 

2014

$ million

  

  

      

 

2013

$ million

  

  

      

 

2012

$ million

  

  

Additions to property, plant and equipment

       298           242           197   

Additions to intangible assets

       77           98           68   

Capital expenditure (excluding business combinations)

       375           340           265   

Trade investments

       4                       

Acquisitions – Goodwill

       844           53           73   

Acquisitions – Intangible assets

       833           53           662   

Acquisitions – Property, plant and equipment

       62           5           27   

Capital expenditure

       2,118           451           1,027   
                                  
        

 

2014

$ million

  

  

      

 

2013

$ million

  

  

      

 

2012

$ million

  

  

Depreciation, amortisation and impairment

                                

Advanced Surgical Devices

       320           268           274   

Advanced Wound Management

       107           93           38   
         427           361           312   

 

 

 

 

 

120              Smith & Nephew Annual report 2014


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Amounts comprise depreciation of property, plant and equipment, amortisation of other intangible assets, impairment of investments and amortisation of acquisition intangibles and impairments as follows:

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Amortisation of acquisition intangibles

       129           88           43   

Depreciation of property, plant and equipment

       222           209           212   

Impairment of property, plant and equipment

       14                       

Impairment of goodwill and investments

                           6   

Amortisation of other intangible assets

       62           64           51   
         427           361           312   

$14m impairments were recognised within operating profit in 2014 (2013 – $nil, 2012 – $6m, recognised within the administrative expenses line). In 2014, the impairment was segmentally allocated to Advanced Wound Management (2012: Advanced Surgical Devices).

Geographic

   

  

                   
 
2014
$ million
  
  
      
 
2013
$ million
  
  

Assets by geographic location

                                

United States

            3,104           2,086   

United Kingdom

            379           255   

Other Established Markets

            1,101           902   

Emerging & International Markets

                  198           170   

Non-current operating assets by geographic location

                  4,782           3,413   

United States

            1,104           1,121   

United Kingdom

            234           288   

Other Established Markets

            706           486   

Emerging & International Markets

                  303           224   

Current operating assets by geographic location

                  2,347           2,119   

Unallocated corporate assets (see page 120)

                  177           287   

Total assets

                  7,306           5,819   

2.4 Other business segment information

 

              
        
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Other significant expenses recognised within operating profit

              

Advanced Surgical Devices

       106           51           57   

Advanced Wound Management

       71           38           19   
         177           89           76   

 

The $177m incurred in 2014 relates to $61m restructuring and rationalisation expenses and $118m acquisition related costs and a net $2m credit related to legal and other (2013 – $58m relates to restructuring and rationalisation expenses and $31m acquisition related costs, 2012 – $65m relates to restructuring and rationalisation expenses and $11m acquisition related costs).

 

   

        
 
2014
numbers
  
  
      
 
2013
numbers
  
  
      
 
2012
numbers
  
  

Average number of employees

                                

Advanced Surgical Devices

       9,273           7,066           7,194   

Advanced Wound Management

       4,195           3,970           3,283   
         13,468           11,036           10,477   

 

 

 

 

    

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Smith & Nephew Annual report 2014              121

    

 


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FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

3 Operating profit

 

 

 

ACCOUNTING POLICIES

 
 

 

 

 

Research and development

 

Research expenditure is expensed as occurred. Internal development expenditure is only capitalised if the recognition criteria in IAS 38 Intangible Assets have been satisfied. The Group considers that the regulatory, technical and market uncertainties inherent in the development of new products mean that in most cases development costs should not be capitalised as intangible assets until products receive approval from the appropriate regulatory body.

 

Payments to third parties for research and development projects are accounted for based on the substance of the arrangement. If the arrangement represents outsourced research and development activities the payments are generally expensed except in limited circumstances where the respective development expenditure would be capitalised under the principles established in IAS 38. By contrast, the payments are capitalised if the arrangement represents consideration for the acquisition of intellectual property developed at the risk of the third party.

 

Capitalised development expenditures are amortised on a straight-line basis over their useful economic lives from product launch.

 

Advertising costs

 

Expenditure on advertising costs is expensed as incurred.

 

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Revenue

       4,617           4,351           4,137   

Cost of goods sold (i)(ii)

       (1,162        (1,100        (1,070

Gross profit

       3,455           3,251           3,067   

Research and development expenses

       (235        (231        (171

Selling, general and administrative expenses:

              

Marketing, selling and distribution expenses

       (1,670        (1,535        (1,440

Administrative expenses (iii) (iv) (v) (vi)

       (801        (675        (610
         (2,471        (2,210        (2,050

Operating profit

       749           810           846   

 

(i)      2014 includes $12m of restructuring and rationalisation expenses (2013 – $12m, 2012 – $3m).

(ii)     2014 includes $23m of acquisition-related costs (2013 – $5m, 2012 – $nil).

(iii)    2014 includes $62m of amortisation of other intangible assets (2013 – $64m, 2012 – $51m).

(iv)    2014 includes $49m of restructuring and rationalisation expenses and $129m of amortisation of acquisition intangibles (2013 – $46m of restructuring and rationalisation expenses and $88m of amortisation of acquisition intangibles, 2012 – $62m of restructuring and rationalisation expenses and $43m of amortisation of acquisition intangibles).

(v)     2014 includes $2m credit relating to legal and other exceptionals (2013 – $nil, 2012 – $nil).

(vi)    2014 includes $95m of acquisition-related costs (2013 – $26m, 2012 – $11m).

 

Note that items detailed in (i), (ii), (iv), (v) and (vi) are excluded from the calculation of trading profit.

 

Operating profit is stated after charging the following items:

 

       

       

       

       

       

      

  

  

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Amortisation of acquisition intangibles

       129           88           43   

Amortisation of other intangible assets

       62           64           51   

Impairment of goodwill and investments

                           6   

Depreciation of property, plant and equipment

       222           209           212   

Loss on disposal of property, plant and equipment and software

       25           23           12   

Minimum operating lease payments for land and buildings

       38           32           29   

Minimum operating lease payments for other assets

       18           19           21   

Advertising costs

       96           91           74   

 

 

 

 

 

122              Smith & Nephew Annual report 2014


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3.1 Staff costs

Staff costs during the year amounted to:

 

         Notes          
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Wages and salaries

            1,237           998           886   

Social security costs

            127           106           97   

Pension costs (including retirement healthcare)

       18           17           72           72   

Share-based payments

       23           32           28           34   
                    1,413           1,204           1,089   

3.2 Audit Fees – information about the nature and cost of services provided by auditors

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Audit services: Group accounts

       2           1           1   

Other services:

              

    Local statutory audit pursuant to legislation

       1           2           2   

Taxation services:

              

    Compliance services

       1           2           1   

    Advisory services

       1           1           1   

Total auditors’ remuneration

       5           6           5   

Arising:

              

    In the UK

       3           3           2   

    Outside the UK

       2           3           3   
         5           6           5   

3.3 Acquisition related costs

Acquisition related costs of $118m (2013 – $31m, 2012 – $11m) were incurred within operating profit in the twelve month period to 31 December 2014. These costs relate to professional and adviser fees and integration costs in connection with the acquisitions of ArthroCare and the distributor in Brazil completed in 2014, the acquisitions in Turkey, Brazil and India during 2013 and the acquisition of Healthpoint Biotherapeutics completed in 2012. In addition, $7m of debt-related acquisition costs were incurred in the year.

3.4 Restructuring and rationalisation expenses

Restructuring and rationalisation costs of $61m (2013 – $58m, 2012 – $65m) were incurred in the twelve month period to 31 December 2014. These related mainly to charges of $49m (2013 – $nil, 2012 – $nil) incurred in relation to the Group Optimisation programme announced in May 2014. Charges of $12m (2013 – $58m, 2012 – $65m) were also incurred relating to people costs and contract termination costs associated with the structural and process changes announced in August 2011.

3.5 Legal and other

The legal and other net credit within operating profit of $2m (2013 – $nil, 2012 – $251m) relates to a settlement credit and past service gain on the closure of the US Pension Plan of $46m and a gain on the disposal of a UK manufacturing facility of $9m, offset by a charge of $25m relating to the likely costs of a distribution hold on RENASYS in the US pending new regulatory approvals, and a charge of $28m relating to the HP802 programme which was stopped in the fourth quarter.

In 2012, a profit on disposal of $251m was recorded relating to the disposal of our Clinical Therapies business.

 

 

 

 

 

    

 

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Smith & Nephew Annual report 2014              123

    

 


Table of Contents

FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

4 Interest and other finance costs

4.1 Interest receivable/(payable)

 

                   

 

2014

$ million

  

  

      

 

2013

$ million

  

  

      

 

2012

$ million

  

  

Interest receivable

            13           14           11   

Interest payable:

                   

Bank borrowings

            (19        (8        (7

Private placement notes

            (14                    

Other

                  (2        (2        (2
                    (35        (10        (9

Net interest (payable)/receivable

                  (22        4           2   

4.2 Other finance costs

 

                   
         Notes          
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Retirement benefit net interest expense

       18           (10        (11        (11

Other

                  (1                    

Other finance costs

                  (11        (11        (11

Foreign exchange gains or losses recognised in the income statement arose primarily on the translation of intercompany and third party borrowings and amounted to a net $21m gain in 2014 (2013 – net $1m gain, 2012 – net $5m loss). These amounts were fully matched in the income statement by the fair value gains or losses on currency swaps (carried at fair value through profit and loss) held to manage this currency risk.

5 Taxation

 

 

 

ACCOUNTING POLICY

 
 

 

 

 

The charge for current taxation is based on the results for the year as adjusted for items which are non-assessable or disallowed. It is calculated using tax rates that have been enacted or substantively enacted by the balance sheet date.

 

The Group operates in multiple tax jurisdictions around the world and records provisions for taxation liabilities and tax audits when it is considered probable that a tax charge will arise and the amount can be reliably estimated. Although Group policy is to submit its tax returns to the relevant tax authorities as promptly as possible, at any time the Group has un-agreed years outstanding and is involved in disputes and tax audits. Significant issues may take many years to resolve. In estimating the probability and amount of any tax charge, management takes into account the views of internal and external advisers and updates the amount of the provision whenever necessary. The ultimate tax liability may differ from the amount provided depending on interpretations of tax law, settlement negotiations or changes in legislation.

 

Deferred tax is recognised in respect of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for taxation purposes.

 

Deferred tax is not recognised for: temporary differences related to investments in subsidiaries and associates where the Group is able to control the timing of the reversal of the temporary difference and it is probable that this will not reverse in the foreseeable future; on the initial recognition of non-deductible goodwill; and on the initial recognition of an asset or liability in a transaction that is not a business combination and that, at the time of the transaction, does not affect the accounting or taxable profit.

 

Deferred tax assets are recognised to the extent that it is probable that future taxable profits will be available against which they can be used.

Deferred tax assets are reviewed at each reporting date.

 

Deferred tax is measured on an undiscounted basis, and at the tax rates that have been enacted or substantively enacted by the reporting date that are expected to apply in the periods in which the asset or liability is settled. It is recognised in the income statement except when it relates to items credited or charged directly to other comprehensive income or equity, in which case the deferred tax is also recognised within other comprehensive income or equity respectively.

 

Deferred tax assets and liabilities are offset when they relate to income taxes levied by the same taxation authority, when the Group intends to settle its current tax assets and liabilities on a net basis and that authority permits the Group to make a single net payment.

 

 

 

 

 

 

 

124               Smith & Nephew Annual report 2014


Table of Contents

 

 

5.1 Taxation charge attributable to the Group

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Current taxation:

              

UK corporation tax at 21.5% (2013 – 23.3%, 2012 – 24.5%)

       39           50           53   

Overseas tax

       235           229           248   

Current income tax charge

       274           279           301   

Adjustments in respect of prior periods

       (6        (5        (17

Total current taxation

       268           274           284   

Deferred taxation:

              

Origination and reversal of temporary differences

       (52        (23        88   

Changes in tax rates

                 (4        (3

Adjustments to estimated amounts arising in prior periods

       (3        (1        2   

Total deferred taxation

       (55        (28        87   

Total taxation as per the income statement

       213           246           371   

Deferred taxation in other comprehensive income

       (19        16           (20

Deferred taxation in equity

                 (3          

Taxation attributable to the Group

       194           259           351   

The tax charge was reduced by $71m as a consequence of restructuring and rationalisation expenses, amortisation of acquisition intangibles and acquisition related costs and legal and other. In 2013, the tax charge was reduced by $40m as a consequence of restructuring and rationalisation expenses, amortisation of acquisition intangibles and acquisition related costs. In 2012, the tax charge was increased by $82m as a consequence of restructuring and rationalisation expenses, amortisation of acquisition intangibles and legal provision.

The applicable tax for the year is based on the UK standard rate of corporation tax of 21.5% (2013 – 23.3%, 2012 – 24.5%). Overseas taxation is calculated at the rates prevailing in the respective jurisdictions. The average effective tax rate differs from the applicable rate as follows:

 

        
 
2014
%
  
  
      
 
2013
%
  
  
      
 
2012
%
  
  

UK standard rate

       21.5           23.3           24.5   

Non-deductible/non-taxable items

       0.5           (1.0        0.4   

Prior year items

       (1.2        (0.5        (1.3

Tax losses incurred not relieved

       1.6           0.9           0.8   

Overseas income taxed at other than UK standard rate

       7.5           7.8           9.3   

Total effective tax rate

       29.9           30.5           33.7   

The enacted UK tax rate applicable from 1 April 2014 is 21%. The UK Government have enacted legislation to reduce the tax rate to 20% from 1 April 2015.

 

 

    

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FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

5 Taxation continued

 

5.2 Deferred taxation

Movements in the main components of deferred tax assets and liabilities were as follows:

 

        
 
 
 
Accelerated
tax
deprecation
$ million
  
  
  
  
      
 
Intangibles
$ million
  
  
      
 
 
 
Retirement
benefit
obligation
$ million
  
  
  
  
      
 
Macrotexture
$ million
  
  
      
 
 
 
 
Inventory,
provisions
and other
differences
$ million
  
  
  
  
  
      
 
Total
$ million
  
  

At 1 January 2013

       (90        (28        87           52           82           103   

Exchange adjustment

                 1                               (5        (4

Movement in income statement – current year

       (3        5           (3                  28           27   

Movement in income statement – prior years

       2           (1                                      1   

Movement in other comprehensive income

                           (16                            (16

Charge to equity

                                               3           3   

Acquisition

                                               (19        (19

Transfers

                 1                               (1          

At 31 December 2013

       (91        (22        68           52           88           95   

Exchange adjustment

       2           1           (2                  (10        (9

Movement in income statement – current year

       18           16           (18                  36           52   

Movement in income statement – prior years

       1           (1                            3           3   

Movement in other comprehensive income

                           22                     (3        19   

Acquisition

                 (220                            39           (181

At 31 December 2014

       (70        (226        70           52           153           (21

Represented by:

 

                             

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  

Deferred tax assets

       77           145   

Deferred tax liabilities

       (98        (50

Net position at 31 December

       (21        95   

The Group has unused tax losses of $92m (2013 – $31m) available for offset against future profits. A deferred tax asset has been recognised in respect of $47m (2013 – $3m) of these losses. No deferred tax asset has been recognised on the remaining unused tax losses as they are not expected to be realised in the foreseeable future. The aggregate amount of temporary differences in respect of investments in subsidiaries and associates for which deferred tax liabilities have not been recognised is approximately $449m (2013 – $nil).

 

 

 

 

 

 

 

126               Smith & Nephew Annual report 2014


Table of Contents

 

 

6 Earnings per ordinary share

 

 

 

ACCOUNTING POLICIES

 

 
 

 

 

Earnings per share

 

Basic earnings per share is calculated by dividing the profit attributable to equity holders by the weighted average number of Ordinary shares in issue during the year, excluding shares held by the Company in the Employees’ Share Trust or as treasury shares.

 

Adjusted earnings per share

 

Adjusted earnings per share is a trend measure, which presents the long-term profitability of the Group excluding the impact of specific transactions that management considers affects the Group’s short-term profitability. The Group presents this measure to assist investors in their understanding of trends. Adjusted attributable profit is the numerator used for this measure. The Group has identified the following items as those to be excluded when arriving at adjusted attributable profit: acquisition and disposal related items including amortisation of acquisition intangible assets and impairments; significant restructuring events; significant gains and losses arising from legal disputes and significant uninsured losses; and taxation thereon.

 

The calculations of the basic, diluted and adjusted earnings per ordinary share are based on the following attributable profit and numbers of shares:

 

                   
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Earnings

                                           

Attributable profit for the year

                  501           556           721   

Adjusted attributable profit (see below)

                  743           693           671   

 

Attributable profit is reconciled to adjusted attributable profit as follows:

 

  

         Notes          
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Attributable profit for the year

            501           556           721   

Acquisition-related costs

       3           125           31           11   

Restructuring and rationalisation expenses

       3           61           58           65   

Amortisation of acquisition intangibles and impairments

       9           129           88           43   

Profit on disposal of net assets held for sale

       3                               (251

Legal and other

       3           (2                    

Taxation on excluded items

       5           (71        (40        82   

Adjusted attributable profit

                  743           693           671   

 

The numerators used for basic and diluted earnings per ordinary share are the same. The denominators used for all categories of earnings for basic and diluted earnings per ordinary share are as follows:

 

   

                    2014           2013           2012   

Number of shares (millions)

                                           

Basic weighted number of shares

            893           901           897   

Dilutive impact of share options outstanding

                  6           5           4   

Diluted weighted average number of shares

                  899           906           901   

Earnings per ordinary share

                                           

Basic

            56.1¢           61.7¢           80.4¢   

Diluted

            55.7¢           61.4¢           80.0¢   

Adjusted: Basic

            83.2¢           76.9¢           74.8¢   

Adjusted: Diluted

                  82.6¢           76.5¢           74.5¢   

There were no share options which were not included in the diluted EPS calculation because they were non-dilutive in the period (2013 – 0.5m, 2012 – 8.2m).

 

 

    

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Table of Contents

FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

7 Property, plant and equipment

 

 

ACCOUNTING POLICIES

 

 

 

 

 

Property, plant and equipment

 

Items of property, plant and equipment are stated at cost less accumulated depreciation and any accumulated impairment losses.

 

Depreciation is calculated to write off the cost of items of property, plant and equipment less their estimated residual values using the straight-line method over their estimated useful lives, and is generally recognised in profit or loss. Leased assets are depreciated over the shorter of the lease term and their useful lives unless it is reasonably certain that the Group will obtain ownership by the end of the lease term. Freehold land is not depreciated. The estimated useful lives of items of property, plant and equipment is 3–20 years and for buildings is 20–50 years.

 

Assets in course of construction are not depreciated until they are available for use.

 

Depreciation methods, useful lives and residual values are reviewed at each reporting date and adjusted if appropriate.

 

Finance costs relating to the purchase or construction of property, plant and equipment and intangible assets that take longer than one year to complete are capitalised based on the Group weighted average borrowing costs. All other finance costs are expensed as incurred.

 

Impairment of assets

 

The carrying values of property, plant and equipment are reviewed for impairment when events or changes in circumstances indicate the carrying value may be impaired. If any such indication exists, the recoverable amount of the asset is estimated in order to determine the extent of impairment loss. Where it is not possible to estimate the recoverable amount of an individual asset, the Group estimates the recoverable amount of the cash-generating unit to which it belongs.

 

An asset’s recoverable amount is the higher of an asset’s or cash-generating unit’s fair value less costs to sell and its value-in-use. In assessing value-in-use, its estimated future cash flow is discounted to its present value using a pre-tax discount rate that reflects the current market assessments of the time value of money and the risks specific to the asset.

 

 

 

 

 

128              Smith & Nephew Annual report 2014


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         Land and buildings               Plant and equipment        Assets in              
        
 
Freehold
$ million
  
  
      
 
Leasehold
$ million
  
  
          
 
Instruments
$ million
  
  
      
 
Other
$ million
  
  
   
 
 
course of
construction
$ million
  
  
  
      
 
Total
$ million
  
  

Cost

                                                                  

At 1 January 2013

       143           52             1,042           919        73           2,229   

Exchange adjustment

       1           (1          (16        6                  (10

Acquisitions (see Note 21)

                 1             2           2                  5   

Additions

       2           1             139           23        77           242   

Disposals

       (3                    (102        (80     (2        (187

Transfers

                                         68        (68          

At 31 December 2013

       143           53             1,065           938        80           2,279   

Exchange adjustment

       (4        (1          (68        (35     (2        (110

Acquisitions (see Note 21)

       11           4             9           17        21           62   

Additions

                             158           57        83           298   

Disposal of business

                                       (12               (12

Disposals

       (2        (3          (108        (40     (4        (157

Transfers

       1           1               4           38        (44          

At 31 December 2014

       149           54               1,060           963        134           2,360   

Depreciation and impairment

                                                                  

At 1 January 2013

       46           29             738           623                  1,436   

Exchange adjustment

       (1        (1          (10        5                  (7

Charge for the year

       1           3             135           70                  209   

Disposals

       (3                      (99        (73               (175

At 31 December 2013

       43           31             764           625                  1,463   

Exchange adjustment

       (2                    (50        (24               (76

Charge for the year

       5           4             137           76                  222   

Impairment

                                       3        11           14   

Disposal of business

                                       (7               (7

Disposals

       (1        (3            (107        (36               (147

At 31 December 2014

       45           32               744           637        11           1,469   

Net book amounts

                                                                  

At 31 December 2014

       104           22               316           326        123           891   

At 31 December 2013

       100           22               301           313        80           816   

Land and buildings includes land with a cost of $20m (2013 – $15m) that is not subject to depreciation. Assets held under finance leases with a net book amount of $8m (2013 – $10m) are included within land and buildings.

The impairment charge in the year relates to certain assets which related to the production of HP802, which the Group has decided not to continue.

Historically, capital expenditure represents the Group’s expected annual investment in property, plant and equipment and other intangible assets. This varies between 6% and 8% (2013 – 6% and 8%) of annual revenue.

Group capital expenditure relating to property, plant and equipment contracted but not provided for amounted to $27m (2013 – $20m).

The amount of borrowing costs capitalised in 2014 and 2013 was minimal.

 

 

    

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FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

8 Goodwill

 

 

ACCOUNTING POLICY

 

 

 

 

 

Goodwill is not amortised but is reviewed for impairment annually. Goodwill is allocated to the cash-generating unit (‘CGU’) that is expected to benefit from the acquisition. The recoverable amount of CGUs to which goodwill has been allocated is tested for impairment annually. The CGUs, monitored by management, are at the business segment level, Advanced Surgical Devices and Advanced Wound Management.

 

If the recoverable amount of the cash-generating unit is less than its carrying amount then an impairment loss is determined to have occurred. Any impairment losses that arise are recognised immediately in the income statement and are allocated first to reduce the carrying amount of goodwill and then to the carrying amounts of the other assets of the CGU.

 

In carrying out impairment reviews of goodwill a number of significant assumptions have to be made when preparing cash flow projections. These include the future rate of market growth, discount rates, the market demand for the products acquired, the future profitability of acquired businesses or products, levels of reimbursement and success in obtaining regulatory approvals. If actual results should differ, or changes in expectations arise, impairment charges may be required which would adversely impact operating results.

 

 

      Notes     

 

2014

$ million

  

  

 

 

2013

$ million

  

  

Cost

                   

At 1 January

  1,256      1,186   

Exchange adjustment

  (73   17   

Acquisitions (i)

    21      844      53   

At 31 December

          2,027      1,256   

Impairment

                   

At 1 January and 31 December

                 

Net book amounts

          2,027      1,256   

(i)    2013 includes an adjustment of $16m following the finalisation of the Healthpoint acquisition balance sheet.

      

Each of the Group’s business segments represent a CGU and include goodwill as follows:

 

  

     
           

 

2014

$ million

  

  

 

 

2013

$ million

  

  

Advanced Surgical Devices

  1,686      918   

Advanced Wound Management

          341      338   
            2,027      1,256   

In September 2014 and 2013 impairment reviews were performed by comparing the recoverable amount of each CGU with its carrying amount, including goodwill. These are updated during December, taking into account significant events that occurred between September and December.

For each CGU, the recoverable amounts are based on value-in-use which is calculated from pre-tax cash flow projections for five years using data from the Group’s budget and strategic planning process, the results of which are reviewed and approved by the Board. These projections exclude any estimated future cash inflows or outflows expected to arise from future restructurings. The five-year period is in-line with the Group’s strategic planning process.

The calculation of value-in-use for the identified CGUs is most sensitive to discount and growth rates as set out below:

The discount rate reflects management’s assessment of risks specific to the assets of each CGU. The pre-tax discount rate used in the Advanced Surgical Devices business is 10% (2013 – 10%) and for the Advanced Wound Management business it is 11% (2013 – 10%).

In determining the growth rate used in the calculation of the value-in-use, the Group considered annual revenue growth. Projections are based on anticipated volume and value growth in the markets served by the Group and assumptions as to market share movements. Each year the projections for the previous year are compared to actual results and variances are factored into the assumptions used in the current year. Revenue growth rates for the five-year period for the Advanced Surgical Devices business franchises vary from 2% to 15% (2013 – 1% to 20%) and for the Advanced Wound Management business franchises from 4% to 19% (2013 – 2% to 22%).

 

 

 

130              Smith & Nephew Annual report 2014


Table of Contents

 

 

Specific considerations and strategies taken into account in determining the sales growth and trading profit margin for each CGU are:

 

Advanced Surgical Devices – Management intends to deliver growth through continuing to focus on widening access to the customer, strengthening our portfolio and global presence, innovative product development and through continuing to make efficiency improvements

 

Advanced Wound Management – Management intends to develop this CGU by focusing on widening access to the customer, the higher added value sectors of healing chronic wounds and tissue repair using bioactives, and by continuing to improve efficiency.

Following the detailed first 5 years, management has used an unchanged size of the market and Group’s share thereof in the pre-tax cash flows used to calculate the terminal value of both the Advanced Surgical Devices business (2013 – increase at 3% per year) and Advanced Wound Management businesses (2013 – increase at 5% per year), which were considered to be the Group’s CGUs in 2014.

Management has considered the following sensitivities:

 

Growth of market and market share – Management has considered the impact of a variance in market growth and market share. The value-in-use calculation shows that if the assumed long-term growth rate was reduced to nil, the recoverable amount of all of the CGUs independently would still be greater than their carrying values

 

Discount rate – Management has considered the impact of an increase in the discount rate applied to the calculation. The value-in-use calculation shows that for the recoverable amount of the CGU to be less than its carrying value, the discount rate would have to be increased to 28% (2013 – 33%) for the Advanced Surgical Devices business and 17% (2013 – 65%) for the Advanced Wound Management business.

9 Intangible assets

 

 

 

ACCOUNTING POLICIES

 

 

 

 

Intangible assets

 

Intangible assets acquired separately from a business combination (including purchased patents, know-how, trademarks, licences and distribution rights) are initially measured at cost. The cost of intangible assets acquired in a material business combination (referred to as acquisition intangibles) is the fair value as at the date of acquisition. Following initial recognition, intangible assets are carried at cost less any accumulated amortisation and any accumulated impairment losses. All intangible assets are amortised on a straight-line basis over their estimated useful economic lives. The estimated useful economic life of an intangible asset ranges between three and 20 years depending on its nature. Internally generated intangible assets are expensed in the income statement as incurred.

 

Purchased computer software and certain costs of information technology projects are capitalised as intangible assets. Software that is integral to computer hardware is capitalised as plant and equipment.

 

Impairment of intangible assets

 

The carrying values of intangible assets are reviewed for impairment when events or changes in circumstances indicate the carrying value may be impaired. If any such indication exists, the recoverable amount of the asset is estimated in order to determine the extent of impairment loss. Where it is not possible to estimate the recoverable amount of an individual asset, the Group estimates the recoverable amount of the cash-generating unit to which it belongs.

 

An asset’s recoverable amount is the higher of an asset’s or cash-generating unit’s fair value less costs to sell and its value-in-use. In assessing value-in-use, its estimated future cash flow is discounted to its present value using a pre-tax discount rate that reflects the current market assessments of the time value of money and the risks specific to the asset.

 

In carrying out impairment reviews of intangible assets a number of significant assumptions have to be made when preparing cash flow projections. These include the future rate of market growth, discount rates, the market demand for the products acquired, the future profitability of acquired businesses or products, levels of reimbursement and success in obtaining regulatory approvals. If actual results should differ, or changes in expectations arise, impairment charges may be required which would adversely impact operating results.

 

 

 

    

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Table of Contents

FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

9 Intangible assets continued

        
 
 
Acquisition
intangibles
$ million
  
  
  
      

 

Software

$ million

  

  

      
 
 
Distribution
rights
$ million
  
  
  
      
 
 
 
Patents &
Intellectual
property
$ million
  
  
  
  
      
 
Total
$ million
  
  

Cost

                                                      

At 1 January 2013

       1,109           205           43           176           1,533   

Exchange adjustment

       3                                         3   

Acquisitions

       53                                         53   

Additions

                 53           27           18           98   

Disposals

                 (29                            (29

At 31 December 2013

       1,165           229           70           194           1,658   

Exchange adjustment

       (44        (11                  (2        (57

Acquisitions (ii)

       830           3                               833   

Additions

                 49           5           23           77   

Disposals

                 (3                            (3

At 31 December 2014

       1,951           267           75           215           2,508   

Amortisation and impairment

                                                      

At 1 January 2013

       283           91           27           68           469   

Exchange adjustment

       1                                         1   

Charge for the year

       88           31           14           19           152   

Disposals

                 (18                            (18

At 31 December 2013

       372           104           41           87           604   

Exchange adjustment

       (27        (3                  (2        (32

Charge for the year

       129           31           10           21           191   

Disposals

                 (2                            (2

At 31 December 2014

       474           130           51           106           761   

Net book amounts

                                                      

At 31 December 2014

       1,477           137           24           109           1,747   

At 31 December 2013 (i)

       793           125           29           107           1,054   

 

(i) The majority of this balance relates to product rights acquired with Healthpoint Biotherapeutics.

 

(ii) The majority of this balance relates to technology and product rights acquired with ArthroCare Corp, which are being amortised over 6-20 years. See Note 21.

Group capital expenditure relating to software contracted but not provided for amounted to $7m (2013 – $21m).

The carrying values of acquisition intangibles are reviewed for impairment and it was noted that an intangible asset relating to a distribution agreement for a brand within our US Advanced Wound Management business had headroom which was highly sensitive to management’s estimate of future related earnings growth. Changes in those assumptions of either a decrease in the medium term growth rate from 4% to 1% or an increase in the discount rate of 1% to 11.1% would give rise to a $3 million impairment.

 

 

 

 

132              Smith & Nephew Annual report 2014


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10 Investments

 

ACCOUNTING POLICY

Investments, other than those related to associates, are initially recorded at fair value plus any directly attributable transaction costs on the trade date. The Group has an investment in an entity that holds mainly unquoted equity securities, which by their very nature have no fixed maturity date or coupon rate. The investment is classed as ‘available-for-sale’ and carried at fair value. The fair value of the investment is based on the underlying fair value of the equity securities: marketable securities are valued by reference to closing prices in the market; non-marketable securities are estimated considering factors including the purchase price, prices of recent significant private placements of securities of the same issuer and estimates of liquidation value. Changes in fair value are recognised in other comprehensive income except where management considers that there is objective evidence of an impairment of the underlying equity securities. Objective evidence would include a significant or prolonged decline in the fair value of the investment below its cost less any impairment loss previously recognised. Impairment losses are recognised by reclassifying the losses accumulated in other reserves to profit or loss.

 

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  

At 1 January

       2           2   

Additions

       4             

Distribution

       (1         

At 31 December

  5      2   

11 Investments in associates

 

ACCOUNTING POLICY

Investments in associates, being those entities over which the Group has a significant influence and which is neither a subsidiary nor a joint venture, are accounted for using the equity method, with the Group recording its share of the associate’s profit and loss and other comprehensive income. The Group’s share of associates profit or loss is included in one separate income statement line and is calculated after deduction of their respective taxes.

 

At 31 December 2014 and 31 December 2013, the Group holds 49% of Bioventus LLC (‘Bioventus’). Bioventus is a limited liability company operating as a partnership. The Company’s headquarters is located in Durham, North Carolina, US. Bioventus focuses its medical product development around its core competencies of orthobiologic therapies and orthopaedic diagnostics from which it develops and markets clinically proven orthopaedic therapies and diagnostic tools, including osteoarthritis pain treatments, bone growth stimulators and ultrasound devices. Bioventus sells bone stimulation devices and is a provider of osteoarthritis injection therapies. The loss after taxation recognised in the income statement relating to Bioventus was $2m (2013 – loss after taxation $2m).

The carrying amount of this investment was reviewed for impairment as at the balance sheet date. For the purposes of impairment testing the recoverable amount of this investment was based on its fair value less cost to sell, estimated using discounted cash flows. The fair value measurement was categorised as a level 3 fair value based on the inputs and valuation technique used.

In addition to its 49% ownership interest in Bioventus, the Group held a senior secured five year loan note with Bioventus. The loan note was created in May 2012 with a principal amount of $160m and an annual coupon rate of LIBOR plus 5%. In October 2014, the loan note of $160 million plus $28m of accrued interest was repaid by Bioventus following a successful external refinancing. The Group continues to hold 49% of investor equity in Bioventus.

The amount recognised in the balance sheet and income statement for associates are as follows:

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  

Balance sheet

       112           107   

Income statement loss

       (2        (1

 

 

    

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Smith & Nephew Annual report 2014              133

    

 


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FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

    

 

11 Investments in associates continued

Summarised financial information for associates

Set out below is the summarised financial information for Bioventus, adjusted for differences with Group accounting policies:

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  

Summarised balance sheet

         

Non-current assets

       339           315   

Current assets

       90           129   

Non-current liabilities

       (220        (194

Current liabilities

       (48        (59

Net assets

       161           191   

Group’s share of net assets at 49%

       79           93   

Group adjustments (i)

  26      14   

Group’s carrying amount of investment at 49%

  105      107   

    

Summarised statement of comprehensive income

           

Revenue

  242      231   

Attributable loss for the year

  (5   (4

Total comprehensive loss

  (5   (4

Group share of loss for the year at 49%

  (2   (2

(i) Group adjustments primarily relate to an adjustment to align the useful life of intangible assets with Group policy.

At December 2014, the Group holds equity investments in two other associates (2013 – none) which are immaterial. The Group’s aggregate carrying amount of these investments at 31 December 2014 is $7m (2013 – nil) and the Group’s aggregate share of profits from these investments was $nil (2013 – nil). The Group’s share of loss in 2013 includes a gain of $1m from two Austrian associates. The Group disposed of the Austrian associates during the year ended 31 December 2013.

12 Inventories

 

 

ACCOUNTING POLICY

 

Finished goods and work-in-progress are valued at factory cost, including appropriate overheads, on a first-in first-out basis. Raw materials and bought-in finished goods are valued at purchase price. All inventories are reduced to net realisable value where lower than cost. Inventory acquired as part of a business acquisition is valued at selling price less costs of disposal and a profit allowance for selling efforts.

 

Orthopaedic instruments are generally not sold but provided to customers and distributors for use in surgery. They are recorded as inventory until they are deployed at which point they are transferred to plant and equipment and depreciated over their useful economic lives of between three and five years.

 

A feature of the orthopaedic business is the high level of product inventory required, some of which is located at customer premises and is available for customers’ immediate use (referred to as consignment inventory). Complete sets of product, including large and small sizes, have to be made available in this way. These outer sizes are used less frequently than standard sizes and towards the end of the product life cycle are inevitably in excess of requirements. Adjustments to carrying value are therefore required to be made to orthopaedic inventory to anticipate this situation. These adjustments are calculated in accordance with a formula based on levels of inventory compared with historical or forecast usage. This formula is applied on an individual product line basis and is first applied when a product group has been on the market for two years. This method of calculation is considered appropriate based on experience but it involves management judgements on effectiveness of inventory deployment, length of product lives, phase-out of old products and efficiency of manufacturing planning systems.

 

 

        
 
2014
$ million
  
  
      

 

2013

$ million

  

  

      
 
2012
$ million
  
  

Raw materials and consumables

       214           151           138   

Work-in-progress

       82           72           45   

Finished goods and goods for resale

       885           783           718   
  1,181      1,006      901   

Reserves for excess and obsolete inventories were $317m (2013 – $354m, 2012 – $332m). The decrease in reserves of $37m in the year comprised releases of $29m, inventory write-offs of $4m and foreign exchange movements of $4m.

The cost of inventories recognised as an expense and included in cost of goods sold amounted to $1,013m (2013 – $958m, 2012 – $906m). In addition, $55m was recognised as an expense within cost of goods sold resulting from inventory write offs (2013 – $73m, 2012 – $84m).

Notwithstanding inventory acquired within acquisitions, no inventory is carried at fair value less costs to sell in any year.

 

 

 

134               Smith & Nephew Annual report 2014


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13 Trade and other receivables

 

 

 

ACCOUNTING POLICY

 

 
 

 

 

 

Trade and other receivables are carried at amortised cost, less any allowances for uncollectible amounts. They are included in current assets, except for maturities greater than 12 months after the balance sheet date. These are classified as non-current assets.

 

The Group manages credit risk through credit limits which require authorisation commensurate with the size of the limit and which are regularly reviewed. Credit limit decisions are made based on available financial information and the business case. Significant receivables are regularly reviewed and monitored at Group level. The Group has no significant concentration of credit risk, with exposure spread over a large number of customers and geographies. Furthermore the Group’s principal customers are backed by government and public or private medical insurance funding, which historically represent a lower risk of default. The maximum exposure to credit risk at the reporting date is the fair value of each class of receivable. The Group does not hold any collateral as security.

 

 

               

 

2014

$ million

  

  

      

 

2013

$ million

  

  

      

 

2012

$ million

  

  

Trade receivables

            1,015           992           964   

Less: provision for bad and doubtful debts

              (47        (57        (49

Trade receivables – net (loans and receivables)

            968           935           915   

Derivatives – forward foreign exchange contracts

            49           28           12   

Other receivables

            51           60           65   

Prepayments and accrued income

              98           90           73   
                1,166           1,113           1,065   
Management considers that the carrying amount of trade and other receivables approximates to the fair value.   
The provision for bad and doubtful debts is based on specific assessments of risk and reference to past default experience. The bad debt credit for the year was $4m (2013 – expense $15m, 2012 – expense $16m). Amounts due from insurers in respect of the macro textured claim of $143m (2013 – $138m, 2012 – $137m) are included within other receivables and have been provided in full.     

The amount of trade receivables that were past due were as follows:

 

  

               

 

2014

$ million

  

  

      

 

2013

$ million

  

  

      

 

2012

$ million

  

  

Past due not more than three months

            181           206           225   

Past due more than three months and not more than six months

            49           52           52   

Past due more than six months and not more than one year

            51           61           52   

Past due more than one year

              42           70           80   
            323           389           409   

Neither past due nor impaired

            692           603           555   

Provision for bad and doubtful debts

              (47        (57        (49

Trade receivables – net (loans and receivables)

              968           935           915   

 

Movements in the provision for bad and doubtful debts were as follows:

 

  

At 1 January

            57           49           36   

Exchange adjustment

            (4        1             

Net receivables (provision released)/provided for during the year

            (4        15           16   

Utilisation of provision

              (2        (8        (3

At 31 December

              47           57           49   

 

Trade receivables include amounts denominated in the following major currencies:

 

  

               

 

2014

$ million

  

  

      

 

2013

$ million

  

  

      

 

2012

$ million

  

  

US Dollar

            353           293           258   

Sterling

            92           103           100   

Euro

            225           271           276   

Other

              298           268           281   

Trade receivables – net (loans and receivables)

              968           935           915   

 

 

    

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Smith & Nephew Annual report 2014              135

    

 


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FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

14 Trade and other payables

 

               

 

2014

$ million

  

  

      

 

2013

$ million

  

  

Trade and other payables due within one year

                            

Trade and other payables

            807           751   

Derivatives – forward foreign exchange contracts

            21           20   

Acquisition consideration

              10           14   
                838           785   

Other payables due after one year:

                            

Acquisition consideration

            23           7   

Other payables

              21             
                44           7   

 

The acquisition consideration due after more than one year is expected to be payable as follows: $5m in 2016, $8m in 2017 and $10m in 2018 (2013 – $4m in 2015 and $3m in 2016).

 

15 Cash and borrowings

 

15.1 Net debt

 

Net debt comprises borrowings and credit balances on currency swaps less cash at bank.

 

  

  

  

  

               

 

2014

$ million

  

  

      

 

2013

$ million

  

  

Bank overdrafts and loans due within one year

            39           44   

Long-term bank borrowings

            541           347   

Private placement notes

              1,125             

Borrowings

            1,705           391   

Cash at bank

            (93        (137

Credit/(debit) balance on derivatives – currency swaps

              1           (1

Net debt

              1,613           253   

Borrowings are repayable as follows:

 

      

 
 
 

Within

one year or
on demand
$ million

  

  
  
  

      
 
 
 
Between
one and
two years
$ million
  
  
  
  
      
 
 
 
Between
two and
three years
$ million
  
  
  
  
      
 
 
 
Between
three and
four years
$  million
  
  
  
  
      
 
 
 
Between
four and
five years
$ million
  
  
  
  
      
 
 
After
five years
$ million
  
  
  
      

 

Total

$ million

  

  

At 31 December 2014:

                                

Bank loans

     9           400                               131                     540   

Bank overdrafts

     28                                                             28   

Finance lease liabilities

     2           2           2           3           3                     12   

Private placement notes

                                             125           1,000           1,125   
       39           402           2           3           259           1,000           1,705   

At 31 December 2013:

                                

Bank loans

     31           335                                                   366   

Bank overdrafts

     11                                                             11   

Finance lease liabilities

     2           2           2           2           3           3           14   
       44           337           2           2           3           3           391   

 

 

136               Smith & Nephew Annual report 2014


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15.2 Assets pledged as security

Assets are pledged as security under normal market conditions. Secured borrowings and pledged assets are as follows:

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  

Finance lease liabilities – due within one year

       2           2   

Finance lease liabilities – due after one year

       10           12   

Total amount of secured borrowings

       12           14   

Total net book value of assets pledged as security:

         

Property, plant and equipment

       8           10   
         8           10   

15.3 Currency swap analysis

All currency swaps are stated at fair value. Gross US Dollar equivalents of $279m (2013 – $146m) receivable and $280m (2013 – $145m) payable have been netted. Currency swaps comprise foreign exchange swaps and forward contracts and were used in 2014 and 2013 to hedge intragroup loans and other monetary items.

Currency swaps mature as follows:

 

At 31 December 2014    
 
Amount receivable
$ million
  
  
    
 
Amount payable
Currency million
  
  

Within one year:

    

Canadian Dollar

    14         CAD 16   

Chinese Renminbi

    16         CNY 100   

Euro

    17         EUR 14   

Hong Kong Dollar

    3         HKD 20   

Japanese Yen

    8         JPY 950   

Swedish Krona

            SEK 3   
      58            
    
At 31 December 2014    
 
Amount receivable
Currency million
  
  
    
 
Amount payable
$ million
  
  

Within one year:

    

Australian Dollar

    AUD 78         64   

Swiss Franc

    CHF 22         22   

Euro

    EUR 62         76   

Sterling

    GBP 26         40   

Japanese Yen

    JPY 200         2   

New Zealand Dollar

    NZD 18         14   

Swedish Krona

    SEK 3           

Singapore Dollar

    SGD 5         4   
               222   

 

 

    

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Table of Contents

FINANCIAL STATEMENTS

Notes to the Group accounts continued

15 Cash and borrowings continued

 

 

At 31 December 2013       
 
Amount receivable
$ million
  
  
      

 

Amount payable

Currency million

  

  

Within one year:

         

Euro

       28           EUR 20   

Japanese Yen

       13           JPY 1,315   

Chinese Renminbi

       17           CNY 100   

Sterling

       11           GBP 7   
         69              
         
At 31 December 2013       
 
Amount receivable
Currency million
  
  
      
 
Amount payable
$ million
  
  

Within one year:

         

New Zealand Dollar

       NZD 9           7   

Swiss Franc

       CHF 14           16   

Swedish Krona

       SEK 31           5   

Australian Dollar

       AUD 41           36   

Canadian Dollar

       CAD 3           3   

Sterling

       GBP 6           10   
                    77   

15.4 Liquidity risk exposures

The Board has established a set of policies to manage funding and currency risks. The Group uses derivative financial instruments only to manage the financial risks associated with underlying business activities and their financing.

Liquidity risk is the risk that the Group is not able to settle or meet its obligations on time or at a reasonable price. The Group’s policy is to ensure that there is sufficient funding and facilities in place to meet foreseeable borrowing requirements. The Group manages and monitors liquidity risk through regular reporting of current cash and borrowing balances and periodic preparation and review of short and medium term cash forecasts, having regard to the maturities of investments and borrowing facilities.

The Group has available committed facilities of $2.5bn (2013 – $1.7bn). The interest payable on borrowings under committed facilities is either at fixed or floating rates. Floating rates are typically based on the LIBOR (or other reference rate) relevant to the term and currency concerned.

The Company is subject to restrictive covenants under its principal facility agreements. These financial covenants are tested at the end of each half year for the 12 months ending on the last day of the testing period. As of 31 December 2014, the Company was in compliance with these covenants. The facilities are also subject to customary events of default, none of which are currently anticipated to occur.

The Group’s principal facilities are:

 

Facility        Date due   

$400 million syndicated, term loan facility

 

       February 2016   

$1.0 billion syndicated, revolving credit facility

 

       March 2019   

$80 million 2.47% Senior Notes

 

       November 2019   

$45 million Floating Rate Senior Notes

 

 

       November 2019   

$75 million 3.23% Senior Notes

 

       January 2021   

$190 million 2.97% Senior Notes

 

       November 2021   

$75 million 3.46% Senior Notes

 

       January 2022   

$50 million 3.15% Senior Notes

 

       November 2022   

$105 million 3.26% Senior Notes

 

       November 2023   

$100 million 3.89% Senior Notes

 

       January 2024   

$305 million 3.36% Senior Notes

 

       November 2024   

$25 million Floating Rate Senior Notes

 

       November 2024   

$75 million 3.99% Senior Notes

       January 2026   

 

 

 

 

 

138              Smith & Nephew Annual report 2014


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15.5 Year-end financial liabilities by contractual maturity

The table below analyses the Group’s year-end financial liabilities by contractual maturity date, including interest payments and excluding the impact of netting arrangements:

 

        
 
 
 
Within one
year or on
demand
$ million
  
  
  
  
    
 
 
 
Between
one and
two years
$ million
  
  
  
  
      
 
 
 
Between
two and
five years
$ million
  
  
  
  
      
 
 
After
five years
$ million
  
  
  
      
 
Total
$ million
  
  
At 31 December 2014                                                     

Non-derivative financial liabilities:

                      

Bank overdrafts and loans

       37         400           131                     568   

Trade and other payables

       807         21                               828   

Finance lease liabilities

       3         3           9                     15   

Private placement notes

                         125           1,000           1,125   

Acquisition consideration

       10         13           10                     33   

Derivative financial liabilities:

                      

Currency swaps/forward foreign exchange contracts – outflow

       1,811                                       1,811   

Currency swaps/forward foreign exchange contracts – inflow

       (1,810                                    (1,810
         858         437           275           1,000           2,570   
At 31 December 2013                                                     

Non-derivative financial liabilities:

                      

Bank overdrafts and loans

       42         335                               377   

Trade and other payables

       751                                       751   

Finance lease liabilities

       3         3           9           3           18   

Acquisition consideration

       14         4           3                     21   

Derivative financial liabilities:

                      

Currency swaps/forward foreign exchange contracts – outflow

       1,734                                       1,734   

Currency swaps/forward foreign exchange contracts – inflow

       (1,733                                    (1,733
         811         342           12           3           1,168   

The amounts in the tables above are undiscounted cash flows, which differ from the amounts included in the balance sheet where the underlying cash flows have been discounted.

 

 

    

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Table of Contents

FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

15 Cash and borrowings continued

 

15.6 Finance leases

 

 

ACCOUNTING POLICY

 

 

 

 

Leases are classified as finance leases when the terms of the lease transfer substantially all the risks and rewards of ownership to the Group. All other leases are classified as operating leases.

 

The leased assets are measured initially at an amount equal to the lower of their fair value and the present value of the minimum lease payments. Assets held under finance leases are capitalised as property, plant or equipment and depreciated accordingly. Minimum lease payments are apportioned between the finance expense and the reduction in the outstanding liability. The finance expense is allocated to each period during the lease term so as to produce a constant periodic rate of interest on the remaining balance of the liability.

 

Future minimum lease payments under finance leases together with the present value of the minimum lease payments are as follows:

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  

Within one year

       3           3   

After one and within two years

       3           3   

After two and within three years

       3           3   

After three and within four years

       3           3   

After four and within five years

       3           3   

After five years

                 3   

Total minimum lease payments

       15           18   

Discounted by imputed interest

       (3        (4

Present value of minimum lease payments

       12           14   

Present value of minimum lease payments can be split out as: $2m (2013 – $2m) due within one year, $10m (2013 – $9m) due between one to five years and $nil (2013– $3m) due after five years.

16 Financial instruments and risk management

 

 

 

ACCOUNTING POLICY

 
 

 

 

 

Derivative financial instruments

 

Derivative financial instruments are initially recognised at fair value on the date a derivative contract is entered into and are subsequently re-measured at their fair value at subsequent balance sheet dates.

 

Changes in the fair value of derivative financial instruments that are designated and effective as cash flow hedges of forecast third party and intercompany transactions are recognised in other comprehensive income until the associated asset or liability is recognised. Amounts taken to other comprehensive income are transferred to the income statement in the period in which the hedged transaction affects profit and loss. Where the hedged item is the cost of a non-financial asset, the amounts taken to other comprehensive income are transferred to the initial carrying value of the asset.

 

Currency swaps to match foreign currency net assets with foreign currency liabilities are fair valued at year-end. Changes in the fair values of currency swaps that are designated and effective as net investment hedges are matched in other comprehensive income against changes in value of the related net assets.

 

Interest rate derivatives transacted to fix interest rates on floating rate borrowings are accounted for as cash flow hedges and changes in the fair values resulting from changes in market interest rates are recognised in other comprehensive income. Amounts taken to other comprehensive income are transferred to the income statement when the hedged transaction affects profit and loss.

 

Any ineffectiveness on hedging instruments and changes in the fair value of derivative financial instruments that do not qualify for hedge accounting are recognised in the income statement within other finance income/(costs) as they arise.

 

Hedge accounting is discontinued when the hedging instrument expires or is sold, terminated or exercised, or no longer qualifies for hedge accounting. At that point in time, any cumulative gain or loss on the hedging instrument recognised in other comprehensive income is retained there until the forecast transaction occurs. If a hedged transaction is no longer expected to occur, the net cumulative gain or loss recognised in other comprehensive income is transferred to the income statement for the period.

 

 

 

 

 

 

140              Smith & Nephew Annual report 2014


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16.1 Foreign exchange exposures

The Group operates in over 100 countries and as a consequence has transactional and translational foreign exchange exposure. It is Group policy for operating units not to hold material unhedged monetary assets or liabilities other than in their functional currencies.

Foreign exchange variations affect trading results in two ways. Firstly, on translation of overseas sales and profits into US Dollars and secondly, transactional exposures arising where some or all of the costs of sale are incurred in a different currency from the sale. The principal transactional exposures arise as the proportion of costs in US Dollars, Sterling and Swiss Francs exceed the proportion of sales in each of these currencies and correspondingly the proportion of sales in Euros exceeds the proportion of costs in Euros.

The impact of currency movements on the cost of purchases is partly mitigated by the use of forward foreign exchange contracts. The Group uses forward foreign exchange contracts, designated as cash flow hedges, to hedge forecast third party and intercompany trading cash flows for forecast foreign currency inventory purchases for up to one year. When a commitment is entered into, forward foreign exchange contracts are normally used to increase the hedge to 100% of the exposure. Cash flows relating to cash flow hedges are expected to occur within 12 months of inception and profits and losses on hedges are expected to enter into the determination of profit (within cost of goods sold) within a further 12-month period. The principal currencies hedged by forward foreign exchange contracts are US Dollars, Euros and Sterling. At 31 December 2014, the Group had contracted to exchange within one year the equivalent of $1.5bn (2013 – $1.6bn).

Based on the Group’s net borrowings as at 31 December 2014, if the US Dollar were to weaken against all currencies by 10%, the Group’s net borrowings would decrease by $6m (2013 – decrease by $2m) as the Group held a higher amount of foreign denominated cash than foreign denominated borrowings. In respect of borrowings held in a different currency to the relevant reporting entity, if the US Dollar were to weaken by 10% against all other currencies, the Group’s borrowings would increase by $1m (2013 – increase by $4m).

If the US Dollar were to weaken by 10% against all other currencies, then the fair value of the forward foreign exchange contracts as at 31 December 2014 would have been $37m lower (2013 – $34m). Similarly, if the Euro were to weaken by 10% against all other currencies, then the fair value of the forward foreign exchange contracts as at 31 December 2014 would have been $26m higher (2013 – $27m). Movements in the fair value of forward foreign exchange contracts would be recognised in other comprehensive income and accumulated in the hedging reserve.

A 10% strengthening of the US Dollar or Euro against all other currencies at 31 December 2014 would have had the equal but opposite effect to the amounts shown above, on the basis that all other variables remain constant.

The Group’s policy to hedge all actual foreign exchange exposures and the Group’s forward foreign exchange contracts are designated as cash flow hedges. The net impact of transaction related foreign exchange on the income statement from a movement in exchange rates on the value of forward foreign exchange contracts is not significant. In addition, the movements in the fair value of other financial instruments used for hedging such as currency swaps for which hedge accounting is not applied, offset movements in the values of assets and liabilities and are recognised through the income statement.

16.2 Interest rate exposures

The Group is exposed to interest rate risk on cash, borrowings and certain currency swaps which are all at floating rates. When required the Group uses interest rate derivatives to meet its objective of protecting borrowing costs within parameters set by the Board. Interest rate derivatives are accounted for as cash flow hedges and, as such, changes in fair value resulting from changes in market interest rates are recognised in other comprehensive income and accumulated in the hedging reserve, with the fair value of the interest rate derivatives recorded in the balance sheet. The cash flows resulting from interest rate derivatives match cash flows on the underlying borrowings so that there is no net cash flow from movements in market interest rates on the hedged items.

Based on the Group’s gross borrowings as at 31 December 2014, if interest rates were to increase by 100 basis points in all currencies then the annual net interest charge would increase by $6m (2013 – $4m). A decrease in interest rates by 100 basis points in all currencies would have an equal but opposite effect to the amounts shown above.

16.3 Credit risk exposures

The Group limits exposure to credit risk on counterparties used for financial instruments through a system of internal credit limits which, with certain minor exceptions due to local market conditions, require counterparties to have a minimum ‘A’ rating from one of the major ratings agencies. The financial exposure of a counterparty is determined as the total of cash and deposits, plus the risk on derivative instruments, assessed as the fair value of the instrument plus a risk element based on the nominal value and the historic volatility of the market value of the instrument. The Group does not anticipate non-performance of counterparties and believes it is not subject to material concentration of credit risk as the Group operates within a policy of counterparty limits designed to reduce exposure to any single counterparty.

The maximum credit risk exposure on derivatives at 31 December 2014 was $49m (2013 – $29m), being the total debit fair values on forward foreign exchange contracts and currency swaps. The maximum credit risk exposure on cash at bank at 31 December 2014 was $93m (2013 – $137m). The Group’s exposure to credit risk is not material as the amounts are held in a wide number of banks in a number of different countries.

Credit risk on trade receivables is detailed in Note 13.

 

 

    

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FINANCIAL STATEMENTS

Notes to the Group accounts continued

16 Financial instruments and risk management continued

 

16.4 Currency and interest rate profile of interest bearing liabilities and assets

Short-term debtors and creditors are excluded from the following disclosures.

Currency and Interest Rate Profile of Interest Bearing Liabilities:

 

                                                        Fixed rate liabilities   
      
 
 
Gross
borrowings
$ million
  
  
  
      
 
 
Currency
swaps
$ million
  
  
  
      
 
 
Total
liabilities
$ million
  
  
  
   
 
 
Floating
rate liabilities
$ million
  
  
  
   
 
 
Fixed
rate liabilities
$ million
  
  
  
      
 
 
 

 

Weighted
average
Interest
rate

%

  
  
  
  

  

   
 
 
 
 
Weighted
average time
for which
rate is fixed
Years
  
  
  
  
  

At 31 December 2014:

                                                                 

US Dollar

     1,685           208           1,893        826        1,067           3.4        8.3   

Euro

     10           35           45        45                           

Other

     10           37           47        47                           

Total interest bearing liabilities

     1,705           280           1,985        918        1,067                      

At 31 December 2013:

                                                                 

US Dollar

     297           77           374        360        14           7.1        4   

Euro

     59           28           87        87                           

Other

     35           40           75        75                           

Total interest bearing liabilities

     391           145           536        522        14                      

At 31 December 2014, $12m (2013 – $14m) of fixed rate liabilities relate to finance leases. In 2014, the Group also had liabilities due for deferred acquisition consideration (denominated in US Dollars and Brazilian Real) totalling $33m (2013 – $21m, 2012 – $8m) on which no interest was payable (see Note 14). There are no other significant interest bearing financial liabilities.

Floating rates on liabilities are typically based on the one or three-month LIBOR (or other reference rate) relevant to the currency concerned. The weighted average interest rate on floating rate borrowings as at 31 December 2014 was 1% (2013 – 1%).

Currency and Interest Rate Profile of Interest Bearing Assets:

 

        
 
 
Cash
at bank
$ million
  
  
  
      
 
 
Currency
swaps
$ million
  
  
  
      
 
Total assets
$ million
  
  
      
 
 
Floating
rate assets
$ million
  
  
  

At 31 December 2014:

                                           

US Dollars

       13           79           92           92   

Other

       80           200           280           280   

Total interest bearing assets

       93           279           372           372   

At 31 December 2013:

                                           

US Dollars

       8           69           77           77   

Other

       129           77           206           206   

Total interest bearing assets

       137           146           283           283   

Floating rates on assets are typically based on the short-term deposit rates relevant to the currency concerned. There were no fixed rate assets at 31 December 2014 or 31 December 2013.

 

 

 

 

 

 

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16.5 Fair value of financial assets and liabilities

 

 

 

ACCOUNTING POLICY

 

 
 

 

 

 

Measurement of fair values

 

A number of the Group’s accounting policies and disclosures require the measurement of fair values, for both financial assets and liabilities and non-financial assets acquired in a business combination (see Note 21).

 

When measuring the fair value of an asset or liability, the Group uses market observable data as far as possible. Fair values are categorised into different levels in the fair value hierarchy based on the inputs used in the valuation techniques as follows: Level 1: quoted prices (unadjusted) in active markets for identical assets or liabilities; Level 2: inputs other than quoted prices included in Level 1 that are observable for the asset or liability, either directly (i.e. as prices) or indirectly (i.e. derived from prices); Level 3: inputs for the asset or liability that are not based on observable data (unobservable inputs).

 

The Group recognises transfers between the levels of the fair value hierarchy at the end of the reporting period during which the change has occurred.

 

The following table shows the carrying amounts and fair values of financial assets and financial liabilities, including their levels in the fair value hierarchy. It does not include fair value information for financial assets and financial liabilities not measured at fair value if the carrying amount is a reasonable approximation of fair value.

 

     Carrying amount         Fair value  
   

Designated
at fair

value

   

Fair value –
hedging

instruments

   

Loans

and

receivables

    Available
for sale
    Other
financial
liabilities
    Total         Level 2     Level 3     Total  

At 31 December 2014

    $ million        $ million        $ million        $ million        $ million        $ million          $ million        $ million        $ million   
Financial assets measured at fair value                    
Forward foreign exchange contracts            48                             48          48               48   
Investments                          5               5                 5        5   
Currency swaps     1                                    1          1               1   
      1        48               5               54          49        5        54   
Financial liabilities measured at fair value                    
Acquisition consideration     (33                                 (33              (33     (33
Forward foreign exchange contracts            (19                          (19       (19            (19
Currency swaps     (2                                 (2       (2            (2
      (35     (19                          (54       (21     (33     (54
Financial assets not measured at fair value                    
Trade and other receivables                   1,117                      1,117           
Cash at bank                   93                      93           
                    1,210                      1,210           
Financial liabilities not measured at fair value                    
Bank overdrafts                                 (28     (28        
Bank loans                                 (540     (540        
Private placement debt                                 (1,125     (1,125       (1,144            (1,144
Finance lease liabilities                                 (12     (12        
Trade and other payables                                 (828     (828        
                                  (2,533     (2,533        

 

 

    

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FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

16 Financial instruments and risk management continued

 

      Carrying amount             Fair value   

At 31 December 2013

 

   

 

 

 

 

Designated

at fair

value

$ million

 

  

  

  

  

 

   

 

 

 

 

Fair value –

hedging

instruments

$ million

 

  

  

  

  

 

    

 

 

 

 

Loans

and

receivables

$ million

 

  

  

  

  

 

    

 

 

 

Available

for sale

$ million

 

  

  

  

 

    

 

 

 

 

Other

financial

liabilities

$ million

 

  

  

  

  

 

  

Total

$ million

 

           

 

 

Level 2

$ million

 

  

  

 

    

 

 

Level 3

$ million

 

  

  

 

    

 

 

Total

$ million

 

  

  

 

Financial assets measured at fair value

                             

Forward foreign exchange contracts

           28                               28           28                 28   

Investments

                           2               2                   2         2   

Currency swaps

    1                                      1           1                 1   
      1        28                 2               31             29         2         31   

Financial liabilities measured at fair value

                             

Acquisition consideration

    (21                                   (21)                   (21      (21

Forward foreign exchange contracts

           (20                            (20)           (20              (20
      (21     (20                            (41)             (20      (21      (41

Financial assets not measured at fair value

                             

Trade and other receivables

                   1,085                       1,085              

Cash at bank

                   137                       137              
                     1,222                       1,222              

Financial liabilities not measured at fair value

                             

Bank overdrafts

                                   (11    (11)              

Bank loans

                                   (366    (366)              

Finance lease liabilities

                                   (14    (14)              

Trade and other payables

                                   (751    (751)              
                                     (1,142    (1,142)                

The Group enters into derivative financial instruments with financial institutions with investment grade credit ratings. The fair value of forward foreign exchange contracts is calculated by reference to quoted market forward exchange rates for contracts with similar maturity profiles. The fair value of currency swaps is determined by reference to quoted market spot rates. As a result, foreign forward exchange contracts and currency swaps are classified as Level 2 within the fair value hierarchy.

As at 31 December 2014 and 31 December 2013, the fair value of derivatives is net of a credit valuation adjustment attributable to derivative counterparty default risk. The changes in counterparty credit risk had no material effect on the hedge effectiveness for derivatives designated in hedge relationships and other financial instruments recognised at fair value.

The fair value of contingent consideration is estimated using a discounted cash flow model. The valuation model considers the present value of expected payment, discounted using a risk-adjusted discount rate. The expected payment is determined by considering the possible scenarios, which relate to the achievement of established milestones and targets, the amount to be paid under each scenario and the probability of each scenario. As a result, contingent consideration is classified as Level 3 within the fair value hierarchy.

There were no transfers between level 1, 2 and 3 during 2014 and 2013.

For cash and cash equivalents, short-term loans and receivables, overdrafts and other short-term liabilities which have a maturity of less than three months the book values approximate the fair values because of their short-term nature.

Long-term borrowings are measured in the balance sheet at amortised cost. As the Group’s long-term borrowings are not quoted publicly and as market prices are not available their fair values are estimated by discounting future contractual cash flows to net present values at the current market interest rates available to the Group for similar financial instruments as at the year-end.

 

 

 

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17 Provisions and contingencies

 

 

 

ACCOUNTING POLICY

 

 
 

In the normal course of business the Group is involved in various legal disputes. Provision is made for loss contingencies when it is deemed probable that an adverse outcome will occur and the amount of the loss can be reasonably estimated. Where the Group is the plaintiff in pursuing claims against third parties legal and associated expenses are charged to the income statement as incurred.

 

The recognition of provisions for legal disputes is subject to a significant degree of estimation. In making its estimates management takes into account the advice of internal and external legal counsel. Provisions are reviewed regularly and amounts updated where necessary to reflect developments in the disputes. The ultimate liability may differ from the amount provided depending on the outcome of court proceedings or settlement negotiations or as new facts emerge.

 

A provision for onerous contracts is recognised when the expected benefits to be derived by the Group from a contract are lower than the unavoidable cost of meeting its obligations under the contract. For the purpose of calculating any onerous lease provision, the Group has taken the discounted future lease payments, net of expected rental income. Before a provision is established, the Group recognises any impairment loss on the assets associated with that contract.

 

A provision for rationalisation is recognised when the Group has approved a detailed and formal restructuring plan, and the restructuring either has commenced or has been announced publicly. Future operating losses are not provided for.

 

 

17.1 Provisions

 

        
 
 
Rationalisation
provisions
$ million
  
  
  
      
 
 
Legal and other
provisions
$ million
  
  
  
      
 
Total
$ million
  
  

At 1 January 2013

       25           97           122   

Charge to income statement

       15           22           37   
Utilised        (22        (12        (34

At 31 December 2013

       18           107           125   

Acquisitions

                 24           24   

Charge to income statement

       17           15           32   

Utilised

       (22        (28        (50
Exchange adjustment        (1                  (1
At 31 December 2014        12           118           130   

Provisions – due within one year

       12           55           67   
Provisions – due after one year                  63           63   
At 31 December 2014        12           118           130   

Provisions – due within one year

       18           42           60   
Provisions – due after one year                  65           65   
At 31 December 2013        18           107           125   

The principal provisions within rationalisation provisions relate to the Group Optimisation programme (mainly severance) announced in May 2014 and people costs associated with the structural and efficiency programme announced in August 2011.

Included within the legal and other provisions are:

 

A provision of $10m (2013 – $nil) relating to the distribution hold on RENASYS.

 

A provision of $7m (2013 – $nil) relating to the HP802 programme which was stopped in the fourth quarter of 2014.

 

The remaining balance largely represents provisions for various patent disputes and other litigation.

All provisions are expected to be substantially utilised within three years of 31 December 2014 and none are treated as financial instruments.

 

 

    

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FINANCIAL STATEMENTS

Notes to the Group accounts continued

17 Provisions and contingencies continued

 

 

17.2 Contingencies

The Company and its subsidiaries are parties to various legal proceedings, some of which include claims for substantial damages. The outcome of these proceedings cannot readily be foreseen, but management believes none of them are likely to result in a material adverse effect on the financial position of the Group. The Group provides for outcomes that are deemed to be probable and can be reliably estimated. There is no assurance that losses will not exceed provisions or will not have a significant impact on the Group’s results of operations in the period in which they are realised.

In August 2003, the Group withdrew voluntarily from all markets the macrotextured versions of its OXINIUM femoral knee components. A charge of $154m was recorded in 2004 for anticipated expenses in connection with macrotexture claims. Most of that amount has since been applied to settlements of such claims, and almost all have been resolved. The aggregate cost at 31 December 2014 related to this matter is approximately $215m. The Group has sought recovery from its primary and excess insurers for costs of resolving the claims. The primary insurance carrier has paid $60m in full settlement of its policy liability. However, the excess carriers have denied coverage, citing defences relating to the wording of the insurance policies and other matters. In December 2004, the Group brought suit against them in the US district court for the Western District of Tennessee. Trial has not yet begun. An additional $22m was received during 2007 from a successful settlement with a third party.

17.3 Legal proceedings

Product liability claims

The Group faces other claims from time to time for alleged defects in its products and has on occasion recalled or withdrawn products from the market. Such claims are endemic to the orthopaedic device industry. The Group maintains product liability insurance subject to limits and deductibles that management believes are reasonable. All policies contain exclusions and limitations, however, and there can be no assurance that insurance will be available or adequate to cover all claims.

In recent years, there has been heightened concern about possible adverse effects of hip implant products with metal-on-metal bearing surfaces, and the Group has incurred and will continue to incur expenses to defend claims in this area. As of January 2015 approximately 930 such claims were pending with the Group around the world, of which 539 had given rise to pending legal proceedings. Most of the pending legal proceedings are in the United States. Most claims relate to the Group’s Birmingham Hip Resurfacing (‘BHR’) product and the Birmingham Hip Modular Head (‘BHMH’) and R3 Metal Liner (‘R3ML’) components. In 2012, the Group restricted instructions for use of the BHMH and ceased offering the R3ML. In 2013, the Group’s US subsidiary agreed with lawyers representing metal-on-metal claimants to consolidate pre-trial proceedings (such as discovery) in their lawsuits in a state court in Memphis, Tennessee, and those lawsuits account for most of the US proceedings. These lawsuits are being vigorously defended, but outcomes are difficult to predict and defence costs can be significant. The Group takes care to monitor the clinical evidence relating to its metal hip implant products and ensure that its product offerings and training are designed to serve patients’ interests.

The Group has requested indemnity from its product liability insurers for most of these metal-on-metal hip implant claims. In general, the insurers are investigating the claims and have reserved rights under their respective policies. As noted above, there can be no assurance that insurance will be available or adequate to cover all claims.

Business practice investigations

Business practices in the healthcare industry are subject to regulation and review by various government authorities. From time to time authorities undertake investigations of the Group’s activities to verify compliance. In September 2007, the SEC notified the Group that it was conducting an informal investigation of companies in the medical devices industry, including the Group, regarding possible violations of the Foreign Corrupt Practices Act (‘FCPA’) in connection with the sale of products in certain countries outside of the US. The US Department of Justice (‘DOJ’) subsequently joined the SEC’s request.

On 6 February 2012, Smith & Nephew announced that it had reached settlement with the SEC and DOJ in connection with this matter. Smith & Nephew paid slightly less than $23m in fines and profit disgorgement and committed to maintain an enhanced compliance programme and appoint an independent monitor for at least 18 months to review and report on its compliance programme. The monitor’s final report was filed in late 2013, and the independent monitorship was terminated. The settlement agreements had three-year terms. The deferred prosecution agreement with the DOJ expired on 6 February 2015 and the DOJ moved to dismiss a related court action against Smith & Nephew. The agreement with the SEC is scheduled to expire on 3 March 2015.

Intellectual property disputes

The Group is engaged, as both plaintiff and defendant, in litigation with various competitors and others over claims of patent infringement and other intellectual property matters. These disputes are being heard in courts in the US and other jurisdictions and also before agencies that examine patents. Outcomes are rarely certain and costs are often significant.

The Group has won a jury verdict in the US district court for Oregon against Arthrex Inc. for infringement of the Group’s patents relating to suture anchors. A number of issues have been disputed and appealed since the case was first filed in 2003; Arthrex’s latest appeal was argued in January 2015. Arthrex asserted other patents against the Group in 2014 in the US district court for the Eastern District of Texas.

Other matters

In April 2009, the Group was served with a subpoena by the US Department of Justice in Massachusetts requiring the production of documents from 1995 to 2009 associated with the marketing and sale of the Group’s EXOGEN bone growth stimulator. Similar subpoenas have been served on a number of competitors in the bone growth stimulator market. Around the same time a qui tam or ‘whistle-blower’ complaint concerning the industry’s sales and marketing of those products, originally filed in 2005 against the primary manufacturers of bone growth stimulation products (including Smith & Nephew), was unsealed in federal court in Boston, Massachusetts. A motion to dismiss that complaint was denied in December 2010.

 

 

 

 

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The Group is subject to country of origin requirements under the US Buy American and Trade Agreements Acts with regard to sales to certain US government customers. In 2008 the Group voluntarily disclosed to the US Veterans Administration and the US Department of Defense that a small percentage of the products sold to the US government may have originated from countries that are not eligible for such sales except with government consent. In December 2008, three months after Smith & Nephew’s initial voluntary disclosure, a whistle-blower suit was filed in the US district court for the Western District of Tennessee alleging these violations. Smith & Nephew’s motion to dismiss the suit was denied in November 2010, and it was settled in 2014.

In January 2014, before agreeing to be acquired by the Group, ArthroCare announced a settlement of charges by the US DOJ relating to securities fraud in which certain members of prior management were implicated. ArthroCare paid a $30m fine and signed a deferred prosecution agreement that imposes reporting, compliance and other requirements on ArthroCare for a two-year term.

18 Retirement benefit obligations

 

 

 

ACCOUNTING POLICY

 

 
 

 

 

 

The Group’s major pension plans are of the defined benefit type. A defined benefit pension plan defines an amount of pension benefit that an employee will receive on retirement, which is dependent on various factors such as age, years of service and final salary. The Group’s obligation is calculated separately for each plan by discounting the estimated future benefit that employees have earned in return for their service in the current and prior periods. The fair value of any plan assets is deducted to arrive at the net liability.

 

The calculation of the defined benefit obligation is performed annually by external actuaries using the projected unit credit method. Re-measurements arising from defined benefit plans comprise actuarial gains and losses and the return on the plan assets net of the costs of managing the plan assets. The Group recognises these immediately in other comprehensive income (‘OCI’) and all other expenses, such as service cost, net interest cost, administration costs and taxes, are recognised in the income statement.

 

A number of key assumptions are made when calculating the fair value of the Group’s defined benefit pension plans. These assumptions impact the balance sheet asset and liabilities, operating profit and finance income/costs. The most critical assumptions are the discount rate, the rate of inflation and mortality assumptions to be applied to future pension plan liabilities. The discount rate is based on the yield at the reporting date on bonds that have a credit rating of AA, denominated in the currency in which the benefits are expected to be paid and have a maturity profile approximately the same as the Group’s obligations. In determining these assumptions management take into account the advice of professional external actuaries and benchmarks its assumptions against external data.

 

The Group determines the net interest expense/(income) on the net defined benefit liability/(asset) for the period by applying the discount rate used to measure the defined benefit obligation at the beginning of the annual period to the net defined benefit liability/(asset).

 

The Group also operates a number of defined contribution plans. A defined contribution plan is a pension plan under which the Group and employees pay fixed contributions to a third party financial provider. The Group has no further payment obligations once the contributions have been paid. Contributions are recognised as an employee benefit expense when they are due.

 

 

18.1 Retirement benefit net (assets)/obligations

The Group’s retirement benefit obligations comprise:

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  

Funded plans:

         

UK Plan

       16           50   

US Plan

       74           65   

Other Plans

       42           28   
       132           143   

Unfunded Plans:

         

Other Plans

       48           39   

Retirement Healthcare

       46           43   
         226           225   

Amount recognised on the balance sheet – liability

       233           230   

Amount recognised on the balance sheet – asset

       (7        (5

The Group sponsors pension plans for its employees in 16 countries and these are established under the laws of the relevant country. Funded plans are funded by the payment of contributions and the assets are held by separate trust funds or insurance companies. In countries where there is no Company-sponsored pension plan, state benefits are considered by management to be adequate. Employees’ retirement benefits are the subject of regular management review. The Group’s defined benefit plans provide employees with an entitlement to retirement benefits varying between 1.3% and 66.7% of final salary on attainment of retirement rage. The level of entitlement is dependent on the year of service of the employee.

The Group’s two major defined benefit pension plans are in the UK and US. Both these plans were closed to new employees in 2003 and defined contribution plans are offered to new joiners. The US Plan was closed to future accrual in March 2014.

 

 

 

 

    

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Smith & Nephew Annual report 2014              147

    

 


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FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

18 Retirement benefit obligations continued

 

The UK Plan operates under trust law and responsibility for its governance lies with a Board of Trustees. This Board is composed of representatives of the Group, plan participants and an independent trustee who act on behalf of members in accordance with the terms of the Trust Deed and Rules and relevant legislation. The UK Plan’s assets are held by the trust. Annual increases on benefits in payment are dependent on inflation. The main uncertainties affecting the level of benefits payable under the UK Plan are future inflation levels (including the impact of inflation on future salary increase) and the actual longevity of the membership.

The US Plan is governed by a US Pension Committee which is composed of both plan participants and representatives of the Group. In the US, the Pension Protection Act (2006) established both a minimum required contribution and a maximum deductible contribution. Failure to contribute at least the minimum required amount will subject the Company to significant penalties and contributions in excess of the maximum deductible have negative tax consequences. The minimum funding requirement is intended to fully fund the present value of accrued benefits over seven years.

18.2 Reconciliation of benefit obligations and pension assets

The movement in the Group’s pension benefit obligation and pension assets is as follows:

 

         2014               2013   
        
 
Obligation
$ million
  
  
      
 
Asset
$ million
  
  
      
 
Total
$ million
  
  
          
 
Obligation
$ million
  
  
      
 
Asset
$ million
  
  
      
 
Total
$ million
  
  
Amounts recognised on the balance sheet at beginning of the period        (1,581        1,356           (225            (1,487        1,227           (260

Income statement expense:

                               

Current service cost

       (22                  (22          (29                  (29

Past service cost

       36                     36                                   

Settlements

       71           (60        11                                   

Interest (expense)/income

       (67        60           (7          (59        51           (8

Administration costs and taxes

       (3                  (3            (3                  (3

Costs recognised in Income statement

       15                     15               (91        51           (40

Re-measurements:

                               

Actuarial gain due to liability experience

       5                     5             1                     1   

Actuarial (loss)/gain due to financial assumptions change

       (179                  (179          16                     16   

Actuarial loss due to demographic assumptions

       (30                  (30          (42                  (42

Return on plan assets greater than discount rate

                 110           110                         37           37   

Re-measurements recognised in OCI

       (204        110           (94            (25        37           12   

Cash:

                               

Employer contributions

                 65           65                       67           67   

Employee contributions

       (5        5                       (4        4             
Benefits paid directly by the Group, taxes and administration costs paid from scheme assets        3                     3             3           (3          

Benefits paid

       51           (54        (3            45           (45          

Net cash

       49           16           65               44           23           67   

Exchange rates

       84           (71        13               (22        18           (4

Amount recognised on the balance sheet

       (1,637        1,411           (226            (1,581        1,356           (225

Amount recognised on the balance sheet – liability

       (1,611        1,378           (233            (1,548        1,318           (230

Amount recognised on the balance sheet – asset

       (26        33           7               (33        38           5   

Represented by:

 

                               
         2014               2013   
        
 
Obligation
$ million
  
  
      
 
Asset
$ million
  
  
      
 
Total
$ million
  
  
          
 
Obligation
$ million
  
  
      
 
Asset
$ million
  
  
      
 
Total
$ million
  
  

UK Plan

       (879        863           (16          (855        805           (50

US Plan

       (482        408           (74          (482        417           (65

Other Plans

       (276        140           (136            (244        134           (110

Total

       (1,637        1,411           (226            (1,581        1,356           (225

All benefits are vested at the end of each reporting period. The weighted average duration of the defined benefit obligation at the end of the reporting period is 20 years and 14 years for the UK and US plans respectively. For 2013, this was 20 years for the UK Plan and 16 years for the US Plan.

 

 

 

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18.3 Plan assets

The market value of the US, UK and Other Plans assets are as follows:

 

        2014
$ million
       2013
$ million
       2012
$ million
 

UK Plan:

              

Assets with a quoted market price:

              

Cash and cash equivalents

       6           8           11   

Equity securities

       237           220           249   

Government bonds – fixed interest

                 61           92   

                                 – index linked

                 109           282   

Liability driven investments

       227                       
Diversified growth funds        155           159           110   
       625           557           744   

Other assets:

              

Insurance contract

       238           248             

Market value of assets

       863           805           744   

US Plan:

              

Assets with a quoted market price:

              

Cash and cash equivalents

                 6           1   

Equity securities

       167           181           242   

Government bonds – fixed interest

       121           64           106   

Corporate bonds

       120           151             

Hedge funds

                 15           10   

Market value of assets

       408           417           359   

Other Plans:

              

Assets with a quoted market price:

              

Cash and cash equivalents

       6           6           5   

Equity securities

       33           32           26   

Government bonds – fixed interest

       7           9           7   

                                 – index linked

       13           11           34   

Corporate bonds

       12           13           2   

Insurance contracts

       31           24             

Property

       6           6           5   
Other quoted securities        3           3           11   
       111           104           90   

Other assets:

              

Equities

                           2   

Insurance contracts

       29           29           31   

Investment property

                 1           1   
Market value of assets        140           134           124   
Total market value of assets        1,411           1,356           1,227   

No plans invest directly in property occupied by the Group or in financial securities issued by the Group.

The US and UK plan assets are invested in a diversified range of industries across a broad range of geographies. These assets include liability matching assets and annuity policies purchased by the trustees of each plan, which aim to match the benefits to be paid to certain members from the plan and therefore remove the investment, inflation and demographic risks in relation to those liabilities.

In December 2014, the low risk asset portfolio held by the UK Plan was transferred into liability driven investments (LDI) in order to maintain the same level of hedging against interest rate and inflation risks.

The UK Plan also has an insurance contract with Rothesay Life covering a subset of the UK Plan pensioner liabilities. The terms of this policy define that the contract value exactly matches the amount and timing of the pensioner obligations covered by the contract. In accordance with IAS19R Employee Benefits, the fair value of the insurance contract is deemed to be the present value of the related obligations which is discounted at the AA corporate bond rate.

 

 

 

 

 

 

    

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Smith & Nephew Annual report 2014              149

    

 


Table of Contents

FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

18 Retirement benefit obligations continued

18.4 Expenses recognised in the income statement

The total expense relating to retirement benefits recognised for the year is $17m (2013 – $72m, 2012 – $72m). Of this cost recognised for the year, $32m (2013 – $32m, 2012 – $32m) relates to defined contributions and $15m net income (2013 – $40m expense, 2012 – $40m expense) relates to defined benefit plans.

The cost charged in respect of the Group’s defined contribution plans represents contributions payable to these plans by the Group at rates specified in the rules of the plans. These were charged to operating profit in selling, general and administrative expenses. There were $nil outstanding payments as at 31 December 2014 due to be paid over to the plans (2013 – $nil, 2012 – $nil).

Included in the $15m net income recognised for defined benefits plans are a $35m past service cost credit which arose on the closure of the US plan to future accrual in March 2014 and a $11m gain on settlement of benefits as a result of a member buyout in December 2014.

Defined benefit plan costs comprise service cost which is charged to operating profit in selling, general and administrative expenses and net interest cost and administration costs and taxes which are reported as other finance costs.

The defined benefit pension costs charged for the UK and US plans are:

 

         2014              2013               2012    
        

 

UK Plan

$ million

  

  

    

 US Plan  

$ million  

          

 

UK Plan

$ million

  

  

      

 

US Plan

$ million

  

  

          

 

UK Plan

$ million

  

  

      

 

US Plan 

$ million 

  

  

Service cost

       10         2            7           10             8           11    

Past service cost

               (35)                                           –    

Settlement gain

               (11)                                           –    
Net interest cost, administration and taxes        3         3              1           7               1             
         13         (41)             8           17               9           18    

 

18.5 Principal actuarial assumptions

 

The following are the principal financial actuarial assumptions used at the reporting date to determine the UK and US defined benefit obligations and expense.

 

  

  

                                         

 

2014

% per annum

  

  

          

 

2013

% per annum

  

  

      

 

2012 

% per annum 

  

  

UK Plan:

                                 

Discount rate

                        3.7             4.4           4.5    

Future salary increases

                        3.5             3.9           3.5    

Future pension increases

                        3.0             3.4           3.0    

Inflation (RPI)

                        3.0             3.4           3.0    

Inflation (CPI)

                        2.0             2.4           2.2    

US Plan:

                                 

Discount rate

                        4.0             4.9           4.0    

Future salary increases

                        n/a             3.0           3.0    

Inflation

                                        n/a               2.5           2.5    

 

 

 

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Actuarial assumptions regarding future mortality are based on mortality tables. The UK uses the S1NA with projections in line with the CMI 2011 table and the US uses the RP2000 table with scale AA. The current longevities underlying the values of the obligations in the defined benefit plans are as follows:

 

    

2014 

years 

  

2013

years

  

2012 

years 

Life expectancy at age 60

              

UK Plan:

        

Males

   29.4     29.3    28.7 

Females

   31.2     31.1    30.2 

US Plan:

        

Males

   26.0     23.8    22.9 

Females

   28.5     25.5    25.0 

Life expectancy at age 60 in 20 years’ time

              

UK Plan:

        

Males

   32.4     32.2    31.2 

Females

   33.3     33.2    31.9 

US Plan:

        

Males

   27.8     23.8    24.6 

Females

   30.2     25.5    25.0 

18.6 Sensitivity analysis

The calculation of the defined benefit obligation is sensitive to the assumptions used. The following table summarises the increase/decrease on the UK and US defined benefit obligation and pension costs as a result of reasonably possible changes in some of the assumptions while holding all other assumptions consistent. The sensitivity to the inflation assumption change includes corresponding changes to the future salary increases and future pension increase assumptions. The analysis does not take into account the full distribution of cash flows expected under the plan.

Changes to the inflation assumption will not have any affect on the US Pension plan as it was closed to future accrual in 2014.

 

     Increase in pension obligation     Increase in pension cost 
  

 

  

 

$ million    +50bps/+1yr    -50bps/-1yr     +50bps/+1 yr    -50bps/-1yr 

UK Plan:

           

Discount rate

   -80    +91     -4    +4 

Inflation

   +90    -78     +4    -4 

Mortality

   +31    -31     +1    -1 

US Plan:

           

Discount rate

   -33    +36     -2    +1 

Inflation

   n/a    n/a     n/a    n/a 

Mortality

   +12    -12        – 

 

 

 

    

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Smith & Nephew Annual report 2014              151

    

 


Table of Contents

FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

18 Retirement benefit obligations continued

18.7 Risk

The pension plans expose the Group to the following risks:

 

Interest rate risk

Volatility in financial markets can change the calculations of the obligation dramatically as the calculation of the obligation is linked to yields on AA-rated corporate bonds. A decrease in the bond yield will increase the measure of plan liabilities, although this will be partially offset by increases in the value of matching plan assets such as bonds and insurance contracts.

 

In the UK, the liability matching portfolio held in conventional and index-linked gilts was transferred into liability driven investments in order to reduce interest rate risk.

Inflation risk

The UK Plan is linked to inflation. A high rate of inflation will lead to a higher liability. This risk is managed by holding inflation-linked bonds and an inflation-linked insurance contract in respect of some of the obligation. In the UK, the liability matching portfolio held in conventional and index-linked gilts was transferred into liability driven investments in order to reduce inflation risk.

 

The US Plan has been closed to future accrual which eliminates the exposure to this risk.

Investment risk

If the return on plan assets is below the discount rate, all else being equal, there will be an increase in the plan deficit.

 

In the UK, this risk is partially managed by a portfolio of liability matching assets and a bulk annuity, together with a dynamic de risking policy to switch growth assets into liability matching assets over time.

 

The US Plan has a dynamic de-risking policy to shift plan assets into longer term stable asset classes. The policy established ten pre-determined funded status levels and when each trigger point is reached, the plan assets are re-balanced accordingly.

Longevity risk

The present value of the plans defined benefit liability is calculated by reference to the best estimate of the mortality of the plan participants both during and after their employment. An increase in the life expectancy of plan participants above that assumed will increase the benefit obligation.

 

The UK Plan, in order to minimise longevity risk, entered into an insurance contract which covers a portion of pensioner obligations.

Salary risk The calculation of the defined benefit obligation uses the future estimated salaries of plan participants. Increases in the salary of plan participants above that assumed will increase the benefit obligation. The exposure to salary risk in the US has been eliminated with the closure of the US Plan to future accrual.

18.8 Funding

A full valuation is performed by actuaries for the Trustees of each plan to determine the level of funding required. Employer contributions rates, based on these full valuations, are agreed between the trustees of each plan and the Group. The assumptions used in the funding actuarial valuations may differ from those assumptions above. Employees are required to contribute to the plans.

UK Plan

The most recent full actuarial valuation of the UK Plan was undertaken as at 30 September 2012. Valuations are performed every two years, however in 2014, the Trustees have agreed that they will defer the 2014 valuation for one year and it will be performed in September 2015. Contributions to the UK Plan in 2014 were $33m (2013 – $37m, 2012 – $39m). This included supplementary payments of $23m (2013 – $31m, 2012 – $30m).

The Group has agreed to pay the supplementary payments each year until 2017. The agreed supplementary contributions for 2015 are $37m.

US Plan

Full actuarial valuations were performed annually for the US Plan with the last undertaken as at 20 September 2013 before the closure of the Plan to future accrual. Contributions to the US Plan were $22m (2013 – $20m, 2012 – $27m) which included supplementary payments of $20m. The agreed contributions for 2015 are $22m.

 

 

 

 

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19 Equity

 

 

 

ACCOUNTING POLICY

 

 
 

 

 

 

Incremental costs directly attributable to the issue of ordinary shares, net of any tax effects, are recognised as a deduction from equity.

 

When shares recognised as equity are repurchased, the amount of the consideration paid, which includes directly attributable costs, net of any tax effects, is recognised as a deduction from equity. Repurchased shares are classified as treasury shares and are presented in the treasury share reserve. When treasury shares are sold or reissued subsequently, the amount received is recognised as an increase in equity and the resulting surplus or deficit on the transaction is presented within share premium.

 

19.1 Share capital

 

         Ordinary shares (20¢)           Deferred shares (£1.00)           Total   
    

 

 

      

 

 

      
         Thousand           $ million           Thousand           $ million           $ million   

Authorised

                        

At 31 December 2012

       1,223,591           245           50                     245   

At 31 December 2013

       1,223,591           245           50                     245   

At 31 December 2014

       1,223,591           245           50                     245   

Allotted, issued and fully paid

                        

At 1 January 2012

       954,828           191           50                     191   

Share options

       8,752           2                               2   

 

 

At 31 December 2012

  963,580      193      50           193   

Share options

  5,587      1                1   

Shares cancelled

  (51,000   (10             (10

 

 

At 31 December 2013

  918,167      184      50           184   

Share options

  4,180      1                1   

Shares cancelled

  (4,405   (1             (1

At 31 December 2014

  917,942      184      50           184   

The deferred shares were issued in 2006 in order to comply with English Company law. They are not listed on any stock exchange and have extremely limited rights and effectively have no value. These rights are summarised as follows:

 

The holder shall not be entitled to participate in the profits of the Company;

 

The holder shall not have any right to participate in any distribution of the Company’s assets on a winding up or other distribution except that after the return of the nominal amount paid up on each share in the capital of the Company of any class other than the deferred shares and the distribution of a further $1,000 in respect of each such share there shall be distributed to a holder of a deferred share (for each deferred share held by him) an amount equal to the nominal value of the deferred share;

 

The holder shall not be entitled to receive notice, attend, speak or vote at any general meeting of the Company; and

 

The Company may create, allot and issue further shares or reduce or repay the whole or any part of its share capital or other capital reserves without obtaining the consent of the holders of the deferred shares.

The Group’s objectives when managing capital are to ensure the Group has adequate funds to continue as a going concern and sufficient flexibility within the capital structure to fund the ongoing growth of the business and to take advantage of business development opportunities including acquisitions.

The Group determines the amount of capital taking into account changes in business risks and future cash requirements. The Group reviews its capital structure on an ongoing basis and uses share buy-backs, dividends and the issue of new shares to adjust the retained capital.

The Group considers the capital that it manages to be as follows:

 

         2014           2013           2012   
         $ million           $ million           $ million   

Share capital

       184           184           193   

Share premium

       574           535           488   

Capital redemption reserve

       11           10             

Treasury shares

       (315        (322        (735

Retained earnings and other reserves

       3,586           3,640           3,938   
         4,040           4,047           3,884   

 

 

 

 

 

    

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Smith & Nephew Annual report 2014              153

    

 


Table of Contents

FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

19 Equity continued

 

19.2 Treasury shares

Treasury shares represents the holding of the Company’s own shares in respect of the Smith & Nephew Employee’s Share Trust and shares bought back as part of the share buy-back programme. On 2 May 2013, as part of the new Capital Allocation Framework, the Group announced the start of a new share buy-back programme to return $300m of surplus capital to its shareholders. The programme was suspended in February 2014 following the annoucement of the ArthroCare acquisition. Shares issued in connection with the Group’s share incentive plans are brought back on a quarterly basis. During 2014, a total of 4.4m ordinary shares (0.5%) had been purchased at a cost of $72m and 4.4m ordinary shares (0.5%) had been cancelled. The maximum number of ordinary shares held in treasury during 2014 was 26.9m (2.8%) with a nominal value of $5.4m.

The Smith & Nephew 2004 Employees’ Share Trust (‘Trust’) was established to hold shares relating to the long-term incentive plans referred to in the ‘Directors’ Remuneration Report’. The Trust is administered by an independent professional trust company resident in Jersey and is funded by a loan from the Company. The cost of the Trust is charged to the income statement as it accrues. A partial dividend waiver is in place in respect of those shares held under the long-term incentive plans. The trust only accepts dividends in respect of nil-cost options and deferred bonus plan shares. The waiver represents less than 1% of the total dividends paid.

The movements in Treasury shares and the Employees’ Share Trust are as follows:

 

               
 
Treasury
$ million
  
  
      

 
 

Employees’

Share Trust
$ million

 

  
  

      

 

Total

$ million

  

  

At 1 January 2013

            730           5           735   

Shares purchased

            226           5           231   

Shares transferred from treasury

            (8        8             

Shares transferred to Group beneficiaries

            (7        (14        (21
Shares cancelled               (623                  (623

At 31 December 2013

            318           4           322   

Shares purchased

            72           3           75   

Shares transferred from treasury

            (11        11             

Shares transferred to Group beneficiaries

            (8        (17        (25
Shares cancelled               (57                  (57
At 31 December 2014               314           1           315   
                   
               
 

 

Number
of shares

million

  
 

  

      

 
 

Number

of shares
million

  

  
  

      
 
 
Number
of shares
million
  
  
  

At 1 January 2013

            59.5           0.5           60.0   

Shares purchased

            18.2           0.4           18.6   

Shares transferred from treasury

            (0.6        0.6             

Shares transferred to Group beneficiaries

            (0.6        (1.2        (1.8
Shares cancelled               (51.0                  (51.0

At 31 December 2013

            25.5           0.3           25.8   

Shares purchased

            4.4           0.2           4.6   

Shares transferred from treasury

            (0.9        0.9             

Shares transferred to Group beneficiaries

            (0.6        (1.3        (1.9
Shares cancelled               (4.4                  (4.4
At 31 December 2014               24.0           0.1           24.1   

 

 

19.3 Dividends

 

                   
               
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

The following dividends were declared and paid in the year:

                   

Ordinary final of 17.0¢ for 2013 (2012 – 16.20¢, 2011 – 10.80¢) paid 7 May 2014

            152           146           97   
Ordinary interim of 11.0¢ for 2014 (2013 – 10.40¢, 2012 – 9.90¢) paid 11 November 2014               98           93           89   
                250           239           186   

A final dividend for 2014 of 18.6 US cents per ordinary share was proposed by the Board on 4 February 2015 and will be paid, subject to shareholder approval, on 6 May 2015 to shareholders on the Register of Members on 17 April 2015. The estimated amount of this dividend on 23 February 2015 is $166m.

 

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Table of Contents

 

 

20 Cash flow statement

 

 

 

ACCOUNTING POLICY

 
 

 

In the Group cash flow statement, cash and cash equivalents includes cash at bank, other short-term liquid investments with original maturities of three months or less and bank overdrafts. In the Group balance sheet, bank overdrafts are shown within bank overdrafts and loans under current liabilities.

 

 

Analysis of net debt

 

                                                                Borrowings   
        
 
Cash
$ million
  
  
      
 
Overdrafts
$ million
  
  
      
 
 
Due within
one year
$ million
  
  
  
      
 
 
Due after
one year
$ million
  
  
  
      
 
 
Net currency
swaps
$ million
  
  
  
      
 
Total
$ million
  
  

At 1 January 2012

       184           (23        (283        (16                  (138

Net cash flow

       (10        12           256           (414        1           (155
Exchange adjustment        4                                         1           5   

At 31 December 2012

       178           (11        (27        (430        2           (288

Net cash flow

       (38                  (6        84           1           41   
Exchange adjustment        (3                            (1        (2        (6

At 31 December 2013

       137           (11        (33        (347        1           (253

Net cash flow

       (35        (19        22           (1,322        11           (1,343
Exchange adjustment        (9        2                     3           (13        (17
At 31 December 2014        93           (28        (11        (1,666        (1        (1,613

Reconciliation of net cash flow to movement in net debt

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Net cash flow from cash net of overdrafts

       (54        (38        2   

Settlement of currency swaps

       11           1           1   
Net cash flow from borrowings        (1,300        78           (158

Change in net debt from net cash flow

       (1,343        41           (155
Exchange adjustment        (17        (6        5   

Change in net debt in the year

       (1,360        35           (150
Opening net debt        (253        (288        (138
Closing net debt        (1,613        (253        (288

Cash and cash equivalents

For the purposes of the Group Cash Flow Statement cash and cash equivalents at 31 December 2014 comprise cash at bank net of bank overdrafts.

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Cash at bank

       93           137           178   
Bank overdrafts        (28        (11        (11
Cash and cash equivalents        65           126           167   

 

 

 

 

    

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Table of Contents

FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

21 Acquisitions and disposals

 

 

 

ACCOUNTING POLICY

 
 

 

The Group accounts for business combinations using the acquisition method when control is transferred to the Group. The consideration transferred in the acquisition is measured at fair value, as are the identifiable net assets acquired. Any goodwill that arises is tested annually for impairment. Any gain on a bargain purchase is recognised in profit or loss immediately. Transaction costs are expensed as incurred, except if related to the issue of debt or equity securities.

 

Any contingent consideration payable is measured at fair value at the acquisition date. If the contingent consideration is classified as equity, then it is not re-measured and settlement is accounted for within equity. Otherwise, subsequent changes in the fair value of the contingent consideration are recognised in profit or loss.

 

 

21.1 Acquisitions

Year ended 31 December 2014

Acquisition of ArthroCare

On 29 May 2014, the Group acquired 100% of the shares of ArthroCare Corporation, an innovative medical device company with a highly complementary sports medicine portfolio. The purchase price was $48.25 per share, paid in cash with the fair value of the total consideration equalling $1,715m. The acquisition was financed through existing debt facilities and cash balances, including an existing $1 billion revolving credit facility and a new two-year $1.4 billion term loan facility, established in February 2014.

The acquisition is deemed to be a business combination within the scope of IFRS 3 Business Combinations. The fair values shown below are provisional. If new information is obtained within the measurement period about facts and circumstances that existed at the acquisition date, the acquisition accounting will be revised. The provisional estimate of the goodwill arising on the acquisition is $829m. It relates to the value of the additional economic benefits expected from the transaction, including synergies and the assembled workforce. The goodwill recognised is not expected to be deductible for tax purposes.

The following table summarises the consideration transferred, and the recognised amounts of assets acquired and liabilities assumed at the acquisition date.

 

         $ million   

Identifiable assets acquired and liabilities assumed

    

Property, plant and equipment

       60   

Inventories

       66   

Trade receivables and prepayments

       54   

Identifiable intangible assets

       817   

Investments in associates

       4   

Trade and other payables

       (74

Provisions

       (19

Current tax payable

       (18
Deferred tax liabilities        (173

Net assets

       717   
Goodwill        829   
Consideration (net of $169m of cash acquired)        1,546   

The recognised amounts of assets acquired and liabilities assumed are different from those disclosed previously as adjustments to provisional values continue to be recorded during the measurement period. None of the adjustments posted to date are material.

The Group incurred acquisition related costs of $21m relating to professional and advisor fees. These costs have been recognised in administrative expenses in the income statement.

ArthroCare’s contribution to Group revenue was $207m for the year ended 31 December 2014, representing approximately seven months of sales. This gave rise to a pre-tax profit of $28m after amortisation of acquisition intangibles. Had ArthroCare been acquired on 1 January 2014, the Group’s revenues would have been $147m higher and pre-tax profit would have been $5m higher.

Acquisition of Brazilian distributor

On 17 March 2014 the Group acquired certain assets and liabilities related to the distribution business for its sports medicine, orthopaedic reconstruction, and trauma products in Brazil. The acquisition is deemed to be a business combination within the scope of IFRS 3 Business Combinations. The acquisition date fair value of the consideration was $31m and included deferred consideration of $26m and $5m in relation to the settlement of working capital commitments. The deferred consideration was subsequently settled during the second quarter.

 

 

 

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As at the acquisition date, the estimated value of the net assets acquired was $16m, which included trade and other receivables of $12m, identifiable intangible assets of $16m, inventory of $4m, property, plant and equipment of $2m, trade payables of $1m, provisions of $5m, current tax payable of $4m and deferred tax liabilities of $8m. As a result, the provisional estimate of goodwill arising on the acquisition was $15m. This is attributable to the additional economic benefits expected from the acquisition, including the assembled workforce, which has been transferred as part of the acquisition. The goodwill is not expected to be deductible for tax purposes.

The recognised amounts of assets acquired and liabilities assumed have been determined on a provisional basis. If new information is obtained within the measurement period about facts and circumstances that existed at the acquisition date, the acquisition accounting will be revised.

The contribution to revenue and attributable profit from this acquisition for the year ended 31 December 2014 was immaterial. If the acquisition had occurred at the beginning of the year its contribution to revenue and attributable profit for the year ended 31 December 2014 would also have been immaterial.

Year ended 31 December 2013

Acquisition of Turkish distributor

On 30 September 2013, the Group acquired certain assets and liabilities in respect of a Turkish business, which distributes products related to orthopaedic reconstruction, trauma, sports medicine and arthroscopic technologies.

The acquisition is deemed to be a business combination within the scope of IFRS 3.

The estimated fair value of the consideration is $63m and included $12m of contingent consideration in respect of agreed milestones and $36m through the settlement of working capital commitments. The accounting for acquisition was completed during 2014, with no change to the provisional values as at 31 December 2013.

The goodwill arising on the acquisition is $12m. It is attributable to the additional economic benefits expected from the transaction, including the assembled workforce, which has been transferred as part of the acquisition. The goodwill recognised is expected to be deductible for tax purposes.

The following table summarises the consideration transferred, and the recognised amounts of assets acquired and liabilities assumed at the acquisition date.

 

      $ million   

Identifiable assets acquired and liabilities assumed

 

Property, plant and equipment

    4   

Inventories

    8   

Trade receivables and prepayments

    24   

Identifiable intangible assets

    17   
Payables and accruals     (2

Net assets

    51   
Goodwill     12   
Cost of acquisition     63   

The Group incurred acquisition-related costs of $4m, primarily related to external legal fees and due diligence costs. These costs have been recognised in administrative expenses in the Group’s income statement.

In 2013, the contribution to revenue and attributable profit from the acquisition was immaterial. If the acquisition had occurred at the beginning of the year the contribution to revenue and attributable profit would have also been immaterial.

Other acquisitions

During the year ended 31 December 2013, the Group acquired a Brazilian distributor of its advanced wound management products and a business based in India primarily engaged in the manufacture and distribution of trauma products. These acquisitions are deemed to be business combinations within the scope of IFRS 3.

The aggregated total fair value of the consideration was $63m and included $2m of contingent consideration and $2m through the settlement of working capital commitments. The accounting for both acquisitions was completed during 2014, with no change to the provisional values as at 31 December 2013.

As at the acquisition date, the aggregated fair value of the net assets acquired was $38 million, which included property, plant and equipment of $1m, inventory of $4m, trade receivables and prepayments of $3m, identifiable intangible assets of $47m, payables and accruals of $3m and deferred tax liabilities of $14m.

The goodwill arising on the acquisitions is $25m. This is attributable to the additional economic benefits expected from the transactions, including the assembled workforces, which have been transferred as part of the acquisitions. The goodwill recognised is not expected to be deductible for tax purposes.

In 2013, the contribution to revenue and attributable profit from these acquisitions was immaterial. If these acquisitions had occurred at the beginning of 2013 their contribution to revenue and attributable profit would have also been immaterial.

 

 

    

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FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

21 Acquisitions and disposals continued

21.2 Disposal of business

Year ended 31 December 2014

During the fourth quarter of 2014, the Group disposed of a manufacturing facility in the UK for cash consideration of $20 million, resulting in a pre-tax gain on disposal of $9 million. The 2014 revenue and profit contribution of the disposed business was immaterial.

22 Operating leases

 

 

 

ACCOUNTING POLICY

 
 

 

Leases are classified as finance leases when the terms of the lease transfer substantially all the risks and rewards of ownership to the Group. All other leases are classified as operating leases.

 

Payments under operating leases are expensed in the income statement on a straight line basis over the term of the lease. Lease incentives received are recognised as an integral part of the total lease expense, over the term of the lease.

 

 

Future minimum lease payments under non-cancellable operating leases fall due as follows:

 

       2014  $ million       2013  $ million 

Land and buildings:

         

Within one year

     34       30 

After one and within two years

     25       22 

After two and within three years

     18       16 

After three and within four years

     12       13 

After four and within five years

         
After five years          
       105       93 

Other assets:

         

Within one year

     15       15 

After one and within two years

         

After two and within three years

         
After three and within four years          
       31       30 

 

 

 

 

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23 Other Notes to the accounts

23.1 Share-based payments

 

 

ACCOUNTING POLICY

 

 

 

The Group operates a number of equity-settled executive and employee share plans. For all grants of share options and awards, the fair value at the grant date is calculated using appropriate option pricing models. The grant date fair value is recognised over the vesting period as an expense, with a corresponding increase in retained earnings.

 

Employee plans

The Smith & Nephew Sharesave Plan (2002) (adopted by shareholders on 3 April 2002) (the Save As You Earn (‘SAYE’) plan), the Smith & Nephew International Sharesave Plan (2002), Smith & Nephew France Sharesave Plan (2002), Smith & Nephew Sharesave Plan (2012) (the Save As You Earn (‘SAYE 2012’) plan) (adopted by shareholders on 12 April 2012), Smith & Nephew International Sharesave Plan (2012) (adopted by shareholders on 12 April 2012) and Smith & Nephew France Sharesave Plan (2012) (adopted by shareholders on 12 April 2012) are together termed the “Employee Plans”.

The SAYE and SAYE 2012 plans are available to all employees in the UK employed by participating Group companies, subject to three months’ service. The schemes enable employees to save up to £250 per month and give them an option to acquire shares based on the committed amount to be saved. The option price is not less than 80% of the average of middle market quotations of the ordinary shares on the three dealing days preceding the date of invitation. The Smith & Nephew International Sharesave Plan (2002) and Smith & Nephew International Sharesave Plan (2012) are available to employees in Australia, Austria, Belgium, Canada, China, Denmark, Finland, France, Germany, Hong Kong, India, Ireland, Italy, Japan, South Korea, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, Singapore, South Africa, Spain, Sweden, Switzerland and the United Arab Emirates. Puerto Rico participants were eligible to receive options under the International Plans up to 2011 and were eligible to receive phantom options from 2013 onwards. The Smith & Nephew France Sharesave Plans were available to all employees in France up to 2012. The International and French plans operate on a substantially similar basis to the SAYE plans.

Employees in the US are able to participate in the Employee Stock Purchase Plan, which gives them the opportunity to acquire shares, in the form of ADSs, at a discount of 15% (or more if the shares appreciate in value during the plan’s quarterly purchase period) to the market price, through a regular savings plan.

Executive plans

The Smith & Nephew 2001 UK Approved Share Option Plan, the Smith & Nephew 2001 UK Unapproved Share Option Plan, the Smith & Nephew 2001 US Share Plan (adopted by shareholders on 4 April 2001), the Smith & Nephew 2004 Executive Share Option Plan (adopted by shareholders on 6 May 2004) and the Smith & Nephew Global Share Plan 2010 (adopted by shareholders on 6 May 2010) are together termed the ‘Executive Plans’.

Under the terms of the Executive Plans, the Remuneration Committee, consisting of Non-Executive Directors, may at their discretion approve the grant of options to employees of the Group to acquire ordinary shares in the Company. Options granted under the Smith & Nephew 2001 US Share Plan (the ‘US Plan’) and the Smith & Nephew 2004 Executive Share Option Plan are to acquire ADSs or ordinary shares. For Executive Plans adopted in 2001 and 2004, the market value is the average quoted price of an ordinary share for the three business days preceding the date of grant or the average quoted price of an ADS or ordinary share, for the three business days preceding the date of grant or the quoted price on the date of grant if higher. For the Global Share Plan adopted in 2010 the market value is the closing price of an ordinary share or ADS on the last trading day prior to the grant date. With the exception of options granted under the 2001 US Plan and the Global Share Plan 2010, the vesting of options granted from 2001 is subject to achievement of a performance condition. Options granted under the 2001 US Plan and the Global Share Plan 2010 are not subject to any performance conditions. Prior to 2008, the 2001 US Plan options became cumulatively exercisable as to 10% after one year, 30% after two years, 60% after three years and the remaining balance after four years. With effect from 2008, options granted under the 2001 US Plan became cumulatively exercisable as to 33.3% after one year, 66.7% after two years and the remaining balance after the third year. The 2001 UK Unapproved Share Option Plan was open to certain employees outside the US and the US Plan was open to certain employees in the US, Canada, Mexico and Puerto Rico. The Global Share Plan 2010 is open to employees globally. The 2004 Plan was open to Senior Executives only.

The maximum term of options granted, under all plans, is 10 years from the date of grant. All share option plans are settled in shares.

From 2012 onwards Senior Executives were granted share awards instead of share options and from 2013 executives were granted conditional share awards instead of share options. The awards vest 33.3% after one year, 66.7% after two years and the remaining balance after the third year subject to continued employment. There are no performance conditions for executives. Vesting for senior executives is subject to personal performance levels. The market value used to calculate the number of awards is the closing price of an ordinary share on the last trading day prior to the grant date.

 

 

 

    

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Table of Contents

FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

23 Other Notes to the accounts continued

23.1 Share based payments continued

 

At 31 December 2014 8,708,000 (2013 – 13,601,000, 2012 – 19,690,000) options were outstanding under share option plans as follows:

 

               
 
 
Number of
shares
Thousand
  
  
  
      
 
 
Range of option
exercise prices
Pence
  
  
  
      
 
 
Weighted average
exercise price
Pence
  
  
  

Employee Plans:

                   

Outstanding at 1 January 2012

            3,580           348.0 – 640.0           432.8   

Granted

            947           535.0 – 535.0           535.0   

Forfeited

            (402        348.0 – 609.0           434.5   

Exercised

            (925        348.0 – 609.0           396.0   

Expired

              (38        348.0 – 640.0           496.2   

Outstanding at 31 December 2012

            3,162           380.0 – 609.0           473.1   

Granted

            1,178           625.0           625.0   

Forfeited

            (174        380.0 – 625.0           488.2   

Exercised

            (751        380.0 – 609.0           453.8   

Expired

              (128        380.0 – 625.0           490.0   

Outstanding at 31 December 2013

            3,287           380.0 – 625.0           530.5   

Granted

            799           831.0           831.0   

Forfeited

            (289        380.0 – 831.0           533.8   

Exercised

            (743        380.0 – 625.0           436.2   

Expired

              (18        461.0 – 556.0           465.7   

Outstanding at 31 December 2014

              3,036           380.0 – 831.0          632.7   

Options exercisable at 31 December 2014

            94           380.0 – 585.0           439.6   

Options exercisable at 31 December 2013

            71           461.0 – 556.0           467.8   

Options exercisable at 31 December 2012

              152           380.0 – 609.0           400.8   

Executive Plans:

                   

Outstanding at 1 January 2012

            23,736           409.5 – 703.0           561.2   

Granted

            3,046           642.0 – 650.0           650.0   

Forfeited

            (954        479.0 – 703.0           569.0   

Exercised

            (8,740        434.0 – 651.0           547.7   

Expired

              (560        435.5 – 637.8           588.7   

Outstanding at 31 December 2012

            16,528           409.5 – 680.5           583.3   

Forfeited

            (118        514.0 – 650.0           618.8   

Exercised

            (5,540        435.5 – 671.0           568.0   

Expired

              (556        435.5 – 650.0           582.3   

Outstanding at 31 December 2013

            10,314           409.5 – 680.5           591.1   

Forfeited

            (115        599.0 – 650.0           645.0   

Exercised

            (4,114        454.0 – 671.0           583.0   

Expired

              (413        409.5 – 650.0           587.8   

Outstanding at 31 December 2014

              5,672           470.0 – 680.5           596.2   

Options exercisable at 31 December 2014

            4,713           470.0 – 680.5           585.3   

Options exercisable at 31 December 2013

            6,631           409.5 – 680.5           571.1   

Options exercisable at 31 December 2012

              8,512           409.5 – 680.5           562.7   

The weighted average remaining contractual life of options outstanding at 31 December 2014 was 5.8 years (2013 – 6.2 years, 2012 – 6.6 years) for Executive Plans and 2.5 years (2013 – 2.5 years, 2012 – 2.6 years) for Employee Plans.

 

 

 

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2014 

pence 

    

2013

pence

    

2012 

pence 

Weighted average share price      994.4       764.7      640.5 

 

Options granted during the year were as follows:

 

         
    

Options

granted

Thousand

  

Weighted

average fair

value per

option at

grant date

Pence

    

Weighted 

average  share price at 

grant date 

Pence 

    

Weighted

average

exercise

price

Pence

    

Weighted 

average 

option life 

Years 

Employee Plans    799    255.8      1069.0       831.0      3.9 

The weighted average fair value of options granted under Employee Plans during 2013 was 203.9p (2012 – 184.0p) and those under Executive Plans during 2013 was nil (2012 – 148.7p).

Options granted under Employee Plans are valued using the Black-Scholes option model as management consider that options granted under these plans are exercised within a short period of time after the vesting date.

For all plans the inputs to the option pricing models are reassessed for each grant. The following assumptions were used in calculating the fair value of options granted:

 

        Employee plans                Executive plans  
       2014       2013      2012              2014       2013      2012 

Dividend yield %

     2.0       2.0      1.5            –            1.5 

Expected volatility % (i)

     20.0       25.0      25.0            –            25.0 

Risk free interest rate % (ii)

     1.3       1.3      1.3            –            1.2 

Expected life in years

     3.9       3.8      3.8              –            10.0 

 

(i) Volatility is assessed on a historic basis primarily based on past share price movements over the expected life of the options.
(ii) The risk free interest rate reflects the yields available on zero coupon government bonds over the option term and currency.

 

 

 

 

    

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FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

 

23 Other Notes to the accounts continued

23.1 Share based payments continued

Share-based payments – long-term incentive plans

In 2004, a share-based incentive plan was introduced for Executive Directors, Executive Officers and the next level of Senior Executives. The plan included a Performance Share Plan (‘PSP’) and a Bonus Co-Investment Plan (‘CIP’).

Vesting of the PSP awards is dependent upon performance relative to the FTSE 100 and an index based on major international companies in the medical devices industry.

Under the CIP, participants could elect to use up to a maximum of one-half of their annual bonus to purchase shares. If the shares are held for three years and the Group’s EPSA growth targets are achieved participants receive an award of matching shares for each share purchased.

From 2009, the CIP was replaced by the Deferred Bonus Plan. This plan was designed to encourage Executives to build up and maintain a significant shareholding in the Company. Under the plan, up to one-third of any bonus earned at target level or above by an eligible employee was compulsorily deferred into shares which vested, subject to continued employment, in equal annual tranches over three years (ie one-third each year). No further performance conditions applied to the deferred shares.

From 2010, Performance Share awards were granted under the Global Share Plan 2010 for all Executives other than Executive Directors. Awards granted under both plans are combined to provide the figures below.

From 2012, Deferred Bonus Plan and GSP 2010 options for Executive Directors, Executive Officers and the next level of Senior Executives were replaced by Equity Incentive Awards (‘EIA’). EIA are designed to encourage Executives to build up and maintain a significant shareholding in the Company. EIA will vest, in equal annual tranches over three years (ie one-third each year), subject to continued employment and personal performance. No further performance conditions apply to the EIA.

The fair values of awards granted under long-term incentive plans are calculated using a binomial model. Performance Share awards under both the PSP and Global Share Plan 2010 contain vesting conditions based on TSR versus a comparator group which represent market-based performance conditions for valuation purposes and an assessment of vesting probability is therefore factored into the award date calculations. The assumptions include the volatilities for the comparator groups. A correlation of 40% (2013 – 40%, 2012 – 35%) has also been assumed for the companies in the medical devices sector as they are impacted by similar factors. The Performance Target for the Global Share Plan 2010 is a combination of Free Cash Flow growth, Revenue in Emerging & International Markets and the Group’s TSR performance over the three-year performance period.

The other assumptions used are consistent with the Executive scheme assumptions disclosed earlier in this note.

At 31 December 2014 the maximum number of shares that could be awarded under the Group’s long-term incentive plans was:

 

                                Number of shares in Thousands  
       Other                     Deferred        
       Awards       EIA       PSP       Bonus Plan       Total  

Outstanding at a January 2012

     794       –       6,268       492       7,554  

Awarded

     187       1,060       2,190       –       3,437  

Vested

     (263)      (49)      (1,785)      (287)      (2,384) 
Forfeited      –       (82)      (1,431)      (41)      (1,554) 

Outstanding at 31 December 2012

     718       929       5,242       164       7,053  

Awarded

     1,179       785       1,963       –       3,927  

Vested

     (437)      (379)      (411)      (115)      (1,342) 
Forfeited      (11)      (51)      (1,597)      (5)      (1,664) 

Outstanding at 31 December 2013

     1,449       1,284       5,197       44       7,974  

Awarded

     751       642       1,510       –       2,903  

Vested

     (583)      (751)      –       (44)      (1,378) 
Forfeited      (96)      (24)      (2,188)      –       (2,308) 

Outstanding at 31 December 2014

     1,521       1,151       4,519       –       7,191  

Other awards mainly comprises of conditional share awards granted under the Global Share Plan 2010.

The weighted average remaining contractual life of awards outstanding at 31 December 2014 was 1.1 years (2013 – 1.4 years, 2012 – 0.8 years) for the PSP, nil years (2013 – 0.2 years, 2012 – 0.9 years) for the Deferred Bonus Plan, 1.5 years (2013 – 1.8 years) for the EIA and 2.0 years (2013 – 2.1 years, 2012 – 0.9 years) for the other awards.

 

 

 

 

 

162              Smith & Nephew Annual report 2014


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Share-based payments – charge to income statement

The expense charged to the income statement for share-based payments is as follows:

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Granted in current year

       9           10           9   
Granted in prior years        23           18           25   
Total share-based payments expense for the year        32           28           34   

Under the Executive Plans, PSP, EIA and CIP the number of ordinary shares over which options and share awards may be granted is limited so that the number of ordinary shares issued or that may be issued during the 10 years preceding the date of grant shall not exceed 5% of the ordinary share capital at the date of grant. The total number of ordinary shares which may be issuable in any 10-year period under all share plans operated by the Company may not exceed 10% of the ordinary share capital at the date of grant.

23.2 Related party transactions

Trading transactions

In the course of normal operations, the Group traded with its associates detailed in Note 11. The aggregated transactions, which have not been disclosed elsewhere in the financial statements, are summarised below:

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Sales to the associates

                 5           14   
Purchases from the associates        1           2           8   

All sale and purchase transactions occur on an arm’s length basis.

Key management personnel

The remuneration of executive officers (including Non-executive Directors) during the year is summarised below:

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Short-term employee benefits

       14           15           16   

Share-based payments expense

       8           11           10   

Pension and post-employment benefit entitlements

       1           1           1   
Other benefits        3                       
         26           27           27   

 

 

    

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Smith & Nephew Annual report 2014              163

    

 


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FINANCIAL STATEMENTS

Notes to the Group accounts continued

 

23 Other Notes to the accounts continued

 

23.3 Principal subsidiary undertakings

The information provided below is given for principal trading and manufacturing subsidiary undertakings, all of which are 100% owned, in accordance with Section 410 of the Companies Act 2006. A full list will be appended to Smith & Nephew’s next annual return to Companies House:

 

Company Name   Activity    Country of operation and incorporation

UK:

    

 

T. J. Smith & Nephew, Limited

 

  Medical Devices    England & Wales
Smith & Nephew ARTC Limited   Medical Devices    England & Wales

Continental Europe:

    

Smith & Nephew GmbH

 

Medical Devices

  

Austria

ArthroCare Belgium SPRL

 

Medical Devices

  

Belgium

Smith & Nephew SA-NV

 

Medical Devices

  

Belgium

Smith & Nephew A/S

 

Medical Devices

  

Denmark

Smith & Nephew Oy

 

Medical Devices

  

Finland

Smith & Nephew SAS

 

Medical Devices

  

France

Smith & Nephew Orthopaedics GmbH

 

Medical Devices

  

Germany

Smith & Nephew GmbH

 

Medical Devices

  

Germany

Smith & Nephew Hellas SA

 

Medical Devices

  

Greece

Smith & Nephew Limited

 

Medical Devices

  

Ireland

Smith & Nephew Srl

 

Medical Devices

  

Italy

Smith & Nephew Nederland CV

 

Medical Devices

  

Netherlands

Smith & Nephew A/S

 

Medical Devices

  

Norway

Smith & Nephew Sp Zoo

 

Medical Devices

  

Poland

Smith & Nephew Lda

 

Medical Devices

  

Portugal

Smith & Nephew SAU

 

Medical Devices

  

Spain

Smith & Nephew AB

 

Medical Devices

  

Sweden

Smith & Nephew Manufacturing AG

 

Medical Devices

  

Switzerland

Smith & Nephew Orthopaedics AG

 

Medical Devices

  

Switzerland

Smith & Nephew Schweiz AG

  Medical Devices    Switzerland

US:

    

ArthroCare Corporation

  Medical Devices    United States

ArthroCare Medical Corporation

  Medical Devices    United States

Smith & Nephew Inc.

  Medical Devices    United States

 

 

 

 

 

164              Smith & Nephew Annual report 2014


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Company Name   Activity    Country of operation and incorporation

Africa, Asia, Australasia and Other America:

    

Smith & Nephew Pty Limited

 

Medical Devices

  

Australia

Smith & Nephew Surgical Pty Limited

 

Medical Devices

  

Australia

Smith & Nephew Comercio de Productos Medicos LTDA

 

Medical Devices

  

Brazil

Smith & Nephew Inc.

 

Medical Devices

  

Canada

Smith & Nephew (Alberta) Inc.

 

Medical Devices

  

Canada

Tenet Medical Engineering Inc.

 

Medical Devices

  

Canada

Smith & Nephew Medical (Shanghai) Limited

 

Medical Devices

  

China

Smith & Nephew Medical (Suzhou) Limited

 

Medical Devices

  

China

Smith & Nephew Orthopaedics (Beijing) Limited

 

Medical Devices

  

China

ArthroCare Costa Rica SRL

 

Medical Devices

  

Costa Rica

Smith & Nephew Curaçao NV

 

Medical Devices

  

Curaçao

Smith & Nephew Limited

 

Medical Devices

  

Hong Kong

Adler Mediequip Private Limited

 

Medical Devices

  

India

Smith & Nephew Healthcare Private Limited

 

Medical Devices

  

India

Smith & Nephew Endoscopy KK

 

Medical Devices

  

Japan

Smith & Nephew Orthopaedics KK

 

Medical Devices

  

Japan

Smith & Nephew Wound Management KK

 

Medical Devices

  

Japan

Smith & Nephew Chusik Hoesia

 

Medical Devices

  

Korea

Smith & Nephew Healthcare Sdn Berhad

 

Medical Devices

  

Malaysia

Smith & Nephew SA de CV

 

Medical Devices

  

Mexico

Smith & Nephew Limited

 

Medical Devices

  

New Zealand

Smith & Nephew Surgical Limited

 

Medical Devices

  

New Zealand

Smith & Nephew Inc.

 

Medical Devices

  

Puerto Rico

LLC Smith & Nephew

 

Medical Devices

  

Russia

Smith & Nephew Pte Limited

 

Medical Devices

  

Singapore

Smith & Nephew (Pty) Limited

 

Medical Devices

  

South Africa

Smith & Nephew Limited

 

Medical Devices

  

Thailand

Smith ve Nephew Medikal Cihazlar Ticaret Limited Sirketi

 

Medical Devices

  

Turkey

Smith & Nephew FZE

 

Medical Devices

  

United Arab Emirates

 

 

    

 

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FINANCIAL STATEMENTS

Company balance sheet

 

 

         Notes          
 

 

At 31 December
2014

$ million

  
  

  

      
 

 

At 31 December
2013

$ million

  
  

  

Fixed assets:

              

Investments

       3           5,322           3,597   

Current assets:

              

Debtors

       4           2,143           2,140   
Cash and bank        6           1           6   
            2,144           2,146   

Creditors: amounts falling due within one year:

              

Borrowings

       6           (40        (2
Other creditors        5           (1,287        (1,590
            (1,327        (1,592
Net current assets                   817           554   
Total assets less current liabilities                   6,139           4,151   

Creditors: amounts falling due after one year:

              
Borrowings        6           (1,655        (335
Total assets less total liabilities                   4,484           3,816   

Equity shareholders’ funds:

              

Called up equity share capital

       7           184           184   

Share premium account

       7           574           535   

Capital redemption reserve

       7           11           10   

Capital reserve

       7           2,266           2,266   

Treasury shares

       7           (315        (322

Exchange reserve

       7           (52        (52
Profit and loss account        7           1,816           1,195   
Shareholders’ funds                   4,484           3,816   

The accounts were approved by the Board and authorised for issue on 25 February 2015 and signed on its behalf by:

 

Roberto Quarta   Olivier Bohuon   Julie Brown      
Chairman   Chief Executive Officer   Chief Financial Officer      

 

 

The Parent Company financial statements of Smith & Nephew plc on pages 166 to 169 do not form part of the Smith & Nephew’s

Annual Report on Form 20-F as filed with the SEC.

 

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1 Basis of preparation

Smith & Nephew plc (the ‘Company’) is a public limited company incorporated in England and Wales.

The separate accounts of the Company are presented as required by the Companies Act 2006. The accounts have been prepared under the historical cost convention, modified to include revaluation to fair value of certain financial instruments as described below, and in accordance with applicable UK accounting standards. As consolidated financial information has been disclosed under IFRS 7 Financial Instruments: Disclosures, the Company is exempt from FRS 29 Financial Instruments: Disclosures. The Group accounts have been prepared in accordance with International Financial Reporting Standards as adopted by the European Union and are presented on pages 110 to 165.

The Company has taken advantage of the exemption in FRS 8 Related Party Disclosures not to present its related party disclosures as the Group accounts contain these disclosures. In addition, the Company has taken advantage of the exemption in FRS 1 Cash Flow Statements not to present its own cash flow statement as the Group accounts contain a consolidated cash flow.

In applying these policies management is required to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the accounts and the reported amounts of revenues and expenses during the reporting period. Although these estimates are based on management’s best knowledge of current events and actions, actual results ultimately may differ from those estimates.

Foreign currencies

Transactions in foreign currencies are initially recorded at the exchange rate ruling at the date of the transaction. Monetary assets and liabilities denominated in foreign currencies are retranslated at the rate of exchange ruling at the balance sheet date. All exchange differences are dealt with in arriving at profit before taxation.

Deferred taxation

Deferred taxation is recognised in respect of all timing differences that have originated but not reversed at the balance sheet date where transactions or events have occurred at that date that will result in an obligation to pay more, or a right to pay less or to receive more, tax.

Deferred tax is measured on an undiscounted basis at the tax rates that are expected to apply in the periods in which timing differences are expected to reverse. These are based on tax rates and laws substantively enacted at the balance sheet date.

2 Results for the year

As permitted by Section 408(4) of the Companies Act 2006, the Company has not presented its own profit and loss account. Profit for the year was $922m (2013 – $198m).

3 Investments

 

 

 

ACCOUNTING POLICY

 

 
 

 

Investments in subsidiaries are stated at cost less provision for impairment.

 

 

 

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  

At 1 January

       3,597           3,597   
Additions        1,725             
At 31 December        5,322           3,597   

Investments represent holdings in subsidiary undertakings.

The information provided below is given for the principal direct subsidiary undertakings, all of which are 100% owned and, in accordance with Section 410 of the Companies Act 2006, a full list will be appended to Smith & Nephew’s next annual return to Companies House.

 

      Activity       
 
Country of operation
and incorporation
  
  

Company Name

   

Smith & Nephew UK Limited

    Holding Company        England & Wales   
Smith & Nephew (Overseas) Limited     Holding Company        England & Wales   

Refer to Note 23.3 of the Notes to the Group accounts for the principal trading and manufacturing subsidiary undertakings of the Group.

The Parent Company financial statements of Smith & Nephew plc on pages 166 to 169 do not form part of the Smith & Nephew’s

Annual Report on Form 20-F as filed with the SEC.

 

 

 

    

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Smith & Nephew Annual report 2014              167

    

 


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FINANCIAL STATEMENTS

Notes to the Company accounts continued

 

 

4 Debtors

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  

Amounts falling due within one year:

         

Amounts owed by subsidiary undertakings

       2,074           2,091   

Prepayments and accrued income

       3           3   

Current asset derivatives – forward foreign exchange contracts

       65           45   

Current asset derivatives – currency swaps

                 1   
Current taxation        1             
         2,143           2,140   

5 Other creditors

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  

Amounts falling due within one year:

         

Amounts owed to subsidiary undertakings

       1,212           1,533   

Other creditors

       9           10   

Current taxation

                 2   

Current liability derivatives – forward foreign exchange contracts

       65           45   
Current liability derivatives – currency swaps        1             
         1,287           1,590   

6 Cash and borrowings

 

 

 

ACCOUNTING POLICY

 

 
 

 

Financial instruments

 

Currency swaps are used to match foreign currency net assets with foreign currency liabilities. They are initially recorded at fair value and then for reporting purposes remeasured to fair value at exchange rates and interest rates at subsequent balance sheet dates.

 

 

 

Changes in the fair value of derivative financial instruments are recognised in the profit and loss account as they arise.

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  

Bank loans and overdrafts due within one year or on demand

       40           2   
Bank loans due after one year        1,655           335   

Borrowings

       1,695           337   

Cash and bank

       (1        (6
Credit/(debit) balance on derivatives – currency swaps        1           (1
Net debt        1,695           330   

All currency swaps are stated at fair value. Gross US Dollar equivalents of $261m (2013 – $146m) receivable and $262m (2013 – $145m) payable have been netted. Currency swaps comprise foreign exchange swaps and were used in 2014 and 2013 to hedge intragroup loans.

 

The Parent Company financial statements of Smith & Nephew plc on pages 166 to 169 do not form part of the Smith & Nephew’s

Annual Report on Form 20-F as filed with the SEC.

 

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7 Equity and reserves

 

                                                              2014        2013   
     
 
 
Share
capital
$ million
  
  
  
   
 
 
Share
premium
$ million
  
  
  
   
 
 
 
Capital
redemption
reserve
$ million
  
  
  
  
   
 
 
Capital
reserves
$ million
  
  
  
   
 
 
Treasury
shares
$ million
  
  
  
   

 
 

Exchange

reserves
$ million

  

  
  

   
 
 
Profit and
loss account
$ million
  
  
  
   
 
 
 
Total
shareholders’
funds
$ million
  
  
  
  
   
 
 
 
Total
shareholders’
funds
$ million
  
  
  
  
At 1 January     184        535        10        2,266        (322     (52     1,195        3,816        4,009   
Attributable profit for the year                                               922        922        198   
Net losses on cash flow hedges                                               (5     (5       
Equity dividends paid in the year                                               (250     (250     (239
Share-based payments recognised                                               32        32        28   
Cost of shares transferred to beneficiaries                                 25               (21     4        3   
New shares issued on exercise of share options     1        39                                           40        48   
Cancellation of treasury shares     (1            1               57               (57              
Treasury shares purchased                                 (75                   (75     (231
At 31 December     184        574        11        2,266        (315     (52     1,816        4,484        3,816   

Further information on the share capital of the Company can be found in Note 19.1 of the Notes to the Group accounts.

The total distributable reserves of the Company are $1,449m (2013 – $821m). In accordance with the exemption permitted by Section 408 of the Companies Act 2006, the Company has not presented its own profit and loss account. The attributable profit for the year dealt with in the accounts of the Company is $922m (2013 – $198m).

Fees paid to Ernst & Young LLP for audit and non-audit services to the Company itself are not disclosed in the individual accounts because Group financial statements are prepared which are required to disclose such fees on a consolidated basis. The fees for the consolidated Group are disclosed in Note 3.2 of the Notes to the Group accounts.

8 Share-based payments

The Company operates a number of equity-settled executive and employee share plans. For all grants of share options and awards, the fair value as at the date of grant is calculated using an appropriate option pricing model and the corresponding expense is recognised over the vesting period. Subsidiary companies are recharged for the fair value of share options that relate to their employees.

The disclosure relating to the Company is detailed in Note 23.1 of the Notes to the Group accounts.

9 Contingencies

 

        
 
2014
$ million
  
  
      
 
2013
$ million
  
  

Guarantees in respect of subsidiary undertakings

       11           25   

The Company has given guarantees to banks to support liabilities under foreign exchange and other contracts and cross guarantees to support overdrafts. Such guarantees are not considered to be liabilities as all subsidiary undertakings are trading as going concerns.

The Company operated defined benefit pension plans in 2004 but at the end of 2005 its pension plan obligations were transferred to Smith & Nephew UK Limited. The Company has provided guarantees to the trustees of the pension plans to support future amounts due from participating employers (see Note 18 of the Notes to the Group accounts).

 

The Parent Company financial statements of Smith & Nephew plc on pages 166 to 169 do not form part of the Smith & Nephew’s

Annual Report on Form 20-F as filed with the SEC.

 

 

    

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OTHER INFORMATION

Group information

 

 

Business overview and Group history

Smith & Nephew’s operations are organised into two primary divisions that operate globally: Advanced Surgical Devices and Advanced Wound Management.

The Group has a history dating back over 150 years to the family enterprise of Thomas James Smith who opened a small pharmacy in Hull, UK in 1856. Following his death in 1896, his nephew Horatio Nelson Smith took over the management of the business.

By the late 1990s, Smith & Nephew had expanded into being a diverse healthcare conglomerate with operations across the globe, producing various medical devices, personal care products and traditional and advanced wound care treatments. In 1998, Smith & Nephew announced a major restructuring to focus management attention and investment on three global business units – Advanced Wound Management, Endoscopy and Orthopaedics – which offered high growth and margin opportunities. In 2011, the Endoscopy and Orthopaedics businesses were brought together to create an Advanced Surgical Devices division.

Smith & Nephew was incorporated and listed on the London Stock Exchange in 1937 and in 1999 the Group was also listed on the New York Stock Exchange. In 2001, Smith & Nephew became a constituent member of the FTSE-100 index in the UK. This means that Smith & Nephew is included in the top 100 companies traded on the London Stock Exchange measured in terms of market capitalisation.

Today, Smith & Nephew is a public limited company incorporated and headquartered in the UK and carries out business around the world.

Property, plant and equipment

The table below summarises the main properties which the Group uses and their approximate areas.

 

    Approximate area  (square feet 000’s) 

Group head office in London, UK

  20 

Group research facility in York, UK

  84 

Advanced Surgical Devices headquarters in Andover, Massachusetts, US

  144 

Advanced Wound Management headquarters and manufacturing facility in Hull, UK

  473 

Advanced Surgical Devices manufacturing facilities in Memphis, Tennessee, US

  971 

Advanced Surgical Devices distribution facility in Memphis, Tennessee, US

  210 

Advanced Surgical Devices manufacturing facility in Aarau, Switzerland

  121 

Advanced Surgical Devices manufacturing facility in Beijing, China

  192 

Advanced Surgical Devices manufacturing and warehouse facility in Warwick, UK

  90 

Advanced Surgical Devices manufacturing and warehouse facility in Tuttlingen, Germany

  64 

Advanced Surgical Devices distribution facility and European headquarters in Baar, Switzerland

  67 

Advanced Surgical Devices manufacturing facility in Mansfield, Massachusetts, US

  98 

Advanced Surgical Devices manufacturing facility in Oklahoma City, Oklahoma, US

  155 

Advanced Surgical Devices manufacturing facility in Calgary, Canada

  17 

Advanced Surgical Devices manufacturing facility in Austin, Texas, US

  198 

Advanced Surgical Devices manufacturing facility in La Aurora, Costa Rica

  36 

Advanced Surgical Devices research facility in Irvine, California, US

  23 

Advanced Surgical Devices manufacturing facility in Sangameshwar, India

  39 

Advanced Wound Management manufacturing facility in Suzhou, China

  288 

Advanced Wound Management manufacturing facility in Fort Saskatchewan, Canada

  76 

Advanced Wound Management US headquarters in St. Petersburg, Florida, US

  44 

Advanced Wound Bioactives headquarters and laboratory space in Fort Worth, Texas, US

  105 

Advanced Wound Bioactives manufacturing facility in Curaçao, Dutch Caribbean

  16 

The Group Global Operations strategy includes ongoing assessment of the optimal facility footprint. The Advanced Surgical Devices manufacturing facilities in Memphis, Tennessee are largely freehold, a portion of Tuttlingen and the Advanced Wound Management facilities in Hull are freehold while other principal locations are leasehold. The Group has freehold and leasehold interests in real estate in other countries throughout the world, but no other is individually significant to the Group. Where required, the appropriate governmental authorities have approved the facilities.

Off-balance sheet arrangements

Management believes that the Group does not have any off-balance sheet arrangements, as defined by the SEC in item 5E of Form 20-F, that have or are reasonably likely to have a current or future effect on the Group’s financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material to investors.

Related party transactions

Except for transactions with associates (see Note 23.2 of Notes to the Group accounts), no other related party had material transactions or loans with Smith & Nephew over the last three financial years.

 

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Risk factors

There are known and unknown risks and uncertainties relating to Smith & Nephew’s business. The factors listed below could cause the Group’s business, financial position and results of operations to differ materially and adversely from expected and historical levels. In addition, other factors not listed here that Smith & Nephew cannot presently identify or does not believe to be equally significant could also materially adversely affect Smith & Nephew’s business, financial position or results of operations.

Highly competitive markets

The Group’s business segments compete across a diverse range of geographic and product markets. Each market in which the business segments operate contains a number of different competitors, including specialised and international corporations. Significant product innovations, technical advances or the intensification of price competition by competitors could adversely affect the Group’s operating results.

Some of these competitors may have greater financial, marketing and other resources than Smith & Nephew. These competitors may be able to initiate technological advances in the field, deliver products on more attractive terms, more aggressively market their products or invest larger amounts of capital and research and development (‘R&D’) into their businesses.

There is a possibility of further consolidation of competitors, which could adversely affect the Group’s ability to compete with larger companies due to insufficient financial resources. If any of the Group’s businesses were to lose market share or achieve lower than expected revenue growth, there could be a disproportionate adverse impact on the Group’s share price and its strategic options.

Competition exists among healthcare providers to gain patients on the basis of quality, service and price. There has been some consolidation in the Group’s customer base and this trend is expected to continue. Some customers have joined group purchasing organisations or introduced other cost containment measures that could lead to downward pressure on prices or limit the number of suppliers in certain business areas, which could adversely affect Smith & Nephew’s results of operations and hinder its growth potential.

Continual development and introduction

of new products

The medical devices industry has a rapid rate of new product introduction. In order to remain competitive, each of the Group’s business segments must continue to develop innovative products that satisfy customer needs and preferences or provide cost or other advantages. Developing new products is a costly, lengthy and uncertain process. The Group may fail to innovate due to low R&D investment, a R&D skills gap or poor product development. A potential product may not be brought to market or not succeed in the market for any number of reasons, including failure to work optimally, failure to receive regulatory approval, failure to be cost-competitive, infringement of patents or other intellectual property rights and changes in consumer demand. The Group’s products and technologies are also subject to marketing attack by competitors. Furthermore, new products that are developed and marketed by the Group’s competitors may affect price levels in the various markets in which the Group’s business segments operate. If the Group’s new products do not remain competitive with those of competitors, the Group’s revenue could decline.

The Group maintains reserves for excess and obsolete inventory resulting from the potential inability to sell its products at prices in excess of current carrying costs. Marketplace changes resulting from the introduction of new products or surgical procedures may cause some of the Group’s products to become obsolete. The Group makes estimates regarding the future recoverability of the costs of these products and records a provision for excess and obsolete inventories based on historical experience, expiration of sterilisation dates and expected future trends. If actual product life cycles, product demand or acceptance of new product introductions are less favourable than projected by management, additional inventory write-downs may be required.

Dependence on government and other funding

In most Established Markets throughout the world, expenditure on medical devices is ultimately controlled to a large extent by governments. Funds may be made available or withdrawn from healthcare budgets depending on government policy. The Group is therefore largely dependent on future governments providing increased funds commensurate with the increased demand arising from demographic trends.

Pricing of the Group’s products is largely governed in most Established Markets by governmental reimbursement authorities. Initiatives sponsored by government agencies, legislative bodies and the private sector to limit the growth of healthcare costs, including price regulation, excise taxes and competitive pricing, are ongoing in markets where the Group has operations. This control may be exercised by determining prices for an individual product or for an entire procedure. The Group is exposed to government policies favouring locally sourced products. The Group is also exposed to changes in reimbursement policy, tax policy and pricing which may have an adverse impact on revenue and operating profit. In particular, changes to the healthcare legislation in the US have imposed significant taxes on medical device manufacturers from 2013. There may be an increased risk of adverse changes to government funding policies arising from the deterioration in macro-economic conditions in some of the Group’s markets.

The Group must adhere to the rules laid down by government agencies that fund or regulate healthcare, including extensive and complex rules in the US. Failure to do so could result in fines or loss of future funding.

World economic conditions

Demand for the Group’s products is driven by demographic trends, including the ageing population and the incidence of osteoporosis and obesity. Supply of, use of and payment for the Group’s products are also influenced by world economic conditions which could place increased pressure on demand and pricing, adversely impacting the Group’s ability to deliver revenue and margin growth. The conditions could favour larger, better capitalised groups, with higher market shares and margins. As a consequence, the Group’s prosperity is linked to general economic conditions and there is a risk of deterioration of the Group’s performance and finances during adverse macro economic conditions.

During 2014, economic conditions worldwide continued to create several challenges for the Group, including deferrals of joint replacement procedures, heightened pricing pressure, significant declines in capital equipment expenditures at hospitals and increased uncertainty over the collectability of European government debt, particularly those in certain parts of southern Europe. These factors tempered the overall growth of the Group’s global markets and could have an increased impact on growth in the future.

 

 

 

    

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OTHER INFORMATION

Group information continued

 

 

Political uncertainties

The Group operates on a worldwide basis and has distribution channels, purchasing agents and buying entities in over 100 countries. Political upheaval in some of those countries or in surrounding regions may impact the Group’s results of operations. Political changes in a country could prevent the Group from receiving remittances of profit from a member of the Group located in that country or from selling its products or investments in that country. Furthermore, changes in government policy regarding preference for local suppliers, import quotas, taxation or other matters could adversely affect the Group’s revenue and operating profit. War, economic sanctions, terrorist activities or other conflict could also adversely impact the Group. These risks may be greater in emerging markets, which account for an increasing portion of the Group’s business.

Currency fluctuations

Smith & Nephew’s results of operations are affected by transactional exchange rate movements in that they are subject to exposures arising from revenue in a currency different from the related costs and expenses. The Group’s manufacturing cost base is situated principally in the US, the UK, China and Switzerland, from which finished products are exported to the Group’s selling operations worldwide. Thus, the Group is exposed to fluctuations in exchange rates between the US Dollar, Sterling and Swiss Franc and the currency of the Group’s selling operations, particularly the Euro, Australian Dollar and Japanese Yen. If the US Dollar, Sterling or Swiss Franc should strengthen against the Euro, Australian Dollar and the Japanese Yen, the Group’s trading margin could be adversely affected.

The Group manages the impact of exchange rate movements on revenue and cost of goods sold by a policy of transacting forward foreign currency commitments when firm purchase orders are placed. In addition, the Group’s policy is for forecast transactions to be covered between 50% and 90% for up to one year.

The Group uses the US Dollar as its reporting currency and the US Dollar is the functional currency of Smith & Nephew plc. The Group’s revenues, profits and earnings are also affected by exchange rate movements on the translation of results of operations in foreign subsidiaries for financial reporting purposes. See ‘Liquidity and capital resources’ on page 115.

Manufacturing and supply

The Group’s manufacturing production is concentrated at 15 main facilities in Austin, Memphis, Mansfield and Oklahoma City in the US, Hull and Warwick in the UK, Aarau in Switzerland, Tuttlingen in Germany, Fort Saskatchewan and Calgary in Canada, Sangameshwar in India, Suzhou and Beijing in China, La Aurora in Costa Rica and Curaçao. If major physical disruption took place at any of these sites, it could adversely affect the results of operations. Physical loss and consequential loss insurance is carried to cover such risks but is subject to limits and deductibles and may not be sufficient to cover catastrophic loss. Management of orthopaedic inventory is complex, particularly forecasting and production planning. There is a risk that failures in operational execution could lead to excess inventory or individual product shortages.

Each of the business segments is reliant on certain key suppliers of raw materials, components, finished products and packaging materials or in some cases on a single supplier.

These suppliers must provide the materials and perform the activities to the Group’s standard of quality requirements.

Consequently, the Group may be forced to pay higher prices to obtain raw materials, which it may not be able to pass on to its customers in the form of increased prices for its finished products. In addition, some of the raw materials used may become unavailable, and there can be no assurance that the Group will be able to obtain suitable and cost effective substitutes. Any interruption of supply caused by these or other factors could negatively impact Smith & Nephew’s revenue and operating profit.

The Group will, from time to time, outsource the manufacture of components and finished products to third parties and will periodically relocate the manufacture of product and/or processes between existing facilities. While these are planned activities, with these transfers there is a risk of disruption to supply.

Attracting and retaining key personnel

The Group’s continued development depends on its ability to hire and retain highly-skilled personnel with particular expertise. This is critical, particularly in general management, research, new product development and in the sales forces. If Smith & Nephew is unable to retain key personnel in general management, research and new product development or if its largest sales forces suffer disruption or upheaval, its revenue and operating profit would be adversely affected. Additionally, if the Group is unable to recruit, hire, develop and retain a talented, competitive workforce, it may not be able to meet its strategic business objectives.

Proprietary rights and patents

Due to the technological nature of medical devices and the Group’s emphasis on serving its customers with innovative products, the Group has been subject to patent infringement claims and is subject to the potential for additional claims.

Claims asserted by third parties regarding infringement of their intellectual property rights, if successful, could require the Group to expend time and significant resources to pay damages, develop non-infringing products or obtain licences to the products which are the subject of such litigation, thereby affecting the Group’s growth and profitability. Smith & Nephew attempts to protect its intellectual property and regularly opposes third party patents and trademarks where appropriate in those areas that might conflict with the Group’s business interests. If Smith & Nephew fails to protect and enforce its intellectual property rights successfully, its competitive position could suffer, which could harm its results of operations.

Product liability claims and loss of reputation

The development, manufacture and sale of medical devices entail risk of product liability claims or recalls. Design and manufacturing defects with respect to products sold by the Group or by companies it has acquired could damage, or impair the repair of, body functions. The Group may become subject to liability, which could be substantial, because of actual or alleged defects in its products. In addition, product defects could lead to the need to recall from the market existing products, which may be costly and harmful to the Group’s reputation.

There can be no assurance that customers, particularly in the US, the Group’s largest geographical market, will not bring product liability or related claims that would have a material adverse effect on the Group’s financial position or results of operations in the future, or that the Group will be able to resolve such claims within insurance limits.

 

 

 

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Regulatory standards and compliance in the healthcare industry

Business practices in the healthcare industry are subject to regulation and review by various government authorities. In general, the trend in many countries in which the Group does business is towards higher expectations and increased enforcement activity by governmental authorities. While the Group is committed to doing business with integrity and welcomes the trend to higher standards in the healthcare industry, the Group and other companies in the industry have been subject to investigations and other enforcement activity that have incurred and may continue to incur significant expense. See Note 17 to the Group accounts. Under certain circumstances, if the Group were found to have violated the law, its ability to sell its products to certain customers could be restricted.

International regulation

The Group operates across the world and is subject to legislation, including anti-bribery and corruption and data protection, in each country in which we operate. Our international operations are governed by the UK Bribery Act and the US Foreign Corrupt Practices Act (FCPA) which prohibit us or our agents from making, or offering, improper payments to foreign governments and their officials for the purpose of obtaining or maintaining business or product approvals. Enforcement of such legislation has increased in recent years with significant fines and penalties being imposed on companies and individuals. Our international operations, particularly in the emerging markets, expose the Group to the risk that our employees or agents will engage in prohibited activities.

Regulatory approval

The international medical device industry is highly regulated. Regulatory requirements are a major factor in determining whether substances and materials can be developed into marketable products and the amount of time and expense that should be allotted to such development.

National regulatory authorities administer and enforce a complex series of laws and regulations that govern the design, development, approval, manufacture, labelling, marketing and sale of healthcare products. They also review data supporting the safety and efficacy of such products. Of particular importance is the requirement in many countries that products be authorised or registered prior to manufacture, marketing or sale and that such authorisation or registration be subsequently maintained. The major regulatory agencies for Smith & Nephew’s products include the Food and Drug Administration (‘FDA’) in the US, the Medicines and Healthcare products Regulatory Agency in the UK, the Ministry of Health, Labour and Welfare in Japan, the China Food and Drug Administration and the Australian Therapeutic Goods Administration.

At any time, the Group is awaiting a number of regulatory approvals which, if not received, could adversely affect results of operations.

The trend is towards more stringent regulation and higher standards of technical appraisal. Such controls have become increasingly demanding to comply with and management believes that this trend will continue.

Regulatory requirements may also entail inspections for compliance with appropriate standards, including those relating to Quality Management Systems or Good Manufacturing Practices regulations. All manufacturing and other significant facilities within the Group are subject to regular internal and external audit for compliance with national and Group medical device regulation and policies.

Payment for medical devices may be governed by reimbursement tariff agencies in a number of countries. Reimbursement rates may be set in response to perceived economic value of the devices, based on clinical and other data relating to cost, patient outcomes and comparative effectiveness. They may also be affected by overall government budgetary considerations. The Group believes that its emphasis on innovative products and services should contribute to success in this environment.

Failure to comply with these regulatory requirements could have a number of adverse consequences, including withdrawal of approval to sell a product in a country, temporary closure of a manufacturing facility, fines and potential damage to company reputation.

Failure to make successful acquisitions

A key element of the Group’s strategy for continued growth is to make acquisitions or alliances to complement its existing business. Failure to identify appropriate acquisition targets or failure to conduct adequate due diligence or to integrate them successfully would have an adverse impact on the Group’s competitive position and profitability. This could result from the diversion of management resources towards the acquisition or integration process, challenges of integrating organisations of different geographic, cultural and ethical backgrounds, as well as the prospect of taking on unexpected or unknown liabilities. In addition, the availability of global capital may make financing less attainable or more expensive and could result in the Group failing in its strategic aim of growth by acquisition or alliance.

Relationships with healthcare professionals

The Group seeks to maintain effective and ethical working relationships with physicians and medical personnel who assist in the research and development of new products or improvements to our existing product range or in product training and medical education. If we are unable to maintain these relationships our ability to meet the demands of our customers could be diminished and our revenue and profit could be materially adversely affected.

Reliance on sophisticated information technology

The Group uses a wide variety of information systems, programmes and technology to manage our business. Our systems are vulnerable to a cyber-attack, malicious intrusion, loss of data privacy or any other significant disruption. Our systems have been and will continue to be the target of such threats. We have systems in place to minimise the risk and disruption of these intrusions and to monitor our systems on an ongoing basis for current or potential threats. There can be no assurance that these measures will prove effective in protecting Smith & Nephew from future interruptions and as a result the performance of the Group could be materially adversely affected.

Other risk factors

Smith & Nephew is subject to a number of other risks, which are common to most global medical technology groups and are reviewed as part of the Group’s risk management process.

Factors affecting Smith & Nephew’s results of operations

Government economic, fiscal, monetary and political policies are all factors that materially affect the Group’s operation or investments of shareholders. Other factors include sales trends, currency fluctuations and innovation. Each of these factors is discussed further in the ‘Our marketplace’ on pages 18 to 20, ‘Segment performance’ on pages 26 to 33 and ‘Taxation information for shareholders’ on pages 190 to 191.

 

 

 

    

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OTHER INFORMATION

Other financial information

 

 

Selected financial data

 

        
 
2014
$ million
  
  
      

 

2013

$ million

  

  

      

 

2012

$ million

  

  

      

 

2011

$ million

  

  

      

 

2010

$ million

  

  

Income statement

                        

Revenue

       4,617           4,351           4,137           4,270           3,962   
Cost of goods sold        (1,162        (1,100        (1,070        (1,140        (1,031

Gross Profit

       3,455           3,251           3,067           3,130           2,931   

Selling, general and administrative expenses

       (2,471        (2,210        (2,050        (2,101        (1,860
Research and development expenses        (235        (231        (171        (167        (151

Operating profit

       749           810           846           862           920   

Net interest (payable)/receivable

       (22        4           2           (8        (15

Other finance (costs)/income

       (11        (11        (11        (13        (16

Share of results of associates

       (2        (1        4                       
Profit on disposal of net assets held for sale                            251                       

Profit before taxation

       714           802           1,092           841           889   
Taxation        (213        (246        (371        (266        (280
Attributable profit for the year        501           556           721           575           609   

Earnings per ordinary share

                                                      

Basic

       56.1¢           61.7¢           80.4¢           64.5¢           68.6¢   
Diluted        55.7¢           61.4¢           80.0¢           64.2¢           68.5¢   
Adjusted attributable profit                                                       

Attributable profit for the year

       501           556           721           575           609   

Acquisition-related costs

       125           31           11                       

Restructuring and rationalisation expenses

       61           58           65           40           15   

Legal and other

       (2                            23             

Amortisation of acquisition intangibles and impairments

       129           88           43           36           34   

Profit on disposal of net assets held for sale

                           (251                    
Taxation on excluded items        (71        (40        82           (17        (10
Adjusted attributable profit        743           693           671           657           648   

Adjusted basic earnings per ordinary share (‘EPSA’) (i)

       83.2¢           76.9¢           74.8¢           73.7¢           73.0¢   
Adjusted diluted earnings per ordinary share (ii)        82.6¢           76.5¢           74.5¢           73.4¢           72.9¢   

 

(i) Adjusted basic earnings per ordinary share is calculated by dividing adjusted attributable profit by the average number of shares.

 

(ii) Adjusted diluted earnings per ordinary share is calculated by dividing adjusted attributable profit by the diluted number of shares.

 

 

 

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2014

$ million

  

  

      

 

2013

$ million

  

  

      

 

2012

$ million

  

  

      

 

2011

$ million

  

  

      

 

2010

$ million

  

  

Group balance sheet                                                       

Non-current assets

       4,866           3,563           3,498           2,542           2,579   

Current assets

       2,440           2,256           2,144           2,080           2,154   
Assets held for sale                                      125             
Total assets        7,306           5,819           5,642           4,747           4,733   

Share capital

       184           184           193           191           191   

Share premium

       574           535           488           413           396   

Capital redemption reserve

       11           10                                 

Treasury shares

       (315        (322        (735        (766        (778
Retained earnings and other reserves        3,586           3,640           3,938           3,349           2,964   
Total equity        4,040           4,047           3,884           3,187           2,773   

Non-current liabilities

       2,104           699           828           422           1,046   

Current liabilities

       1,162           1,073           930           1,119           914   
Liabilities directly associated with assets held for sale                                      19             
Total liabilities        3,266           1,772           1,758           1,560           1,960   
Total equity and liabilities        7,306           5,819           5,642           4,747           4,733   
Group cash flow statement                                                       

Cash generated from operations

       961           1,138           1,184           1,135           1,111   

Net interest paid

       (33        (6        (4        (8        (17
Income taxes paid        (245        (265        (278        (285        (235

Net cash inflow from operating activities

       683           867           902           842           859   
Capital expenditure (including trade investments and net of disposals of property, plant and equipment)        (375        (340        (265        (321        (307

Acquisitions and disposals

       (1,556        (67        (782        (33          

Proceeds on disposal of net assets held for sale

                           103                       

Investment in associate

       (2                  (10                    

Proceeds from associate loan redemption

       188                                           

Proceeds from own shares

       4           3           6           7           8   

Equity dividends paid

       (250        (239        (186        (146        (132
Issue of ordinary capital and treasury shares purchased        (35        (183        77           11           10   
       (1,343        41           (155        360           438   

Exchange adjustments

       (17        (6        5           (6        13   
Opening (net debt)/net cash        (253        (288        (138        (492        (943
Closing net debt        (1,613        (253        (288        (138        (492
Selected financial ratios                                                       

Gearing (closing net debt as a percentage of total equity)

       40%           6%           7%           4%           18%   

Dividends per ordinary share (i)

       29.60¢           27.40¢           26.10¢           17.40¢           15.82¢   

Research and development costs to Revenue

       5.1%           5.3%           4.1%           3.9%           3.8%   
Capital expenditure (including intangibles but excluding goodwill) to revenue        8.1%           7.8%           6.4%           7.5%           7.7%   

 

(i) The Board has proposed a final dividend of 18.6 US cents per share which together with the first interim dividend of 11.0 US cents makes a total for 2014 of 29.6 US cents.

 

 

    

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OTHER INFORMATION

Other financial information continued

 

 

Non-GAAP Financial Information

These Financial Statements include financial measures that are not prepared in accordance with International Financial Reporting Standards (‘IFRS’). These measures, which include trading profit, trading profit margin, EPSA and underlying growth, exclude the effect of certain cash and non-cash items that Group management believes are not related to the underlying performance of the Group. These non-IFRS financial measures are also used by management to make operating decisions because they facilitate internal comparisons of performance to historical results on both a business segment and a consolidated Group basis.

Non-IFRS financial measures are presented in these Financial Statements as the Group’s management believe that they provide investors with a means of evaluating performance of the business segments and the consolidated Group on a consistent basis, similar to the way in which the Group’s management evaluates performance, that is not otherwise apparent on an IFRS basis, given that certain non-recurring, infrequent or non-cash items that management does not otherwise believe are indicative of the underlying performance of the consolidated Group may not be excluded when preparing financial measures under IFRS. These non-IFRS measures should not be considered in isolation from, as substitutes for, or superior to financial measures prepared in accordance with IFRS.

Revenue

‘Underlying growth in revenue’ is used to compare the revenue in a given year to the previous year on a like-for-like basis. This is achieved by adjusting for the impact of sales of products acquired in material business combinations and for movements in exchange rates. Underlying growth in revenue is not presented in the accounts prepared in accordance with IFRS and is therefore a measure not in accordance with Generally Accepted Accounting Principles (a ‘non-GAAP’ measure).

The Group believes that the tabular presentation and reconciliation of reported revenue growth to underlying revenue growth assists investors in their assessment of the Group’s performance in each business segment and for the Group as a whole.

Underlying growth in revenue is considered by the Group to be an important measure of performance in terms of local functional currency since it excludes those items considered to be outside the influence of local management. The Group’s management uses this non-GAAP measure in its internal financial reporting, budgeting and planning to assess performance on both a business segment and a consolidated Group basis. Revenue growth at constant currency is important in measuring business performance compared to competitors and compared to the growth of the market itself.

The Group considers that revenue from sales of products acquired in material business combinations results in a step-up in growth in revenue in the year of acquisition that cannot be wholly attributed to local management’s efforts with respect to the business in the year of acquisition. Depending on the timing of the acquisition, there will usually be a further step change in the following year. A measure of growth excluding the effects of business combinations also allows senior management to evaluate the performance and relative impact of growth from the existing business and growth from acquisitions. The process of making business acquisitions is directed, approved and funded from the Group corporate centre in line with strategic objectives.

The material limitation of the underlying growth in revenue measure is that it excludes certain factors, described above, which ultimately have a significant impact on total revenues. The Group compensates for this limitation by taking into account relative movements in exchange rates in its investment, strategic planning and resource allocation. In addition, as the evaluation and assessment of business acquisitions is not

within the control of local management, performance of acquisitions is monitored centrally until the business is integrated.

The Group’s management considers that the non-GAAP measure of underlying growth in revenue and the GAAP measure of growth in revenue are complementary measures, neither of which management uses exclusively.

‘Underlying growth in revenue’ reconciles to growth in revenue reported, the most directly comparable financial measure calculated in accordance with IFRS by making two adjustments, the ‘constant currency exchange effect’ and the ‘acquisitions and disposals effect’, described below.

The ‘constant currency exchange effect’ is a measure of the increase/ decrease in revenue resulting from currency movements on non-US Dollar sales and is measured as the difference between: 1) the increase/decrease in the current year revenue translated into US Dollars at the current year average exchange rate and the prior revenue translated at the prior year rate; and 2) the increase/decrease being measured by translating current and prior year revenues into US Dollars using the prior year closing rate.

The ‘acquisitions and disposals effect’ is the measure of the impact on revenue from newly acquired material business combinations and recent material business disposals. This is calculated by comparing the current year, constant currency actual revenue (which include acquisitions and exclude disposals from the relevant date of completion) with prior year, constant currency actual revenue, adjusted to include the results of acquisitions and exclude disposals for the commensurate period in the prior year. These sales are separately tracked in the Group’s internal reporting systems and are readily identifiable.

Reported revenue growth, the most directly comparable financial measure calculated in accordance with IFRS, reconciles to underlying growth in revenue as follows:

 

         2014           2013           2012   
         %           %           %   

Reported revenue growth

       6           5           (3

Constant currency exchange effect

       1           1           2   
Acquisition/Disposals effect        (5        (2        3   
Underlying revenue        2           4           2   

A reconciliation of reported revenue growth to underlying revenue growth, by business segment, can be found on page 35.

Trading profit, trading profit margin and trading cash flow

Trading profit, trading profit margin and trading cash flow are trend measures, which present the long-term profitability of the Group excluding the impact of specific transactions that management considers affect the Group’s short-term profitability and cash flows. The Group has identified the following items, where material, as those to be excluded from operating profit and cash generated from operations when arriving at trading profit and trading cash flow, respectively: acquisition and disposal related items arising in connection with business combinations, including amortisation of acquisition intangible assets, impairments and integration costs; restructuring events; gains and losses resulting from legal disputes and significant uninsured losses. In addition to these items, gains or losses that materially impact the Group’s profitability or cash flows on a short-term or one-off basis are excluded from operating profit and cash generated from operations when arriving at trading profit and trading cash flow, respectively.

 

 

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Underlying growth in trading profit and trading profit margin (trading profit expressed as a percentage of revenue and trading cash flow) are measures, which present the growth trend in the long-term profitability of the Group.

Underlying growth in trading profit is used to compare the period-on-period growth in trading profit on a like-for-like basis. This is achieved by adjusting for the impact of material business combinations and disposals and for movements in exchange rates in the same manner as underlying revenue growth is determined, as described above.

Adjusted earnings per ordinary share (‘EPSA’)

EPSA is a trend measure, which presents the long-term profitability of the Group excluding the post-tax impact of specific transactions that management considers affects the Group’s short-term profitability. The Group presents this measure to assist investors in their understanding of trends. Adjusted attributable profit is the numerator used for this measure and is determined by adjusting attributable profit for the items that are excluded from operating profit when arriving at trading profit and items that are recognised below operating profit that affect the Group’s short-term profitability. The most directly comparable financial measure calculated in accordance with IFRS is earnings per ordinary share (‘EPS’).

 

For the year ended 31 December 2014    
 

 

 

Trading
results

2014

        $ million

  
  

  

  

   
 
 

 

Acquisition
related
costs

$ million

  
  
  

  

   
 
 
 

 

Restructuring
and
rationalisation
costs

$ million

  
  
  
  

  

   
 
 

 

Amortisation
of  acquisition
intangibles

$ million

  
  
  

  

   
 
 

 

Legal
and
other

$ million

  
  
  

  

   
 
 
Capital
expenditure
$ million
  
  
  
   
 
 

 

Reported
results
2014

$ million

  
  
  

  

Revenue     4,617                                           4,617   
Cost of goods sold     (1,127     (23     (12                          (1,162
Gross profit     3,490        (23     (12                          3,455   
Selling, general and administration expenses     (2,200     (95     (49     (129     2               (2,471
Research and development expenses     (235                                        (235
Trading/operating profit     1,055        (118     (61     (129     2               749   
Trading/operating profit margin     22.9%                       16.2%   
Interest receivable     13                                           13   
Interest payable     (28     (7                                 (35
Other finance costs     (11                                        (11
Share of loss from associates     (2                                        (2
Profit before taxation     1,027        (125     (61     (129     2               714   
Taxation     (284     30        15        35        (9            (213
Adjusted attributable/attributable profit     743        (95     (46     (94     (7            501   
EPSA/EPS     83.2¢        (10.6¢     (5.2¢     (10.5¢     (0.8¢            56.1¢   
Weighted average number of shares (m)     893                  893   
Diluted EPSA/EPS     82.6¢        (10.5¢     (5.1¢     (10.5¢     (0.8¢            55.7¢   
Diluted weighted average number of shares (m)     899                                                899   
Trading cash flow/cash generated from operating activities     781        (112     (60            (23     375        961   
Trading profit to cash conversion ratio (%)     74%                                                   

Acquisition related costs: For the year ended 31 December 2014, these costs primarily relate to transaction and integration costs associated with the ArthroCare acquisition with a small portion of costs relating to the continued integration of Healthpoint and the recent acquisitions in the Emerging & International Markets. In addition, trading results eliminate the short-term increase in cost of goods sold from recognising acquired inventory at fair value rather than standard cost. For the year ended 31 December 2013, these costs primarily relate to the integration of the Healthpoint business.

Restructuring and rationalisation costs: For the year ended 31 December 2014, these costs relate to the Group optimisation programme that was announced in May 2014 and the structural and efficiency programme announced in August 2011.

Amortisation of acquisition intangibles: This charge relates to the amortisation of intangible assets acquired in material business combinations.

Legal and other: For the year ended 31 December 2014 this net credit relates to a past service gain and a settlement credit on the closure of US Pension Plan of $46m and a gain on disposal of a UK manufacturing facility of $9m, offset by a charge of $25m relating to the likely costs of a distribution hold on RENASYS in the US pending new regulatory approvals and a charge of $28m relating to the HP802 programme which was stopped in the fourth quarter.

 

 

    

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Table of Contents

OTHER INFORMATION

Other financial information continued

 

 

                      Restructuring                                  
     Trading      Acquisition      and      Amortisation      Legal             Reported  
     results      related      rationalisation      of acquisition      and      Capital      results  
     2013      costs      costs      intangibles      other      expenditure      2013  
For the year ended 31 December 2013      $ million         $ million         $ million         $ million         $ million         $ million         $ million   

Revenue

     4,351                                                 4,351   
Cost of goods sold      (1,083      (5      (12                              (1,100

Gross profit

     3,268         (5      (12                              3,251   

Selling, general and administration expenses

     (2,050      (26      (46      (88                      (2,210
Research and development expenses      (231                                              (231

Trading/operating profit

     987         (31      (58      (88                      810   

Trading/operating profit margin

     22.7%                             18.6%   

Interest receivable

     14                                                 14   

Interest payable

     (10                                              (10

Other finance costs

     (11                                              (11
Share of loss from associates      (1                                              (1

Profit before taxation

     979         (31      (58      (88                      802   
Taxation      (286      6         11         23                         (246
Adjusted attributable/attributable profit      693         (25      (47      (65                      556   

EPSA/EPS

     76.9¢         (2.8¢      (5.2¢      (7.2¢                      61.7¢   

Weighted average number of shares (m)

     901                        901   

Diluted EPSA/EPS

     76.5¢         (2.8¢      (5.2¢      (7.1¢                      61.4¢   

Diluted weighted average number of shares (m)

     906                        906   

Trading cash flow/cash generated from operating activities

     877         (25      (54                      340         1,138   
Trading profit to cash conversion ratio (%)      89%                                                         

Acquisition related costs: For the year ended 31 December 2013, these costs primarily relate to the integration of the Healthpoint business.

Restructuring and rationalisation costs: For the year ended 31 December 2013 these costs primarily relate to the structural and efficiency programme announced in August 2011.

Amortisation of acquisition intangibles: This charge relates to the amortisation of intangible assets acquired in material business combinations.

 

 

 

 

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Table of Contents

 

 

                      Restructuring                                  
     Trading      Acquisition      and      Amortisation      Legal             Reported  
     results      related      rationalisation      of acquisition      and      Capital      results  
     2012      costs      costs      intangibles      other      expenditure      2012  
For the year ended 31 December 2012      $ million         $ million         $ million         $ million         $ million         $ million         $ million   

Revenue

     4,137                                                 4,137   
Cost of goods sold      (1,067              (3                              (1,070
Gross profit      3,070                 (3                              3,067   
Selling, general and administration expenses      (1,934      (11      (62      (43                      (2,050
Research and development expenses      (171                                              (171
Trading/operating profit      965         (11      (65      (43                      846   
Trading/operating profit margin                     
Interest receivable      11                                                 11   
Interest payable      (9                                              (9
Other finance costs      (11                                              (11
Share of loss from associates      4                                                 4   
Profit on disposal of net asset held for sale                                      251                 251   
Profit before taxation      960         (11      (65      (43      251                 1,092   
Taxation      (289      1         5         7         (95              (371
Adjusted attributable/attributable profit      671         (10      (60      (36      156                 721   
EPSA/EPS      74.8¢         (1.1      (6.7      (4.0      17.4                 80.4¢   
Weighted average number of shares (m)      897                        897   
Diluted EPSA/EPS      74.5¢         (1.1      (6.7      (4.0      17.3                 80.0¢   
Diluted weighted average number of shares (m)      901                        901   
Trading cash flow/cash generated from operating activities      999         (3      (55              (22      265         1,184   
Trading profit to cash conversion ratio (%)      104%                                                         

Acquisition related costs: For the year ended 31 December 2012, these costs primarily relate to professional and advisor fees in connection with the acquisition of Healthpoint Biotherapeutics which was completed on 21 December 2012.

Restructuring and rationalisation costs: For the year ended 31 December 2012, these costs relate mainly to people costs and contract termination costs associated with the structural and process changes announced in August 2011.

Amortisation of acquisition intangibles: This charge relates to the amortisation of intangible assets acquired in material business combinations.

Legal and other: This credit relates to the profit on disposal of the Clinical Therapies business.

 

Transactional and translational exchange

The Group’s principal markets outside the US are, in order of significance, Continental Europe, UK, Australia and Japan. Revenues in these markets fluctuate when translated into US Dollars on consolidation. During the year, the average rates of exchange against the US Dollar used to translate revenues and profits arising in these markets changed compared to the previous year as follows: the Euro remained flat at $1.33 (+0%), Sterling strengthened from $1.56 to $1.65 (+6%), the Swiss Franc strengthened from $1.08 to $1.09 (1%), the Australian Dollar weakened from $0.96 to $0.90 (-6%) and the Japanese Yen weakened from ¥97.6 to ¥105.8 (-8%).

The Group’s principal manufacturing locations are in the US (Advanced Surgical Devices), Switzerland (Advanced Surgical Devices), UK (Advanced Wound Management and Advanced Surgical Devices) and China (Advanced Surgical Devices and Advanced Wound Management). The majority of the Group’s selling and distribution subsidiaries around the world purchase finished products from these locations. As a result of currency movements compared with the previous year, sales from the US became relatively more profitable to all of these countries. The Group’s policy of purchasing forward a proportion of its currency requirements and the existence of an inventory pipeline reduce the short-term impact of currency movements.

Contractual obligations

Contractual obligations at 31 December 2014 were as follows:

 

            Payments due by period  
   

Less than

         

More than

 
    Total        1 year        1–3 years        3–5 years        5 years   
      $ million        $ million        $ million        $ million        $ million   

Debt obligations

 

    568        37        400        131          

Finance lease obligations

 

    12        2        4        6          

Operating lease obligations

 

    136        49        56        23        8   

Retirement benefit obligation

 

    74        74                        

Purchase obligations

 

    40        32        8                 

Capital expenditure

 

    34        34                        
Other     52        29        23                 
      916        257        491        160        8   
 

 

 

 

    

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Table of Contents

OTHER INFORMATION

Other financial information continued

 

 

Other contractual obligations represent $19m of foreign exchange contracts and $33m of acquisition consideration. Provisions that do not relate to contractual obligations are not included in the above table.

The agreed contributions for 2015 in respect of the Group’s defined benefits plans are: $46m for the UK (including $37m of supplementary payments), $22m for the US Plan and $6m for other funded defined benefit plans. The table above does not include amounts payable in respect of 2016 and beyond as these are subject to future agreement and amounts cannot be reasonably estimated.

There are a number of agreements that take effect, alter or terminate upon a change in control of the Company or the Group following a takeover, such as bank loan agreements and Company share plans. None of these are deemed to be significant in terms of their potential impact on the business of the Group as a whole. In addition, there are service contracts between the Company and its Executive Directors which provide for the automatic payment of a bonus following loss of office or employment occurring because of a successful takeover bid. Further details are set out on page 100.

The Company does not have contracts or other arrangements which individually are essential to the business.

2013 Financial highlights

Revenue

Group revenue increased by $214m (5% on a reported basis), from $4,137m in 2012 to $4,351m in 2013. The underlying increase is 4% after adjusting for the net impact of 2% on the Healthpoint acquisition and Clinical Therapies disposal and 1% attributable to the unfavourable impact of currency movements.

Cost of goods sold

Cost of goods sold increased by $30m (3% on a reported basis) from $1,070m in 2012 to $1,100m in 2013. The underlying movement is 2% after adjusting for the net impact of 2% on the Healthpoint acquisition and Clinical Therapies disposal and 1% attributable to the favourable impact of currency movements. The movement in underlying costs of goods sold of 2% is largely attributable to the increase in underlying trading.

During 2013, $12m of restructuring and rationalisation expenses (2012 – $3m) and $5m of acquisition related costs (2012 – $nil) were charged to cost of goods sold.

Selling, general and administration expenses

Selling, general and administrative expenses increased by $160m (8% on a reported basis) from $2,050m in 2012 to $2,210m in 2013. The underlying movement is 6% after adjusting for the net impact of 3% on the Healthpoint acquisition and Clinical Therapies disposal and 1% attributable to the favourable impact of currency movements.

The underlying increase of 6% is due to the continuing investment in Emerging & International Markets, promotion of new products in ASD and AWM and the underlying increase in trading.

In 2013, administrative expenses included $64m of amortisation of other intangible assets (2012 – $51m), $46m of restructuring and rationalisation expenses (2012 – $62m), an amount of $88m relating to amortisation of acquisition intangibles (2012 – $43m) and $26m of acquisition related costs (2012 – $11m).

Research and development expenses

Research and development expenditure as a percentage of revenue increased by 1.2% to 5.3% in 2013 (2012 – 4.1%). Actual expenditure was $231m in 2013 compared to $171m in 2012. The Group continues to invest in innovative technologies and products to differentiate it from competitors.

Operating profit

Operating profit decreased by $36m to $810m from $846m in 2012. This comprised a decrease of $12m in Advanced Surgical Devices and a decrease of $24m in Advanced Wound Management.

The movement in Advanced Surgical Devices is attributable to the continuing pressure on margins and its investment in the Emerging & International Markets. Advanced Wound Management has continued to invest in new products and new geographic markets throughout the year.

Net interest receivable/(payable)

Net interest receivable increased, by $2m, from net $2m receivable in 2012 to a net receivable of $4m in 2013. This increase is principally a consequence of the interest receivable on the Bioventus LLC (‘Bioventus’) loan note issued following the disposal of the Clinical Therapies business which has been in place for a full year in 2013 compared to eight months in 2012. This loan note was repaid in full in 2014.

Other finance cost

Other finance costs in 2013 remained at $11m and principally relate to costs associated with the Group’s retirement benefit schemes.

Taxation

The taxation charge decreased, by $125m, to $246m from $371m in 2012. The rate of tax was 30.5%, compared with 33.7% in 2012.

After adjusting for specific transactions that management considers affect the Group’s short-term profitability (profit on disposal of the Clinical Therapies business, restructuring and rationalisation expenses, amortisation of acquisition intangibles and acquisition-related costs) the tax rate was 29.2% (2012 – 29.9%).

Group balance sheet

The following table sets out certain balance sheet data as at 31 December of the years indicated:

 

        
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Non-current assets

       3,563           3,498   
Current assets        2,256           2,144   
Total assets        5,819           5,642   

Non-current liabilities

       699           828   
Current liabilities        1,073           930   

Total liabilities

       1,772           1,758   
Total equity        4,047           3,884   
Total equity and liabilities        5,819           5,642   
 

 

 

 

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Non-current assets

Non-current assets increased by $65m to $3,563m in 2013 from $3,498m in 2012. This is principally attributable to the following:

 

Property, plant and equipment increased by $23m from $793m in 2012 to $816m in 2013. Depreciation of $209m was charged during 2013 and assets with a net book value of $12m were disposed of. These movements were offset by $242m of additions relating primarily to instruments and other plant & machinery and $5m of additions arising on acquisitions in Turkey, Brazil and India. The balance relates to unfavourable currency movements totalling $3m

 

Goodwill increased by $70m from $1,186m in 2012 to $1,256m in 2013. Of this movement, $37m arose on acquisitions in Turkey, Brazil and India. An additional $16m arose on finalisation of the Healthpoint opening balance sheet. The remaining balance relates to favourable currency movements totalling $17m

 

Intangible assets decreased by $10m from $1,064m in 2012 to $1,054m in 2013. Intangible assets totalling $64m arose on the acquisition in Turkey, Brazil and India. There was a reduction of $11m on finalisation of the Healthpoint opening balance sheet. Amortisation of $152m was charged during the year and assets with a net book value of $11m were disposed of. A total of $98m relates to the cost of intellectual property, distribution rights and software acquired. The balance relates to favourable currency movements totalling $2m

 

Investment in associates (including a loan to an associate of $178m in 2013, up from $167m in 2012) has increased from $283m in 2012 to $285m in 2013. This movement relates to the interest of $11m arising on the Bioventus loan note which was largely offset from the disposal of the Group’s 49% interest in the Austrian entities Plus Orthopedics GmbH and Intraplant GmbH and its 20% interest in the German entity Intercus GmbH

 

Deferred tax assets decreased by $19m in the year from $164m in 2012 to $145m in 2013.

Current assets

Current assets increased by $112m to $2,256m from $2,144m in 2012. The movement relates to the following:

 

Inventories rose by $105m to $1,006m in 2013 from $901m in 2012. This movement is principally attributable to an increase of $48m in the US due to inventory build prior to the launch of JOURNEY II BCS and an increase of $17m due to inventory build in our Hull factory prior to the transfer of part of our Wound production to China. A further increase of $12m arose on the acquisitions in Turkey, Brazil and India. The movement also includes $6m of unfavourable currency movement

 

The level of trade and other receivables increased by $48m to $1,113m in 2013 from $1,065m in 2012. The movement primarily relates to the increase in underlying revenues and includes $9m of unfavourable currency movements

 

Cash at bank has fallen by $41m to $137m from $178m in 2012.

Non-current liabilities

Non-current liabilities decreased by $129m from $828m in 2012 to $699m in 2013. This movement relates to the following items:

 

Long-term borrowings have decreased from $430m in 2012 to $347m in 2013

 

The Retirement benefit obligation decreased by $36m to $230m in 2013 from $266m in 2012. This was largely due to the Group’s additional pension contributions, together with net actuarial gains for the year

 

Deferred tax liabilities decreased by $11m in the year from $61m in 2012 to $50m in 2013.

Current liabilities

Current liabilities increased by $143m from $930m in 2012 to $1,073m in 2013. This movement is attributable to:

 

Bank overdrafts and current borrowings have increased by $6m from $38m in 2012 to $44m in 2013

 

Trade and other payables have increased by $129m to $785m in 2013 from $656m in 2012. This increase includes $50m largely driven from strong sales performance in the US in quarter four and a $23m increase in Europe associated with promotional activities in Advanced Surgical Devices. A total of $19m of trade and other payables arose on the acquisitions in Turkey, Brazil and India and an amount of $5m is attributable to favourable currency movements.

 

Current tax payable is $184m at the end of 2013 compared to $177m in 2012.

Total equity

Total equity increased by $163m from $3,884m in 2012 to $4,047m in 2013. The principal movements were:

 

        
 
Total equity
$ million
  
  

1 January 2013

 

      

 

3,884

 

  

 

Attributable profit

 

      

 

556

 

  

 

Currency translation gains

 

      

 

(6

 

 

Hedging reserves

 

      

 

5

 

  

 

Actuarial gains on retirement benefit obligations

 

      

 

12

 

  

 

Dividends paid during the year

 

      

 

(239

 

 

Purchase of own shares

 

      

 

(231

 

 

Taxation benefits on Other Comprehensive Income and equity items

 

      

 

(16

 

 

Net share-based transactions

 

      

 

82

 

  

 

31 December 2013        4,047   
 

 

 

    

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Table of Contents

OTHER INFORMATION

Other financial information continued

 

 

2013 Financial performance by business segment

Revenue by market

The underlying increase in each division’s revenues, by market, reconciles to reported growth, the most directly comparable financial measure calculated in accordance with IFRS, as follows:

 

     
 
2013
$ million
  
  
      
 
2012
$ million
  
  
        
 
 
 
Reported
growth in
revenue
%
  
  
  
  
    
 
 
 

 

Constant
currency
exchange
effect

%

  
  
  
  

  

    
 
 

 

Acquisition/
Disposal
effect

%

  
  
  

  

    
 
 
Underlying
growth in
revenue %
  
  
  
Advanced Surgical Devices                                                           

US

 

   

 

1,391

 

  

 

      

 

1,449

 

  

 

      

 

(4

 

 

    

 

 

  

 

    

 

5

 

  

 

    

 

1

 

  

 

Other Established Markets     1,204           1,298             (7      2         2         (3

Established Markets

 

   

 

2,595

 

  

 

      

 

2,747

 

  

 

      

 

(6

 

 

    

 

1

 

  

 

    

 

4

 

  

 

    

 

(1

 

 

Emerging & International Markets     420           361             16         2                 18   
Advanced Surgical Devices     3,015           3,108             (3      1         3         1   
                                                            
Advanced Wound Management                                                           

US

 

   

 

471

 

  

 

      

 

202

 

  

 

      

 

133

 

  

 

    

 

 

  

 

    

 

(111

 

 

    

 

22

 

  

 

Other Established Markets     722           705             3         1         (1      3   

Established Markets

 

   

 

1,193

 

  

 

      

 

907

 

  

 

      

 

32

 

  

 

    

 

1

 

  

 

    

 

(23

 

 

    

 

10

 

  

 

Emerging & International Markets     143           122             17         3                 20   
Advanced Wound Management     1,336           1,029             30         1         (20      11   

 

Advanced Surgical Devices

Revenue

ASD revenue decreased by $93m (-3% on a reported basis) from $3,108m in 2012 to $3,015m in 2013. The underlying increase of 1% is after adjusting for a net 3% adverse impact from the disposal of the Clinical Therapies business in 2012 and the acquisitions completed in quarter four 2013, and a 1% unfavourable foreign currency translation.

In the US, revenue decreased by $58m to $1,391m in 2013 from $1,449m in 2012 (-4% on a reported basis). The underlying increase of 1% is after adjusting 5% for the adverse impact of the Clinical Therapies disposal in 2012. In Other Established Markets, revenue was $1,204m in 2013, a decrease of $94m from $1,298m in 2012 (-7% on a reported basis). The underlying decrease was 3% after adjusting for the adverse impact of 2% on the Clinical Therapies disposal in 2012, and 2% from unfavourable foreign currency translation. Our Emerging & International Markets revenue increased by $59m to $420m in 2013 from $361m in 2012 (16% increase on a reported basis). The underlying increase was 18% after adjusting 2% for unfavourable foreign currency translation.

In the global Knee Implant franchise, revenue decreased by $9m from $874m in 2012 to $865m in 2013 (-1% on a reported basis), representing flat underlying revenue performance after 1% of unfavourable currency translation. Growth has been impacted by exposure to a weakening European market with conditions continuing to deteriorate in Germany, our largest European market, and our position in the product life cycle versus our peers. Growth improved in the second half of the year driven by sales of the Journey II BCS Knee System and benefits from the VERILAST bearing surface TV advertising campaign in the US.

Global revenue from the Hip Implant franchise decreased by $13m from $666m in 2012 to $653m in 2013 (-2% on a reported basis), which represented an underlying revenue decline of 1% after 1% unfavourable foreign currency translation. Continuing metal-on-metal headwinds have contributed to this decline.

Trauma & Extremities revenue increased by $12m from $474m in 2012 to $486m in 2013 (3% on a reported basis). This represents underlying revenue growth of 4% after 1% of unfavourable foreign currency translation. During 2013, benefits were seen from the additional extremities US sales representatives recruited earlier in the year.

Sports Medicine Joint Repair revenue increased by $22m from $474m in 2012 to $496m in 2013 (5% on reported basis), representing underlying revenue growth of 7% and 2% of unfavourable foreign currency translation. This reflects a strong contribution across all key joint types and geographies.

Global revenue from Arthroscopic Enabling technologies decreased by $17m from $458m in 2012 to $441m in 2013 (-4% on a reported basis). This decrease represents an underlying revenue decline of 2% and 2% of unfavourable foreign currency translation.

The revenue in the Other ASD franchise fell by $88m from $162m in 2012 to $74m in 2013 following the disposal of the Clinical Therapies business in 2012. Excluding the impact of this disposal, underlying revenue in the Other ASD franchise, which includes gynaecology, grew by 14% with the remaining Clinical Therapies geographies contributing $9m.

 

 

 

 

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Trading and operating profit

Operating profit, the most directly comparable financial measure in accordance with IFRS, reconciles to trading profit as follows:

 

        
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Operating profit

 

      

 

620

 

  

 

      

 

632

 

  

 

Acquisition related costs

 

      

 

7

 

  

 

      

 

 

  

 

Restructuring and rationalisation costs

 

      

 

44

 

  

 

      

 

57

 

  

 

Amortisation of acquisition intangibles and impairments

 

      

 

41

 

  

 

      

 

39

 

  

 

Trading profit        712           728   

Trading profit margin increased from 23.4% to 23.6%. Trading profit decreased by $16m to $712m from $728m in 2012. This decrease reflects the impact of the CT disposal in May 2012, the impact of the US medical device excise tax and the cost of planned investments in the Knee Implants and Trauma franchises and Emerging & International Markets offset by benefits from our structural efficiency programme.

Operating profit decreased by $12m from $632m in 2012 to $620m in 2013. This comprises the decrease in trading profit of $16m discussed above, an increase in acquisition related costs of $7m, an increase in amortisation of acquisition intangibles of $2m, partially offset by a decrease in restructuring and rationalisation costs of $13m.

Advanced Wound Management

Revenue

AWM revenue increased by $307m (30% on a reported basis), from $1,029m in 2012 to $1,336m in 2013. The underlying increase of 11% is after adjusting for an increase of 20% for the acquisitions completed in the year and a 1% unfavourable foreign currency translation.

In the US, revenue increased by $269m to $471m in 2013 from $202m in 2012 (133% on a reported basis). The underlying increase of 22% is after adjusting 111% for the impact of acquisitions. In Other Established Markets, revenue was $722m in 2013, an increase of $17m from $705m in 2012 (3% on a reported basis). The underlying revenue increase was also 3% with the 1% impact of acquisitions offset by 1% of unfavourable foreign currency translation. Our Emerging & International Markets revenue increased by $21m in 2012 (17% on a reported basis). The underlying increase was 20% after adjusting 3% for unfavourable foreign currency translation.

Advanced Wound Care revenue decreased by $6m (-1% on a reported basis) from $849m in 2012 to $843m in 2013. The underlying growth of 1% is after adjusting for foreign currency translation. Conditions across many European markets remain challenging but the introduction of the ALLEVYN Life range continues to make good progress across Europe following product introductions and investment in marketing.

Advance Wound Devices revenue increased from $180m in 2012 to $213m in 2013, a reported increase of $33m and 18%. The underlying growth of 20% is after adjusting for unfavourable foreign currency translations of 2%. This growth was impacted by continued gain in market share in NPWT, and our recent expansion into the emerging markets.

Advanced Wound Bioactives revenue of $280m in 2013 (2012 – $nil) relates to Healthpoint acquired in December 2012. The underlying increase, adjusted to include the results of Healthpoint for the commensurate period in 2012, was 47%.

Trading and operating profit

Operating profit, the most directly comparable financial measure in accordance with IFRS, reconciles to trading profit as follows:

 

        
 
2013
$ million
  
  
      
 
2012
$ million
  
  

Operating profit

 

      

 

190

 

  

 

      

 

214

 

  

 

Acquisition related costs

 

      

 

24

 

  

 

      

 

11

 

  

 

Restructuring and rationalisation costs

 

      

 

14

 

  

 

      

 

8

 

  

 

Amortisation of acquisition intangibles and impairments

 

      

 

47

 

  

 

      

 

4

 

  

 

Trading profit        275           237   

Trading profit margin decreased from 23.1% to 20.6%. Trading profit increased by $38m to $275m from $237m in 2012. The increase in the year is primarily attributable to the full year benefit of the Healthpoint acquisition and growth in the Emerging & International Markets, partially offset by additional investment in R&D and sales and marketing. The decrease in trading margin reflects these same investments, combined with price and mix changes at a gross margin level.

Operating profit decreased by $24m from $214m in 2012 to $190m in 2013. This comprises of the increase in trading profit of $38m discussed above, offset by an increase of $43m in amortisation of acquisition intangibles and an increase in acquisition related costs of $13m, both due to the Healthpoint acquisition which completed in December 2012, and an increase in restructuring and rationalisation costs of $6m.

 

 

 

 

    

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Smith & Nephew Annual report 2014              183

    

 


Table of Contents

OTHER INFORMATION

Information for shareholders

 

 

Financial calendar

 

 
Annual General Meeting 9 April 2015
First quarter trading report 30 April 2015
Payment of 2014 final dividend 6 May 2015
Half year results announced 30 July 2015 (i)
Third quarter trading report 29 October 2015
Payment of 2015 interim dividend November 2015
Full year results announced February 2016 (i)
Annual Report available February/March 2016
Annual General Meeting April 2016

 

(i) Dividend declaration dates.

Annual General Meeting

The Company’s Annual General Meeting (AGM) will be held on 9 April 2015 at 2pm at No. 11 Cavendish Square, London, W1G 0AN. Registered shareholders have been sent either a Notice of Annual General Meeting or notification of availability of the Notice of Annual General Meeting.

Corporate Headquarters and Registered Office

The corporate headquarters is in the UK and the registered office address is: Smith & Nephew plc, 15 Adam Street, London, W2N 6LA, UK. Registered in England and Wales No. 324357. Tel. +44 (0)20 7401 7646 website: www.smith-nephew.com

Ordinary shareholders

Registrar

All general enquiries concerning shareholdings, dividends, changes to shareholders’ personal details and the AGM should be addressed to:

Equiniti, Aspect House, Spencer Road, Lancing, West Sussex BN99 6DA

Tel: 0871 384 2081 *

Tel: +44 (0) 121 415 7072 from outside the UK

Website: www.shareview.co.uk

 

* Calls to this number are charged at 8p per minute plus network extras. Lines are open from 8.30am to 5.30pm Monday to Friday, excluding UK public holidays.

Shareholder facilities

Shareview

Equiniti’s on-line enquiry and portfolio management service for shareholders. To view information about your shareholdings online, register at www.shareview.co.uk. Once registered for Shareview, you will also be able to elect to receive future shareholder communications via the Company’s website (www.smith-nephew.com), update your address details or dividend payment instructions and register your proxy instructions on-line.

E-communications

We encourage you to elect to receive communications via e-mail as this has significant environmental and cost benefits. You may register for this service through Equiniti, at www.shareview.co.uk. You will receive a confirmation letter from Equiniti at your registered address, containing an Activation Code for future use.

Payment of dividends direct to your bank or building society account

If you who wish to avoid the risk of your dividend awards getting lost or mislaid you can arrange to have your cash dividends paid directly to a bank or building society account. This facility is available to UK resident shareholders who receive sterling dividends. If you do not live in the UK you may be able to register for the overseas payment service. Further information is available at www.shareview.co.uk or by contacting Equiniti (UK and overseas helpline numbers as above).

Dividend reinvestment plan (DRIP)

The Company offers shareholders (except those in North America) the opportunity to participate in a DRIP. This enables you to reinvest your cash dividends in further ordinary shares of Smith & Nephew plc. These are purchased in the market at competitive dealing costs. For further details plus an application form to reinvest future dividends, contact Equiniti.

Duplicate accounts

If you have more than one account due to inconsistency in account details you may avoid duplicate mailings by contacting Equiniti and requesting an amalgamation of your share accounts.

Keep your personal details up to date

Please remember to tell Equiniti if you move house or change bank details or there is any other change in your account information. You can update your information on-line via the Shareview portfolio if you are a Smith & Nephew Shareview member. If you do not have a portfolio you will need to write to Equiniti or complete a change of address form which can be downloaded from Shareview. If you hold 2,500 shares or fewer, you can also change your address or update your bank details quickly and easily over the phone using the contact details provided.

Individual savings account (ISA)

Shareholders who are UK resident may hold Smith & Nephew plc shares in an Individual Savings Account (ISA), which is administered by the Company’s registrar. For information about this service please contact Equiniti.

Shareholder communications

We make quarterly financial announcements which are made available through Stock Exchange announcements and on the Group’s website (www.smith-nephew.com). Copies of recent Annual Reports, press releases, institutional presentations and audio webcasts are also available on the website.

We send paper copies of the Notice of Annual General Meeting and Annual Report only to those shareholders and ADS holders who have elected to receive shareholder documentation by post. Electronic copies of the Annual Report and Notice of Annual General Meeting are available on the Group’s website at www.smith-nephew.com. Both ordinary shareholders and ADS holders can request paper copies of the Annual Report, which the Company provides free of charge. The Company will continue to send to ordinary shareholders by post the Form of Proxy notifying them of the availability of the Annual Report and Notice of Annual General Meeting on the Group’s website. If you elect to receive the Annual Report and Notice of Annual General Meeting electronically you are informed by e-mail of the documents’ availability on the Group’s website. ADS holders receive the Form of Proxy by post, but will not receive a paper copy of the Notice of Annual General Meeting.

 

 

 

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Investor communications

The Company maintains regular dialogue with individual institutional shareholders, together with results presentations. To ensure that all members of the Board develop an understanding of the views of major investors, the Executive Directors review significant issues raised by investors with the Board. Non-executive Directors are sent copies of analysts’ and brokers’ briefings. There is an opportunity for individual shareholders to question the Directors at the Annual General Meeting and the Company regularly responds to letters from shareholders on a range of issues.

UK capital gains tax

For the purposes of UK capital gains tax the price of the Company’s ordinary shares on 31 March 1982 was 35.04p.

Smith & Nephew share price

The Company’s ordinary shares are quoted on the London Stock Exchange under the symbol SN. The Company’s share price is available on the Smith & Nephew website www.smith-nephew.com and at www.londonstockexchange.com where the live financial data is updated with a 15-minute delay.

ShareGift

If you hold a small number of shares, which would cost more to sell than they are worth, you may wish to consider donating them to the charity ShareGift (registered charity 1052686) which specialises in accepting such shares as donations. There are no implications for Capital Gains Tax purposes (no gain or loss) and it may also be possible to obtain income tax relief. The relevant stock transfer form may be obtained from Equiniti at the address given on page 184.

Further information about ShareGift is available at www.sharegift.org or by contacting ShareGift at:

ShareGift, PO BOX 72253 London SW1P 9LQ

Tel: (+44) (0) 20 7930 3737

Unauthorised brokers (boiler room scams)

You are advised to be very wary of any unsolicited advice, offers to buy shares at a discount or offers of free company reports. These are typically from overseas-based ‘brokers’ who target UK shareholders offering to sell them what often turn out to be worthless or high-risk shares in US or UK investments. These operations are commonly known as ‘boiler rooms’.

If you deal with an unauthorised firm, you will not be eligible to receive payment under the Financial Services Compensation Scheme if things go wrong. If you receive any unsolicited investment advice, obtain the correct name of the person and organisation and check that they are properly authorised by the FCA by visiting www.fca.org.uk/register/.

If you think you have been approached by an unauthorised firm you should contact the FCA consumer helpline on 0800 111 6768 or e-mail consumer.queries@fca.org.uk.

More detailed information can be found on the FCA website at www.fca.org.uk/consumers/protect-yourself/unauthorised-firms.

Social media

Smith & Nephew has a presence across a range of social media channels, including Twitter, Facebook and LinkedIn, which are linked below. Information provided by Smith & Nephew through social media channels is not incorporated by reference herein and does not form part of our annual report on Form 20-F.

 

LOGO

https://twitter.com/SmithNephewPLC

 

LOGO

 

www.facebook.com/SmithNephewPlc

 

LOGO

 

http://www.linkedin.com/company/smith-&-nephew

American Depositary Shares (ADSs) and American Depositary Receipts (ADRs)

In the USA, the Company’s ordinary shares are traded in the form of ADSs, evidenced by ADRs, on the New York Stock Exchange under the symbol SNN. Each American Depositary Share represents two ordinary shares. Deutsche Bank is the authorised depositary bank for the Company’s ADR programme.

ADS enquiries

All enquiries regarding ADS holder accounts and payment of dividends should be addressed to:

Deutsche Bank Shareholder Services

American Stock Transfer and Trust Company

Operations Centre 6210 15th Avenue

Brooklyn, New York

Tel: +1 800 937-5449 (toll free from US)

Tel: +1 718 921-8124 (direct dial)

E-mail: DB@amstock.com

Website: www.adr.db.com

The Company provides Deutsche Bank, as depositary, with copies of Annual Reports containing Consolidated Financial Statements and the opinion expressed thereon by its independent auditor. Such financial statements are prepared under IFRS. Deutsche Bank will send these reports to recorded ADS holders who have elected to receive paper copies. The Company also provides to Deutsche Bank all notices of shareholders’ meetings and other reports and communications that are made generally available to shareholders of the Company. Deutsche Bank makes such notices, reports and communications available for inspection by recorded holders of ADSs and sends voting instruction forms by post to all recorded holders of ADSs.

 

 

 

 

 

    

 

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OTHER INFORMATION

Information for shareholders continued

 

 

Smith & Nephew ADS price

The Company’s ADS price can be obtained from the official New York Stock Exchange website at www.nyse.com, the Smith & Nephew website www.smith-nephew.com, and is quoted daily in the Wall Street Journal where the live financial data is updated with a 15-minute delay.

ADS payment information

The Company hereby discloses ADS payment information for the year ended 31 December 2014 in accordance with the Securities and Exchange Commission rules 12.D.3 and 12.D.4 relating to Form 20-F filings by foreign private issuers. The depositary collects its fees for delivery and surrender of ADSs directly from investors depositing shares or surrendering ADSs for the purpose of withdrawal or from intermediaries acting for them. The depositary collects fees for making distributions to investors, including payment of dividends by the Company by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depository services by deductions from cash distributions or by directly billing investors or by charging the book-entry system accounts of participants acting for them. The depositary may generally refuse to provide fee-attracting services until its fee for those services are paid.

 

Persons depositing or withdrawing shares must pay:    For:

$5.00 (or less) per 100 ADSs (or portion of 100 ADSs)

$0.05 (or less) per ADS

  

Issuance of ADSs, including issuances resulting from a distribution of shares or rights or other property

Cancellation of ADSs for the purpose of withdrawal, including if the deposit agreement terminates

Any cash distribution to ADS registered holders, including payment of dividend

$0.05 (or less) per ADS per calendar year

Registration or transfer fees

  

Depositary services

Transfer and registration of shares on our share register to or from the name of the depositary or its agent when shares are deposited or withdrawn

Taxes and other governmental charges the depositary or the custodian have to pay on any ADS or share underlying an ADS, for example, stock transfer taxes, stamp duty or withholding taxes    As necessary
Any charges incurred by the depositary or its agents for servicing the deposited securities    As necessary

During 2014, a fee of two US cents per ADS was paid on the 2013 final dividend by The Bank of New York Mellon which totaled $111,563.54.

On 1 October 2014 Smith & Nephew changed ADR bank to Deutsche Bank Trust Company Americas. A fee of one US cent per ADS was deducted from the 2014 interim dividend paid in November which totaled $178,537.00. Therefore, for the period 1 January 2014 to 23 February 2015, the total reimbursed by The Bank of New York Mellon and Deutsche Bank Trust Company Americas was $290,100.54.

On 14 October 2014 the ratio for ordinary shares per ADS changed from five ordinary shares per ADS to two ordinary shares per ADS.

 

 

 

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Dividend history

Smith & Nephew has paid dividends on its ordinary shares in every year since 1937. Following the capital restructuring and dividend reduction in 2000 the Group adopted a policy of increasing its dividend cover (the ratio of EPSA, as set out in the ‘Selected financial data’, to ordinary dividends declared for the year). This was intended to increase the financing capability of the Group for acquisitions and other investments. From 2000 to 2004 the dividend increased in line with inflation and, in 2004, dividend cover stood at 4.1 times. Having achieved this level of dividend cover the Board changed its policy, from that of increasing dividends in line with inflation, to that of increasing dividends for 2005 and after by 10%. Following the redenomination of the Company’s share capital into US Dollars the Board re-affirmed its policy of increasing the dividend by 10% a year in US Dollar terms.

On 2 August 2012, the Board announced its intention to pursue a progressive dividend policy, with the aim of increasing the US Dollar value of ordinary dividends over time broadly based on the Group’s underlying growth in earnings, while taking into account capital requirements and cash flows.

At the time of the full year results the Board reviews the appropriate level of total annual dividend each year. The Board intends that the interim dividend will be set by a formula and will be equivalent to 40% of the total dividend for the previous year. Dividends will continue to be declared in US Dollars with an equivalent amount in sterling payable to those shareholders whose registered address is in the UK, or who have validly elected to receive sterling dividends.

An interim dividend in respect of each fiscal year is normally declared in August and paid in November. A final dividend will be recommended by the Board of Directors and paid subject to approval by shareholders at the Company’s Annual General Meeting.

Future dividends of Smith & Nephew will be dependent upon: future earnings; the future financial condition of the Group; the Board’s dividend policy; and the additional factors that might affect the business of the Group set out in ‘Special note regarding forward-looking statements’ and ‘Risk Factors’.

Dividends per share

The table below sets out the dividends per Ordinary Share in the last five years.

 

       Years ended 31 December
       2014       2013      2012      2011      2010

Pence per share:

                        

Interim

     7.578       7.211      6.811      4.639      4.233
Final (i)      13.377       11.233      11.778      7.444      6.639
Total      20.995       18.444      18.589      12.083      10.872

US cents per share:

                        

Interim

     12.222       11.556      11.000      7.333      6.667

Final

     20.667       18.889      18.000      12.000      10.911
Total      32.889       30.445      29.000      19.333      17.578

 

(i) Translated at the Bank of England rate on 23 February 2015.

Dividends above include the associated UK tax credit of 10%, but exclude the deduction of withholding taxes. All dividends, up to the second interim dividend for 2005, were declared in pence per ordinary share and translated into US cents per ordinary share at the Noon Buying Rate on the payment date. Since the second interim dividend for 2005 all dividends have been declared in US cents per ordinary share.

The 2014 final dividend will be payable on 6 May 2015, subject to shareholder approval.

In respect of the proposed final dividend for the year ended 31 December 2014 of 18.6 US cents per ordinary share, the record date will be 17 April 2015 and the payment date will be 6 May 2015. The sterling equivalent per ordinary share will be set following the record date. Shareholders may elect to receive their dividend in either sterling or US Dollars and the last day for election will be 17 April 2015. The ordinary shares will trade ex-dividend on both the London and New York Stock Exchanges from 16 April 2015.

The proposed final dividend of 18.6 US cents per ordinary share, which together with the interim dividend of 11 US cents, makes a total for 2014 of 29.6 US cents.

 

 

 

 

    

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OTHER INFORMATION

Information for shareholders continued

 

 

Share prices

The table below sets out, for the periods indicated, the highest and lowest middle market quotations for the Company’s ordinary shares (as derived from the Daily Official List of the UK Listing Authority) and the highest and lowest sales prices of its ADSs (as reported on the New York Stock Exchange composite tape).

 

         Ordinary shares               ADSs   
       High        Low            High        Low  
         £           £               US$           US$   

Year ended 31 December:

                     

2010

       6.97           5.38             53.94           41.29   

2011

       7.42           5.21             60.19           42.17   

2012

       6.93           5.80             56.13           45.13   

2013

       8.68           6.80             71.85           52.90   
2014*        11.93           8.57               97.27           29.39   
Quarters in the year ended 31 December:                                                

2013:

                     

1st Quarter

       7.60           6.80             58.00           52.90   

2nd Quarter

       7.95           7.18             60.17           54.83   

3rd Quarter

       8.00           7.30             63.06           56.01   
4th Quarter        8.68           7.48               71.85           60.05   

2014:

                     

1st Quarter

       9.60           8.57             80.18           70.84   

2nd Quarter

       11.00           8.61             97.27           73.17   

3rd Quarter

       10.80           9.86             90.45           82.91   
4th Quarter*        11.93           9.06             83.14           29.39   

2015:

                     
1st Quarter (to 23 February 2015)        12.00           11.48             36.71           35.07   
Last six months:                                              

August 2014

       10.65           9.86             89.50           82.91   

September 2014

       10.80           10.23             88.15           83.29   

October 2014 (1 to 14 October 2014)*

       10.32           9.74             83.14           77.36   

October 2014 (15 to 31 October 2014)

       10.57           9.06             33.83           29.39   

November 2014

       11.38           10.45             36.12           33.21   

December 2014

       11.93           10.19             38.52           32.06   

January 2015

       12.00           11.48             36.40           35.07   
February 2015 (to 23 February 2015)        11.98           11.55               36.71           35.17   

* On 14 October 2014 the ratio of ordinary shares per ADS changed from five ordinary shares per ADS to two ordinary shares per ADS.

 

 

 

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Share Capital

The principal trading market for the ordinary shares is the London Stock Exchange. The ordinary shares were listed on the New York Stock Exchange on 16 November 1999, trading in the form of ADSs evidenced by ADRs. Each ADS represents two ordinary shares from 14 October 2014, before which time one ADS represented five ordinary shares. The ADS facility is sponsored by Deutsche Bank acting as depositary.

All the ordinary shares, including those held by Directors and Executive Officers, rank pari passu with each other. On 23 January 2006 the ordinary shares of 12  2 9 p were redenominated as ordinary shares of US 20 cents (following approval by shareholders at the extraordinary general meeting in December 2005). The new US dollar ordinary shares carry the same rights as the previous ordinary shares. The share price continues to be quoted in sterling. In 2006 the Company issued £50,000 of shares in sterling in order to comply with English law. These were issued as deferred shares, which are not listed on any stock exchange. They have extremely limited rights and therefore effectively have no value. These shares were allotted to the Chief Executive Officer, although the Board reserves the right to transfer them to another member of the Board should it so wish.

As at 23 February 2015, to the knowledge of the Group, there were 17,824 registered holders of ordinary shares, of whom 90 had registered addresses in the USA and held a total of 168,578 ordinary shares (less than 0.02% of the total issued). Because certain ordinary shares are registered in the names of nominees, the number of shareholders with registered addresses in the USA is not representative of the number of beneficial owners of ordinary shares resident in the USA.

Shareholdings

As at 23 February 2015, 26,707,860 ADSs equivalent to 53,415,720 ordinary shares or approximately 5.97% of the total ordinary shares in issue, were outstanding and were held by 92 registered ADS holders.

Major shareholders

As far as is known to Smith & Nephew, the Group is not directly or indirectly owned or controlled by another corporation or by any government and the Group has not entered into arrangements, the operation of which may at a subsequent date result in a change in control of the Group.

As at 23 February 2015, no persons are known to Smith & Nephew to have any interest (as defined in the Disclosure and Transparency Rules of the FCA) in 3% or more of the ordinary shares, other than as shown below. The following tables show changes over the last three years in the percentage and numbers of the issued share capital owned by shareholders holding 3% or more of ordinary shares, as notified to the Company under the Disclosure and Transparency Rules:

 

                               As at 31 December   
       23 February 2015           2014           2013           2012   
         %           %           %           %   

BlackRock, Inc.

       5.5           5.5           4.7           5.0   

Invesco

       5.0           5.3           12.1           11.9   

Legal & General Group plc

                                     3.0   
Newton Investment Management Limited                                      4.9   
                   
                               As at 31 December   
       23 February 2015           2014           2013           2012   
         ’000           ’000           ’000           ’000   

BlackRock, Inc.

       49,206           49,008           41,870           44,811   

Invesco

       44,918           47,508           107,823           107,823   

Legal & General Group plc

                                     26,906   
Newton Investment Management Limited                                      8,432   

The Company is not aware of any person who has a significant direct or indirect holding of securities in the Company, and is not aware of any persons holding securities which may control the Company. There are no securities in issue which have special rights as to the control of the Company.

 

 

 

 

    

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OTHER INFORMATION

Information for shareholders continued

 

 

Purchase of ordinary shares on behalf of the Company

At the AGM, the Company will be seeking a renewal of its current permission from shareholders to purchase up to 10% of its own shares. In order to avoid shareholder dilution, shares allotted to employees through employee share schemes are bought back on a quarterly basis and subsequently cancelled by the Company. From 1 January 2014 to 23 February 2015, in the months listed below, the Company has purchased 5,455,000 ordinary shares at a cost of US$91,595,439.

 

        
 
 
Total shares
purchased
(000s
  
  
      
 
 
Average price
paid per  share
(p
  
  
      
 
 
 
Approximate US$
value of shares
purchased under
the plan
  
  
  
  

12-22 May 2014

       1,825           926.1138           28,687,538   

6-19 August 2014

       1,380           1,026.3662           23,833,629   

4-14 November 2014

       1,200           1,056.5981           20,198,882   
13-18 February 2015        1,050           1,168.3047           18,875,390   

The shares were purchased in the open market by UBS Limited and JP Morgan Cazenove Limited on behalf of the Company.

 

Exchange controls and other limitations affecting security holders

There are no UK governmental laws, decrees or regulations that restrict the export or import of capital or that affect the payment of dividends, interest or other payments to non-resident holders of Smith & Nephew’s securities, except for certain restrictions imposed from time to time by Her Majesty’s Treasury of the United Kingdom pursuant to legislation, such as the United Nations Act 1946 and the Emergency Laws Act 1964, against the government or residents of certain countries.

There are no limitations, either under the laws of the UK or under the Articles of Association of Smith & Nephew, restricting the right of non-UK residents to hold or to exercise voting rights in respect of ordinary shares, except that where any overseas shareholder has not provided to the Company a UK address for the service of notices, the Company is under no obligation to send any notice or other document to an overseas address. It is, however, the current practice of the Company to send every notice or other document to all shareholders regardless of the country recorded in the register of members, with the exception of details of the Company’s dividend reinvestment plan, which are not sent to shareholders with recorded addresses in the USA and Canada.

Taxation information for shareholders

The comments below are of a general and summary nature and are based on the Group’s understanding of certain aspects of current UK and US federal income tax law and practice relevant to the ADSs and ordinary shares not in ADS form. The comments address the material US and UK tax consequences generally applicable to a person who is the beneficial owner of ADSs or ordinary shares and who, for US federal income tax purposes, is a citizen or resident of the USA, a corporation (or other entity taxable as a corporation) created or organised in or under the laws of the USA (or any State therein), or an estate or trust the income of which is included in gross income for US federal income tax purposes regardless of its source (each a ‘US Holder’). The comments set out below do not purport to address all tax consequences of the ownership of ADSs or ordinary shares which may be material to a particular holder and in particular do not deal with the position of shareholders who directly or indirectly own 10% or more of the Company’s issued ordinary shares. This discussion does not apply to (i) persons whose holding of ADSs or ordinary shares is effectively connected with or pertains to either a permanent establishment in the UK through which a US Holder carries on a business in the UK or a fixed base from which a US Holder performs independent personal services in the UK, or (ii) persons whose registered address is inside the UK. This discussion does not apply to certain investors subject to special rules, such as certain financial institutions, tax-exempt entities, insurance companies, broker-dealers, traders in securities that elect to

use the mark to market method of tax accounting, partnerships or other entities treated as partnerships for US federal income tax purposes, US Holders holding ADSs or ordinary shares as part of a hedging, conversion or other integrated transaction or whose functional currency for US federal income tax purposes is other than the US dollar and US Holders liable for alternative minimum tax. In addition, the comments below do not address the potential application of the provisions of the United States Internal Revenue Code, known as the Medicare contribution tax, or any US state, local or non-US (other than UK) taxes. The summary deals only with US Holders who hold ADSs or ordinary shares as capital assets. The summary is based on current UK and US law and practice which is subject to change, possibly with retroactive effect. US Holders are recommended to consult their own tax advisers as to the particular tax consequences to them of the ownership of ADSs or ordinary shares. The Company believes, and this discussion assumes, that the Company was not a passive foreign investment company for its taxable year ended 31 December 2014.

This discussion is based in part on representations by the depositary and assumes that each obligation under the deposit agreement and any related agreement will be performed in accordance with its terms. For purposes of US federal income tax law, US Holders of ADSs will generally be treated as owners of the ordinary shares represented by the ADSs. However, the US Treasury has expressed concerns that parties to whom depositary shares are released before shares are delivered to the depositary (‘pre-released’) may be taking actions that are inconsistent with the claiming of foreign tax credits by owners of depositary shares. Such actions would also be inconsistent with the claiming of the reduced rate of tax, described below, applicable to dividends received by certain non-corporate US Holders. Accordingly, the availability of the reduced tax rate for dividends received by certain non-corporate US Holders of ADSs could be affected by actions that may be taken by parties to whom ADSs are pre-released.

Taxation of dividends in the UK and the USA

The UK does not currently impose a withholding tax on dividends paid by a UK corporation, such as the Company.

Distributions paid by the Company will be treated for US federal income tax purposes as foreign source ordinary dividend income to a US Holder to the extent paid out of the Company’s current or accumulated earnings and profits as determined for US federal income tax purposes. Because the Company does not maintain calculations of its earnings and profits under US federal income tax principles, it is expected that distributions generally will be reported to US Holders as dividends. Such dividends will not be eligible for the dividends-received deduction generally allowed to corporate US Holders.

 

 

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Dividends paid to certain non-corporate US Holders of ordinary shares or ADSs may be subject to US federal income tax at lower rates than those applicable to other types of ordinary income if certain conditions are met. Non-corporate US Holders should consult their own tax advisers to determine whether they are subject to any special rules that limit their ability to be taxed at these favourable rates.

Taxation of capital gains

US Holders, who are not resident or ordinarily resident for tax purposes in the UK, will not generally be liable for UK capital gains tax on any capital gain realised upon the sale or other disposition of ADSs or ordinary shares unless the ADSs or ordinary shares are held in connection with a trade carried on in the UK through a permanent establishment (or in the case of individuals, through a branch or agency). Furthermore, UK resident individuals who acquire ADSs or ordinary shares before becoming temporarily non-UK residents may remain subject to UK taxation of capital gains on gains realised while non-resident.

For US federal income tax purposes, gains or losses realised upon a taxable sale or other disposition of ADSs or ordinary shares by US Holders generally will be US source capital gains or losses and will be long-term capital gains or losses if the ADSs or ordinary shares were held for more than one year. The amount of a US Holder’s gain or loss will be equal to the difference between the amount realised on the sale or other disposition and such holder’s tax basis in the ADSs, or ordinary shares, determined in US dollars.

Inheritance and estate taxes

The HM Revenue & Customs imposes inheritance tax on capital transfers which occur on death, and in the seven years preceding death. The HM Revenue & Customs considers that the US/UK Double Taxation Convention on Estate and Gift Tax applies to inheritance tax. Consequently, a US citizen who is domiciled in the USA and is not a UK national or domiciled in the UK will not be subject to UK inheritance tax in respect of ADSs and ordinary shares. A UK national who is domiciled in the USA will be subject to both UK inheritance tax and US federal estate tax but will be entitled to a credit for US federal estate tax charged in respect of ADSs and ordinary shares in computing the liability to UK inheritance tax. Conversely, a US citizen who is domiciled or deemed domiciled in the UK will be entitled to a credit for UK inheritance tax charged in respect of ADSs and ordinary shares in computing the liability for US federal estate tax. Special rules apply where ADSs and ordinary shares are business property of a permanent establishment of an enterprise situated in the UK.

US information reporting and backup withholding

A US Holder may be subject to US information reporting and backup withholding on dividends paid on or the proceeds of sales of ADSs or ordinary shares made within the USA or through certain US-related financial intermediaries, unless the US Holder is an exempt recipient or, in the case of backup withholding, provides a correct US taxpayer identification number and certain other conditions are met. US backup withholding may apply if there has been a notification from the US Internal Revenue Service of a failure to report all interest or dividends.

Any backup withholding deducted may be credited against the US Holder’s US federal income tax liability, and, where the backup withholding exceeds the actual liability, the US Holder may obtain a refund by timely filing the appropriate refund claim with the US Internal Revenue Service.

Certain US Holders who are individuals (and under proposed Treasury regulations, certain entities) may be required to report information relating to securities issued by a non-US person (or foreign accounts through which the securities are held), subject to certain exceptions (including an exception for securities held in accounts maintained by US financial institutions). US Holders should consult their tax advisers regarding their reporting obligations with respect to the ordinary shares or ADSs.

UK stamp duty and stamp duty reserve tax

UK stamp duty is charged on documents and in particular instruments for the transfer of registered ownership of ordinary shares. Transfers of ordinary shares in certificated form will generally be subject to UK stamp duty at the rate of  1 2 % of the consideration given for the transfer with the duty rounded up to the nearest £5.

UK stamp duty reserve tax (‘SDRT’) arises when there is an agreement to transfer shares in UK companies ‘for consideration in money or money’s worth’, and so an agreement to transfer ordinary shares for money or other consideration may give rise to a charge to SDRT at the rate of  1 2 % (rounded up to the nearest penny). The charge of SDRT will be cancelled, and any SDRT already paid will be refunded, if within six years of the agreement an instrument of transfer is produced to HM Revenue & Customs and the appropriate stamp duty paid.

Transfers of ordinary shares into CREST (an electronic transfer system) are exempt from stamp duty so long as the transferee is a member of CREST who will hold the ordinary shares as a nominee for the transferor and the transfer is in a form that will ensure that the securities become held in uncertificated form within CREST. Paperless transfers of ordinary shares within CREST for consideration in money or money’s worth are liable to SDRT rather than stamp duty. SDRT on relevant transactions will be collected by CREST at  1 2 %, and this will apply whether or not the transfer is effected in the UK and whether or not the parties to it are resident or situated in the UK.

A charge of stamp duty or SDRT at the rate of 1  1 2 % of the consideration (or, in some circumstances, the value of the shares concerned) will arise on a transfer or issue of ordinary shares to the depositary or to certain persons providing a clearance service (or their nominees or agents) for the conversion into ADRs and will generally be payable by the depositary or person providing clearance service. In accordance with the terms of the Deposit Agreement, any tax or duty payable by the depositary on deposits of ordinary shares will be charged by the depositary to the party to whom ADRs are delivered against such deposits.

No liability for stamp duty or SDRT will arise on any transfer of, or agreement to transfer, an ADS or beneficial ownership of an ADS, provided that the ADS and any instrument of transfer or written agreement to transfer remains at all times outside the UK, and provided further that any instrument of transfer or written agreement to transfer is not executed in the UK and the transfer does not relate to any matter or thing done or to be done in the UK (the location of the custodian as a holder of ordinary shares not being relevant in this context). In any other case, any transfer of, or agreement to transfer, an ADS or beneficial ownership of an ADS could, depending on all the circumstances of the transfer, give rise to a charge to stamp duty or SDRT.

 

 

 

    

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OTHER INFORMATION

Information for shareholders continued

 

 

Articles of Association

The following summarises certain material rights of holders of the Company’s ordinary shares under the material provisions of the Company’s Articles of Association and English law. This summary is qualified in its entirety by reference to the Companies Act and the Company’s Articles of Association. In the following description, a ‘shareholder’ is the person registered in the Company’s register of members as the holder of an ordinary share.

The Company is incorporated under the name Smith & Nephew plc and is registered in England and Wales with registered number 324357.

The Company’s ordinary shares may be held in certificated or uncertificated form. No holder of the Company’s shares will be required to make additional contributions of capital in respect of the Company’s shares in the future. In accordance with English law the Company’s ordinary shares rank equally.

Directors

Under the Company’s Articles of Association, a Director may not vote in respect of any contract, arrangement, transaction or proposal in which he, or any person connected with him, has any material interest other than by virtue of his interests in securities of, or otherwise in or through, the Company. This is subject to certain exceptions relating to proposals (a) indemnifying him in respect of obligations incurred on behalf of the Company, (b) indemnifying a third party in respect of obligations of the Company for which the Director has assumed responsibility under an indemnity or guarantee, (c) relating to an offer of securities in which he will be interested as an underwriter, (d) concerning another body corporate in which the Director is beneficially interested in less than 1% of the issued shares of any class of shares of such a body corporate, (e) relating to an employee benefit in which the Director will share equally with other employees and (f) relating to any insurance that the Company is empowered to purchase for the benefit of Directors of the Company in respect of actions undertaken as Directors (and/or officers) of the Company.

A Director shall not vote or be counted in any quorum present at a meeting in relation to a resolution on which he is not entitled to vote.

The Directors are empowered to exercise all the powers of the Company to borrow money, subject to the limitation that the aggregate amount of all monies borrowed after deducting cash and current asset investments by the Company and its subsidiaries shall not exceed the sum of $6,500,000,000.

Any Director who has been appointed by the Directors since the previous Annual General Meeting of shareholders, either to fill a casual vacancy or as an additional Director holds office only until the conclusion of the next Annual General Meeting and then shall be eligible for re-election by the shareholders. The other Directors retire and are eligible for re-appointment at the third Annual General Meeting after the meeting at which they were last re-appointed. If not re-appointed a Director retiring at a meeting shall retain office until the meeting appoints someone in his place, or if it does not do so, until the conclusion of the meeting. The Directors are subject to removal with or without cause by the Board or the shareholders. Directors are not required to hold any shares of the Company by way of qualification.

Under the Company’s Articles of Association and English law, a Director may be indemnified out of the assets of the Company against liabilities he may sustain or incur in the execution of his duties.

Rights attaching to ordinary shares

Under English law, dividends are payable on the Company’s ordinary shares only out of profits available for distribution, as determined in accordance with accounting principles generally accepted in the UK and by the Companies Act 2006. Holders of the Company’s ordinary shares are entitled to receive final dividends as may be declared by the Directors and approved by the shareholders in general meeting, rateable according to the amounts paid up on such shares, provided that the dividend cannot exceed the amount recommended by the Directors.

The Company’s Board of Directors may declare such interim dividends as appear to them to be justified by the Company’s financial position. If authorised by an ordinary resolution of the shareholders, the Board may also direct payment of a dividend in whole or in part by the distribution of specific assets (and in particular of paid up shares or debentures of the Company).

Any dividend unclaimed after 12 years from the date the dividend was declared, or became due for payment, will be forfeited and will revert to the Company.

There were no material modifications to the rights of shareholders under the Articles during 2014.

Voting rights of ordinary shares

Voting at any general meeting of shareholders is by a show of hands unless a poll, which is a written vote, is duly demanded and held. On a show of hands, every shareholder who is present in person at a general meeting has one vote regardless of the number of shares held. On a poll, every shareholder who is present in person or by proxy has one vote for each ordinary share held by that shareholder. A poll may be demanded by any of the following:

 

the chairman of the meeting;

 

at least five shareholders present or by proxy entitled to vote on the resolution;

 

any shareholder or shareholders representing in the aggregate not less than one-tenth of the total voting rights of all shareholders entitled to vote on the resolution; or

 

any shareholder or shareholders holding shares conferring a right to vote on the resolution on which there have been paid-up sums in aggregate equal to not less than one-tenth of the total sum paid up on all the shares conferring that right.

A form of proxy will be treated as giving the proxy the authority to demand a poll, or to join others in demanding one, as above.

The necessary quorum for a general meeting is two shareholders present in person or by proxy carrying the right to vote upon the business to be transacted.

 

 

 

 

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Matters are transacted at general meetings of the Company by the processing and passing of resolutions of which there are two kinds; ordinary or special resolutions:

 

Ordinary resolutions include resolutions for the re-election of Directors, the approval of financial statements, the declaration of dividends (other than interim dividends), the appointment and re-appointment of auditors or the grant of authority to allot shares. An ordinary resolution requires the affirmative vote of a majority of the votes of those persons voting at the meetings at which there is a quorum.

 

Special resolutions include resolutions amending the Company’s Articles of Association, dis-applying statutory pre-emption rights or changing the Company’s name; modifying the rights of any class of the Company’s shares at a meeting of the holders of such class or relating to certain matters concerning the Company’s winding up. A special resolution requires the affirmative vote of not less than three-quarters of the votes of the persons voting at the meeting at which there is a quorum.

Annual General Meetings must be convened upon advance written notice of 21 days. Other general meetings must be convened upon advance written notice of at least 14 clear days. The days of delivery or receipt of notice are not included. The notice must specify the nature of the business to be transacted. Meetings are convened by the Board of Directors. Members with 5% of the ordinary share capital of the Company may requisition the Board to convene a meeting.

Variation of rights

If, at any time, the Company’s share capital is divided into different classes of shares, the rights attached to any class may be varied, subject to the provisions of the Companies Act, with the consent in writing of holders of three-quarters in nominal value of the issued shares of that class or upon the adoption of a special resolution passed at a separate meeting of the holders of the shares of that class. At every such separate meeting, all the provisions of the articles of association relating to proceedings at a general meeting apply, except that the quorum is to be the number of persons (which must be two or more) who hold or represent by proxy not less than one-third in nominal value of the issued shares of the class and at any such meeting a poll may be demanded in writing by any person or their proxy who hold shares of that class. Where a person is present by proxy or proxies, he is treated as holding only the shares in respect of which the proxies are authorised to exercise voting rights.

Rights in a winding up

Except as the Company’s shareholders have agreed or may otherwise agree, upon the Company’s winding up, the balance of assets available for distribution:

 

after the payment of all creditors including certain preferential creditors, whether statutorily preferred creditors or normal creditors; and

 

subject to any special rights attaching to any other class of shares;

 

is to be distributed among the holders of ordinary shares according to the amounts paid-up on the shares held by them. This distribution is generally to be made in US dollars. A liquidator may, however, upon the adoption of any extraordinary resolution of the shareholders and any other sanction required by law, divide among the shareholders the whole or any part of the Company’s assets in kind.

Limitations on voting and shareholding

There are no limitations imposed by English law or the Company’s Articles of Association on the right of non-residents or foreign persons to hold or vote the Company’s ordinary shares or ADSs, other than the limitations that would generally apply to all of the Company’s shareholders.

Transfers of shares

The Board may refuse to register the transfer of shares held in certificated form which:

 

are not fully paid (provided that it shall not exercise this discretion in such a way as to prevent stock market dealings in the shares of that class from taking place on an open and proper basis);

 

are not duly stamped or duly certified or otherwise shown to the satisfaction of the Board to be exempt from stamp duty, lodged at the Transfer Office or at such other place as the Board may appoint and (save in the case of a transfer by a person to whom no certificate was issued in respect of the shares in question) accompanied by the certificate for the shares to which it relates, 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;

 

are in respect of more than one class of shares; or

 

are in favour of more than four transferees.

Deferred shares

Following the re-denomination of share capital on 23 January 2006 the ordinary shares’ nominal value became 20 US cents each. There were no changes to the rights or obligations of the ordinary shares. In order to comply with the Companies Act 2006, a new class of sterling shares was created, deferred shares, of which £50,000 were issued and allotted in 2006 as fully paid to the Chief Executive Officer though the Board reserves the right to transfer them to another member of the Board should it so wish. These deferred shares have no voting or dividend rights and on winding up only are entitled to repayment at nominal value only if all ordinary shareholders have received the nominal value of their shares plus an additional $1,000 each.

Amendments

The Company does not have any special rules about amendments to its Articles of Association beyond those imposed by law.

 

 

 

    

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OTHER INFORMATION

Cross Reference to Form 20-F

 

 

This table provides a cross reference from the information included in this Annual Report to the requirements of Form 20-F.

 

Part I

      Page 
Item 1   Identity of Directors, Senior Management and Advisers   n/a
Item 2   Offer Statistics and Expected Timetable   n/a

 

Item 3

 

 

Key Information

   
    A – Selected Financial Data   174–175
    B – Capitalization and Indebtedness   n/a
    C – Reason for the Offer and Use of Proceeds   n/a
    D – Risk Factors   171–173

 

Item 4

 

 

Information on the Company

   
    A – History and Development of the Company   170
    B – Business Overview   3–4, 8–15, 18–39, 118–121, 171–173, 180–183
    C – Organizational Structure   10–11, 133–134, 164–165
    D – Property, Plant and equipment   128–129, 170, 172
Item 4A   Unresolved Staff Comments   None

 

Item 5

 

 

Operating and Financial Review and Prospects

   
    A – Operating results   8–15, 26, 30, 34–36, 111, 113, 115, 180–183
    B – Liquidity and Capital Resources   115, 136–140, 155
    C – Research and Development, patents and licences, etc.   14, 21–22
    D – Trend information   18–20, 104, 171–173
    E – Off Balance Sheet Arrangements   170
    F – Tabular Disclosure of Contractual Obligations   179–180
    G – Safe Harbor   199

 

Item 6

 

 

Directors, Senior Management and Employees

   
    A – Directors and Senior Management   54–59, 63
    B – Compensation   81–102
    C – Board Practices   54–59, 62–80
    D – Employees   10–11, 25, 121
    E – Share Ownership   90, 159–162

 

Item 7

 

 

Major shareholders and Related Party Transactions

   
    A – Major shareholders   189
       – Host Country shareholders   189
    B – Related Party Transactions   163, 170
    C – Interests of experts and counsel   n/a

 

Item 8

 

 

Financial information

   
    A – Consolidated Statements and Other Financial Information   103–165
       – Legal Proceedings   145–147
       – Dividends   187
    B – Significant Changes   None

 

Item 9

 

 

The Offer and Listing

   
    A – Offer and Listing Details   188–189
    B – Plan of Distribution   n/a
    C – Markets   189
    D – Selling shareholders   n/a
    E – Dilution   n/a
    F – Expenses of the Issue   n/a

 

 

 

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        Page 
Item 10   Additional Information    
    A – Share capital   n/a
    B – Memorandum and Articles of Association   192–193
    C – Material Contracts   115, 156–157
    D – Exchange Controls   190
    E – Taxation   190–191
    F – Dividends and Paying Agents   n/a
    G – Statement by Experts   n/a
    H – Documents on Display   199
    I – Subsidiary Information   164–165
Item 11   Quantitative and Qualitative Disclosure about Market Risk   140–144, 171–173
Item 12   Description of Securities Other than Equity Securities    
    A – Debt securities   n/a
    B – Warrants and rights   n/a
    C – Other securities   n/a
    D – American Depository shares   185–186
Part II        
Item 13   Defaults, Dividend Arrearages and Delinquencies   None
Item 14   Material Modifications to the Rights of Security Holders and Use of Proceeds   None
Item 15   Controls and Procedures   75 – 80, 105
Item 16   (Reserved)   n/a
Item 16A   Audit Committee Financial Expert   75
Item 16B   Code of Ethics   80
Item 16C   Principal Accountant Fees and Services   78–79, 123
Item 16D   Exemptions from the Listing Standards for Audit Committees   n/a
Item 16E   Purchases of Equity Securities by the Issuer and Affiliated Purchasers   154, 190
Item 16F   Change in Registrant’s Certifying Accountant   78
Item 16G   Corporate Governance   60, 82
Item 16H   Mine Safety Disclosure   n/a
Part III        
Item 17   Financial Statements   n/a
Item 18   Financial Statements   103–165
Item 19   Exhibits    

 

 

    

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OTHER INFORMATION

Glossary of terms

 

 

Unless the context indicates otherwise, the following terms have the meanings shown below:

 

Term   Meaning
ACL   The anterior cruciate ligament (ACL) is one of the four major ligaments in the human knee.
ADR   In the US, the Company’s ordinary shares are traded in the form of ADSs evidenced by American Depository Receipts (‘ADRs’).
ADS   In the US, the Company’s ordinary shares are traded in the form of American Depositary Shares (‘ADSs’).
Advanced Surgical Devices   A product group comprising products for orthopaedic replacement and reconstruction, endoscopy devices and trauma devices. Products for orthopaedic replacement include systems for knees, hips, and shoulders. Endoscopy devices comprise of support products for orthopaedic surgery such as computer assisted surgery and minimally invasive surgery techniques using specialised viewing and access devices, surgical instruments and powered equipment. Orthopaedics trauma devices are used in the treatment of bone fractures including rods, pins, screws, plates and external frames.
Advanced Wound Management   A product group comprising products associated with the treatment of skin wounds, ranging from products that provide moist wound healing using breathable films and polymers to products providing active wound healing by biochemical or cellular action.
AGM   Annual General Meeting of the Company.
Arthroscopy   Endoscopy of the joints is termed ‘arthroscopy’, with the principal applications being the knee and shoulder.
ASD   Advanced Surgical Devices division.
AWM   Advanced Wound Management division.
Basis Point   One hundredth of one percentage point.
Chronic wounds   Chronic wounds are those with long or unknown healing times including leg ulcers, pressure sores and diabetic foot ulcers.
Company   Smith & Nephew plc or, where appropriate, the Company’s Board of Directors, unless the context otherwise requires.
Companies Act   Companies Act 2006, as amended, of England and Wales.
EBITA   Earnings before interest, tax and amortisation.
EBITDA   Earnings before interest, tax, depreciation and amortisation.
Emerging markets   Emerging markets include Greater China, India, Brazil and Russia.
EPSA   EPSA is a trend measure, which presents the long-term profitability of the Group excluding the post-tax impact of specific transactions that management considers affects the Group’s short-term profitability. The Group presents this measure to assist investors in their understanding of trends. Adjusted attributable profit is the numerator used for this measure and is determined by adjusting attributable profit for the items that are excluded from operating profit when arriving at trading profit and items that are recognised below operating profit that affect the Group’s short-term profitability.
Endoscopy   Through a small incision, surgeons are able to see inside the body using a monitor and identify and repair defects.
ERP   Enterprise Resource Planning: a software system which integrates internal and external management information, facilitating the flow of information across an organisation.
Established Markets   Established Markets include United States of America, Europe, Australia, New Zealand, Canada and Japan.
Euro or €   References to the common currency used in the majority of the countries of the European Union.
External fixation   The use of wires or pins transfixed through bone to hold a frame to the position of a fracture.
FDA   US Food and Drug Administration.
Financial statements   Refers to the consolidated Group Accounts of Smith & Nephew plc.
FTSE 100   Index of the largest 100 listed companies on the London Stock Exchange by market capitalisation.
GMP   Good manufacturing practice or ‘GMP’ is the guidance that outlines the aspects of production and testing that can impact the quality of a product.
Group or Smith & Nephew   Used for convenience to refer to the Company and its consolidated subsidiaries, unless the context otherwise requires.
Health economics   A branch of economics concerned with issues related to efficiency, effectiveness, value and behaviour in the production and consumption of health and healthcare.

 

 

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Term   Meaning
IFRIC   International Financial Reporting Interpretations as adopted by the EU and as issued by the International Accounting Standards Board.
IFRS   International Financial Reporting Standards as adopted by the EU and as issued by the International Accounting Standards Board.
International markets   International Markets include Middle East, North Africa, Southern Africa, Latin America, ASEAN, South Korea and Eastern Europe.
LSE   London Stock Exchange.
Metal-on-metal hip resurfacing   A less invasive surgical approach to treating arthritis in certain patients whereby only the surfaces of the hip joint are replaced leaving the hip head substantially preserved.
Negative Pressure Wound Therapy   A technology used to treat chronic wounds such as diabetic ulcers, pressure sores and post-operative wounds through the application of sub-atmospheric pressure to an open wound.
NYSE   New York Stock Exchange.
Orthobiologics products   Any product that is primarily intended to act as a scaffold and/or actively stimulates bone growth.
Orthopaedic products   Orthopaedic reconstruction products include joint replacement systems for knees, hips and shoulders and support products such as computer-assisted surgery and minimally invasive surgery techniques. Orthopaedic trauma devices are used in the treatment of bone fractures including rods, pins, screws, plates and external frames. Clinical therapies products include joint fluid therapy for pain reduction of the knee and an ultrasound treatment to accelerate the healing of bone fractures.
OXINIUM   OXINIUM material is an advanced load bearing technology. It is created through a proprietary manufacturing process that enables zirconium to absorb oxygen and transform to a ceramic on the surface, resulting in a material that incorporates the features of ceramic and metal. Management believes that OXINIUM material used in the production of components of knee and hip implants exhibits unique performance characteristics due to its hardness, low-friction and resistance to roughening and abrasion.
Parent Company   Smith & Nephew plc.
Pound Sterling, Sterling, £, pence or p   References to UK currency. 1p is equivalent to one hundredth of £1.
Repair   A product group within ASD comprising specialised devices, fixation systems and bio-absorbable materials to repair joints and associated tissue.
Resection   Products that cut or ablate tissue within ASD comprising mechanical blades, radio frequency wands, electromechanical and hand instruments for resecting tissue.
SEC   US Securities and Exchange Commission
Trading results   Trading profit, trading profit margin and trading cash flow are trend measures, which present the long-term profitability of the Group excluding the impact of specific transactions that management considers affect the Group’s short-term profitability and cash flows. The Group has identified the following items, where material, as those to be excluded from operating profit and cash generated from operations when arriving at trading profit and trading cash flow, respectively: acquisition and disposal related items arising in connection with business combinations, including amortisation of acquisition intangible assets, impairments and integration costs; restructuring events; gains and losses resulting from legal disputes and significant uninsured losses. In addition to these items, gains or losses that materially impact the Group’s profitability or cash flows on a short-term or one-off basis are excluded from operating profit and cash generated from operations when arriving at trading profit and trading cash flow, respectively
UK   United Kingdom of Great Britain and Northern Ireland.
UK GAAP   Accounting principles generally accepted in the United Kingdom.
Underlying growth   Growth after adjusting for the effects of currency translation and the inclusion of the comparative impact of acquisitions and exclusion of disposals.
US   United States of America.
US Dollars, US $ or cents   References to US currency. 1 cent is equivalent to one hundredth of US$1.
US GAAP   Accounting principles generally accepted in the United States of America.
Visualisation   Products within ASD comprising digital cameras, light sources, monitors, scopes, image capture, central control and multimedia broadcasting systems for use in endoscopic surgery with visualisation.
Wound bed   An area of healthy dermal and epidermal tissue of a wound.

 

 

    

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Table of Contents

OTHER INFORMATION

Index

 

 

2013 Financial highlights 180 
2014 Financial highlights
Accounting Policies 117 
Accounts Presentation 199 
Acquisitions 156 
Acquisition related costs 123 
Advanced Surgical Devices – Business segment review 26 

Advanced Wound Management –

Business segment review

30 
American Depository Shares 185 
Articles of Association 192 
Audit fees 123 
Board 54 
Business overview 12 
Business segment information 26 
Cash and borrowings 136 
Chairman’s statement
Chief Executive Officer’s review
Company Balance Sheet 166 
Company Notes to the Accounts 167 
Contingencies 146 
Contractual obligations 179 
Corporate Governance Statement 62 
Critical accounting policies 104 
Cross Reference to Form 20-F 194 
Currency fluctuations 172 
Currency translation 117 
Deferred taxation 126 
Directors’ Remuneration Report 81 
Directors’ responsibilities for the accounts 103 
Directors’ responsibility statement 103 
Dividends 154, 187 
Earnings per share 127 
Employees/People 25, 121 
Employees’ Share Trust 154 
Ethics and compliance 22 
Executive officers 58 
Factors affecting results of operations 173 
Financial instruments 140 
Financial position, liquidity and capital resources 115 
Glossary of terms 196 
Goodwill 130 
Group Balance Sheet 112 
Group Cash Flow Statement 114 
Group history 170, 200 
Group Income Statement 110 
Group Notes to the Accounts 117 
Group overview 12 
Group Statement of Changes in Equity 116 
Group Statement of Comprehensive Income 110 
Independent Auditor’s Reports 105 
Information for shareholders 184 
Intangible assets 131 
Intellectual property 22 
Interest 124 
Inventories 134 
Investments 133 
Investment in associates 133 
Key Performance Indicators 14 
Leases 140, 158 
Legal and other 123 
Legal proceedings 146 
Manufacturing 23 
Marketplace 18 
Medical education 24 
New accounting standards 117 
Off-Balance Sheet arrangements 170 
Operating profit 122 
Other finance (costs)/income 124 
Outlook and trend information 17, 18 
Parent Company accounts 166 
Payables 136 
People/Employees 25 
Principal subsidiary undertakings 164 
Provisions 145 
Property, plant and equipment 128 
Receivables 135 
Regulation 18, 22, 29, 33 
Related party transactions 163 
Research and development 21 
Restructuring and rationalisation expenses 123 
Retirement benefit obligation 147 
Risk factors 171 
Risk management 36, 79 
Sales and marketing 24 
Selected financial data 174 
Share based payments 159 
Share capital 189 
Shareholder return 91 
Strategy 13 
Sustainability 40 
Taxation 124 
Taxation information for shareholders 190 
Treasury shares 154 
 

 

 

198               Smith & Nephew Annual report 2014


Table of Contents

 

 

About Smith & Nephew

The Smith & Nephew Group (the ‘Group’) is a global medical devices business operating in the markets for advanced surgical devices comprising orthopaedic reconstruction, trauma and sports medicine and advanced wound management, with revenue of approximately $4.6 billion in 2014. Smith & Nephew plc (the ‘Company’) is the parent company of the Group. It is an English public limited company with its shares listed on the premium list of the UK Listing Authority and traded on the London Stock Exchange. Shares are also traded on the New York Stock Exchange in the form of American Depositary Shares (‘ADSs’).

This is the Annual Report of Smith & Nephew plc for the year ended 31 December 2014. It comprises, in a single document, the Annual Report and Accounts of the Company in accordance with UK requirements and the Annual Report on Form 20-F in accordance with the regulations of the United States Securities and Exchange Commission (‘SEC’).

Smith & Nephew operates on a worldwide basis and has distribution channels in over 100 countries. In the more established countries by revenue, the Group’s business operations are organised by divisions. In the majority of the remaining markets, operations are managed by country managers who are responsible for sales and distribution of the Group’s entire product range. These comprise the Emerging Markets & International Markets.

Smith & Nephew’s corporate website, www.smith-nephew.com, gives additional information on the Group, including an electronic version of this Annual Report. Information made available on this website, or other websites mentioned in this Annual Report, are not and should not be regarded as being part of, or incorporated into, this Annual Report.

For the convenience of the reader, a Glossary of technical and financial terms used in this document is included on pages 196 to 197. The product names referred to in this document are identified by use of capital letters and the à symbol (on first occurence) and are trademarks owned by or licensed to members of the Group.

Presentation

The Group’s fiscal year end is 31 December. References to a particular year in this Annual Report are to the fiscal year, unless otherwise indicated. Except as the context otherwise requires, ‘Ordinary Share’ or ‘share’ refer to the ordinary shares of Smith & Nephew plc of 20 US cents each.

The Group Accounts of Smith & Nephew in this Annual Report are presented in US Dollars. Solely for the convenience of the reader, certain parts of this Annual Report contain translations of amounts in US Dollars into Sterling at specified rates. These translations should not be construed as representations that the US Dollar amounts actually represent such Sterling amounts or could be converted into Sterling at the rate indicated.

Unless stated otherwise, the translation of US Dollars and cents to Sterling and pence in this Annual Report has been made at the Bank of England exchange rate on the date indicated. On 23 February 2015, the Bank of England rate was US$1.5449 per £1.

The results of the Group, as reported in US Dollars, are affected by movements in exchange rates between US Dollars and other currencies. The Group applied the average exchange rates prevailing during the year to translate the results of companies with functional currency other than US Dollars. The currencies which most influenced these translations in the years covered by this report were Sterling, Swiss Franc and the Euro.

The Accounts of the Group in this Annual Report are presented in millions (‘m’) unless otherwise indicated.

Special note regarding forward-looking statements

The Group’s reports filed with, or furnished to, the US Securities and Exchange Commission (‘SEC’), including this document and written information released, or oral statements made, to the public in the future by or on behalf of the Group, contain ‘forward-looking statements’ within the meaning of the US Private Securities Litigation Reform Act of 1995, that may or may not prove accurate. For example, statements regarding expected revenue growth and trading profit margins discussed under ‘Outlook’, ‘Global Outlook’ and ‘Strategic performance’, market trends and our product pipeline are forward-looking statements. Phrases such as ‘aim’, ‘plan’, ‘intend’, ‘anticipate’, ‘well-placed’, ‘believe’, ‘estimate’, ‘expect’, ‘target’, ‘consider’ and similar expressions are generally intended to identify forward-looking statements. Forward-looking statements involve known and unknown risks, uncertainties and other important factors that could cause actual results, to differ materially from what is expressed or implied by the statements.

For Smith & Nephew, these factors include: economic and financial conditions in the markets we serve, especially those affecting health care providers, payers and customers; price levels for established and innovative medical devices; developments in medical technology; regulatory approvals, reimbursement decisions or other government actions; product defects or recalls; litigation relating to patent or other claims; legal compliance risks and related investigative, remedial or enforcement actions; strategic actions, including acquisitions and dispositions and our success in performing due diligence, valuing and integrating acquired businesses; disruption that may result from transactions or other changes we make in our business plans or organisation to adapt to market developments and numerous other matters that affect us or our markets, including those of a political, economic, business, competitive or reputational nature; relationships with healthcare professionals; reliance on information technology. Specific risks faced by the Group are described under ‘Risk factors’ on pages 171 to 173 of this Annual Report. Any forward-looking statement is based on information available to Smith & Nephew as of the date of the statement. All written or oral forward-looking statements attributable to Smith & Nephew are qualified by this caution. Smith & Nephew does not undertake any obligation to update or revise any forward-looking statement to reflect any change in circumstances or in Smith & Nephew’s expectations.

Division data

Division data and division share estimates throughout this report are derived from a variety of sources including publicly available competitors’ information, internal management information and independent market research reports.

Documents on display

It is possible to read and copy documents referred to in this Annual Report at the Registered Office of the Company. Documents referred to in this Annual Report that have been filed with the Securities and Exchange Commission in the US may be read and copied at the SEC ’s public reference room located at 450 Fifth Street, NW, Washington DC 20549. Please call the SEC at 1-800-SEC -0330 for further information on the public reference rooms and their copy charges. The SEC also maintains a web site at www.sec.gov that contains reports and other information regarding registrants that file electronically with the SEC. This Annual Report and some of the other information submitted by the Group to the SEC may be accessed through the SEC website.

 

 

 

    

 

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Smith & Nephew Annual report 2014              199

    

 


Table of Contents

 

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Table of Contents

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Table of Contents

 

 

 

 

Smith & Nephew plc

15 Adam Street

London WC2N 6LA

United Kingdom

T +44 (0) 20 7401 7646

F +44 (0) 20 7960 2356

www.smith-nephew.com

    

 


Table of Contents

SIGNATURE

The Registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and has duly caused and authorized the undersigned to sign this Annual Report on its behalf.

 

Smith & Nephew plc

(Registrant)

By:  /s/ Susan Swabey

Susan Swabey

Company Secretary

London, England

March 5, 2015


Table of Contents

EXHIBIT INDEX

 

Exhibit No.    Description of Document    Incorporated Herein by Reference To    Filed
Herewith

1

     Articles of Association    Form 20-F for the year ended December 31, 2011 filed on March 1, 2012 (File No. 1-14978)   

2

     Smith & Nephew plc is not party to any single instrument relating to long-term debt pursuant to which a total amount of securities exceeding 10% of Smith & Nephew plc’s total assets (on a consolidated basis) is authorized to be issued. Smith & Nephew plc hereby agrees to furnish to the SEC, upon its request, a copy of any instrument defining the rights of holders of its long-term debt or the rights of holders of the long-term debt of any of its subsidiaries for which consolidated or unconsolidated financial statements are required to be filed with the SEC.      

4

 

(a) (i)

   Material contract: Agreement and Appendices dated 3 February 2014 by and among Smith & Nephew plc, Barclays Bank Plc, The Financial Institutions in Schedule 1, Barclays Bank Plc and J.P. Morgan Chase Bank, N.A. and J.P. Morgan Europe Limited.    Form 20-F for the year ended December 31, 2013 filed on March 6, 2014 (File No.1-14978)   
 

(ii)

   Material contract: Agreement and Plan Merger dated 2 February 2014 by and among Arthrocare Corporation Smith & Nephew, Inc. and Smith & Nephew plc.    Form 20-F for the year ended December 31, 2013 filed on March 6, 2014 (File No.1-14978)   
 

(iii)

   Material contract: Agreement and Appendices dated 24 March 2014 by and among Smith & Nephew plc, Barclays Bank Plc; J.P. Morgan Limited; Bank Of America Merrill Lynch International Limited; Bank Of China Limited, London Branch; The Bank Of Tokyo-Mitsubishi Ufj, Ltd.; HSBC Bank Plc; Mizuho Bank, Ltd.; National Australia Bank Limited; The Royal Bank Of Scotland Plc; Societe Generale; Sumitomo Mitsui Banking Corporation; Wells Fargo Bank International and Deutsche Bank Ag, London Branch       X
 

(iv)

   Material contract: Agreement and Appendices dated 19 November 2014 by and among Smith & Nephew plc and the purchasers listed in Schedule A.       X

4

 

(c) (i)

   Service Agreement of Olivier Bohuon    Form 20-F for the year ended December 31, 2010 filed on March 3, 2011 (File No. 1-14978)   
 

(ii)

   Retirement provisions for David J Illingworth    Form 20-F for the year ended December 31, 2010 filed on March 3, 2011 (File No. 1-14978)   
 

(iii)

   Service Agreement of Julie Brown    Form 20-F for the year ended December 31, 2012 filed on February 28, 2013 (File No. 1-14978)   
 

(iv)

   Side Letter to the Service Agreement of Julie Brown    Form 20-F for the year ended December 31, 2012 filed on February 28, 2013 (File No. 1-14978)   
 

(v)

   Letter of Appointment of Ian Barlow    Form 20-F for the year ended December 31, 2009 filed on March 26, 2010 (File No. 1-14978)   
 

(vi)

   Letter of Appointment of The Rt. Hon Baroness Virginia Bottomley    Form 20-F for the year ended December 31, 2012 filed on February 28, 2013 (File No.1-14978)   
 

(vii)

   Letter of Appointment of Michael Friedman    Form 20-F for the year ended December 31, 2012 filed on February 28, 2013 (File No.1-14978)   


Table of Contents
Exhibit No.    Description of Document    Incorporated Herein by Reference To    Filed
Herewith

4

 

(c) (viii)

   Letter of Appointment of Ajay Piramal    Form 20-F for the year ended December 31, 2011 filed on March 1, 2012 (File No. 1-14978)   
 

(ix)

   Letter of Re-Appointment of Rolf Stomberg    Form 20-F for the year ended December 31, 2012 filed on February 28, 2013 (File No.1-14978)   
 

(x)

   Letter of Re-Appointment of Richard De Schutter    Form 20-F for the year ended December 31, 2013 filed on March 6, 2014 (File No.1-14978)   
 

(xi)

   Letter of Re-Appointment of Pamela Kirby    Form 20-F for the year ended December 31, 2013 filed on March 6, 2014 (File No.1-14978)   
 

(xii)

   Letter of Re-Appointment of Brian Larcombe    Form 20-F for the year ended December 31, 2013 filed on March 6, 2014 (File No.1-14978)   
 

(xiii)

   Letter of Re-Appointment of Joseph Papa    Form 20-F for the year ended December 31, 2013 filed on March 6, 2014 (File No.1-14978)   
 

(xiv)

   Letter of Appointment of Roberto Quarta    Form 20-F for the year ended December 31, 2013 filed on March 6, 2014 (File No.1-14978)   
 

(xv)

   Letter of Appointment of Vinita Bali       X
 

(xvi)

   Letter of Appointment of Erik Engstrom       X
 

(xvii)

   Letter of Re-Appointment of Brian Larcombe       X
 

(xviii)

   Letter of Re-Appointment of The Rt. Hon Baroness Virginia Bottomley DL       X
 

(xix)

   The Smith & Nephew 2001 UK Approved Share Option Plan    Form 20-F for the year ended December 31, 2004 filed on March 16, 2005 (File No. 1-14978)   
 

(xx)

   The Smith & Nephew 2001 UK Unapproved Share Option Plan    Form 20-F for the year ended December 31, 2004 filed on March 16, 2005 (File No. 1-14978)   
 

(xxi)

   The Smith & Nephew 2001 US Share Plan    Registration Statement on Form S-8 No. 333-13694 filed on July 9, 2001 (File No. 1-14978)   
 

(xxii)

   The Smith & Nephew Sharesave Plan (2002)    Form 20-F for the year ended December 31, 2002 filed on April 25, 2003 (File No. 1-14978)   
 

(xxiii)

   The Smith & Nephew International Sharesave Plan (2002)    Form 20-F for the year ended December 31, 2004 filed on March 16, 2005 (File No. 1-14978)   
 

(xxiv)

   The Smith & Nephew Italian Sharesave Plan (2002)    Form 20-F for the year ended December 31, 2002 filed on April 25, 2003 (File No. 1-14978)   
 

(xxv)

   The Smith & Nephew Dutch Sharesave Plan (2002)    Form 20-F for the year ended December 31, 2002 filed in April 25, 2003 (File No. 1-14978)   
 

(xxvi)

   The Smith & Nephew Belgian Sharesave Plan (2002)    Form 20-F for the year ended December 31, 2002 filed on April 25, 2003 (File No. 1-14978)   
 

(xxvii)

   The Smith & Nephew French Sharesave Plan (2002)    Form 20-F for the year ended December 31, 2002 filed on April 25, 2003 (File No. 1-14978)   
 

(xxviii)

   Smith & Nephew Irish Employee Share Option Scheme    Form 20-F for the year ended December 31, 2003 filed on March 26, 2004 (File No. 1-14978)   
 

(xxix)

   Smith & Nephew 2004 Executive Share Option Scheme    Registration statement on Form S-8 No. 333-122801 filed on February 14, 2005 (File No. 1-14978)   
 

(xxx)

   Smith & Nephew 2004 Performance Share Plan    Registration statement on Form S-8 No. 333-122801 filed on February 14, 2005 (File No. 1-14978)   
 

(xxxi)

   Smith & Nephew 2004 Co-investment Plan    Registration statement on Form S-8 No. 333-122801 filed on February 14, 2005 (File No. 1-14978)   


Table of Contents
Exhibit No.    Description of Document    Incorporated Herein by Reference To    Filed
Herewith

4

 

(c) (xxxii)

   Smith & Nephew U.S. Employee Stock Purchase Plan    Registration statement on Form S-8 No. 333-12052 filed on May 30, 2000 (File No. 1-14978)   
 

(xxxiii)

   Smith & Nephew Long Service Award Scheme    Registration Statement on Form S-8 No. 33-39814 filed on April 5, 1991 (File No. 1-14978)   
 

(xxxiv)

   Smith & Nephew 2004 Performance Share Plan    Registration statement on Form S-8 No. 333-155172 filed on November 7, 2008 (File No. 1-14978)   
 

(xxxv)

   Smith & Nephew 2001 US Share Plan    Registration statement on Form S-8 No. 333-155173 filed on November 7, 2008 (File No. 1-14978)   
 

(xxxvi)

   Smith & Nephew plc Deferred Bonus Plan    Registration statement on Form S-8 No. 333-158239 filed on March 27, 2009 (File No. 1-14978)   
 

(xxxvii)

   Smith & Nephew plc Global Share Plan 2010    Registration statement on Form S-8 No. 333-168544 filed on August 5, 2010 (File No. 1-14978)   
 

(xxxviii)

   Smith & Nephew ShareSave Plan (2012)    Form 20-F for the year ended December 31, 2012 filed on February 28, 2013 (File No. 1-14978)   
 

(xxxix)

   Smith & Nephew International ShareSave Plan (2012)    Form 20-F for the year ended December 31, 2012 filed on February 28, 2013 (File No. 1-14978)   

8

     Principal Subsidiaries       X

12

 

(a)

   Certification of Olivier Bohuon, filed pursuant to Exchange Act Rule 13a -14(a)       X
 

(b)

   Certification of Julie Brown filed pursuant to Exchange Act Rule 13a -14(a)       X

13

 

(a)

   Certification of Olivier Bohuon and Julie Brown furnished pursuant to Exchange Act Rule 13a –  14(b)       X

15.1

     Consent of Independent Registered Public Accounting Firm       X

Exhibit 4(a)(iii)

DATED 24 MARCH 2014

SMITH & NEPHEW PLC

Arranged by

BARCLAYS BANK PLC

J.P. MORGAN LIMITED

BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED

BANK OF CHINA LIMITED, LONDON BRANCH

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

HSBC BANK PLC

MIZUHO BANK, LTD.

NATIONAL AUSTRALIA BANK LIMITED ABN 12 004 044 937

THE ROYAL BANK OF SCOTLAND PLC

SOCIETE GENERALE

SUMITOMO MITSUI BANKING CORPORATION

WELLS FARGO BANK INTERNATIONAL

and

DEUTSCHE BANK AG, LONDON BRANCH

With

THE ROYAL BANK OF SCOTLAND PLC

(as Facility Agent )

 

 

TERM AND REVOLVING FACILITIES AGREEMENT

U.S. $2,400,000,000

 

 

 

LOGO

Freshfields Bruckhaus Deringer LLP

65 Fleet Street

London EC4Y 1HS


CONTENTS

 

CLAUSE    PAGE  
1.  

INTERPRETATION

     1   
2.  

FACILITIES

     19   
3.  

PURPOSE

     21   
4.  

CONDITIONS PRECEDENT

     21   
5.  

UTILISATION

     22   
6.  

OPTIONAL CURRENCIES

     23   
7.  

REPAYMENT

     25   
8.  

PREPAYMENT AND CANCELLATION

     27   
9.  

INTEREST

     31   
10.  

TERMS

     33   
11.  

MARKET DISRUPTION

     34   
12.  

TAXES

     36   
13.  

INCREASED COSTS

     44   
14.  

MITIGATION

     46   
15.  

PAYMENTS

     47   
16.  

GUARANTEE AND INDEMNITY

     49   
17.  

REPRESENTATIONS

     52   
18.  

INFORMATION COVENANTS

     54   
19.  

FINANCIAL COVENANTS

     57   
20.  

GENERAL COVENANTS

     61   
21.  

DEFAULT

     64   
22.  

THE ADMINISTRATIVE PARTIES

     68   
23.  

EVIDENCE AND CALCULATIONS

     74   
24.  

FEES

     74   
25.  

INDEMNITIES AND BREAK COSTS

     75   
26.  

EXPENSES

     77   
27.  

AMENDMENTS AND WAIVERS

     77   
28.  

CHANGES TO THE PARTIES

     79   
29.  

CONFIDENTIALITY

     85   
30.  

SET OFF

     89   
31.  

PRO RATA SHARING

     89   
32.  

SEVERABILITY

     90   
33.  

COUNTERPARTS

     90   

 

Page I


34.

NOTICES   90   

35.

LANGUAGE   93   

36.

GOVERNING LAW   93   

37.

ENFORCEMENT   93   

SCHEDULE 1 ORIGINAL LENDERS

  95   

SCHEDULE 2 CONDITIONS PRECEDENT DOCUMENTS

  97   

P ART A T O B E D ELIVERED B EFORE T HE F IRST R EQUEST

  97   

P ART B T O B E D ELIVERED B EFORE T HE F IRST R EQUEST T O U TILISATION O F F ACILITY B

  97   

P ART C F OR A N A DDITIONAL O BLIGOR

  98   

SCHEDULE 3 REQUESTS

  100   

P ART A F ORM O F R EQUEST

  100   

P ART B F ORM O F S ELECTION N OTICE

  101   

SCHEDULE 4 FORM OF TRANSFER CERTIFICATE

  102   

SCHEDULE 5 FORM OF ACCESSION AGREEMENT

  105   

SCHEDULE 6 FORM OF RESIGNATION REQUEST

  106   

SCHEDULE 7 FORM OF COMPLIANCE CERTIFICATE

  107   

SCHEDULE 8 FORM OF INCREASE CONFIRMATION

  108   

SCHEDULE 9 FORM OF EXTENSION NOTICE

  111   

SCHEDULE 10 TIMETABLES

  112   

 

Page II


THIS AGREEMENT is dated 24 March 2014

BETWEEN:

 

(1) SMITH & NEPHEW PLC (the Company );

 

(2) BARCLAYS BANK PLC, J.P. MORGAN LIMITED, BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED, BANK OF CHINA LIMITED, LONDON BRANCH, THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., HSBC BANK PLC, MIZUHO BANK, LTD., NATIONAL AUSTRALIA BANK LIMITED ABN 12 004 044 937, THE ROYAL BANK OF SCOTLAND PLC, SOCIETE GENERALE, SUMITOMO MITSUI BANKING CORPORATION, WELLS FARGO BANK INTERNATIONAL and DEUTSCHE BANK AG, LONDON BRANCH as arrangers (whether acting individually or together the Mandated Lead Arrangers );

 

(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 ( Original Lenders) as original lenders (the Original Lenders); and

 

(4) THE ROYAL BANK OF SCOTLAND PLC as facility agent (in this capacity the Facility Agent) .

IT IS AGREED as follows:

 

1. INTERPRETATION

 

1.1 Definitions

In this Agreement:

Acceptable Bank means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by Standard & Poor’s or Fitch or A3 or higher by Moody’s or a comparable rating from an internationally recognised credit rating agency.

Accession Agreement means a letter, substantially in the form of Schedule 5 ( Form of Accession Agreement), with such amendments as the Facility Agent and the Company may agree.

Acquisition means the acquisition effected by merger of the Target pursuant to the Merger Agreement.

Additional Borrower means a member of the Group which becomes a Borrower after the date of this Agreement in accordance with Clause 28 ( Changes to the Parties) .

Additional Guarantor means a member of the Group which becomes a Guarantor after the date of this Agreement in accordance with Clause 28 ( Changes to the Parties) .

Additional Obligor means an Additional Borrower or an Additional Guarantor.

Administrative Party means a Mandated Lead Arranger or the Facility Agent.

Affiliate means:

 

(a) a Subsidiary or a Holding Company of a person or any other Subsidiary of that Holding Company; and

 

(b) in relation to The Royal Bank of Scotland plc only, the term Affiliate shall include The Royal Bank of Scotland N.V. and each of its subsidiaries or subsidiary undertakings, but shall not include:

 

Page 1


  (i) the UK government or any member or instrumentality thereof, including Her Majesty’s Treasury and UK Financial Investments Limited (or any directors, officers, employees or entities thereof); or

 

  (ii) any persons or entities controlled by or under common control with the UK government or any member or instrumentality thereof (including Her Majesty’s Treasury and UK Financial Investments Limited) and which are not part of The Royal Bank of Scotland Group plc and its subsidiaries or subsidiary undertakings.

Agent’s Dollar Rate of Exchange means the Facility Agent’s spot rate of exchange for the purchase of the relevant currency in the London foreign exchange market with U.S. Dollars at or about 11.00 a.m. on a particular day.

Anti-Corruption Laws means all laws, rules and regulations of any jurisdiction applicable to any Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.

Availability Period means:

 

(a) in relation to Facility A, the period from and including the date of this Agreement to and including the date falling four weeks before the Facility A Final Maturity Date; and

 

(b) in relation to Facility B, the period from and including the date of this Agreement to and including the earlier of:

 

  (i) 3 November 2014;

 

  (ii) the date upon which the Company notifies the Facility Agent in writing that it has decided not to pursue the Acquisition; and

 

  (iii) the date upon which the Merger Agreement expires without the Acquisition having taken place.

Available Commitment means, in relation to Facility A (a Facility A Available Commitment) or Facility B (a Facility B Available Commitment), a Lender’s Commitment under that Facility minus:

 

(a) the Dollar Amount of its participation in any outstanding Loans under that Facility; and

 

(b) in relation to any proposed Utilisation, the Dollar Amount of its participation in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date,

other than, in relation to any proposed Utilisation under Facility A only, that Lender’s participation in any Facility A Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.

Available Facility means, in relation to a Facility, the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility.

Borrower means the Company or an Additional Borrower.

Break Costs means the amount (if any) which a Lender is entitled to receive under this Agreement as compensation if any part of a Loan or overdue amount is prepaid as calculated pursuant to the terms of Clause 25.3 ( Break Costs) .

Business Day means a day (other than a Saturday or a Sunday) on which banks are open for general business in London and:

 

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(a) if on that day a payment in or purchase of a currency (other than euro) is to be made, the principal financial centre of the country of that currency; or

 

(b) if on that day a payment in or a purchase of euro is to be made, which is also a TARGET Day.

Clean-Up Date means the date falling three months after the Closing Date.

Clean-Up Default means an Event of Default to the extent it relates to members of the Target Group.

Clean-Up Representation means any of the representations and warranties under Clause 17 (Representations) to the extent they relate to members of the Target Group.

Clean-Up Undertaking means any of the undertakings specified in Clauses 18 ( Information Covenants) and 20 ( General Covenants) to the extent they relate to members of the Target Group.

Closing Date means the date upon which the Acquisition is consummated pursuant to the terms of the Merger Agreement.

Code means the United States Internal Revenue Code of 1986 (or any successor legislation thereto), as amended from time to time, and the regulations promulgated and the rulings issued thereunder, all as the same may be in effect at such date.

Commitment means a Facility A Commitment or a Facility B Commitment.

Committed Currency means Sterling and euro.

Compliance Certificate has the meaning given to it in Clause 18.2 ( Compliance Certificate) .

Confidential Information means all information relating to the Company, any Obligor, the Group, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

 

(a) any member of the Group or any of its advisers; or

 

(b) another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

in whatever form, and includes information given orally, any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information, any Funding Rate or Reference Bank Quotation but excludes information that:

 

  (i) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 29 ( Confidentiality ); or

 

  (ii) is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

 

  (iii) is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.

 

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Confidentiality Undertaking means a confidentiality undertaking substantially in the recommended form of the LMA or in any other form agreed between the Company and the Facility Agent.

Default means:

 

(a) an Event of Default; or

 

(b) an event referred to in Clause 21 ( Default ) which would be (with the expiry of a grace period or the giving of notice under the Finance Documents or any combination of them) an Event of Default.

Defaulting Lender means any Lender:

 

(a) which has failed to make its participation in a Loan available or has notified the Facility Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 ( Advance of Loan );

 

(b) which has otherwise rescinded or repudiated a Finance Document; or

 

(c) with respect to which an Insolvency Event has occurred and is continuing,

unless, in the case of paragraph (a) above:

 

  (i) its failure to pay is caused by:

 

  (A) administrative or technical error; or

 

  (B) a Disruption Event; and,

payment is made within three Business Days of its due date; or

 

  (ii) the Facility Agent is an Impaired Agent and the Company has failed to notify the Lenders by giving not less than three Business Days’ prior notice of alternative arrangements for that payment; or

 

  (iii) the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

Disruption Event means either or both of:

 

(a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with a Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

(b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

  (i) from performing its payment obligations under the Finance Documents; or

 

  (ii) from communicating with other Parties in accordance with the terms of the Finance Documents, and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

 

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Dollar Amount has the meaning ascribed thereto in Clause 6.4(b) ( Optional Currency equivalents) .

or euro means the single currency of the Participating Member States.

ERISA means, at any date, the United States Employee Retirement Income Security Act of 1974 (or any successor legislation thereto), as amended from time to time, and the regulations promulgated and the rulings issued thereunder, all as the same may be in effect at such date.

ERISA Affiliate means any person that for the purposes of Title IV of ERISA and Section 412 of the Code would be deemed at any relevant time to be a single employer with an Obligor, pursuant to Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.

ERISA Event means:

 

(a) any reportable event, as defined in Section 4043(c) of ERISA, with respect to a Plan, as to which PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA that it be notified of such event;

 

(b) the filing of a notice of intent to terminate any Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, the filing under Section 4041(c) of ERISA of a notice of intent to terminate any Plan or the termination of any Plan under Section 4041(c) of ERISA;

 

(c) the institution of proceedings under Section 4042 of ERISA by PBGC for the termination of, or the appointment of a trustee to administer, any Plan;

 

(d) any failure by any Plan to satisfy the minimum funding requirements of Section 412 and 430 of the Code or Section 302 of ERISA applicable to such Plan, in each case whether or not waived;

 

(e) the failure to make a required contribution to any Plan that would result in the imposition of an encumbrance under Section 412 or 430 of the Code, or at any time prior to the date hereof, a filing under Section 412 of the Code or Section 302 of ERISA of any request for a minimum funding variance with respect to any Plan;

 

(f) an engagement in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA;

 

(g) the complete or partial withdrawal of any Obligor or any ERISA Affiliate from a Multiemployer Plan; and

 

(h) a determination that any Plan is, or is reasonably expected to be, in “at risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code).

EURIBOR means for a Term of any Facility A Loan in euro:

 

(a) the applicable Screen Rate;

 

(b) (if no Screen Rate is available for the Term of that Facility A Loan) the Interpolated Screen Rate for that Facility A Loan; or

 

(c) if:

 

Page 5


  (i) no Screen Rate is available for the Term of that Facility A Loan; and

 

  (ii) it is not possible to calculate an Interpolated Screen Rate for that Facility A Loan,

the Reference Bank Rate,

as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Rate Fixing Day for euro and for a period equal in length to the Term of that Facility A Loan.

Event of Default means an event specified as such in this Agreement.

Existing Facility Agreement means the U.S.$1,000,000,000 revolving credit facility dated 9 December 2010 between, amongst others, the Company as borrower and The Royal Bank of Scotland plc as facility agent.

Extension Notice means a notice substantially in the form set out in Schedule 9 ( Form of Extension Notice ).

Facility means Facility A or Facility B.

Facility A means the revolving loan facility made available under this Agreement as described in Clause 2.1 ( The Facilities ).

Facility A Commitment means:

 

(a) in relation to an Original Lender, the amount in U.S. Dollars set opposite its name under the heading Facility A Commitment in Schedule 1 ( Original Lenders ) and the amount of any other Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Increase ); and

 

(b) in relation to any other Lender, the amount in U.S. Dollars of any Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Increase ),

to the extent not cancelled, reduced or transferred by it under this Agreement.

Facility A Final Maturity Date means, subject to Clause 7.3 ( Extension option ), the date falling five years after the date of this Agreement.

Facility A Loan means a loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan.

Facility A Margin means the margin payable on Facility A Loans, calculated in accordance with Clause 9.3 ( Facility A Margin adjustments ).

Facility B means the term loan facility made available under this Agreement as described in Clause

2.1 ( The Facilities ).

Facility B Commitment means:

 

(a) in relation to an Original Lender, the amount in U.S. Dollars set opposite its name under the heading Facility B Commitment in Schedule 1 ( Original Lenders ) and the amount of any other Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Increase ); and

 

Page 6


(b) in relation to any other Lender, the amount in U.S. Dollars of any Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Increase ),

to the extent not cancelled, reduced or transferred by it under this Agreement.

Facility B Final Maturity Date means 3 February 2016.

Facility B Loan means a loan made or to be made under Facility B or the principal amount outstanding for the time being of that loan.

Facility B Margin means the margin payable on Facility B Loans, calculated in accordance with Clause 9.4 ( Facility B Margin adjustments ).

Facility Office means the office(s) notified by a Lender to the Facility Agent:

 

(a) on or before the date it becomes a Lender; or

 

(b) by not less than five Business Days’ written notice,

as the office(s) through which it will perform its obligations under this Agreement.

FATCA means:

 

(a) sections 1471 to 1474 of the Code or any associated regulations or other official guidance;

 

(b) any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the U.S. and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a); or

 

(c) any agreement pursuant to the implementation of paragraphs (a) or (b) above with the U.S. Internal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction.

FATCA Application Date means:

 

(a) in relation to a withholdable payment described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the U.S.), 1 July 2014;

 

(b) in relation to a withholdable payment described in section 1473(1)(A)(ii) of the Code (which relates to gross proceeds from the disposition of property of a type that can produce interest from sources within the U.S.), 1 January 2017; or

 

(c) in relation to a passthru payment described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2017,

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.

FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.

FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.

 

Page 7


Fee Letter means any letter entered into by reference to this Agreement between one or more Administrative Parties and the Company setting out the amount of certain fees referred to in this Agreement.

Final Maturity Date means the Facility A Final Maturity Date or the Facility B Final Maturity Date (as applicable).

Finance Document means:

 

(a) this Agreement;

 

(b) any Fee Letter;

 

(c) any Transfer Certificate;

 

(d) any Accession Agreement;

 

(e) any Resignation Request;

 

(f) any Increase Confirmation;

 

(g) any Extension Notice; and

 

(h) any other document designated as such by the Facility Agent and the Company.

Finance Party means a Lender or an Administrative Party.

Financial Indebtedness means any indebtedness (without double counting) for or in respect of:

 

(a) moneys borrowed;

 

(b) any amount raised by acceptance under any acceptance credit facility (or dematerialised equivalent);

 

(c) any bond, note, debenture, loan stock or other similar instrument;

 

(d) any finance or capital lease as defined in accordance with the accounting principles applied in connection with the Original Financial Statements;

 

(e) receivables sold or discounted (otherwise than on a non recourse basis);

 

(f) the acquisition cost of any asset to the extent payable after its acquisition or possession by the party liable where the deferred payment is arranged primarily as a method of raising finance or financing the acquisition of that asset;

 

(g) any derivative transaction protecting against or benefiting from fluctuations in any rate or price (and at any time the then marked to market value of the derivative transaction will be used to calculate its amount, such marked to market value being determined by reference to the documentation of that transaction or, if there is no such provision in the documentation, determined by the Company acting reasonably and on the basis of quotations from the relevant counterparty);

 

(h) any other transaction (including any forward sale or purchase agreement) which has the commercial effect of a borrowing;

 

 

Page 8


(i) any counter indemnity obligation in respect of any guarantee, indemnity, bond, letter of credit or any other instrument issued by a bank or financial institution; or

 

(j) any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in paragraphs (a) to (i) above,

provided that the definition of Financial Indebtedness does not include any indebtedness owing from a member of the Group to another member of the Group.

Fitch means Fitch Ratings Limited or Fitch Ratings Inc. (as appropriate), or any successor to its ratings business.

Fund Raising Proceeds means the cash proceeds received by the Group following a Relevant Fund Raising, net of Tax and less any costs and expenses reasonably incurred in connection with the Relevant Fund Raising.

Funding Rate means any rate notified to the Facility Agent by a Lender pursuant to paragraph (c)(ii) of Clause 11.2 ( Market disruption ).

Group means the Company and its Subsidiaries.

Guarantor means the Company or an Additional Guarantor.

Holding Company means a holding company within the meaning of section 1159 of the Companies Act 2006.

IBOR means LIBOR or EURIBOR.

Impaired Agent means the Facility Agent at any time when:

 

(a) it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

(b) the Facility Agent otherwise rescinds or repudiates a Finance Document;

 

(c) (if the Facility Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of Defaulting Lender ; or

 

(d) an Insolvency Event has occurred and is continuing with respect to the Facility Agent;

unless, in the case of paragraph (a) above:

 

  (i) its failure to pay is caused by:

 

  (A) administrative or technical error; or

 

  (B) a Disruption Event; and

payment is made within three Business Days of its due date; or

 

  (ii) the Facility Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

Increase Confirmation means a confirmation substantially in the form set out in Schedule 8 ( Form of Increase Confirmation ).

 

Page 9


Increase Lender has the meaning given to that term in Clause 2.2 (Increase).

Increased Cost means:

 

(a) an additional or increased cost;

 

(b) a reduction in the rate of return under a Finance Document or on the overall capital of a Finance Party or any of its Affiliates; or

 

(c) a reduction of an amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates but only to the extent attributable to that Finance Party having entered into any Finance Document or funding or performing its obligations under any Finance Document.

Initial Term Loan Agreement means the U.S.$1,400,000,000 term loan facility agreement dated 3 February 2014 between, amongst others, the Company as borrower and J.P. Morgan Europe Limited as facility agent.

Insolvency Event in relation to a Finance Party means that the Finance Party:

 

(a) is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

(b) becomes insolvent or is unable to pay its debts in each case, under the laws of any relevant jurisdiction applicable to that Finance Party or fails or admits in writing its inability generally to pay its debts as they become due;

 

(c) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

(d) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;

 

(e) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; or

 

(f) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (e) above.

Interpolated Screen Rate means, in relation to LIBOR for any Loan, or EURIBOR for any Facility A Loan denominated in euros, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

(a) the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Term of that Loan; and

 

(b) the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Term of that Loan,

each as of the Specified Time on the Rate Fixing Day for the currency of that Loan.

 

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Lender means:

 

(a) an Original Lender; or

 

(b) any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 2.2 ( Increase ) or Clause 28 ( Changes to the Parties) .

LIBOR means for a Term of any Loan:

 

(a) the applicable Screen Rate;

 

(b) (if no Screen Rate is available for the Term of that Loan) the Interpolated Screen Rate for that Loan; or

 

(c) if:

 

  (i) no Screen Rate is available for the currency of that Loan; or

 

  (ii) no Screen Rate is available for the Term of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan,

the Reference Bank Rate,

as of, in the case of paragraphs (a) and (c) above, the Specified Time on the Rate Fixing Day for the currency of that Loan and for a period equal in length to the Term of that Loan.

LMA means the Loan Market Association.

Loan means a Facility A Loan or a Facility B Loan.

Majority Lenders means, at any time, Lenders:

 

(a) whose share in the outstanding Loans and whose undrawn Commitments then aggregate 60 per cent. or more of the aggregate of all the Loans and the undrawn Commitments of all the Lenders;

 

(b) if there is no Loan then outstanding, whose undrawn Commitments then aggregate 60 per cent. or more of the Total Commitments; or

 

(c) if there is no Loan then outstanding and the Total Commitments have been reduced to zero, whose Commitments aggregated 60 per cent. or more of the Total Commitments immediately before the reduction.

Margin means the Facility A Margin or the Facility B Margin, as applicable.

Margin Regulations means Regulations T, U and X issued by the Board of Governors of the United States Federal Reserve System.

Margin Stock means “margin stock” or “margin securities” as defined in the Margin Regulations.

Material Adverse Effect means a material adverse effect on the ability of an Obligor to comply with its payment obligations under this Agreement or the ability of the Company to comply with its obligations under Clause 19.3 ( Gearing ) or Clause 19.4 ( Interest cover) .

 

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Material Subsidiary means, at any time, a Subsidiary of the Company:

 

(a) whose gross assets (excluding intra Group items) then equal or exceed 15 per cent. of the gross assets of the Group; or

 

(b) whose earnings before interest and tax (excluding intra Group items) then equal or exceed 15 per cent. of the earnings before interest and tax of the Group.

For this purpose:

 

  (i) the gross assets or earnings before interest and tax of a Subsidiary of the Company will be determined from its financial statements (consolidated if it has Subsidiaries) upon which the latest audited financial statements of the Group have been based;

 

  (ii) if a Subsidiary of the Company becomes a member of the Group after the date on which the latest audited financial statements of the Group have been prepared, the gross assets or earnings before interest and tax of that Subsidiary will be determined from its latest financial statements;

 

  (iii) the gross assets or earnings before interest and tax of the Group will be determined from its latest audited financial statements, adjusted (where appropriate) to reflect the gross assets or earnings before interest and tax of any company or business subsequently acquired or disposed of; and

 

  (iv) if a Material Subsidiary disposes of all or substantially all of its assets to another Subsidiary of the Company, it will immediately cease to be a Material Subsidiary and the other Subsidiary (if it is not already) will immediately become a Material Subsidiary; the subsequent financial statements of those Subsidiaries and the Group will be used to determine whether those Subsidiaries are Material Subsidiaries or not.

If there is a dispute as to whether or not a member of the Group is a Material Subsidiary, a certificate of the auditors of the Company will be, in the absence of manifest error, conclusive.

Merger Agreement means the agreement and plan of merger dated 2 February 2014 pursuant to which the Acquisition will be effected.

Moody’s means Moody’s Investors Service Limited or any successor to its ratings business.

Multiemployer Plan means a “multiemployer plan” (as defined in Section 3(37) of ERISA) that is subject to Title IV of ERISA to which an Obligor or any ERISA Affiliate is required to contribute.

New Lender has the meaning given to that term in Clause 28 ( Changes to the Parties) .

Obligor means a Borrower or a Guarantor.

Optional Currency means a currency (other than U.S. Dollars) in which a Facility A Loan may be denominated under this Agreement.

Original Financial Statements means the audited consolidated financial statements of the Company for the year ended 31 December 2012.

Participating Member State means a member state of the European Union that has the euro as its lawful currency in accordance with the legislation of the European Union relating to Economic and Monetary Union.

Party means a party to this Agreement.

 

Page 12


PBGC means the United States Pension Benefit Guaranty Corporation referred to and defined in ERISA.

Plan means an employee benefit plan as defined in Section 3(3) of ERISA that is subject to Title IV of ERISA (other than a Multiemployer Plan):

 

(a) maintained by any Obligor or any ERISA Affiliate; or

 

(b) to which any Obligor or any ERISA Affiliate is required to make any payment or contribution.

Pro Rata Share means:

 

(a) for the purpose of determining a Lender’s participation in a Utilisation, the proportion which its Available Commitment bears to the Available Facility; and

 

(b) for any other purpose at any time:

 

  (i) the proportion which a Lender’s share of the Loans (if any) bears to all the Loans;

 

  (ii) if there is no Loan outstanding at the relevant time, the proportion which its Commitment bears to the Total Commitments at that time; or

 

  (iii) if there is no Loan outstanding and the Total Commitments have been cancelled at the relevant time, the proportion which its Commitments bore to the Total Commitments immediately before being cancelled.

Rate Fixing Day means:

 

(a) the first day of a Term for a Facility A Loan denominated in Sterling;

 

(b) the second Business Day before the first day of a Term for a Loan denominated in any other currency (other than euros); or

 

(c) the second TARGET Day before the first day of a Term for a Facility A Loan denominated in euros,

unless market practice differs in the Relevant Interbank Market for a currency, in which case the Rate Fixing Day for that currency will be determined by the Facility Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Rate Fixing Day will be the last of those days).

Reference Bank Quotation means any quotation supplied to the Facility Agent by a Reference Bank.

Reference Bank Rate means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks:

 

(a) in relation to LIBOR, as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in the relevant currency and for the relevant period, were it to do so by asking for and then accepting interbank offers in reasonable market size in that currency and for that period; or

 

(b) in relation to EURIBOR, as the rate at which the relevant Reference Bank assesses to be the rate at which Euro interbank term deposits in euros and for the relevant period are offered for spot value (T+2) by one prime bank to another prime bank within the European Union relating to the Economic and Monetary Union.

 

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Reference Banks means JPMorgan Chase Bank, N.A., Mizuho Bank, Ltd. and Societe Generale, London Branch and any other bank or financial institution agreed by the Facility Agent and the Company under this Agreement.

Relevant Fund Raising means a fund raising conducted after the date of this Agreement:

 

(a) by any member of the Group by way of a bond issuance or U.S. private placement raised in the international capital markets; or

 

(b) by:

 

  (i) the Company by way of term debt from banks or financial institutions; or

 

  (ii) any other member of the Group by way of term debt from banks or financial institutions, other than as permitted by Clause 20.9(b) ( Financial Indebtedness) .

Relevant Interbank Market means in relation to euros, the European interbank market and, in relation to any other currency, the London interbank market.

Repeating Representations means the representations that are deemed to be repeated under this Agreement.

Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

Request means a request for a Loan, substantially in the form of Part A of Schedule 3 ( Form of Request) .

Resignation Request has the meaning given to that term in Clause 28.7 ( Resignation of an Obligor (other than the Company) ).

Rollover Loan means one or more Facility A Loans:

 

(a) made or to be made on the same day that a maturing Facility A Loan is due to be repaid;

 

(b) the aggregate amount of which is equal to or less than the amount of the maturing Facility A Loan;

 

(c) in the same currency as the maturing Facility A Loan (unless it arose as a result of the operation of Clause 6.3 ( Unavailability of a currency )); and

 

(d) made or to be made to the same Borrower for the purpose of refinancing a maturing Facility A Loan.

Sanctioned Country means, at any time, a country or territory which is itself subject to a general export, import, financial or investment embargo under any Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Sudan and Syria).

Sanctioned Person means, at any time:

 

(a) any person listed in any Sanctions-related list of designated persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council, the European Union, any EU member state or by the Japan Ministry of Finance;

 

Page 14


(b) any person owned or controlled by any such person or persons; or

 

(c) any person operating, organised or located in a Sanctioned Country.

Sanctions means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by:

 

(a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State; or

 

(b) by the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom; or

 

(c) by the Japan Ministry of Finance.

Screen Rate means:

 

(a) in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Reuters screen (or any replacement Reuters page which displays that rate); and

 

(b) in relation to EURIBOR, the euro interbank offered rate administered by the Banking Federation of the European Union (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Reuters screen (or any replacement Reuters page which displays that rate),

or, in each case, on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters. If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the relevant interbank rate after consultation with the Company.

Security Interest means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest.

Selection Notice means a notice substantially in the form set out in Part B of Schedule 3 ( Form of Selection Notice ).

Separate Loan has the meaning given to that term in Clause 7.1(c) ( Repayment of Facility A Loans ).

Specified Time means a time determined in accordance with Schedule 10 ( Timetables ).

Standard & Poor’s means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies Inc., or any successor to its ratings business.

Sterling or £ means the lawful currency for the time being of the U.K.

Subsidiary means:

 

(a) a subsidiary within the meaning of section 1159 of the Companies Act 2006; and

 

(b) for the purposes of Clause 19 ( Financial covenants ), unless the context otherwise requires, a subsidiary undertaking within the meaning of section 1162 of the Companies Act 2006.

 

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TARGET2 means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.

TARGET Day means any day on which TARGET2 is open for the settlement of payments in euro.

Target means ArthroCare Corporation, a corporation incorporated in Delaware.

Target Group means the Target and its Subsidiaries.

Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

Tax Payment means a payment made by an Obligor to a Finance Party in any way relating to a Tax Deduction, including an increase in a payment made by an Obligor to a Finance Party under Clause 12.2 ( Tax gross up) or a payment under Clause 12.3 ( Tax indemnity ).

Term means each period determined under this Agreement by reference to which interest on a Loan or an overdue amount is calculated.

Total Commitments means the aggregate of the Total Facility A Commitments and the Total Facility B Commitments, being U.S.$2,400,000,000 at the date of this Agreement.

Total Facility A Commitments means the aggregate of the Facility A Commitments, being U.S.$1,000,000,000 at the date of this Agreement.

Total Facility B Commitments means the aggregate of the Facility B Commitments, being U.S.$1,400,000,000 at the date of this Agreement.

Transfer Certificate means a certificate in the form of Schedule 4 ( Form of Transfer Certificate ) with such amendments as the Facility Agent may approve or reasonably require or any other form agreed between the Facility Agent and the Company.

Transfer Date means, in relation to an assignment or a transfer, the later of:

 

(a) the proposed Transfer Date specified in the relevant Transfer Certificate; and

 

(b) the date on which the Facility Agent executes the relevant Transfer Certificate.

U.K. means the United Kingdom of Great Britain and Northern Ireland.

U.K. Tax means any Tax imposed under the laws of the U.K.

U.S. means the United States of America including any state of the United States of America and the District of Colombia.

U.S. Dollars or U.S.$ means the lawful currency for the time being of the United States of America.

Utilisation means a utilisation of a Facility.

Utilisation Date means the date on which a Facility is utilised.

 

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VAT means:

 

(a) any Tax imposed in compliance with Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

(b) any other Tax of a similar nature whether imposed in a member state of the European Union in substitution for, or levied in addition to, any Tax referred to in paragraph (a) above, or imposed elsewhere.

1.2 Construction

 

(a) The following definitions have the meanings given to them in Clause 19 ( Financial covenants):

 

  (i) Consolidated Total Net Borrowings;

 

  (ii) Consolidated EBITDA; and

 

  (iii) Consolidated Net Interest Payable.

 

(b) In this Agreement, unless the contrary intention appears, a reference to:

 

  (i) an amendment includes a supplement, novation, extension, (whether of maturity or otherwise), restatement, re-enactment or replacement (however fundamental and whether or not more onerous) and amended is to be construed accordingly;

 

  (ii) assets includes present and future properties, revenues and rights of every description;

 

  (iii) an authorisation includes an authorisation, consent, approval, resolution, permit, licence, exemption, filing, registration or notarisation;

 

  (iv) the Facility Agent, the Arranger, any Finance Party, any Lender, any Obligor or any Party shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

 

  (v) indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

  (vi) “know your customer” checks are to the identification checks that a Finance Party requests to meet its obligations under any applicable law or regulation to identify a person who is (or is to become) its customer;

 

  (vii) a person includes any individual, firm, company, corporation, government, state or agency of a state or any unincorporated association or body (including a partnership, trust, joint venture or consortium), agency, organisation or other entity (whether or not having separate legal personality);

 

  (viii) a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, being of a type with which any person to which it applies is accustomed to comply) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

 

  (ix) a currency is a reference to the lawful currency for the time being of the relevant country;

 

  (x) a Default being outstanding means that it has not been remedied or waived;

 

 

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  (xi) a provision of law is a reference to that provision as extended, applied, amended or re enacted and includes any subordinate legislation;

 

  (xii) a Clause or a Schedule is a reference to a clause of, or a schedule to, this Agreement;

 

  (xiii) a person includes its successors in title, permitted assigns and permitted transferees;

 

  (xiv) a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated; and

 

  (xv) a time of day is a reference to London time.

 

(c) Unless the contrary intention appears, a reference to a month or months is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that (in relation only to the last month of any period):

 

  (i) if the numerically corresponding day is not a Business Day, the period will end on the next Business Day in that month (if there is one) or the preceding Business Day (if there is not);

 

  (ii) if there is no numerically corresponding day in that month, that period will end on the last Business Day in that month; and

 

  (iii) notwithstanding sub paragraph (i) above, a period which commences on the last Business Day of a month will end on the last Business Day in the calendar month in which it is to end.

 

(d)

 

  (i) Unless expressly provided to the contrary in a Finance Document, a person who is not a party to a Finance Document has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of that Finance Document.

 

  (ii) Notwithstanding any term of any Finance Document, the consent of any person who is not a party to a Finance Document is not required to rescind, vary (including release or compromise any liability under) or terminate of that Finance Document at any time.

 

(e) A reference to a Party will not include that Party if it has ceased to be a Party under this Agreement.

 

(f) Unless the contrary intention appears:

 

  (i) a term used in any other Finance Document or in any notice given in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement;

 

  (ii) any non-payment obligation of an Obligor under the Finance Documents remains in force for so long as any payment obligation is or may be outstanding or any Commitment is in force under the Finance Documents; and

 

  (iii) the headings in this Agreement do not affect its interpretation.

 

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2. FACILITIES

 

2.1 The Facilities

Subject to the terms of this Agreement, the Lenders make available to the Borrowers:

 

(a) a multicurrency revolving credit facility in an aggregate amount equal to the Total Facility A Commitments; and

 

(b) a U.S. Dollar term loan facility in an aggregate amount equal to the Total Facility B Commitments.

 

2.2 Increase

 

(a) The Company may by giving prior notice to the Facility Agent no later than 30 Business Days after the effective date of a cancellation of:

 

  (i) the Available Commitments of a Defaulting Lender in accordance with Clause 8.10 ( Right of cancellation in relation to a Defaulting Lender ); or

 

  (ii) the Commitments of a Lender in accordance with

 

  (A) Clause 8.1 ( Mandatory prepayment—illegality ); or

 

  (B) Clause 8.9 ( Right of replacement or repayment and cancellation in relation to a single Lender ),

request that the Total Commitments be increased (and the Total Commitments shall be so increased) in an aggregate amount in U.S. Dollars of up to the amount of the Available Commitments or Commitments so cancelled as follows:

 

  (iii) the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an Increase Lender) selected by the Company (each of which shall not be a member of the Group and which is further acceptable to the Facility Agent (acting reasonably)) and each of which confirms its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;

 

  (iv) each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

  (v) each Increase Lender shall become a Party as a Lender and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

  (vi) the Commitments of the other Lenders shall continue in full force and effect; and

 

  (vii) any increase in the Total Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.

 

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(b) An increase in the Total Commitments will only be effective on:

 

  (i) the execution by the Facility Agent of an Increase Confirmation from the relevant Increase Lender; and

 

  (ii) in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase the performance by the Facility Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Facility Agent shall promptly notify to the Company and the Increase Lender. The Facility Agent shall promptly notify the Company and the Increase Lender upon being so satisfied.

 

(c) Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

 

(d) Unless the Facility Agent otherwise agrees or the increased Commitment is assumed by an existing Lender, the Company shall, on the date upon which the increase takes effect, pay to the Facility Agent (for its own account) a fee of U.S.$2,000 and the Company shall promptly on demand pay the Facility Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause.

 

(e) The Company may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a letter between the Company and the Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph.

 

(f) Clause 28.4 ( Limitation of responsibility of Existing Lender ) shall apply mutatis mutandis in this Clause in relation to an Increase Lender as if references in that Clause to:

 

  (i) an Existing Lender were references to all the Lenders immediately prior to the relevant increase;

 

  (ii) the New Lender were references to that Increase Lender ; and

 

  (iii) a re-transfer and re-assignment were references to respectively a transfer and assignment .

 

2.3 Nature of a Finance Party’s rights and obligations

Unless otherwise agreed by all the Finance Parties:

 

(a) the obligations of a Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations does not affect the obligations of any other Party under the Finance Documents;

 

(b) no Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents; and

 

(c) the rights of a Finance Party under the Finance Documents are separate and independent rights, and a debt arising under the Finance Documents to a Finance Party is a separate and independent debt; a Finance Party may, except as otherwise stated in the Finance Documents, separately enforce those rights.

 

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3. PURPOSE

 

3.1 Loans

 

(a) Each Facility A Loan may only be used in or towards the general corporate purposes of the Group (including (without limitation) the working capital requirements, financing the acquisition of assets or businesses (subject to paragraph (b) below), share buy-backs or special dividend payments) and the refinancing of amounts outstanding under the Existing Facility Agreement.

 

(b) No Facility A Loan shall be used in connection with the financing of the Acquisition unless the Facility Agent has received all of the documents and evidence required pursuant to Clause 4.1(a)(ii) ( Conditions precedent documents) below.

 

(c) The Company shall apply all amounts borrowed under Facility B towards:

 

  (i) funding the cash consideration payable by the Company under the Acquisition;

 

  (ii) funding the payment of any costs and expenses incurred by the Company or a member of the Group in connection with the Acquisition; and

 

  (iii) the refinancing of certain existing indebtedness of the Target Group.

 

3.2 No obligation to monitor

No Finance Party is bound to monitor or verify the utilisation of the Facilities.

 

4. CONDITIONS PRECEDENT

 

4.1 Conditions precedent documents

 

(a) A Request may not be given until the Facility Agent has notified the Company and the Lenders that it has received all of the documents and evidence set out:

 

  (i) (in respect of a Request for a Facility A Loan (a Facility A Request) the proceeds of which in whole or in part are not being used in connection with the financing of the Acquisition) in Part A of Schedule 2 ( Conditions precedent documents );

 

  (ii) (in respect of a Facility A Request the proceeds of which in whole or in part are being used in connection with the financing of the Acquisition) in Part A and Part B of Schedule 2 ( Conditions precedent documents ); and

 

  (iii) (in respect of a Request for a Facility B Loan (a Facility B Request)) in Part A and Part B of Schedule 2 ( Conditions precedent documents ),

in each case in form and substance satisfactory to the Facility Agent.

 

(b) The Facility Agent must give any notification required under Clause 4.1(a) as soon as reasonably practicable.

 

(c) A notification given by the Facility Agent to the Company and the Lenders in respect of a Facility A Request shall constitute its notification to the Company and the Lenders in respect of the documents and evidence set out in Part A of Schedule 2 ( Conditions precedent documents) in respect of a Facility B Request.

 

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4.2 Further conditions precedent

Subject to Clause 21.14 ( Clean-Up Period ), the obligations of each Lender to participate in any Loan are subject to the further conditions precedent that on both the date of the Request and the Utilisation Date for that Loan:

 

(a) the Repeating Representations are correct in all material respects; and

 

(b) no Event of Default and, in the case of a Loan other than a Rollover Loan, no Default, is outstanding or would result from the Loan.

 

4.3 Maximum number

 

(a) Unless the Facility Agent agrees, a Request may not be given if, as a result, there would be:

 

  (i) more than 30 Facility A Loans outstanding; or

 

  (ii) more than 10 Facility B Loans outstanding.

 

(b) Any distinct Facility A Loan made by a single Lender under Clause 6.3 ( Unavailability of a currency ) or Separate Loan made by a single Lender under Clause 7.1(c) ( Repayment of Facility A Loans ) shall not be taken into account in this Clause 4.3.

 

5. UTILISATION

 

5.1 Giving of Requests

 

(a) A Borrower may borrow a Facility A Loan and the Company may borrow a Facility B Loan by giving to the Facility Agent a duly completed Request not later than the Specified Time.

 

(b) Each Request is irrevocable.

 

5.2 Completion of Requests

A Request will not be regarded as having been duly completed unless:

 

(a) it identifies the Facility to be utilised;

 

(b) it identifies the Borrower (and in the case of Facility B, the Borrower is the Company); (c) the Utilisation Date is a Business Day falling within the relevant Availability Period; and (d) the proposed currency, amount and Term comply with this Agreement.

Only one Loan may be requested in a Request.

 

5.3 Amount of Loan

 

(a) Unless agreed otherwise by the Facility Agent and except as provided below, the amount of a Loan must be a minimum of U.S.$5,000,000 and an integral multiple of U.S.$1,000,000, or their equivalents in accordance with Clause 6 ( Optional Currencies ).

 

(b) The amount of a Loan may also be the balance of the relevant undrawn Commitments in respect of the relevant Facility or such other amount as the Facility Agent or the Lenders may agree.

 

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(c) The amount of each Lender’s share of a Loan will be its Pro Rata Share on the proposed Utilisation Date.

 

5.4 Advance of Loan

 

(a) The Facility Agent must promptly on the date that it receives a Request notify each Lender of the details of the requested Loan and the amount of its share in that Loan.

 

(b) No Lender is obliged to participate in a Loan if as a result:

 

  (i) its share in the Loans under the relevant Facility would exceed its Available Commitment for that Facility; or

 

  (ii) the Loans under a Facility would exceed the Total Commitments under that Facility.

 

(c) If the conditions set out in this Agreement have been met, each Lender must make its share in each Loan available to the Facility Agent for the relevant Borrower on the Utilisation Date.

 

6. OPTIONAL CURRENCIES

 

6.1 Selection

 

(a) A Borrower must select the currency of a Facility A Loan in the applicable Request.

 

(b) The amount of a Facility A Loan requested in an Optional Currency other than a Committed Currency must be in a minimum amount of the equivalent of U.S.$10,000,000 and an integral multiple of 1,000,000 units of that currency.

 

(c) The amount of a Facility A Loan requested in a Committed Currency must be:

 

  (i) in the case of Sterling, £5,000,000 and an integral multiple of £1,000,000; and

 

  (ii) in the case of euro, €10,000,000 and an integral multiple of €1,000,000.

 

(d) Unless the Facility Agent otherwise agrees, the Facility A Loans may not be denominated at any one time in more than 10 Optional Currencies.

 

6.2 Conditions relating to Optional Currencies

 

(a) A Facility A Loan may be denominated in an Optional Currency for a Term if:

 

  (i) that Optional Currency is readily available in the amount required and freely convertible into U.S. Dollars in the London interbank market on the Rate Fixing Day and the first day of that Term; or

 

  (ii) that Optional Currency is a Committed Currency or has been previously approved by the Facility Agent (acting on the instructions of all the Lenders).

 

(b) If the Facility Agent has received a request from a Borrower for a currency to be approved as an Optional Currency (other than a Committed Currency), the Facility Agent must, within five Business Days, confirm to that Borrower:

 

  (i) whether or not the Lenders have given their approval; and

 

  (ii) if approval has been given, the minimum amount (and, if required, integral multiples) for any Facility A Loan in that currency.

 

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6.3 Unavailability of a currency

 

(a) Notwithstanding any other term of this Agreement, if before the Specified Time on any Rate Fixing Day the Facility Agent receives notice from a Lender that:

 

  (i) the Optional Currency (other than a Committed Currency) requested is not readily available to it in the relevant interbank market in the amount and for the period required; or

 

  (ii) participating in a Facility A Loan in the proposed Optional Currency might contravene any law or regulation applicable to it,

the Facility Agent must give notice to the relevant Borrower to that effect promptly and in any event before the Specified Time on that day.

 

(b) In this event:

 

  (i) that Lender must participate in a Facility A Loan in U.S. Dollars; and

 

  (ii) the share of that Lender in the Facility A Loan and any other similarly affected Lender(s) will be treated as a distinct Facility A Loan denominated in U.S. Dollars during that Term.

 

(c) Any part of a Loan treated as a distinct Facility A Loan under this Clause will not be taken into account for the purposes of any limit on the number of Facility A Loans or currencies outstanding at any one time.

 

(d) A Facility A Loan will still be treated as a Rollover Loan if it is not denominated in the same currency as the maturing Facility A Loan by reason only of the operation of this Clause.

 

6.4 Optional Currency equivalents

 

(a) The equivalent in U.S. Dollars of a Facility A Loan or part of a Facility A Loan in an Optional Currency for the purposes of calculating:

 

  (i) whether any limit under this Agreement has been exceeded;

 

  (ii) the amount of a Facility A Loan;

 

  (iii) the share of a Lender in a Facility A Loan;

 

  (iv) the amount of any repayment of a Facility A Loan; or

 

  (v) the undrawn amount of a Lender’s Facility A Commitment,

is its Dollar Amount.

 

(b) The Dollar Amount of a Loan or part of a Loan means:

 

  (i) if the Loan is denominated in U.S. Dollars, its amount; or

 

  (ii) in the case of Facility A Loan denominated in an Optional Currency, its equivalent in U.S. Dollars calculated on the basis of the Agent’s Dollar Rate of Exchange one Business Day before the Rate Fixing Day for that Term.

 

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6.5 Notification

The Facility Agent must notify the Lenders and the relevant Borrower of the relevant Dollar Amount (and the applicable Agent’s Dollar Rate of Exchange) promptly after they are ascertained.

 

7. REPAYMENT

 

7.1 Repayment of Facility A Loans

 

(a) Each Borrower must repay each Facility A Loan made to it in full on the last day of its Term.

 

(b) Without prejudice to each Borrower’s obligation under paragraph (a) above, if one or more Facility A Loans are to be made available to a Borrower, provided that the provisions of Clause 4.2 ( Further conditions precedent ) are satisfied in respect of those Facility A Loans:

 

  (i) on the same day that a maturing Facility A Loan is due to be repaid by that Borrower;

 

  (ii) in the same currency as the maturing Facility A Loan (unless it arose as a result of the operation of Clause 6.3 ( Unavailability of a currency )); and

 

  (iii) in whole or in part for the purpose of refinancing the maturing Facility A Loan,

the aggregate amount of the new Facility A Loans shall be treated as if applied in or towards repayment of the maturing Facility A Loan so that:

 

  (A) if the amount of the maturing Facility A Loan exceeds the aggregate amount of the new Facility A Loans:

 

  (I) the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and

 

  (II) each Lender’s participation (if any) in the new Facility A Loans shall be treated as having been made available and applied by the relevant Borrower in or towards repayment of that Lender’s participation (if any) in the maturing Facility A Loan and that Lender will not be required to make its participation in the new Facility A Loans available in cash; and

 

  (B) if the amount of the maturing Facility A Loan is equal to or less than the aggregate amount of the new Facility A Loans:

 

  (I) the relevant Borrower will not be required to make any payment in cash; and

 

  (II) each Lender will be required to make its participation in the new Facility A Loans available in cash only to the extent that its participation (if any) in the new Facility A Loans exceeds that Lender’s participation (if any) in the maturing Facility A Loan and the remainder of that Lender’s participation in the new Facility A Loans shall be treated as having been made available and applied by the relevant Borrower in or towards repayment of that Lender’s participation in the maturing Facility A Loan.

 

Page 25


(c) At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Facility A Loans then outstanding will be automatically extended to the Facility A Final Maturity Date and will be treated as separate Facility A Loans (the Separate Loans) denominated in the currency in which the relevant participations are outstanding.

 

(d) The relevant Borrower may prepay an outstanding Separate Loan by giving two Business Days’ prior notice to the Facility Agent. The Facility Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt.

 

(e) Interest in respect of a Separate Loan will accrue for successive Terms selected by the relevant Borrower by the time and date specified by the Facility Agent (acting reasonably) and will be payable by that Borrower to the Defaulting Lender on the last day of each Term of that Facility A Loan.

 

(f) The terms of this Agreement relating to Facility A Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (d) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

 

7.2 Repayment of Facility B Loans

 

(a) The Company must repay each Facility B Loan made to it in full on the Facility B Final Maturity Date.

 

(b) The Company may not reborrow any part of Facility B which is repaid.

 

7.3 Extension option

 

(a) A Borrower may request, by delivery to the Facility Agent of an Extension Notice within a period of 30 Business Days before the first anniversary of the date of this Agreement, the extension of the Facility A Final Maturity Date by an additional 365 day period in accordance with this Clause 7.3 (an Extension Request) .

 

(b) Without prejudice to paragraph (a) above, the relevant Borrower may request, by delivery to the Facility Agent of an Extension Notice within a period of 30 Business Days before the second anniversary of the date of this Agreement, the extension of the then current Facility A Final Maturity Date:

 

  (i) if previously extended pursuant to paragraph (a) above, by a further 365 days (or, in relation to a Lender that has not previously agreed to an extension pursuant to paragraph (a) above, such request may be for a further 365 days or 730 days); or

 

  (ii) if not previously extended pursuant to paragraph (a) above, by either 365 days or by 730 days.

 

(c) If an Extension Notice is delivered pursuant to paragraphs (a) or (b) above, the Facility Agent will promptly notify the Lenders to that effect. A delivered Extension Request is irrevocable.

 

(d) The agreement to an extension of the Facility A Final Maturity Date pursuant to paragraphs (a) and (b) above is at the sole discretion of each Lender.

 

(e) If a Lender rejects an Extension Request or does not respond to an Extension Request by the date falling 20 Business Days after the date the Extension Request is delivered to the Facility Agent:

 

Page 26


  (i) (if requested in the sole discretion of the relevant Borrower) the relevant Lender must, with effect from:

 

  (A) the original Facility A Final Maturity Date;

 

  (B) the extended Facility A Final Maturity Date (as applicable); or

 

  (C) (in each case) such earlier date as the Lender may agree,

assign, transfer or novate all of its rights and obligations under this Agreement at par value to a bank or financial institution which has indicated its willingness to accept such an assignment, transfer or novation chosen by the relevant Borrower, in accordance with and subject to the conditions of Clause 28 ( Changes to the parties ) provided that the relevant Lender shall have no obligation to find any such replacement bank or financial institution; or

 

  (ii) on the original Facility A Final Maturity Date or the extended Facility A Final Maturity Date (as applicable), the relevant Borrower shall prepay that Lender’s participation in any Facility A Loan and that Lender’s Facility A Commitment shall be cancelled on the original Facility A Final Maturity Date or the extended Facility A Final Maturity Date (as applicable).

 

8. PREPAYMENT AND CANCELLATION

 

8.1 Mandatory prepayment—illegality

 

(a) A Lender must notify the Company promptly if it becomes aware that it is unlawful in any jurisdiction for that Lender to perform any of its obligations under a Finance Document or to fund or maintain its share in any Loan.

 

(b) After notification under paragraph (a) above:

 

  (i) each Borrower must repay or prepay the share of that Lender in each Loan utilised by it on the date specified in paragraph (c) below; and

 

  (ii) the Commitments of that Lender will be immediately cancelled.

 

(c) The date for repayment or prepayment of a Lender’s share in a Loan will be the earlier of:

 

  (i) the latest date allowed by law; and

 

  (ii) the last day of the current Term of that Loan.

 

8.2 Mandatory prepayment—change of control

 

(a) The Company must promptly notify the Facility Agent if it becomes aware of any person or group of persons acting in concert which acquires control of the Company.

 

(b) After notification under paragraph (a) above, each Lender may by notice to the Company:

 

  (i) cancel its Commitments; and

 

  (ii) demand that its participation in all outstanding Loans, together with accrued interest and all other amounts accrued under the Finance Documents be immediately due and payable.

 

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Any such notice will take effect in accordance with its terms.

 

(c) In paragraph (a) above:

 

  (i) control has the meaning given to it in sections 450 and 451 of the Corporation Tax Act 2010; and

 

  (ii) acting in concert has the meaning given to it in the City Code on Takeovers and Mergers.

 

8.3 Mandatory prepayment – effectiveness of Finance Documents

 

(a) Unless the Facility Agent has already been so notified by another Obligor, each Obligor must notify the Facility Agent promptly if either:

 

  (i) it is or becomes unlawful for any Obligor (other than the Company) to perform any of its obligations under the Finance Documents; or

 

  (ii) any Obligor (other than the Company) repudiates a Finance Document or purports to repudiate a Finance Document.

 

(b) After notification under paragraph (a) above:

 

  (i) the Obligors must repay or prepay each Loan on the date specified in paragraph (c) below; and

 

  (ii) the Commitments will be immediately cancelled.

 

(c) The date for repayment or prepayment of a Lender’s share in a Loan will be:

 

  (i) within three Business Days following receipt by the Company of notice from the Facility Agent; or

 

  (ii) if allowed by the relevant law, the last day of the current Term of that Loan.

 

8.4 Mandatory prepayment – Class 1 disposals

 

(a) The Company must promptly notify the Facility Agent if it (or a member of its Group) makes a disposal which would be deemed to be a class 1 transaction under the Listing Rules of the Financial Conduct Authority.

 

(b) After notification of a disposal under paragraph (a) above, the Company must apply the proceeds of any such disposal (net of Tax and less any costs and expenses reasonably incurred) in prepayment pro rata of each outstanding Facility B Loan on the last day of the then current Term.

 

8.5 Mandatory prepayment – Fund Raising

 

(a) The Company must promptly notify the Facility Agent if it (or a member of its Group) undertakes a Relevant Fund Raising.

 

(b) After notification under paragraph (a) above, the Company must apply the Fund Raising Proceeds in prepayment pro rata of each outstanding Facility B Loan on the last day of the then current Term.

 

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8.6 Voluntary prepayment

 

(a) The Company may, by giving not less than five Business Days’ prior notice to the Facility Agent, prepay (or ensure that the relevant Borrower prepays) any Loan made to the relevant Obligor at any time in whole or in part.

 

(b) A Facility B Loan may only be prepaid after the last day of the Facility B Availability Period (or, if earlier, the day on which the Available Commitment in respect of that Facility B Loan is zero).

 

(c) A prepayment of part of a Loan must be in a minimum amount of U.S.$5,000,000 (or its equivalent) and an integral multiple of U.S.$1,000,000 (or its equivalent).

 

8.7 Automatic cancellation

The unutilised Commitment of each Lender will be automatically cancelled in full at the close of business on the last day of the relevant Availability Period.

 

8.8 Voluntary cancellation

 

(a) The Company may, by giving not less than five Business Days’ prior notice to the Facility Agent, cancel the unutilised amount of the Commitments in whole or in part.

 

(b) Partial cancellation of the Commitments must be in a minimum amount of U.S.$5,000,000 (or its equivalent) and an integral multiple of U.S.$1,000,000 (or its equivalent).

 

(c) Any cancellation in part will be applied against the Commitment of each Lender pro rata under that Facility.

 

8.9 Right of replacement or repayment and cancellation in relation to a single Lender

 

(a) If:

 

  (i) any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 12.2 ( Tax gross up ); or

 

  (ii) any Lender claims indemnification from the Company under Clause 12.3 ( Tax Indemnity ) or 13.1 ( Increased costs ),

the Company may, while the circumstance giving rise to the requirement for that increase or indemnification continues, give notice to the Facility Agent requesting prepayment and cancellation in respect of that Lender or give the Facility Agent notice of its intention to replace that Lender in accordance with paragraph (d) below.

 

(b) After notification under paragraph (a) above:

 

  (i) each Borrower must repay or prepay that Lender’s share in each Loan drawn by that Borrower on the date specified in paragraph (c) below; and

 

  (ii) the Commitments of that Lender will be immediately cancelled and reduced to zero.

 

(c) The date for repayment or prepayment of a Lender’s share in a Loan will be the last day of the current Term for that Loan or, if earlier, the date specified by the Company in its notification.

 

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(d) The Company may, in the circumstances set out in paragraph (a) above, on five Business Days’ prior notice to the Facility Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 28 ( Changes to the Parties ) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity selected by the Company which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 28 ( Changes to the Parties ) for a purchase price in cash payable at the time of the transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest (to the extent that the Facility Agent has not given a notification under Clause 28.13 ( Pro rata interest settlement )), Break Costs and other amounts payable in relation thereto under the Finance Documents.

 

(e) The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:

 

  (i) the Company shall have no right to replace the Facility Agent;

 

  (ii) neither the Facility Agent nor any Lender shall have any obligation to find a replacement Lender; and

 

  (iii) in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

 

  (iv) the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer.

 

8.10 Right of cancellation in relation to a Defaulting Lender

 

(a) If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Facility Agent ten Business Days’ notice of cancellation of the Available Commitment of that Lender.

 

(b) On the notice referred to in paragraph (a) above becoming effective, the Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

 

(c) The Facility Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.

 

8.11 Reborrowing of Loans

 

(a) Any voluntary prepayment of a Facility A Loan may be reborrowed on the terms of this Agreement. Any mandatory or involuntary prepayment of a Facility A Loan may not be reborrowed.

 

(b) The Company may not reborrow any part of Facility B which is prepaid.

 

8.12 Miscellaneous provisions

 

(a) Any notice of prepayment and/or cancellation under this Agreement is irrevocable and must specify the relevant date(s) and the affected Loans and Commitments. The Facility Agent must notify the Lenders promptly of receipt of any such notice.

 

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(b) All prepayments under this Agreement must be made with accrued interest on the amount prepaid. No premium or penalty is payable in respect of any prepayment except for Break Costs.

 

(c) The Facility Agent may agree a shorter notice period for a voluntary prepayment or a voluntary cancellation.

 

(d) No prepayment or cancellation is permitted except in accordance with the express terms of this Agreement.

 

(e) Subject to Clause 2.2 ( Increase ), no amount of the Total Commitments cancelled under this Agreement may subsequently be reinstated.

 

(f) If all or part of a Loan is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 ( Further conditions precedent ), an amount of the Commitments (equal to the Dollar Amount of the amount of the Loan which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment. Any cancellation under this paragraph (f) shall reduce the Commitments of the Lenders rateably under that Facility.

 

9. INTEREST

 

9.1 Calculation of interest

The rate of interest on each Loan for each Term is the percentage rate per annum equal to the aggregate of the applicable:

 

(a) Margin; and

 

(b) LIBOR or (in the case of a Facility A Loan denominated in euro) EURIBOR.

 

9.2 Payment of interest

Except where it is provided to the contrary in this Agreement, each Borrower must pay accrued interest on each Loan made to it on the last day of each Term and also, if the Term is longer than six months, on the dates falling at six monthly intervals after the first day of that Term.

 

9.3 Facility A Margin adjustments

 

(a) The initial Facility A Margin will be 0.35 per cent. per annum.

 

(b) Subject to the other provisions of this Clause, the Facility A Margin will, from the delivery of a Compliance Certificate pursuant to Clause 18.2 ( Compliance Certificate), be calculated by reference to the table below:

 

Column 1

Ratio of Consolidated Total Net Borrowings to

Consolidated EBITDA

   Column 2
Facility A Margin (per cent. per annum)
 

Greater than 2.25:1

     0.70   

Less than or equal to 2.25:1 but greater than 1.50:1

     0.50   

Less than or equal to 1.50:1

     0.35   

 

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(c) For so long as:

 

  (i) the Company is in default of its obligation under this Agreement to provide a Compliance Certificate; or

 

  (ii) an Event of Default is outstanding,

the Facility A Margin will be the highest rate set out in paragraph (b) above.

 

9.4 Facility B Margin adjustments

 

(a) Subject to any applicable calculation of the Facility B Margin carried out in accordance with paragraph (b), the Facility B Margin shall be as follows:

 

  (i) until the date falling six months after the date of the Initial Term Loan Agreement, 0.50 per cent. per annum;

 

  (ii) from the date falling six months after the date of the Initial Term Loan Agreement until the date falling 12 months after the date of the Initial Term Loan Agreement, 0.60 per cent. per annum;

 

  (iii) from the date falling 12 months after the date of the Initial Term Loan Agreement until the date falling 18 months after the date of the Initial Term Loan Agreement, 0.70 per cent. per annum; and

 

  (iv) from the date falling 18 months after the date of the Initial Term Loan Agreement until the Facility B Final Maturity Date, 0.85 per cent. per annum.

 

(b) Provided that there is no Event of Default outstanding, the Facility B Margin will, from the delivery of a Compliance Certificate pursuant to Clause 18.2 ( Compliance Certificate ), be increased above the relevant rate set out in paragraph (a) above by the percentage rate per annum set out in the relevant row of column 2 in the table below:

 

Column 1

Ratio of Consolidated Total Net Borrowings to

Consolidated EBITDA

   Column 2
per cent. per annum
 

Greater than 2.25:1

     0.30   

Less than or equal to 2.25:1 but greater than 1.50:1

     0.15   

Less than or equal to 1.50:1

     0.00   

 

(c) For so long as:

 

  (i) the Company is in default of its obligation under this Agreement to provide a Compliance Certificate; or

 

  (ii) an Event of Default is outstanding,

the Facility B Margin will be increased by 0.30 per cent. per annum above the relevant rate set out in paragraph (a) above, (for the avoidance of doubt not above the relevant rates set out in column 2 in the table in paragraph (b) above).

 

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9.5 Effect of adjustments

 

(a) Any change to the Margin under Clause 9.3 ( Facility A Margin adjustments) or 9.4 ( Facility B Margin adjustments) will take effect in relation to a Loan on the second Business Day after delivery of the relevant Compliance Certificate.

 

9.6 Interest on overdue amounts

 

(a) If an Obligor fails to pay any amount payable by it under the Finance Documents, it must immediately on demand by the Facility Agent pay interest on the overdue amount from its due date up to the date of actual payment, both before and after judgment.

 

(b) Interest on an overdue amount is payable at a rate determined by the Facility Agent to be 1 per cent. per annum above the rate which would have been payable if the overdue amount had, during the period of non payment, constituted a Loan under the Facility to which the overdue amount relates in the currency of the overdue amount. For this purpose, the Facility Agent may (acting reasonably):

 

  (i) select successive Terms of any duration of up to three months; and

 

  (ii) determine the appropriate Rate Fixing Day for that Term.

 

(c) Notwithstanding paragraph (b) above, if the overdue amount is a principal amount of a Loan and becomes due and payable prior to the last day of its current Term, then:

 

  (i) the first Term for that overdue amount will be the unexpired portion of that Term; and

 

  (ii) the rate of interest on the overdue amount for that first Term will be 1 per cent. per annum above the rate then payable on that Loan.

After the expiry of the first Term for that overdue amount, the rate on the overdue amount will be calculated in accordance with paragraph (b) above.

 

(d) Default interest (if unpaid) on an overdue amount will be compounded with that overdue amount at the end of each of its Terms but will remain immediately due and payable.

 

9.7 Notification of rates of interest

The Facility Agent must promptly on the date determined notify each relevant Party of the determination of a rate of interest under this Agreement.

 

10. TERMS

 

10.1 Selection of Terms

 

(a) Each Facility A Loan has one Term only.

 

(b) A Borrower must select the Term for a Loan in the relevant Request for that Loan or (if a Facility B Loan has already been borrowed) in a Selection Notice.

 

(c) Each Selection Notice for a Facility B Loan is irrevocable and must be delivered to the Facility Agent by the Company not later than the Specified Time.

 

(d) If the Company fails to deliver a Selection Notice to the Facility Agent in accordance with paragraph (c) above, the relevant Term for that Facility B Loan will be one month.

 

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(e) Subject to the other provisions in this Clause 10, a Borrower may select the Term for a Loan, such Term to be of:

 

  (i) in respect of a Facility A Loan only, two or four weeks; or

 

  (ii) in respect of a Loan under any Facility, one, two, three or six months, or any other period agreed by that Borrower and the Lenders.

 

(f) In relation to Facility B Loans, the Company must select the next Term for that Facility B Loan three Business Days prior to the expiry of any Term.

 

10.2 No overrunning the Final Maturity Date

If a Term would otherwise overrun the relevant Final Maturity Date, it will be shortened so that it ends on the relevant Final Maturity Date.

 

10.3 Other adjustments

The Facility Agent and the Company may enter into such other arrangements as they may agree for the adjustment of Terms and the consolidation and/or splitting of Loans.

 

10.4 Notification

The Facility Agent must notify each relevant Party of the duration of each Term promptly after ascertaining it.

 

11. MARKET DISRUPTION

 

11.1 Failure of a Reference Bank to supply a rate

If IBOR is to be calculated by reference to the Reference Banks but a Reference Bank does not supply a rate by the Specified Time on a Rate Fixing Day, the applicable IBOR will, subject as provided below, be calculated on the basis of the rates of the remaining Reference Banks.

 

11.2 Market disruption

 

(a) In this Clause, each of the following events is a market disruption event :

 

  (i) IBOR is to be calculated by reference to the Reference Banks but no, or only one, Reference Bank supplies a rate by 12.00 noon (local time) on the Rate Fixing Day; or

 

  (ii) the Facility Agent receives by close of business on the Rate Fixing Day notification from Lenders whose shares in the relevant Loan exceed 40 per cent. of that Loan that the cost to them of obtaining matching deposits in the relevant interbank market is in excess of IBOR for the relevant Term.

 

(b) The Facility Agent must promptly notify the Company and the Lenders of a market disruption event.

 

(c) After notification under paragraph (b) above, the rate of interest on each Lender’s share in the affected Loan for the relevant Term will be the aggregate of the applicable:

 

  (i) Margin; and

 

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  (ii) rate notified to the Facility Agent by that Lender as soon as practicable to be that which expresses as a percentage rate per annum the cost to that Lender of funding its share in that Loan from whatever source it may reasonably select.

 

11.3 Confidentiality of Funding Rates and Reference Bank Quotations

 

(a) The Facility Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Facility Agent, each Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b), (c) and (d) below.

 

(b) The Facility Agent may disclose:

 

  (i) any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to an Obligor pursuant to Clause 9.7 ( Notification of rates of interest); and

 

  (ii) any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Facility Agent and the relevant Lender or Reference Bank, as the case may be.

 

(c) The Facility Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose any Funding Rate, to:

 

  (i) any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;

 

  (ii) any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;

 

  (iii) any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and

 

  (iv) any person with the consent of the relevant Lender or Reference Bank, as the case may be.

 

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(d) The Facility Agent’s obligations in this Clause 11.3 relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause 9.7 ( Notification of rates of interest) provided that (other than pursuant to paragraph (b)(i) above) the Facility Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification.

 

(e) The Facility Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Facility Agent, each Reference Bank Quotation) is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Facility Agent and each Obligor undertake not to use any Funding Rate or, in the case of the Facility Agent, any Reference Bank Quotation for any unlawful purpose.

 

(f) The Facility Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case may be:

 

  (i) of the circumstances of any disclosure made pursuant to paragraph (c)(ii) above except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and

 

  (ii) upon becoming aware that any information has been disclosed in breach of this Clause 11.3.

 

11.4 Alternative basis of interest or funding

 

(a) If a market disruption event occurs and the Facility Agent or the Company so requires, the Company and the Facility Agent must enter into negotiations in good faith for a period of not more than 30 days with a view to agreeing an alternative basis for determining the rate of interest and/or funding for the affected Loan and any future Loan.

 

(b) Any alternative basis agreed will be, with the prior consent of all the Lenders, binding on all the Parties.

 

12. TAXES

 

12.1 General

In this Clause:

Borrower DTTP Filing means an HMRC Form DTTP2 duly completed and filed by the relevant Borrower, which:

 

(a) where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Schedule 1 ( Original Lenders), and is filed with HMRC within 30 days of the date of this Agreement; or

 

(b) where it relates to a Treaty Lender that is a New Lender or an Increase Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant Transfer Certificate or Increase Confirmation, and is filed with HMRC within 30 days of that Transfer Date or the Relevant Increase Date.

CTA means the Corporation Tax Act 2009.

HMRC means Her Majesty’s Revenue & Customs.

ITA means the Income Tax Act 2007.

 

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Qualifying Lender means:

 

(a) a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

 

  (i) a Lender:

 

  (A) which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to U.K. corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or

 

  (B) in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to U.K. corporation tax as respects any payments of interest made in respect of that advance; or

 

  (ii) a Lender which is:

 

  (A) a company resident in the U.K. for U.K. tax purposes;

 

  (B) a partnership each member of which is:

 

  (I) a company so resident in the U.K.; or

 

  (II) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

  (C) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or

 

  (iii) a Treaty Lender; or

 

(b) a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.

Relevant Increase Date means the date on which the increase in Total Commitments described in the relevant Increase Confirmation takes effect.

Tax Confirmation means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

 

(a) a company resident in the U.K. for U.K. tax purposes;

 

(b) a partnership each member of which is:

 

  (i) a company so resident in the U.K.; or

 

Page 37


  (ii) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

(c) a company not so resident in the U.K. which carries on a trade in the U.K. through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

Tax Credit means a credit against any Tax or any relief or remission for, or repayment of, any Tax.

Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

Transfer Date has the meaning given to that term in Clause 1.1 ( Definitions ).

Treaty Lender means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and which:

 

(a) is treated as a resident of a Treaty State for the purposes of the Treaty;

 

(b) does not carry on a business in the U.K. through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and

 

(c) meets all other conditions in the relevant Treaty for full exemption from Tax imposed by the U.K. on interest, except that for this purpose it shall be assumed that the following are satisfied:

 

  (i) any condition which relates (expressly or by implication) to there not being a special relationship between a Borrower and a Lender or between both of them and another person, or to the amounts or terms of any Loan or the Finance Documents; and

 

  (ii) any necessary procedural formalities.

Treaty State means a jurisdiction having a double taxation agreement (a Treaty ) with the U.K. which makes provision for full exemption from tax imposed by the U.K. on interest.

U.K. Non-Bank Lender means, where a Lender becomes a Party after the day on which this Agreement is entered into, a Lender which gives a Tax Confirmation in the Transfer Certificate which it executes on becoming a Party.

 

12.2 Tax gross up

 

(a) Each Obligor must make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.

 

(b) If:

 

  (i) a Lender is not, or ceases to be, a Qualifying Lender; or

 

  (ii) an Obligor or a Lender is aware that an Obligor must make a Tax Deduction (or that there is a change in the rate or the basis of a Tax Deduction), it must promptly notify the Facility Agent. The Facility Agent must then promptly notify the affected Parties.

 

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(c) Except as provided below, if a Tax Deduction is required by law to be made by an Obligor or the Facility Agent, the amount of the payment due from the Obligor will be increased to an amount which (after making the Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

(d) An Obligor is not required to make an increased payment under paragraph (c) above by reason of a Tax Deduction if on the date on which the payment falls due:

 

  (i) the payment could have been made to the relevant Lender without a Tax Deduction if it was a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender in respect of that payment, unless the altered status results from any change after the later of the date of this Agreement or the date that such Lender becomes a party to this Agreement in (or in the interpretation, administration, or application of) any law or Treaty agreement or any published practice or concession of any relevant taxing authority; or

 

  (ii) the relevant Lender is a Qualifying Lender solely by virtue of paragraph (a)(ii) of the definition of Qualifying Lender; and

 

  (A) an officer of HMRC has given (and not revoked) a direction (a Direction) under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment or from the Company a certified copy of that Direction; and

 

  (B) the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

 

  (iii) the relevant Lender is a Qualifying Lender solely by virtue of paragraph (a)(ii) of the definition of Qualifying Lender and:

 

  (A) the relevant Lender has not given a Tax Confirmation to the Company; and

 

  (B) the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Company, on the basis that the Tax Confirmation would have enabled the Company to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or

 

  (iv) the Obligor is able to demonstrate that (subject to completion of any necessary formalities by the relevant Borrower) the Tax Deduction would not have been made if the Lender had complied with its obligations under paragraph (g) or (h) (as applicable) below.

 

(e) If an Obligor is required to make a Tax Deduction, it must make the minimum Tax Deduction and must make any payment required in connection with that Tax Deduction within the time allowed by law.

 

(f) Within 30 days of making either a Tax Deduction or a payment required in connection with a Tax Deduction, the Obligor must deliver to the Facility Agent for the relevant Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence satisfactory to that Finance Party (acting reasonably) that the Tax Deduction has been made or (as applicable) the appropriate payment has been paid to the relevant taxing authority.

 

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(g)

 

  (i) Subject to paragraph (ii) below, a Lender must co-operate with each Obligor in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

 

  (ii)     

 

  (A) A Treaty Lender which becomes a Party on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Schedule 1 ( Original Lenders); and

 

  (B) a New Lender or Increase Lender that is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the Transfer Certificate or Increase Confirmation which it executes,

and, having done so, that Lender shall be under no obligation pursuant to paragraph (i) above.

 

(h) If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii) above and:

 

  (i) the relevant Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or

 

  (ii) the relevant Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:

 

  (A) that Borrower DTTP Filing has been rejected by HMRC; or

 

  (B) HMRC has not given the relevant Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing,

and in each case, the relevant Borrower has notified that Lender in writing, that Lender and the relevant Borrower shall co-operate in completing any additional procedural formalities necessary for the relevant Borrower to obtain authorisation to make that payment without a Tax Deduction.

 

(i) If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph (g)(ii) above, no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s Commitment or its participation in any Loan unless the Lender otherwise agrees.

 

(j) The relevant Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Facility Agent for delivery to the relevant Lender.

 

(k) A U.K. Non-Bank Lender which becomes a Party on the day on which this Agreement is entered into gives a Tax Confirmation to the Company by entering into this Agreement.

 

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(l) A U.K. Non-Bank Lender shall promptly notify the Company and the Facility Agent if there is any change in the position from that set out in the Tax Confirmation.

 

12.3 Tax indemnity

 

(a) Except as provided below, the Company must indemnify a Finance Party against any loss, liability or cost which that Finance Party suffers, or has suffered, directly for or on account of Tax by that Finance Party in respect of a Finance Document.

 

(b) Paragraph (a) above does not apply to:

 

  (i) any Tax assessed on a Finance Party if that Tax is imposed on or calculated by reference to the net income received or receivable by that Finance Party. However, any payment deemed to be received or receivable, including any amount treated as income but not actually received by the Finance Party, such as a Tax Deduction, will not be treated as net income received or receivable for this purpose;

 

  (ii) any Tax arising under, or attributable to the implementation or application of, or compliance with, the bank levy imposed by the U.K. Government as set out in the Finance Act 2011 as amended from time to time, or any levy or Tax of a similar nature imposed in, or by the government of, any jurisdiction, or any other law or regulation which implements such bank levy or any levy or Tax of a similar nature imposed in, or by the government of, any jurisdiction, or any Tax imposed on a Finance Party by virtue of its status as a bank;

 

  (iii) any amount compensated for under Clause 12.2 ( Tax gross up ) above, or which would have been compensated for under Clause 12.2 ( Tax gross up ) above but for an exception to that Clause; or

 

  (iv) any loss, liability or cost that relates to a FATCA Deduction required to be made by a party.

 

(c) A Finance Party making, or intending to make, a claim under paragraph (a) above must promptly notify the Company of the event which gives, or has given, rise to the claim.

 

(d) A Finance Party shall, on receiving payment from the Company under this Clause 12.3, notify the Facility Agent.

 

12.4 Tax Credit

 

(a) If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

 

  (i) a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

  (ii) the relevant Finance Party has used that Tax Credit,

the Finance Party must pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after tax position as it would have been in if the Tax Payment had not been required to be made by the Obligor.

 

(b)

If an Obligor makes a Tax Payment and the relevant Finance Party is a Treaty Lender, that Finance Party shall, in the ordinary course of its dealings with HMRC, take reasonable steps to obtain from HMRC payment of any amounts to which it may be entitled under the terms of

 

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  any applicable Treaty in respect of any Tax Deduction from payments to it under any Finance Document and that Finance Party shall pay to the Obligor an amount equal to any such payment received from HMRC (after deducting any reasonable expenses incurred in obtaining it).

 

(c) No Finance Party shall be obliged to take any such steps as a referred to in paragraph (b) above which may prejudice its right to obtain any other relief or allowance otherwise available to it or to disclose to any party to a Finance Document any information regarding its Tax affairs and computations.

 

12.5 Lender Status Confirmation

Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate, in the Transfer Certificate or Increase Confirmation which it executes on becoming a Party, which of the following categories it falls in:

 

(a) not a Qualifying Lender;

 

(b) a Qualifying Lender (other than a Treaty Lender); or

 

(c) a Treaty Lender.

If a New Lender fails to indicate its status in accordance with this Clause 12.5 then such New Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Facility Agent which category applies (and the Facility Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, a Transfer Certificate shall not be invalidated by any failure of a Lender to comply with this Clause 12.5.

 

12.6 Stamp taxes

The Company must pay and indemnify each Finance Party against any U.K. stamp duty, U.K. registration Tax or other similar U.K. Tax payable in connection with the entry into, performance or enforcement of any Finance Document, except for any such U.K. Tax payable in connection with the entry into of a Transfer Certificate by a Lender.

 

12.7 Value added taxes

 

(a) All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply and, accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

 

(b) If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier ) to any other Finance Party (the Recipient ) under a Finance Document, and any Party other than the Recipient (the Relevant Party ) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

 

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  (i) (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

  (ii) (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

(c) Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

(d) Any reference in this Clause 12.7 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term “representative member” to have the same meaning as in the Value Added Tax Act 1994).

 

(e) In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Party’s VAT reporting requirements in relation to such supply.

 

12.8 FATCA Information

 

(a) Subject to paragraph (c) below, each Finance Party shall, within ten Business Days of a reasonable request by another Party:

 

  (i) confirm to that other Party and the Facility Agent whether it is:

 

  (A) a FATCA Exempt Party; or

 

  (B) not a FATCA Exempt Party; and

 

  (ii) supply to that other Party and the Facility Agent such forms, documentation and other information relating to its status under FATCA (including its applicable passthru payment percentage or other information required under the U.S. Treasury Regulations or other official guidance including intergovernmental agreements) as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA.

 

(b) If a Finance Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Finance Party shall notify that other Party and the Facility Agent reasonably promptly.

 

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(c) Paragraph (a) above shall not oblige any Finance Party to do anything which would or might in its reasonable opinion constitute a breach of:

 

  (i) any law or regulation;

 

  (ii) any fiduciary duty; or

 

  (iii) any duty of confidentiality.

 

(d) If a Finance Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then:

 

  (i) if that Finance Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Finance Party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party; and

 

  (ii) if that Finance Party failed to confirm its applicable passthru payment percentage then such Finance Party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable passthru payment percentage is 100 per cent.,

until (in each case) such time as the Finance Party in question provides the requested confirmation, forms, documentation or other information.

 

12.9 FATCA Deduction

 

(a) Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

(b) Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Company, the Facility Agent and the other Finance Parties.

 

13. INCREASED COSTS

 

13.1 Increased Costs

Except as provided below in this Clause, the Company must pay to a Finance Party the amount of any Increased Cost incurred by that Finance Party or any of its Affiliates as a result of:

 

(a) the introduction of, or any change in, or any change in the interpretation, administration or application of, any law or regulation; or

 

(b) compliance with any law or regulation,

in each case made after the date of this Agreement; or

 

(c) the implementation or application of or compliance with Basel III or any other law or regulation which implements Basel III (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

 

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13.2 Exceptions

The Company need not make any payment for an Increased Cost to the extent that the Increased Cost is:

 

(a) attributable to a Tax Deduction required by law to be made by an Obligor;

 

(b) attributable to a FATCA Deduction required to be made by a Party;

 

(c) compensated for under another Clause, or would have been but for an exception to that Clause;

 

(d) a tax on the overall net income of a Finance Party or any of its Affiliates;

 

(e) attributable to a Finance Party or its Affiliates wilfully or grossly negligently failing to comply with any law or regulation;

 

(f) not claimed in the manner set out in Clause 13.3 ( Claims ) below; or

 

(g) attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III (other than as excluded under Clause 13.4 ( Basel III Costs ) below) ( Basel II ) or any other law or regulation with implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

 

13.3 Claims

A Finance Party intending to make a claim for an Increased Cost must, within 180 days of becoming aware of the circumstances giving rise to such a claim, notify the Company in writing of such circumstances setting out in detail the basis of calculation of such a claim.

 

13.4 Basel III Costs

The Company need not make any payment for a Basel III Cost unless the claiming Finance Party:

 

(a) provides reasonable detail of the basis of calculation of such Basel III Costs provided that this obligation to provide reasonable detail does not extend to information and detail that a Finance Party is not legally allowed to disclose, is confidential to third parties (including any information that is confidential to a Finance Party’s organisation or affairs) or price-sensitive in relation to listed shares or other instruments issued by that Finance Party or any of its Affiliates;

 

(b) confirms to the Company that it is the Finance Party’s policy to claim Basel III Costs to a similar extent from similar borrowers in relation to similar facilities; and

 

(c) confirms to the Company that it is making a claim for Basel III Costs within 180 days of incurring them.

For the purpose of this Clause 13:

 

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Basel III means:

 

(a) the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

 

(b) the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

 

(c) any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.

Basel III Cost means any Increased Cost attributable to the implementation or application of or compliance with Basel III.

 

14. MITIGATION

 

14.1 Mitigation

 

(a) Each Finance Party must, in agreement with the Company, take all reasonable steps to mitigate any circumstances which arise and which result or would result in:

 

  (i) any Tax Payment or any claim under Clause 13.1 (Increased Costs) being payable to that Finance Party; or

 

  (ii) that Finance Party being able to exercise any right of prepayment and/or cancellation under this Agreement by reason of any illegality,

including transferring its rights and obligations under the Finance Documents to an Affiliate or changing its Facility Office.

 

(b) The Company must indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of any step taken by it under this Clause.

 

(c) A Finance Party is not obliged to take any step under this Clause if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

14.2 Conduct of business by a Finance Party

No term of this Agreement will:

 

(a) interfere with the right of any Finance Party to arrange its affairs (Tax or otherwise) in whatever manner it thinks fit;

 

(b) subject to Clause 12.4(b) ( Tax Credit), oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it in respect of Tax or the extent, order and manner of any claim; or

 

(c) oblige any Finance Party to disclose any information relating to its affairs (Tax or otherwise) or any computation in respect of Tax.

 

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15. PAYMENTS

 

15.1 Place

Unless a Finance Document specifies that payments under it are to be made in another manner, all payments by a Party (other than the Facility Agent) under the Finance Documents must be made to the Facility Agent to its account at such office or bank:

 

(a) in the principal financial centre of the country of the relevant currency; or

 

(b) in the case of euro, in the principal financial centre of a Participating Member State or London,

as it may notify to that Party for this purpose by not less than five Business Days’ prior notice.

 

15.2 Funds

Payments under the Finance Documents to the Facility Agent must be made for value on the due date at such times and in such funds as the Facility Agent may specify to the Party concerned as being customary at the time for the settlement of transactions in the relevant currency in the place for payment.

 

15.3 Currency

 

(a) Unless a Finance Document specifies that payments under it are to be made in a different manner, the currency of each amount payable under the Finance Documents shall be determined under paragraph (b) below.

 

(b) In respect of payments made in respect of each Facility:

 

  (i) interest is payable in the currency in which the relevant amount in respect of which it is payable is denominated;

 

  (ii) a repayment or prepayment of any principal amount is payable in the currency in which that principal amount is denominated on its due date;

 

  (iii) amounts payable in respect of costs, expenses or Taxes are payable in the currency in which they are incurred; and

 

  (iv) each other amount payable under the Finance Documents is payable in U.S. Dollars.

 

15.4 Distribution

 

(a) Each payment received by the Facility Agent under the Finance Documents for another Party must, except as provided below, be made available by the Facility Agent to that Party by payment (as soon as practicable after receipt) to its account with such office or bank in:

 

  (i) in respect of Facility A:

 

  (A) the principal financial centre of the country of the relevant currency; or

 

  (B) in the case of euro, in the principal financial centre of a Participating Member State or London,

 

  (ii) in respect of Facility B, New York; and

as it may notify to the Facility Agent for this purpose by not less than five Business Days’ prior notice.

 

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(b) The Facility Agent may (with the consent and at the expense of the relevant Obligor) apply any amount received by it for an Obligor in or towards payment (as soon as practicable after receipt) of any amount due from that Obligor under the Finance Documents or in or towards the purchase of any amount of any currency to be so applied.

 

(c) Where a sum is paid to the Facility Agent under this Agreement for another Party, the Facility Agent is not obliged to pay that sum to that Party until it has established that it has actually received it. However, the Facility Agent may assume that the sum has been paid to it, and, in reliance on that assumption, make available to that Party a corresponding amount. If it transpires that the sum had not been made available, that Party must immediately on demand by the Facility Agent refund any corresponding amount made available to it together with interest on that amount from the date of payment to the date of receipt by the Facility Agent at a rate calculated by the Facility Agent to reflect its cost of funds.

 

15.5 No set off or counterclaim

All payments made by an Obligor under the Finance Documents must be made without set off or counterclaim.

 

15.6 Business Days

 

(a) If a payment under the Finance Documents is due on a day which is not a Business Day, the due date for that payment will instead be the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

 

(b) During any extension of the due date for payment of any principal under this Agreement interest is payable on that principal at the rate payable on the original due date.

 

15.7 Impaired Agent

 

(a) If, at any time, the Facility Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Facility Agent in accordance with Clause 15.1 ( Place ) may instead either pay that amount direct to the required recipient or pay that amount to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents. In each case such payments must be made on the due date for payment under the Finance Documents.

 

(b) All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the beneficiaries of that trust account pro rata to their respective entitlements.

 

(c) A Party which has made a payment in accordance with this Clause shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.

 

(d) Promptly upon the appointment of a successor Facility Agent in accordance with Clause 22.14 ( Replacement of the Facility Agent ), each Party which has made a payment to a trust account in accordance with this Clause shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Facility Agent for distribution in accordance with Clause 15.4 ( Distribution ).

 

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15.8 Partial payments

 

(a) If the Facility Agent receives a payment insufficient to discharge all the amounts then due and payable by the Obligors under the Finance Documents, the Facility Agent must apply that payment towards the obligations of the Obligors under the Finance Documents in the following order:

 

  (i) first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Facility Agent under the Finance Documents;

 

  (ii) secondly, in or towards payment pro rata of any accrued interest or fee due but unpaid under this Agreement;

 

  (iii) thirdly, in or towards payment pro rata of any principal amount due but unpaid under this Agreement; and

 

  (iv) fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

 

(b) The Facility Agent must, if so directed by all the Lenders, vary the order set out in sub paragraphs (a)(ii) to (iv) above.

 

(c) This Clause will override any appropriation made by an Obligor.

 

15.9 Timing of payments

If a Finance Document does not provide for when a particular payment is due, that payment will be due within three Business Days of demand by the relevant Finance Party.

 

16. GUARANTEE AND INDEMNITY

 

16.1 Guarantee and indemnity

Each Guarantor jointly and severally (if there is more than one Guarantor) and irrevocably and unconditionally:

 

(a) guarantees to each Finance Party punctual performance by each Obligor of all its payment obligations under the Finance Documents;

 

(b) undertakes with each Finance Party that, whenever an Obligor does not pay any amount when due under any Finance Document, that Guarantor must immediately on demand by the Facility Agent pay that amount as if it were the principal obligor;

 

(c) agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of an Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 16 if the amount claimed had been recoverable on the basis of a guarantee; and

 

(d) agrees that:

 

  (i) this is a guarantee of payment and not a guarantee of collection;

 

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  (ii) its obligations under this guarantee are independent of the validity or enforceability of any or all of the obligations of any or all of the Obligors; and

 

  (iii) a separate action may be brought and prosecuted against that Guarantor whether or not any action is brought against any or all of the Obligors.

 

16.2 Continuing guarantee

This guarantee is a continuing guarantee and will extend to the ultimate balance of all sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part. This guarantee will enure to the benefit of any New Lender (as defined in Clause 28 ( Changes to the Parties)) to which has been assigned or transferred (including by way of novation) any or all of the rights and/or obligation of a Lender under this Agreement.

 

16.3 Reinstatement

If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored on insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 16 will continue or be reinstated as if the discharge, release or arrangement had not occurred.

 

16.4 Waiver of defences

The obligations of each Guarantor under this Clause will not be affected by any act, omission or thing which, but for this provision, would reduce, release or prejudice any of its obligations under this Clause (whether or not known to it or any Finance Party). This includes:

 

(a) any time or waiver granted to, or composition with, any person;

 

(b) any release of any person under the terms of any composition or arrangement;

 

(c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any person;

 

(d) any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

(e) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any person;

 

(f) any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of a Finance Document or any other document or security, including without limitation, any change in the purpose of, any extension of or increase in any facility or the addition of any new facility under any Finance Document or other document or security;

 

(g) any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Finance Document or any other document or security; or

 

(h) any insolvency or similar proceeding relating to any Obligor.

 

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16.5 Guarantor intent

Without prejudice to the generality of Clause 16.4 ( Waiver of defences), each Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.

 

16.6 Immediate recourse

Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person before claiming from that Guarantor under this Clause.

 

16.7 Appropriations

Until all amounts which may be or become payable by the Obligors under the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may without affecting the liability of any Guarantor under this Clause:

 

(a) refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts; or

 

(b) apply and enforce them in such manner and order as it sees fit (whether against those amounts or otherwise); and

 

(c) hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of that Guarantor’s liability under this Clause.

 

16.8 Non-competition

Unless:

 

(a) all amounts which may be or become payable by the Obligors under the Finance Documents have been irrevocably paid in full; or

 

(b) the Facility Agent otherwise directs,

no Guarantor will, after a claim has been made or by virtue of any payment or performance by it under this Clause:

 

  (i) be subrogated to any rights, security or moneys held, received or receivable by any Finance Party (or any trustee or agent on its behalf);

 

  (ii) be entitled to any right of contribution or indemnity in respect of any payment made or moneys received on account of that Guarantor’s liability under this Clause;

 

  (iii) claim, rank, prove or vote as a creditor of any Obligor or its estate in competition with any Finance Party (or any trustee or agent on its behalf); or

 

  (iv) receive, claim or have the benefit of any payment, distribution or security from or on account of any Obligor, or exercise any right of set-off as against any Obligor.

 

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Each Guarantor must hold in trust for and immediately pay or transfer to the Facility Agent for the Finance Parties any payment or distribution or benefit of security received by it contrary to this Clause or in accordance with any directions given by the Facility Agent under this Clause.

 

16.9 Additional security

This guarantee is in addition to and is not in any way prejudiced by any other security now or subsequently held by any Finance Party.

 

17. REPRESENTATIONS

 

17.1 Representations

The representations set out in Clauses 17.2 (Status) to 17.14 (Sanctions) are made by each Obligor or (if it so states) the Company to each Finance Party.

 

17.2 Status

 

(a) It is a limited liability company, duly incorporated and validly existing under the laws of its jurisdiction of incorporation.

 

(b) It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

 

17.3 Powers and authority

It has the power to enter into and perform, and has taken all necessary corporate action to authorise the entry into and performance of, the Finance Documents to which it is or will be a party.

 

17.4 Legal validity

Subject to any general principles of law limiting its obligations and referred to in any legal opinion required under this Agreement, each Finance Document to which it is a party is its legally binding, valid and enforceable obligation.

 

17.5 Non conflict

The entry into and performance by it of the Finance Documents do not conflict with:

 

(a) any law or regulation applicable to it; or

 

(b) its constitutional documents; or

 

(c) at the date of this Agreement, any document which is binding upon it or any of its Material Subsidiaries or any of its or its Material Subsidiaries’ assets.

 

17.6 No default

 

(a) No Event of Default is outstanding or will result from the execution of, or the performance of any transaction contemplated by, any Finance Document.

 

(b) No other event is outstanding which constitutes a default under any document which is binding on it or any of its Subsidiaries or any of its or its Subsidiaries’ assets to an extent or in a manner which is reasonably likely to have a Material Adverse Effect.

 

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17.7 Authorisations

All authorisations required by it in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, the Finance Documents have been or will have been by the date of delivery of the first Request, obtained or effected (as appropriate) and are, or will be by the date of delivery of the first Request, in full force and effect.

 

17.8 Financial statements

In the case of each Obligor which has provided audited consolidated financial statements pursuant to Clause 18.1 ( Financial statements), those financial statements most recently delivered to the Facility Agent (which, at the date of this Agreement, are the Original Financial Statements):

 

(a) have been prepared in accordance with accounting principles and practices generally accepted in its jurisdiction of incorporation, consistently applied; and

 

(b) give a true and fair view of its consolidated financial condition as at the date to which they were drawn up,

except, in each case, as disclosed to the contrary in those financial statements.

 

17.9 No material adverse change

In the case of the Company only, as at the date of this Agreement, there has been no material adverse change in its consolidated financial condition since the date to which the Original Financial Statements were drawn up which is likely to have a Material Adverse Effect.

 

17.10  Litigation

No litigation, arbitration or administrative proceedings are current or, to its knowledge, pending or threatened in writing, which are reasonably likely to have a Material Adverse Effect.

 

17.11  Information

 

(a) All material factual information supplied by the Company to any Finance Party in writing was accurate in all material respects as at the date to which it was prepared.

 

(b) As at its date and to the best of its knowledge, the opinions, projections and forecasts supplied by the Company to any Finance Party and the assumptions on which they were based were arrived at after due and careful consideration and genuinely represented its views.

 

(c) To the best of its knowledge there are no material facts or circumstances which have not been disclosed to the parties to this Agreement by the Company prior to the date of this Agreement and which would make any of the information, opinions, projections, forecasts or assumptions supplied by the Company inaccurate or misleading in any material respect.

 

17.12  ERISA

No ERISA Events have occurred with respect to any Obligor or any of its ERISA Affiliates, except as would not reasonably be likely to have a Material Adverse Effect.

 

17.13  Margin Stock

 

(a) No part of any Loan, or any proceeds of any extension of credit hereunder, will be used immediately, directly, indirectly, incidentally or ultimately for any purpose that entails a violation (including on the part of any Finance Party) of, or that is inconsistent with, the provisions of the Margin Regulations.

 

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(b) After applying the proceeds of any Loan or other extension of credit hereunder, not more than 25 per cent. of the value of the assets (as determined by the Company using reasonable methods within the purview of the Margin Regulations) of the Company and its Subsidiaries that are subject to the provisions of Clause 8.4 ( Mandatory prepayment – Class 1 disposals ), Clause 20.7 ( Negative pledge ) or Clause 20.8 ( Disposals ), or otherwise subject to any similar restriction contained in any agreement or instrument between a Borrower and a Lender, or any Affiliate of any Lender relating to Financial Indebtedness, consists of Margin Stock.

 

17.14  Sanctions

None of the Obligors, any Subsidiary thereof or any of their respective directors or officers is a Sanctioned Person.

 

17.15  Times for making representations

 

(a) The representations set out in this Clause are made on the date of this Agreement.

 

(b) The representations in Clauses 17.2 ( Status ) to 17.5(b) ( Non-conflict ) (inclusive), 17.6 ( No default ) to 17.8 ( Financial Statements ) (inclusive) and 17.12 ( ERISA ) (together, the Term Representations ) and Clause 17.13 ( Margin Stock ) are deemed to be repeated by:

 

  (i) each Additional Obligor and the Company on the date that Additional Obligor becomes an Obligor; and

 

  (ii) each Obligor:

 

  (A) on the date of each Request and on each Utilisation Date; and

 

  (B) in respect of the Term Representations, on the first day of each Term of a Loan.

 

(c) When a representation is repeated, it is applied to the circumstances existing at the time of repetition.

 

18. INFORMATION COVENANTS

 

18.1 Financial statements

 

(a) The Company must supply to the Facility Agent in sufficient copies for all the Lenders:

 

  (i) its audited consolidated financial statements for each of its financial years;

 

  (ii) if required to be produced by applicable law, the audited financial statements of each Obligor for each of its financial years; and

 

  (iii) its interim consolidated financial statements for the first half year of each of its financial years.

 

(b) All financial statements must be supplied to the Facility Agent at the same time as they are dispatched by the Company to its shareholders following the end of the relevant financial period.

 

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18.2 Compliance Certificate

 

(a) The Company must supply to the Facility Agent a Compliance Certificate:

 

  (i) in the case of the Company’s audited consolidated financial statements, within 180 days; and

 

  (ii) in the case of the Company’s interim consolidated financial statements, within 120 days

of the end of the relevant financial period.

 

(b) A Compliance Certificate is a certificate substantially in the form of Schedule 7 ( Form of Compliance Certificate ) setting out, among other things, calculations of the financial covenants.

 

(c) A Compliance Certificate must be signed by two authorised signatories of the Company.

 

18.3 Form of financial statements

 

(a) The Company must ensure that each set of financial statements supplied under this Agreement fairly represents the relevant Obligor’s financial condition (consolidated or otherwise) as at the date to which those financial statements were drawn up.

 

(b) The Company must notify the Facility Agent of any material change to the basis on which its audited consolidated financial statements are prepared.

 

(c) If requested by the Facility Agent, the Company must supply to the Facility Agent:

 

  (i) a full description of any change notified under paragraph (b) above; and

 

  (ii) sufficient information to enable the Finance Parties to make a proper comparison between the financial position shown by the set of financial statements prepared on the changed basis and its most recent audited consolidated financial statements delivered to the Facility Agent under this Agreement in so far as it impacts the financial covenants under Clause 19 ( Financial Covenants ).

 

(d) If requested by the Facility Agent, the Company must enter into discussions for a period of not more than 30 days with a view to agreeing any amendments required to be made to this Agreement to place the Company and the Lenders in the same position as they would have been in if the change had not happened. Any agreement between the Company and the Facility Agent will be, with the prior consent of the Majority Lenders, binding on all the Parties.

 

(e) If no agreement is reached under paragraph (d) above on the required amendments to this Agreement, the Company must ensure that its auditors certify those amendments which would be necessary to place the Company and the Lenders in the same position as they would have been in if the change had not happened; the certificate of the auditors will be, in the absence of manifest error, binding on all the Parties and the certified amendments shall be deemed to be incorporated into this Agreement.

 

18.4 Information – miscellaneous

The Company must supply to the Facility Agent:

 

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(a) copies of all documents despatched by the Company to its shareholders (or any class of them) or its creditors generally at the same time as they are despatched;

 

(b) promptly upon becoming aware of them, details of any litigation, arbitration or administrative proceedings which:

 

  (i) are current, threatened in writing or pending;

 

  (ii) are reasonably likely to be adversely determined; and

 

  (iii) would, if adversely determined, have a Material Adverse Effect;

 

(c) promptly on request, a list of the then current Material Subsidiaries; and

 

(d) as soon as reasonably practicable (but in any case by no later than two Business Days) after the Closing Date, a written notice that the Closing Date has occurred.

18.5 Use of websites

 

(a) The Company may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the Website Lenders ) who accept this method of communication by posting this information onto an electronic website designated by the Company and the Facility Agent (the Designated Website ) if:

 

  (i) the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

 

  (ii) both the Company and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and

 

  (iii) the information is in a format previously agreed between the Company and the Facility Agent.

If any Lender (a Paper Form Lender ) does not agree to the delivery of information electronically then the Facility Agent shall notify the Company accordingly and the Company shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Company shall supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.

 

(b) The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Company and the Facility Agent.

 

(c) The Company shall promptly upon becoming aware of its occurrence notify the Facility Agent if:

 

  (i) the Designated Website cannot be accessed due to technical failure;

 

  (ii) the password specifications for the Designated Website change;

 

  (iii) any new information which is required to be provided under this Agreement is posted onto the Designated Website;

 

  (iv) any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

 

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  (v) the Company becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

If the Company notifies the Facility Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Company under this Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

 

(d) Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Company shall comply with any such request within ten Business Days.

 

18.6 “Know Your Customer” checks

 

(a) The Company shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Facility Agent, such Lender or any prospective new Lender to carry out and be satisfied with the results of all necessary “know your customer” or other checks in relation to any person that it is required to carry out pursuant to the transactions contemplated in the Finance Documents.

 

(b) Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied with the result of all necessary “know your customer” or other checks in relation to any person that it is required to carry out pursuant to the transactions contemplated in the Finance Documents.

 

18.7 Notification of Default

Unless the Facility Agent has already been so notified by another Obligor, each Obligor must notify the Facility Agent of any Event of Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.

 

19. FINANCIAL COVENANTS

 

19.1 Definitions

In this Clause:

Consolidated Cash and Cash Equivalents means, at any time, the aggregate of the following:

 

(a) cash in hand or on deposit with any Acceptable Bank, which, in either case, is not subject to any security interest and is readily remittable to the U.K. or capable of being applied against Consolidated Total Borrowings;

 

(b) certificates of deposit, maturing within one year after the relevant date of calculation, issued by an Acceptable Bank;

 

(c) any investment in marketable obligations issued or guaranteed by the government of the United States of America or the U.K. or by an instrumentality or agency of the government of the United States of America or the U.K. having an equivalent credit rating;

 

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(d) any investment in debt instruments permitting cash withdrawals on not more than one month’s notice and which have a rating of A or higher by Standard and Poor’s or Fitch or A2 or higher by Moody’s;

 

(e) open market commercial paper:

 

  (i) for which a recognised trading market exists;

 

  (ii) issued in the United States of America or the U.K.;

 

  (iii) which matures within one year after the relevant date of calculation; and

 

  (iv) which has a credit rating of either A-1 by Standard & Poor’s or Fitch or P-1 by Moody’s, or, if no rating is available in respect of the commercial paper or indebtedness, the issuer of which has, in respect of its long term debt obligations, an equivalent rating;

 

(f) debt securities eligible for rediscount at the Bank of England and accepted by an Acceptable Bank;

 

(g) any cash deposited as collateral against any Consolidated Total Borrowings up to the maximum amount of those Consolidated Total Borrowings; or

 

(h) any other instrument, security or investment approved by the Majority Lenders,

in each case, to which any member of the Group is beneficially entitled at that time and which is capable of being applied against Consolidated Total Borrowings.

Any amount outstanding in a currency other than U.S. Dollars is to be taken into account at its U.S. Dollar equivalent calculated on the basis of:

 

  (i) the Agent’s Dollar Rate of Exchange; or

 

  (ii) if the amount is to be calculated on the last day of a financial period of the Company, the rate of exchange used by the Company in its financial statements for that last day of the financial period. However, if by using this rate the Company does not comply with any term of this Clause 19, the Company may apply the average rate of exchange used by the Company in its financial statements for that period instead.

Consolidated EBITA means Consolidated EBITDA for a Measurement Period adjusted by deducting depreciation.

Consolidated EBITDA means the consolidated net pre-taxation profits of the Group for a Measurement Period, adjusted by:

 

(a) adding back Consolidated Net Interest Payable;

 

(b) adding back any other finance costs included in consolidated net pre-taxation profits;

 

(c) taking no account of any exceptional or extraordinary item;

 

(d) adding back the profit and loss effect of any adjustment to the carrying value of inventory or any other asset or liability arising from purchase accounting adjustments, to the extent that any such adjustment (in whole or part) is included in consolidated net pre-taxation profits;

 

(e) adding back depreciation and amortisation;

 

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(f) adding back any charges in respect of share based payments; and

 

(g) including the EBITDA (calculated on the same basis as Consolidated EBITDA, mutatis mutandis ) of any member of the Group treated as held for sale.

Consolidated Interest Payable means all interest and recurring financing charges including acceptance commission, commitment fees (but excluding for the avoidance of doubt any one-off or up-front fees), the interest element of rental payments on finance or capital leases (whether, in each case, paid or payable) and any other finance costs having the nature of interest included in consolidated pre-taxation profits, incurred by the Group in effecting, servicing or maintaining Consolidated Total Borrowings during a Measurement Period, after taking into account any amount relating to the current Measurement Period in respect of any interest rate hedging transactions in respect of the Consolidated Total Borrowings whether or not designated as IAS 39 hedges.

Consolidated Net Interest Payable means Consolidated Interest Payable less all interest and financing charges received or receivable by the Group during the relevant Measurement Period.

Consolidated Total Borrowings means, in respect of the Group, at any time the aggregate of the following:

 

(a) the outstanding principal amount of any moneys borrowed;

 

(b) the outstanding principal amount of any acceptance under any acceptance credit;

 

(c) the outstanding principal amount of any bond, note, debenture, loan stock or other similar instrument;

 

(d) the capitalised element of indebtedness under a finance or capital lease as defined in accordance with accounting principles applied in preparation of the Original Financial Statements;

 

(e) the outstanding principal amount of all moneys owing in connection with the sale or discounting of receivables (otherwise than on a non recourse basis);

 

(f) the outstanding principal amount of any indebtedness arising from any deferred payment agreements arranged primarily as a method of raising finance or financing the acquisition of an asset;

 

(g) any fixed or minimum premium due and payable on the repayment or redemption of any instrument referred to in paragraph (c) above;

 

(h) the outstanding principal amount of any indebtedness arising in connection with any other transaction (including any forward sale or purchase agreement) which has the commercial effect of a borrowing;

 

(i) the outstanding principal amount of any indebtedness of any person who is not a member of the Group of a type referred to in paragraphs (a) to (h) above which is the subject of a guarantee, indemnity or similar assurances against financial loss provided by a member of the Group; and

 

(j) the value of any assets or liabilities arising from the mark-to-market valuation of any derivative financial instruments in respect of currency hedging on Consolidated Total Borrowings which gives rise to balance sheet assets or liabilities.

 

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Any amount outstanding in a currency other than U.S. Dollars is to be taken into account at its U.S. Dollar equivalent calculated on the basis of:

 

  (i) the Agent’s Dollar Rate of Exchange; or

 

  (ii) if the amount is to be calculated on the last day of a financial period of the Company, the rate of exchange used by the Company in its financial statements for that last day of the financial period. However, if by using this rate the Company does not comply with any term of this Clause 19, the Company may apply the average rate of exchange used by the Company in its financial statements for that period instead.

Consolidated Total Net Borrowings means at any time Consolidated Total Borrowings less Consolidated Cash and Cash Equivalents.

Measurement Period means a period of 12 months ending on a Testing Date.

Testing Date means the last day of a financial year or financial half year of the Company.

19.2 Interpretation

 

(a) Except as provided to the contrary in this Agreement, an accounting definition used in this Clause is to be construed in accordance with the accounting principles applied in accordance with the Original Financial Statements.

 

(b) No item shall be credited or deducted more than once in any calculation under this Clause.

 

(c) For the purpose of calculation of ‘Gearing’ pursuant to Clause 19.3 ( Gearing ) only:

 

  (i) there shall be included in determining Consolidated EBITDA for any Measurement Period (including that portion thereof occurring prior to the relevant acquisition) the EBITDA (calculated on the same basis as Consolidated EBITDA, mutatis mutandis) of any material person, property, business or fixed asset acquired by any member of the Group during such Measurement Period as if they were acquired as of the first day of that Measurement Period; and

 

  (ii) there shall be excluded in determining Consolidated EBITDA for any Measurement Period the EBITDA (calculated on the same basis as Consolidated EBITDA, mutatis mutandis) of any material person, property, business or fixed asset sold by any member of the Group during such Measurement Period (including that portion thereof occurring prior to the relevant disposal) as if they were disposed of as of the first day of that Measurement Period.

For the avoidance of doubt, there shall be no corresponding adjustments to Consolidated EBITA for the purposes of calculating ‘Interest Cover’ pursuant to Clause 19.4 ( Interest Cover) .

 

19.3 Gearing

The Company must ensure that the ratio of Consolidated Total Net Borrowings (as at each Testing Date) to Consolidated EBITDA (for the Measurement Period ending on that Testing Date) is not more than 3:1.

 

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19.4 Interest cover

The Company must ensure that on each Testing Date the ratio of Consolidated EBITA to Consolidated Net Interest Payable for the Measurement Period ending on that Testing Date is not less than 3:1.

 

20. GENERAL COVENANTS

 

20.1 General

Each Obligor agrees to be bound by the covenants set out in this Clause relating to it and, where the covenant is expressed to apply to each member or to specified members of the Group, each Obligor must ensure that each of its Subsidiaries to which the covenant relates performs that covenant.

 

20.2 Authorisations

Each Obligor must promptly obtain, maintain and comply with the terms of any authorisation required under any law or regulation to enable it to perform its obligations under, or for the validity or (subject to any general principles of law limiting its obligations and referred to in any legal opinion required under this Agreement) enforceability of, any Finance Document.

 

20.3 Compliance with laws

Each member of the Group must comply in all respects with all laws and regulations to which it is subject where failure to do so is reasonably likely to have a Material Adverse Effect.

 

20.4 Compliance with ERISA

No Obligor shall allow, or permit any of its ERISA Affiliates to allow, any ERISA Event to occur with respect to any Plan to the extent that any ERISA Event, individually or when aggregated with all other ERISA Events, is reasonably likely to have a Material Adverse Effect.

 

20.5 Use of proceeds

No Obligor will request any Utilisation, and no Obligor shall use, and shall procure that its Subsidiaries shall not use, the proceeds of any Utilisation:

 

(a) in furtherance of an offer, payment, promise to pay, or authorisation of the payment or giving of money, or anything else of value, to any person in violation of any Anti-Corruption Laws;

 

(b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country; or

 

(c) in any manner that would result in the violation of any Sanctions applicable to any Party.

 

20.6 Pari passu ranking

Each Obligor must ensure that its payment obligations under the Finance Documents rank at least pari passu with all its other present and future unsecured payment obligations, except for obligations mandatorily preferred by law applying to companies generally.

 

20.7 Negative pledge

 

(a) In this Clause, Security Interest means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest.

 

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(b) Except as provided below, no member of the Group may create or allow to exist any Security Interest on any of its assets.

 

(c) Paragraph (b) does not apply to:

 

  (i) any Security Interest comprising a netting, set off or lien arrangement entered into by a member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;

 

  (ii) any lien arising by operation of law and in the ordinary course of business;

 

  (iii) any Security Interest on an asset, or an asset of any person, acquired by a member of the Group after the date of this Agreement to the extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, or since, the acquisition;

 

  (iv) any Security Interest arising under any contract for the purchase of goods entered into in the normal course of trading;

 

  (v) any Security Interest over goods and products or over the documents of title or insurance policies relating to such goods and products, arising in the ordinary course of trading in connection with letters of credit and similar transactions, provided such Security Interest secures only so much of the acquisition cost or selling price (and amounts incidental thereto) of these goods and products which is required to be paid within 6 months after the date upon which the same was first incurred;

 

  (vi) set-off rights on market standard terms contained in any hedging agreement;

 

  (vii) set-off rights in the ordinary course of trading;

 

  (viii) any Security Interest created in substitution for any of the above Security Interests but only:

 

  (A) if the Security Interest is over the same asset;

 

  (B) if the principal amount secured by that Security Interest does not exceed the principal amount secured by the Security Interest which is replaced; and

 

  (C) if the Security Interest which is replaced was only permitted to be outstanding for a certain period of time, to the extent the new Security Interest is not outstanding for any greater period; and

 

  (ix) any Security Interest securing indebtedness the amount of which (when aggregated with the amount of assets or receivables sold, transferred or disposed of under paragraph (d) below) does not exceed 10 per cent. of the consolidated gross assets of the Group as shown in the most recent audited consolidated financial statements of the Company delivered to the Facility Agent pursuant to Clause 18.1 ( Financial statements) (being as at the date of this Agreement the Original Financial Statements).

 

(d)

No member of the Group may sell, transfer or otherwise dispose of any of its receivables on recourse terms, in circumstances where the transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset unless the amount of assets or receivables sold, transferred or disposed of under this paragraph (including any assets the subject of any such arrangement on the date of this Agreement) (when aggregated

 

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with the amount of indebtedness secured under Clause 20.7(c)(ix) above) does not exceed 10 per cent. of the consolidated gross assets of the Group as shown in the most recent audited consolidated financial statements of the Company delivered to the Facility Agent pursuant to Clause 18.1 ( Financial statements) (being as at the date of this Agreement the Original Financial Statements).

 

20.8 Disposals

 

(a) In this Clause, disposal means a sale, transfer, grant, lease or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly.

 

(b) Except as provided below, the Company will not, and will procure that no Subsidiary will, either in a single transaction or in a series of transactions and whether related or not, dispose of all or any part of its assets.

 

(c) Paragraph (b) does not apply to any disposal:

 

  (i) made in the ordinary course of business of the disposing entity;

 

  (ii) of assets which are exchanged within 180 days for other assets comparable or superior as to type, value and quality;

 

  (iii) by one company in the Group to another company in the Group;

 

  (iv) of machinery or plant at or nearly at the end of their useful life or period of depreciation;

 

  (v) of obsolete equipment owned by a member of the Group no longer required for the purposes of the business carried on by that member of the Group;

 

  (vi) which would not be deemed to be a class 1 transaction under the Listing Rules of the Financial Conduct Authority or which would not require the approval of the shareholders of the Company in general meeting; or

 

  (vii) the net proceeds of which are applied in permanent prepayment and cancellation of Loans.

 

20.9 Financial Indebtedness

 

(a) Except as provided below no member of the Group (other than the Company) may incur any Financial Indebtedness.

 

(b) Paragraph (a) does not apply to:

 

  (i) any Financial Indebtedness of any person acquired by a member of the Group which is incurred under arrangements in existence at the date of acquisition, but only for a period of six months from the date of acquisition;

 

  (ii) any derivative transaction protecting against or benefiting from fluctuations in any rate or price entered into in the ordinary course of business;

 

  (iii) the capital element of any liability under finance or capital leases up to a maximum amount not exceeding U.S.$50,000,000 (or the equivalent in any other currency) or any higher amount which is approved in writing by the Facility Agent acting on the instructions of the Majority Lenders;

 

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  (iv) foreign exchange, interest rate or similar hedging arrangements entered into only for the purposes of managing the interest rate and foreign exchange rates of the Group and not for any speculative purpose or pursuant to any financial trading;

 

  (v) Financial Indebtedness incurred in favour of banks or other financial institutions as a result of netting or set off arrangements entered into by a member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances on accounts maintained with such banks or financial institutions but only to the extent that such Financial Indebtedness does not exceed the amount of such credit balances;

 

  (vi) any Financial Indebtedness due under any Finance Document; or

 

  (vii) any other Financial Indebtedness which in aggregate does not exceed 5 per cent. of consolidated gross assets as shown in the most recent audited consolidated financial statements of the Company.

 

20.10  Change of business

The Company must ensure that there are no substantial changes made to the general nature of the business of the Group, taken as a whole, as exists at the date of this Agreement such that the principal activities of the Group, taken as a whole, are no longer consistent with such business.

 

20.11  Mergers

No Obligor may enter into any amalgamation, demerger, merger or reconstruction otherwise than under an intra Group reorganisation on a solvent basis or other transaction agreed by the Majority Lenders.

 

21. DEFAULT

 

21.1 Events of Default

 

(a) Save for Clause 21.13 ( Acceleration ) and Clause 21.14 ( Clean-Up Period ), each of the events set out in this Clause 21 is an Event of Default.

 

(b) In this Clause 21:

Material Group Member means an Obligor or a Material Subsidiary; and

Permitted Transaction means:

 

  (i) an intra Group reorganisation of a Material Subsidiary on a solvent basis; or

 

  (ii) any other transaction agreed by the Majority Lenders.

21.2 Non payment

An Obligor does not pay on the due date any amount payable by it under the Finance Documents in the manner required under the Finance Documents, unless the non payment:

 

  (a) is caused by administrative or technical error; and

 

  (b) is remedied within three Business Days (in the case of principal amounts due under this Agreement) and within five Business Days (in the case of any other amount due under this Agreement) of its due date.

 

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21.3 Breach of other obligations

 

(a) The Company does not comply with any term of Clause 19 ( Financial covenants) or Clause 20.5 ( Use of proceeds); or

 

(b) an Obligor does not comply with any other term of the Finance Documents not already referred to in this Clause, unless the non compliance:

 

  (i) is capable of remedy; and

 

  (ii) is remedied within twenty Business Days of the earlier of the Facility Agent giving notice and the Obligor becoming aware of the non compliance.

 

21.4 Misrepresentation

A representation made or repeated by an Obligor in any Finance Document or in any document delivered by or on behalf of an Obligor under any Finance Document is incorrect in any material respect when made or deemed to be repeated unless the circumstances giving rise to the misrepresentation:

 

(a) are capable of remedy; and

 

(b) are remedied within twenty Business Days of the earlier of the Facility Agent giving notice and the relevant Obligor becoming aware of the misrepresentation.

 

21.5 Cross default

 

(a) Any of the following occurs in respect of a member of the Group:

 

  (i) any of its Financial Indebtedness is not paid when due (after the expiry of any originally applicable grace period);

 

  (ii) any of its Financial Indebtedness:

 

  (A) becomes prematurely due and payable; or

 

  (B) is placed on demand,

in each case, as a result of an event of default; or

 

  (iii) any commitment for its Financial Indebtedness is cancelled or suspended as a result of an event of default.

 

(b) No Event of Default will occur under this Clause 21.5 if:

 

  (i) the Financial Indebtedness is of any person acquired by a member of the Group which is:

 

  (A) incurred under the arrangements in existence at the date of acquisition; and

 

  (B) the event of default in respect thereof is no longer outstanding after one month from the date of acquisition;

or

 

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  (ii) the aggregate amount of Financial Indebtedness falling within paragraphs (i) to (iii) above is at the time of any determination less than U.S.$30,000,000 or its equivalent.

 

21.6 Insolvency

Any of the following occurs in respect of a Material Group Member:

 

(a) it is or is deemed for the purposes of Section 123 of the Insolvency Act 1986 (but as if the figure of £750 in paragraph (a) was replaced with the figure of U.S.$10,000,000 (or its equivalent)) to be unable to pay its debts as they fall due;

 

(b) it admits its inability to pay its debts as they fall due;

 

(c) it suspends making payments on its debts generally or announces an intention to do so;

 

(d) by reason of actual or anticipated financial difficulties, it begins negotiations with creditors generally or any class of them for the rescheduling of any of its indebtedness; or

 

(e) a moratorium is declared in respect of its indebtedness generally.

 

21.7 Insolvency proceedings

 

(a) Except as provided in paragraph (b) below, any of the following occurs in respect of a Material Group Member:

 

  (i) any step is taken with a view to a composition, assignment or similar arrangement with its creditors generally;

 

  (ii) a meeting of it is convened for the purpose of considering any resolution for or to petition for its winding up, administration or dissolution or any such resolution is passed;

 

  (iii) any person presents a petition for its bankruptcy, winding up, administration or dissolution;

 

  (iv) an order for its winding up, administration or dissolution is made;

 

  (v) any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer is appointed in respect of it;

 

  (vi) its directors or other officers request the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer; or

 

  (vii) any other analogous step or procedure is taken in any jurisdiction.

 

(b) Paragraph (a) does not apply to:

 

  (i) any step or procedure which is part of a Permitted Transaction; or

 

  (ii) a petition for winding-up presented by a creditor which is being contested in good faith and with due diligence and is discharged or struck out within fourteen days.

 

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21.8 Creditors’ process

Any attachment, sequestration, distress, execution or analogous event affects any asset(s) of a Material Group Member, having an aggregate value of U.S.$10,000,000 (or its equivalent), and is not discharged within 21 days or is being contested in good faith to the satisfaction of the Facility Agent acting reasonably.

 

21.9 Cessation of business

A Material Group Member ceases, or threatens to cease, to carry on business except:

 

(a) as part of a Permitted Transaction; or

 

(b) as a result of any disposal allowed under this Agreement.

 

21.10  Ownership

Any Obligor (other than the Company) is not or ceases to be a wholly owned Subsidiary of the Company.

 

21.11  Unlawfulness

It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents.

 

21.12  Repudiation

An Obligor repudiates a Finance Document or purports to repudiate a Finance Document.

 

21.13  Acceleration

If an Event of Default is outstanding, the Facility Agent may, and must if so directed by the Majority Lenders, by notice to the Company:

 

(a) cancel the Total Commitments; and/or

 

(b) declare that all or part of any amounts outstanding under the Finance Documents are:

 

  (i) immediately due and payable; and/or

 

  (ii) payable on demand by the Facility Agent acting on the instructions of the Majority Lenders.

Any notice given under this Clause will take effect in accordance with its terms.

 

21.14  Clean-Up Period

Notwithstanding any other provision of any Finance Documents:

 

(a) any breach of a Clean-Up Representation or a Clean-Up Undertaking; or

 

(b) any Event of Default constituting a Clean-Up Default,

will be deemed not to be a breach of a representation or warranty, a breach of covenant or an Event of Default (as the case may be) for the purposes of this Agreement including, without limitation, Clause 4.2 ( Further conditions precedent), if:

 

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  (i) it would have been (if it were not for this provision) a breach of representation or warranty, or a breach of covenant or an Event of Default only by reason of circumstances relating exclusively to any member of the Target Group (or any obligation to procure or ensure in relation to a member of the Target Group);

 

  (ii) it is capable of remedy and reasonable steps are being taken to remedy it;

 

  (iii) the circumstances giving rise to it have not been procured by or approved by any Obligor that is an Obligor at the date of this Agreement; and

 

  (iv) it is not reasonably likely to have a Material Adverse Effect.

If the relevant circumstances are continuing on or after the Clean-Up Date, there shall be a breach of representation or warranty, breach of covenant or Event of Default, as the case may be, notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).

 

22. THE ADMINISTRATIVE PARTIES

 

22.1 Appointment and duties of the Facility Agent

 

(a) Each Finance Party (other than the Facility Agent) irrevocably appoints the Facility Agent to act as its agent under the Finance Documents.

 

(b) Each Finance Party irrevocably authorises the Facility Agent to:

 

  (i) perform the duties and to exercise the rights, powers and discretions that are specifically given to it under the Finance Documents, together with any other incidental rights, powers and discretions; and

 

  (ii) execute each Finance Document expressed to be executed by the Facility Agent.

 

(c) The Facility Agent has only those duties which are expressly specified in the Finance Documents. Those duties are solely of a mechanical and administrative nature.

 

22.2 Role of the Mandated Lead Arrangers

Except as specifically provided in the Finance Documents, no Mandated Lead Arranger has any obligations of any kind to any other Party in connection with any Finance Document.

 

22.3 No fiduciary duties

Except as specifically provided in a Finance Document, nothing in the Finance Documents makes an Administrative Party a trustee or fiduciary for any other Party or any other person. No Administrative Party need hold in trust any moneys paid to it for a Party or be liable to account for interest on those moneys received by it for its own account.

 

22.4 Individual position of an Administrative Party

 

(a) If it is also a Lender, each Administrative Party has the same rights and powers under the Finance Documents as any other Lender and may exercise those rights and powers as though it were not an Administrative Party.

 

(b) Each Administrative Party may:

 

  (i) carry on any business with any Obligor or its related entities (including acting as an agent or a trustee for any other financing); and

 

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  (ii) retain any profits or remuneration it receives under the Finance Documents or in relation to any other business it carries on with any Obligor or its related entities.

 

22.5 Reliance, rights and discretions of the Facility Agent

 

(a) The Facility Agent may:

 

  (i) rely on any notice or document believed by it to be genuine and correct and to have been signed by, or with the authority of, the proper person;

 

  (ii) rely on any statement made by any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify;

 

  (iii) engage, pay for and rely on professional advisers selected by it (including those representing a Party other than the Facility Agent);

 

  (iv) act under the Finance Documents through its personnel and agents;

 

  (v) disclose to any other Party information it reasonably believes it has received as agent under this Agreement;

 

  (vi) disclose the identity of a Defaulting Lender to the other Finance Parties and the Company and shall disclose the same upon the written request of the Company or the Majority Lenders; and

 

  (vii) not disclose to any Finance Party any details of the rate notified to the Facility Agent by any Lender or the identity of any such Lender for the purpose of paragraph (a)(ii) of Clause 11.2 ( Market disruption) .

 

(b) Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Mandated Lead Arrangers are obliged to do or omit to do anything if it would or might in their reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.

 

22.6 Majority Lenders’ instructions

 

(a) The Facility Agent is fully protected if it acts on the instructions of the Majority Lenders in the exercise of any right, power or discretion or any matter not expressly provided for in the Finance Documents. Any such instructions given by the Majority Lenders will be binding on all the Lenders. In the absence of instructions, the Facility Agent may act as it considers to be in the best interests of all the Lenders.

 

(b) The Facility Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings in connection with any Finance Document.

 

(c) The Facility Agent may require the receipt of security satisfactory to it, whether by way of payment in advance or otherwise, against any liability or loss which it may incur in complying with the instructions of the Majority Lenders.

 

22.7 Responsibility

 

(a) No Administrative Party is responsible to any other Finance Party for the adequacy, accuracy or completeness of:

 

  (i) any Finance Document or any other document; or

 

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  (ii) any statement or information (whether written or oral) made in or supplied in connection with any Finance Document.

 

(b) No Administrative Party is responsible for any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.

 

(c) Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms that it:

 

  (i) has made, and will continue to make, its own independent appraisal of all risks arising under or in connection with the Finance Documents (including the financial condition and affairs of each Obligor and its related entities and the nature and extent of any recourse against any Party or its assets); and

 

  (ii) has not relied exclusively on any information provided to it by any Administrative Party in connection with any Finance Document.

 

22.8 Exclusion of liability

 

(a) The Facility Agent is not liable to any other Finance Party for any action taken or not taken by it in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.

 

(b) No Party (other than the Facility Agent) may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in connection with any Finance Document. Any officer, employee or agent of the Facility Agent may rely on this Clause and enforce its terms under the Contracts (Rights of Third Parties) Act 1999.

 

22.9 Default

 

(a) The Facility Agent is not obliged to monitor or enquire whether a Default has occurred. The Facility Agent is not deemed to have knowledge of the occurrence of a Default.

 

(b) If the Facility Agent:

 

  (i) receives notice from a Party referring to this Agreement, describing a Default and stating that the event is a Default; or

 

  (ii) is aware of the non payment of any principal or interest or any fee payable to a Lender under this Agreement,

it must promptly notify the Lenders.

 

22.10  Information

 

(a) Subject to paragraph (b) below, the Facility Agent must promptly forward to the person concerned the original or a copy of any document which is delivered to the Facility Agent by a Party for that person.

 

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(b) Without prejudice to Clause 28.11 ( Copy of Transfer Certificate or Increase Confirmation to the Company ), paragraph (a) above shall not apply to any Transfer Certificate or Increase Confirmation.

 

(c) Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

 

(d) Except as provided above, the Facility Agent has no duty:

 

  (i) either initially or on a continuing basis to provide any Lender with any credit or other information concerning the risks arising under or in connection with the Finance Documents (including any information relating to the financial condition or affairs of any Obligor or its related entities or the nature or extent of recourse against any Party or its assets) whether coming into its possession before, on or after the date of this Agreement; or

 

  (ii) unless specifically requested to do so by a Lender in accordance with a Finance Document, to request any certificate or other document from any Obligor.

 

(e) In acting as the Facility Agent, the agency division of the Facility Agent is treated as a separate entity from its other divisions and departments. Any information acquired by the Facility Agent which, in its opinion, is acquired by it otherwise than in its capacity as the Facility Agent may be treated as confidential by the Facility Agent and will not be treated as information possessed by the Facility Agent in its capacity as such.

 

(f) Each Obligor irrevocably authorises the Facility Agent to disclose to the other Finance Parties any information which, in its opinion, is received by it in its capacity as the Facility Agent.

 

22.11  Indemnities

 

(a) Without limiting the liability of any Obligor under the Finance Documents, each Lender must indemnify the Facility Agent for that Lender’s Pro Rata Share of any loss or liability incurred by the Facility Agent in acting as the Facility Agent, except to the extent that the loss or liability is caused by the Facility Agent’s gross negligence or wilful misconduct.

 

(b) The Facility Agent may deduct from any amount received by it for a Lender any amount due to the Facility Agent from that Lender under a Finance Document but unpaid.

 

22.12  Compliance

The Facility Agent may refrain from doing anything (including the disclosure of any information) which might, in its opinion, constitute a breach of any law or regulation or be otherwise actionable at the suit of any person, and may do anything which, in its opinion, is necessary or desirable to comply with any law or regulation.

 

22.13  Resignation of the Facility Agent

 

(a) The Facility Agent may resign and appoint any of its Affiliates as successor Facility Agent by giving notice to the Lenders and the Company.

 

(b) Alternatively, the Facility Agent may resign by giving notice to the Lenders and the Company, in which case the Majority Lenders may appoint a successor Facility Agent.

 

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(c) If no successor Facility Agent has been appointed under paragraph (b) above within 30 days after notice of resignation was given, the Facility Agent may appoint a successor Facility Agent.

 

(d) The person(s) appointing a successor Facility Agent must, if practicable, consult with the Company prior to the appointment for a period of not less than 30 days. Any successor Facility Agent must have an office in the U.K.

 

(e) The resignation of the Facility Agent and the appointment of any successor Facility Agent will both become effective only when the successor Facility Agent notifies all the Parties that it accepts its appointment. On giving the notification, the successor Facility Agent will succeed to the position of the Facility Agent and the term Facility Agent will mean the successor Facility Agent.

 

(f) The retiring Facility Agent must, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as the Facility Agent under the Finance Documents.

 

(g) Upon its resignation becoming effective, this Clause will continue to benefit the retiring Facility Agent in respect of any action taken or not taken by it in connection with the Finance Documents while it was the Facility Agent, and, subject to paragraph (f) above, it will have no further obligations under any Finance Document.

 

(h) The Majority Lenders may, by notice to the Facility Agent, require it to resign under paragraph (b) above.

 

(i) The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either:

 

  (i) the Facility Agent fails to respond to a request under Clause 12.8 ( FATCA Information) and the Company or a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

 

  (ii) the information supplied by the Facility Agent pursuant to Clause 12.8 ( FATCA Information) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or

 

  (iii) the Facility Agent notifies the Company and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date,

and (in each case) the Company or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and the Company or that Lender, by notice to the Facility Agent, requires it to resign.

 

22.14  Replacement of the Facility Agent

 

(a) After consultation with the Company, the Majority Lenders may, by giving 30 days’ notice to the Facility Agent (or, at any time the Facility Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the Facility Agent by appointing a successor Facility Agent (acting through an office in the U.K.).

 

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(b) The retiring Facility Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.

 

(c) The appointment of the successor Facility Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Facility Agent. As from this date, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause (and any agency fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be payable on) that date).

 

(d) Any successor Facility Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

 

22.15  Relationship with Lenders

 

(a) Subject to Clause 28.13 ( Pro rata Interest Settlement), the Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility Agent’s principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:

 

  (i) entitled to or liable for any payment due under any Finance Document on that day; and

 

  (ii) entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day, unless it has received not less than five Business Days’ prior notice from that Lender to the contrary in accordance with the terms of this Agreement.

 

(b) The Facility Agent may at any time, and must if requested to do so by the Majority Lenders, convene a meeting of the Lenders.

 

(c) The Facility Agent, acting for this purpose solely as an agent of the Company, must keep a register (the Register) of all the Parties and supply the Company with a copy of the Register on request. The Register will include each Lender’s Facility Office(s) and contact details for the purposes of this Agreement. The Register shall be available for inspection by any Borrower, at any reasonable time and from time to time upon reasonable prior notice. The right to the principal of, and interest on, the Loans may be transferred or assigned only if such transfer or assignment is recorded in the Register.

 

(d) Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 34.5 ( Electronic communication)) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated

 

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  as a notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 34.2 ( Contact details) and paragraph (a)(ii) of Clause 34.5 ( Electronic communication) and the Facility Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.

 

22.16  Notice period

Where this Agreement specifies a minimum period of notice to be given to the Facility Agent, the Facility Agent may, at its discretion, accept a shorter notice period.

 

23. EVIDENCE AND CALCULATIONS

 

23.1 Accounts

Accounts maintained by a Finance Party in connection with this Agreement are prima facie evidence of the matters to which they relate for the purpose of any litigation or arbitration proceedings.

 

23.2 Certificates and determinations

Any certification or determination by a Finance Party of a rate or amount under the Finance Documents will be, in the absence of manifest error, conclusive evidence of the matters to which it relates.

 

23.3 Calculations

Any interest or fee accruing under a Finance Document accrues from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 or 365 days or otherwise, depending on what the Facility Agent determines is market practice.

 

24. FEES

 

24.1 Facility Agent’s fee

The Company must pay to the Facility Agent for its own account an agency fee in the manner agreed in the Fee Letter between the Facility Agent and the Company.

 

24.2 Arrangement fees

The Company must pay to the Mandated Lead Arrangers arrangement fees for their own account in the manner agreed in the Fee Letter between the Facility Agent (for the account of the Mandated Lead Arrangers) and the Company.

 

24.3 Commitment fee

 

(a) The Company must pay to the Facility Agent (for the account of each Lender) a commitment fee computed at the rate of:

 

  (i) 35 per cent. of the Facility A Margin on that Lender’s Facility A Available Commitment; and

 

  (ii) from the date of this Agreement to the date falling two months after the date of the Initial Term Loan Agreement, 25 per cent. of the Facility B Margin on that Lender’s Facility B Available Commitment; and

 

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  (iii) from the date after the date falling two months after the date of the Initial Term Loan Agreement to the end of the Availability Period for Facility B, 35 per cent. of the Facility B Margin on that Lender’s Facility B Available Commitment.

 

(b) Accrued commitment fee is payable quarterly in arrear. Accrued commitment fee is also payable to the Facility Agent for the account of the Lenders on:

 

  (i) the first Utilisation Date;

 

  (ii) the last date of the applicable Availability Period; and

 

  (iii) (for the account of the relevant Lenders only) the date a relevant Lender’s Commitment is cancelled in full.

 

(c) No commitment fee is payable to the Facility Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

 

24.4 Utilisation Fee

 

(a) The Company shall pay to the Facility Agent for distribution to each of the Lenders pro rata to the proportion its Facility A Commitment bears to the Total Facility A Commitments from time to time a utilisation fee computed by reference to the table below:

 

Column 1

Utilisation of Total Facility A Commitments

   Column 2
Fee (per cent. per annum)
 

Less than or equal to 33 1/3 per cent.

     0.10   

Less than or equal to 66 2/3 per cent. but greater than 33 1/3 per cent.

     0.15   

Greater than 66 2/3 per cent.

     0.30   

 

(b) Utilisation fee is payable on the amount of each Lender’s share in the Utilisations.

 

(c) Utilisation fee is calculated and accrues on a daily basis and is payable quarterly in arrear.

 

25. INDEMNITIES AND BREAK COSTS

 

25.1 Currency indemnity

 

(a) The Company shall, as an independent obligation, indemnify each Finance Party against any loss or liability which that Finance Party incurs as a consequence of:

 

  (i) that Finance Party receiving an amount in respect of an Obligor’s liability under the Finance Documents; or

 

  (ii) that liability being converted into a claim, proof, judgment or order,

in a currency other than the currency in which the amount is expressed to be payable under the relevant Finance Document.

 

(b) Unless otherwise required by law, each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency other than that in which it is expressed to be payable.

 

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25.2 Other indemnities

 

(a) The Company must indemnify each Finance Party against any loss or liability which that Finance Party incurs as a consequence of:

 

  (i) the occurrence of any Event of Default;

 

  (ii) any failure by an Obligor to pay any amount due under a Finance Document on its due date, including any resulting from any distribution or redistribution of any amount among the Lenders under this Agreement;

 

  (iii) (other than by reason of negligence or default by that Finance Party) a Loan not being made after a Request has been delivered for that Loan; or

 

  (iv) a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment.

The Company’s liability in each case includes any loss or expense on account of funds borrowed, contracted for or utilised to fund any amount payable under any Finance Document, any amount repaid or prepaid or any Loan.

 

(b) The Company must indemnify the Facility Agent against any loss or liability incurred by the Facility Agent as a result of:

 

  (i) investigating any event which the Facility Agent reasonably believes to be a Default; or

 

  (ii) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.

 

25.3 Break Costs

 

(a) Each Borrower must pay to each Lender its Break Costs.

 

(b) Break Costs are the amount (if any) determined by the relevant Lender by which:

 

  (i) the interest which that Lender would have received for the period from the date of receipt of any part of its share in a Loan or an overdue amount to the last day of the applicable Term for that Loan or overdue amount if the principal or overdue amount received had been paid on the last day of that Term;

exceeds

 

  (ii) the amount which that Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in the appropriate interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Term.

 

(c) Each Lender must supply to the Facility Agent for the relevant Borrower details of the amount of any Break Costs claimed by it under this Clause.

 

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26. EXPENSES

 

26.1 Transaction expenses

The Company must pay to each Administrative Party the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with:

 

(a) the negotiation, preparation, printing, execution and syndication of:

 

  (i) this Agreement and any other documents referred to in this Agreement; and

 

  (ii) any other Finance Documents (other than a Transfer Certificate) executed after the date of this Agreement; and

 

(b) any amendment, waiver or consent requested by or on behalf of any Obligor or specifically allowed by this Agreement.

 

26.2 Enforcement costs

The Company must pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by it in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

 

27. AMENDMENTS AND WAIVERS

 

27.1 Procedure

 

(a) Except as provided in this Clause, any term of the Finance Documents may be amended or waived with the agreement of the Company and the Majority Lenders. The Facility Agent may effect, on behalf of any Finance Party, an amendment or waiver allowed under this Clause.

 

(b) The Facility Agent must promptly notify the other Parties of any amendment or waiver effected by it under paragraph (a) above. Any such amendment or waiver is binding on all the Parties.

 

27.2 Exceptions

 

(a) An amendment or waiver which relates to:

 

  (i) the definition of “Majority Lenders” in Clause 1.1 ( Definitions );

 

  (ii) an extension of the date of payment of any amount to a Lender under the Finance Documents;

 

  (iii) a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fee or other amount payable to a Lender under the Finance Documents;

 

  (iv) an increase in, or an extension of, a Commitment;

 

  (v) a release of an Obligor otherwise than in accordance with Clause 28.7 ( Resignation of an Obligor (other than the Company) ) or as a result of a disposal permitted under Clause 20.8 ( Disposals );

 

  (vi) a term of a Finance Document which expressly requires the consent of each Lender;

 

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  (vii) the right of a Lender to assign or transfer its rights or obligations under the Finance Documents; or

 

  (viii) this Clause,

may only be made with the consent of all the Lenders.

 

(b) An amendment or waiver which relates to the rights or obligations of an Administrative Party may only be made with the consent of that Administrative Party.

 

27.3 Disenfranchisement of Defaulting Lenders

 

(a) For so long as a Defaulting Lender has any Available Commitment, in ascertaining the Majority Lenders or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents, that Defaulting Lender’s Commitments will be reduced by the amount of its Available Commitments and, to the extent that reduction results in that Defaulting Lender’s Total Commitments being zero, that Defaulting Lender shall be deemed not to be a Lender for the purpose of this paragraph (a).

 

(b) If a Defaulting Lender fails to respond to a request for a consent, waiver, amendment or other vote under the Finance Documents or any other vote of the Lenders under the terms of this Agreement within 10 Business Days in relation to consents, waivers, amendments or votes which require Majority Lender consent, and within 15 Business Days in relation to consents, waivers, amendments or votes which require all Lender consent (unless the Company and the Facility Agent agree to a longer time period) of that request being made, its Commitment and/or participation shall not be included for the purpose of calculating the Total Commitments or participations under the Facilities when ascertaining whether any relevant percentage of Total Commitments and/or participations has been obtained to approve that request.

 

(c) For the purposes of this Clause, the Facility Agent may assume that the following Lenders are Defaulting Lenders:

 

  (i) any Lender which has notified the Facility Agent that it has become a Defaulting Lender; and

 

  (ii) any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of Defaulting Lender has occurred,

unless it has received notice to the contrary from the Lender concerned or the Facility Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.

 

27.4 Replacement of a Defaulting Lender

 

(a) The Company may, at any time a Lender has become and continues to be a Defaulting Lender, by giving five Business Days’ prior written notice to the Facility Agent and such Lender:

 

  (i) replace such Lender by requiring such Lender to (and to the extent permitted by law such Lender shall) transfer pursuant to Clause 28 ( Changes to the Parties) all (and not part only) of its rights and obligations under this Agreement; or

 

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  (ii) require such Lender to (and to the extent permitted by law such Lender shall) transfer pursuant to Clause 28 ( Changes to the Parties) all (and not part only) of the undrawn Commitment of the Lender,

to a Lender or other bank, financial institution, trust, fund or other entity (a Replacement Lender) selected by the Company, and which (unless the Facility Agent is an Impaired Agent) is acceptable to the Facility Agent (acting reasonably) and which confirms its willingness to assume and does assume all the obligations or all the relevant obligations of the transferring Lender (including the assumption of the transferring Lender’s participations or unfunded participations (as the case may be) on the same basis as the transferring Lender) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Utilisations and all accrued interest, Break Costs and other amounts payable in relation thereto under the Finance Documents.

 

(b) Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause shall be subject to the following conditions:

 

  (i) the Company shall have no right to replace the Facility Agent;

 

  (ii) neither the Facility Agent nor the Defaulting Lender shall have any obligation to the Company to find a Replacement Lender;

 

  (iii) the transfer must take place no later than 30 days after the notice referred to in paragraph (a) above; and

 

  (iv) in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents.

 

27.5 Change of currency

If a change in any currency of a country occurs (including where there is more than one currency or currency unit recognised at the same time as the lawful currency of a country), this Agreement will be amended to the extent the Facility Agent (acting reasonably and after consultation with the Company) determines is necessary to reflect the change.

 

27.6 Waivers and remedies cumulative

The rights of each Finance Party under the Finance Documents:

 

(a) may be exercised as often as necessary;

 

(b) are cumulative and not exclusive of its rights under the general law; and

 

(c) may be waived only in writing and specifically.

Delay in exercising or non exercise of any right is not a waiver of that right.

 

28. CHANGES TO THE PARTIES

 

28.1 Assignments and transfers by Obligors

No Obligor may assign or transfer any of its rights and obligations under the Finance Documents without the prior consent of all the Lenders.

 

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28.2 Assignments and transfers by Lenders

 

(a) A Lender (the Existing Lender) may, subject to the following provisions of this Clause, at any time assign or transfer (including by way of novation) any of its rights and obligations under this Agreement to another bank or financial institution or to a trust, fund or other entity regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets which:

 

  (i) is a Qualifying Lender, as defined in Clause 12.1 ( General ); and

 

  (ii) other than if an Event of Default has occurred which is outstanding, has a minimum of two credit ratings of either ‘A-’ or higher by Standard & Poor’s, A3 or higher by Moody’s or a comparable rating from a nationally recognised credit rating agency for its longer term debt obligations,

(the New Lender) .

 

(b) A transfer of part of a Commitment must be in a minimum amount of at least U.S.$20,000,000 (or its equivalent) and an integral multiple of U.S.$5,000,000 (or its equivalent).

 

(c) Unless:

 

  (i) an Event of Default has occurred which is outstanding;

 

  (ii) the assignment or transfer is to a lender which is a lender to the Company under the Existing Facility Agreement on the date of this Agreement; or

 

  (iii) the assignment or transfer:

 

  (A) is to take place during primary syndication;

 

  (B) is to another Lender; or

 

  (C) is to an Affiliate of a Lender,

provided that, if such transfer or assignment under paragraph (A), (B) or (C) is to take place prior to:

 

  (I) in relation to Facility A, the Facility A Final Maturity Date; or

 

  (II) in relation to Facility B, the first Utilisation Date of Facility B,

such transferee or assignee has a rating that complies with paragraph (a)(ii) above,

the consent of the Company is required for any assignment or transfer to a New Lender.

 

(d) The consent of the Company given pursuant to paragraph (c) must not be unreasonably withheld or delayed. The Company will be deemed to have given its consent 10 Business Days after the Company is given notice of the request unless it is expressly refused by the Company within that time.

 

(e) A transfer of obligations will be effective only if either:

 

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  (i) the obligations are novated in accordance with the following provisions of this Clause; or

 

  (ii) the New Lender confirms to the Facility Agent and the Company in form and substance satisfactory to the Facility Agent that it is bound by the terms of this Agreement as a Lender. On the transfer becoming effective in this manner the Existing Lender will be released from its obligations under this Agreement to the extent that they are transferred to the New Lender.

 

(f) Unless the Facility Agent otherwise agrees, the New Lender must pay to the Facility Agent for its own account, on or before the date any assignment or transfer occurs, a fee of U.S.$4,000.

 

(g) Any reference in this Agreement to a Lender includes a New Lender but excludes a Lender if no amount is or may be owed to or by it under this Agreement.

 

(h) Each New Lender, by executing the relevant Transfer Certificate, confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.

 

28.3 Procedure for transfer by way of novations

 

(a) A novation is effected if the Existing Lender and the New Lender deliver to the Facility Agent a duly completed Transfer Certificate and the Facility Agent executes it.

 

(b) The Facility Agent must execute as soon as reasonably practicable a Transfer Certificate delivered to it and which appears on its face to be in order.

 

(c) Each Party (other than the Existing Lender and the New Lender) irrevocably authorises the Facility Agent to execute any duly completed Transfer Certificate on its behalf.

 

(d) Subject to Clause 28.13 ( Pro rata interest settlement ), on the Transfer Date:

 

  (i) the New Lender will assume the rights and obligations of the Existing Lender expressed to be the subject of the novation in the Transfer Certificate in substitution for the Existing Lender; and

 

  (ii) the Existing Lender will be released from those obligations and cease to have those rights.

 

28.4 Limitation of responsibility of Existing Lender

 

(a) Unless expressly agreed to the contrary, an Existing Lender is not responsible to a New Lender for the legality, validity, adequacy, accuracy, completeness or performance of:

 

  (i) any Finance Document or any other document; or

 

  (ii) any statement or information (whether written or oral) made in or supplied in connection with any Finance Document,

and any representations or warranties implied by law are excluded.

 

(b) Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

 

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  (i) has made, and will continue to make, its own independent appraisal of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement; and

 

  (ii) has not relied exclusively on any information supplied to it by the Existing Lender in connection with any Finance Document.

 

(c) Nothing in any Finance Document requires an Existing Lender to:

 

  (i) accept a re transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause; or

 

  (ii) support any losses incurred by the New Lender by reason of the non performance by any Obligor of its obligations under any Finance Document or otherwise.

 

28.5 Costs resulting from change of Lender or Facility Office

If:

 

(a) a Lender assigns or transfers any of its rights and obligations under the Finance Documents or changes its Facility Office; and

 

(b) as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to pay a Tax Payment or an Increased Cost,

then the Obligor need only pay that Tax Payment or Increased Cost to the same extent that it would have been obliged to if no assignment, transfer or change had occurred, except that this paragraph shall not apply:

 

  (i) if the assignment, transfer or change is made by a Lender to mitigate any circumstances giving rise to the Tax Payment, Increased Cost or right to be prepaid and/or cancelled by reason of illegality; or

 

  (ii) in respect of a Tax Payment, if a Treaty Lender has included a confirmation that it wished the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with Clause 12.2(g)(ii)(B) ( Tax gross up ) and the Obligor making the Tax Payment has not made a Borrower DTTP Filing.

 

28.6 Additional Obligors

 

(a)

 

  (i) Subject to sub-paragraph (ii) below and compliance with Clause 18.5 (“ Know Your Customer” checks ), the Company may elect for any of its wholly owned Subsidiaries to become an Additional Obligor in respect of Facility A or an Additional Guarantor in respect of Facility B.

 

  (ii) If the Additional Obligor is incorporated in a jurisdiction other than the U.K. the prior consent of all the Lenders is required, which shall be conditional upon, but not limited to, the agreement of appropriate amendments to Clause 12 ( Taxes ) to take into account the jurisdiction of incorporation of that Additional Obligor.

 

(b) If one of the Subsidiaries of the Company is to become an Additional Obligor, then the Company must (following consultation with the Facility Agent) deliver to the Facility Agent the relevant documents and evidence listed in Part C of Schedule 2 (Conditions precedent documents) .

 

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(c) The relevant Subsidiary will become an Additional Obligor when the Facility Agent notifies the other Finance Parties and the Company that it has received (or waived receipt of) all of the documents and evidence referred to in paragraph (b) above in form and substance satisfactory to it. The Facility Agent must give this notification as soon as reasonably practicable.

 

(d) Delivery of an Accession Agreement, executed by the relevant Subsidiary and the Company, to the Facility Agent constitutes confirmation by that Subsidiary and the Company that the Repeating Representations are then correct.

 

(e) Clause 16 ( Guarantee and Indemnity) will be amended to the extent the Facility Agent (acting reasonably and after consultation with the Company) determines is necessary to reflect any requirement under the law of the jurisdiction of any Additional Obligor to limit the guarantee to be provided by that Additional Obligor.

 

28.7 Resignation of an Obligor (other than the Company)

 

(a) In this Clause, Resignation Request means a letter in the form of Schedule 6 ( Form of Resignation Request), with such amendments as the Facility Agent may approve or reasonably require.

 

(b) The Company may request that an Obligor (other than the Company) ceases to be an Obligor by giving to the Facility Agent a duly completed Resignation Request.

 

(c) The Facility Agent must accept a Resignation Request and notify the Company and the Lenders of its acceptance if:

 

  (i) no Default is outstanding or would result from the acceptance of the Resignation Request and the Company confirms this; and

 

  (ii) no amount owed by that Obligor under this Agreement is still outstanding.

 

(d) The Obligor will cease to be a Borrower and/or a Guarantor, as appropriate, when the Facility Agent gives the notification referred to in paragraph (c) above.

 

28.8 Affiliates of Lenders

 

(a) Each Lender may fulfil its obligations in respect of any Loan through an Affiliate if:

 

  (i) the relevant Affiliate is specified in this Agreement as a Lender or becomes a Lender by means of a Transfer Certificate in accordance with this Agreement; and

 

  (ii) the Loans in which that Affiliate will participate are specified in this Agreement, a Transfer Certificate or in a notice given by that Lender to the Facility Agent and the Company.

In this event, the Lender and the Affiliate will participate in Loans in the manner provided for in sub-paragraph (ii) above.

 

(b) If paragraph (a) above applies, the Lender and its Affiliate will be treated as having a single Commitment and a single vote, but, for all other purposes, will be treated as separate Lenders.

 

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28.9 Changes to the Reference Banks

If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the Facility Agent must (with the agreement of the Company) appoint another Lender or an Affiliate of a Lender to replace that Reference Bank.

 

28.10  Replacement of a Lender

 

(a) For the purposes of this Clause, Non-Consenting Lender means a Lender who does not agree to a consent or amendment or who fails to respond to a request for a consent or amendment where:

 

  (i) the Company or the Facility Agent has requested the Lenders to consent to a departure from or waiver of any provision of the Finance Documents or to agree to any amendment to the Finance Documents;

 

  (ii) the relevant consent or amendment requires the agreement of all Lenders;

 

  (iii) a period of not less than 15 Business Days (or such longer period as the Company and the Facility Agent may agree) has elapsed from the date the consent or amendment was requested;

 

  (iv) the Majority Lenders have agreed to that consent or amendment; and

 

  (v) the Company has notified the Lender it will treat it as a Non-Consenting Lender.

 

(b) If at any time any Lender becomes a Non-Consenting Lender, then the Company may, on 10 Business Days’ prior notice to the Facility Agent and that Lender, replace that Lender by causing it to (and that Lender shall) transfer in accordance with this Clause 28 all of its rights and obligations under this Agreement to a Lender or other person selected by the Company and acceptable to the Facility Agent (acting reasonably) for a purchase price equal to the outstanding principal amount of that Lender’s participation in the outstanding Loans and all accrued interest and fees and other amounts payable to that Lender under this Agreement.

 

(c) The Company shall have no right to replace the Facility Agent and neither the Facility Agent nor any Lender shall have any obligation to the Company to find a replacement Lender or other such entity.

 

(d) The Company may only replace a Non-Consenting Lender if that replacement takes place no later than 180 days after the date the Non-Consenting Lender becomes a Non-Consenting Lender.

 

(e) No Lender replaced under this Clause may be required to pay or surrender to that replacement Lender or other entity any of the fees received by it.

 

(f) The Company’s right to replace a Non-Consenting Lender under this Clause is, and shall be, in addition to, and not in lieu of, all other rights and remedies available to the Company against that Non-Consenting Lender under this Agreement, at law, in equity, or by statute.

 

28.11  Copy of Transfer Certificate or Increase Confirmation to the Company

The Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or Increase Confirmation, send to the Company a copy of that Transfer Certificate or Increase Confirmation.

 

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28.12  Security over Lenders’ rights

In addition to the other rights provided to Lenders under this Clause 28, each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create any Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including without limitation:

 

(a) any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank or to governmental authorities, agencies or departments including HM Treasury; and

 

(b) in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued by that Lender as security for those obligations or securities,

except that no such charge, assignment or Security Interest shall:

 

  (i) release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or

 

  (ii) require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.

 

28.13  Pro rata interest settlement

If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a pro rata basis to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 28.3 ( Procedure for transfer by way of novations) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of a Term):

 

(a) any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ( Accrued Amounts ) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Term (or, if the Term is longer than six months, on the next of the dates which falls at six monthly intervals after the first day of that Term); and

 

(b) the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:

 

  (i) when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and

 

  (ii) the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause, have been payable to it on that date, but after deduction of the Accrued Amounts.

 

29. CONFIDENTIALITY

 

29.1 Confidential Information

Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 29.2 ( Disclosure of Confidential Information) and Clause 29.3 ( Disclosure to numbering service providers), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.

 

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29.2 Disclosure of Confidential Information

Any Finance Party may disclose:

 

(a) to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;

 

(b) to any person:

 

  (i) to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person’s Affiliates, Representatives and professional advisers;

 

  (ii) with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person’s Affiliates, Representatives and professional advisers;

 

  (iii) appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause 22.15 ( Relationship with Lenders ));

 

  (iv) who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;

 

  (v) to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;

 

  (vi) to whom or for whose benefit that Finance Party charges, assigns or otherwise creates a Security Interest (or may do so) pursuant to Clause 28.12 ( Security over Lenders’ rights );

 

  (vii) to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;

 

  (viii) who is a Party; or

 

  (ix) with the consent of the Company,

 

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in each case, such Confidential Information as that Finance Party shall consider appropriate if:

 

  (A) in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;

 

  (B) in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;

 

  (C) in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;

 

(c) to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Company and the relevant Finance Party; and

 

(d) to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.

 

29.3 Disclosure to numbering service providers

 

(a) Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facilities and/or one or more Obligors the following information:

 

  (i) names of Obligors;

 

  (ii) country of domicile of Obligors;

 

  (iii) place of incorporation of Obligors;

 

  (iv) date of this Agreement;

 

  (v) the names of the Facility Agent and the Mandated Lead Arrangers;

 

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  (vi) date of each amendment and restatement of this Agreement;

 

  (vii) amount of Total Commitments;

 

  (viii) currencies of Facilities;

 

  (ix) type of Facilities;

 

  (x) ranking of Facilities;

 

  (xi) Final Maturity Date of Facilities;

 

  (xii) changes to any of the information previously supplied pursuant to paragraphs (i) to (xi) above; and

 

  (xiii) such other information agreed between such Finance Party and the Company,

to enable such numbering service provider to provide its usual syndicated loan numbering identification services.

 

(b) The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.

 

29.4 Entire agreement

This Clause 29 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.

 

29.5 Inside information

Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.

 

29.6 Notification of disclosure

Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Company:

 

(a) of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 29.2 ( Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and

 

(b) upon becoming aware that Confidential Information has been disclosed in breach of this Clause 29.

 

29.7 Continuing obligations

The obligations in this Clause 29 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 months from the earlier of:

 

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(a) the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and

 

(b) the date on which such Finance Party otherwise ceases to be a Finance Party.

 

30. SET OFF

Following an Event of Default, a Finance Party may set off any matured obligation owed to it by an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any obligation (whether or not matured) owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set off.

 

31. PRO RATA SHARING

 

31.1 Redistribution

If any amount owing by an Obligor under this Agreement to a Lender (the recovering Lender ) is discharged by payment, set off or any other manner other than through the Facility Agent under this Agreement (a recovery ), then:

 

(a) the recovering Lender must, within three Business Days, supply details of the recovery to the Facility Agent;

 

(b) the Facility Agent must calculate whether the recovery is in excess of the amount which the recovering Lender would have received if the recovery had been received by the Facility Agent under this Agreement; and

 

(c) the recovering Lender must pay to the Facility Agent an amount equal to the excess (the redistribution ).

 

31.2 Effect of redistribution

 

(a) The Facility Agent must treat a redistribution as if it were a payment by the relevant Obligor under this Agreement and distribute it among the Lenders accordingly.

 

(b) When the Facility Agent makes a distribution under paragraph (a) above, the recovering Lender will be subrogated to the rights of the Finance Parties which have shared in that redistribution.

 

(c) If and to the extent that the recovering Lender is not able to rely on any rights of subrogation under paragraph (b) above, the relevant Obligor will owe the recovering Lender a debt which is equal to the redistribution, immediately payable and of the type originally discharged.

 

(d) If:

 

  (i) a recovering Lender must subsequently return a recovery, or an amount measured by reference to a recovery, to an Obligor; and

 

  (ii) the recovering Lender has paid a redistribution in relation to that recovery,

each Finance Party must reimburse the recovering Lender all or the appropriate portion of the redistribution paid to that Finance Party, together with interest for the period while it held there distribution. In this event, the subrogation in paragraph (b) above will operate in reverse to the extent of the reimbursement.

 

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31.3 Exceptions

Notwithstanding any other term of this Clause, a recovering Lender need not pay a redistribution to the extent that:

 

(a) it would not, after the payment, have a valid claim against the relevant Obligor in the amount of the redistribution; or

 

(b) it would be sharing with another Finance Party any amount which the recovering Lender has received or recovered as a result of legal or arbitration proceedings, where:

 

  (i) the recovering Lender notified the Facility Agent of those proceedings; and

 

  (ii) the other Finance Party had an opportunity to participate in those proceedings but did not do so or did not take separate legal or arbitration proceedings as soon as reasonably practicable after receiving notice of them.

 

32. SEVERABILITY

If a term of a Finance Document is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:

 

(a) the legality, validity or enforceability in that jurisdiction of any other term of the Finance Documents; or

 

(b) the legality, validity or enforceability in other jurisdictions of that or any other term of the Finance Documents.

 

33. COUNTERPARTS

Each Finance Document may be executed in any number of counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document. Delivery of a counterpart of a Finance Document by email attachment or telecopy shall be an effective mode of delivery.

 

34. NOTICES

 

34.1 In writing

 

(a) Any formal communication in connection with a Finance Document must be in writing and, unless otherwise stated, may be given in person, by post or fax.

 

(b) Unless it is agreed to the contrary, any consent or agreement required under a Finance Document must be given in writing.

 

34.2 Contact details

 

(a) Except as provided below, the contact details of each Party for all communications in connection with the Finance Documents are those notified by that Party for this purpose to the Facility Agent on or before the date it becomes a Party.

 

(b) The contact details of the Company for this purpose are:

 

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Smith & Nephew PLC

15 Adam Street

London WC2N 6LA

Tel: 0207 401 7646

Fax: 0207 930 3353

For the attention of: The Company Secretary

 

(c) The contact details of the Facility Agent for operational duties as Facility Agent (such as drawdowns, interest rate fixing, interest/fee calculations and payments) are:

The Royal Bank of Scotland plc

1 Hardman Boulevard

Manchester

M3 3AQ

Attention : Lending Operations

Fax Number : 020 3043 6688

E-mail: RBSAgencyOperations@rbs.com

For non operational matters as Facility Agent (such as documentation; compliance with covenants; amendments and waivers etc):

The Royal Bank of Scotland plc

Level 3

Premier Place

2  1 2 Devonshire Square

London

EC2M 4BA

Attention: Jennifer Peters, Syndicated Loans Agency

Telephone : 020 7877 9383

Email : jennifer.peters@rbs.com

Fax Number : 020 7786 5247

 

(d) Any Party may change its contact details by giving five Business Days’ notice to the Facility Agent or (in the case of the Facility Agent) to the other Parties.

 

(e) Where a Party nominates a particular department or officer to receive a communication, a communication will not be effective if it fails to specify that department or officer.

 

34.3 Effectiveness

 

(a) Except as provided below, any communication in connection with a Finance Document will be deemed to be given as follows:

 

  (i) if delivered in person, at the time of delivery;

 

  (ii) if posted, five days after being deposited in the post, postage prepaid, in a correctly addressed envelope; or

 

  (iii) if by fax, when received in legible form.

 

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(b) A communication given under paragraph (a) above but received on a non working day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place.

 

(c) A communication to the Facility Agent will only be effective on actual receipt by it.

 

34.4 Communication when Facility Agent is Impaired Agent

If the Facility Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Facility Agent, communicate with each other directly and (while the Facility Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Facility Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Facility Agent has been appointed unless such replacement Facility Agent becomes an Impaired Agent.

 

34.5 Electronic communication

 

(a) Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication and if those two Parties:

 

  (i) notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and

 

  (ii) notify each other of any change to their address or any other such information supplied by them.

 

(b) Any electronic communication made between those two Parties will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this purpose.

 

(c) Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.

 

34.6 Obligors

 

(a) All communications under the Finance Documents to or from an Obligor must be sent through the Facility Agent.

 

(b) All communications under the Finance Documents to or from an Obligor (other than the Company) must be sent through the Company.

 

(c) Each Obligor (other than the Company) irrevocably appoints the Company to act as its agent:

 

  (i) to give and receive all communications under the Finance Documents;

 

  (ii) to supply all information concerning itself to any Finance Party; and

 

Page 92


  (iii) to sign all documents under or in connection with the Finance Documents including, without limitation and for the avoidance of doubt, any amendments to the Finance Documents, any Request, or notice of a prepayment.

 

(d) Any communication given to the Company in connection with a Finance Document will be deemed to have been given also to the other Obligors.

 

(e) The Facility Agent may assume that any communication made by the Company is made with the consent of each other Obligor.

 

35. LANGUAGE

 

(a) Any notice given in connection with a Finance Document must be in English.

 

(b) Any other document provided in connection with a Finance Document must be:

 

  (i) in English; or

 

  (ii) (unless the Facility Agent otherwise agrees) accompanied by a certified English translation. In this case, the English translation prevails unless the document is a statutory or other official document.

 

36. GOVERNING LAW

This Agreement and any non-contractual obligations arising out of or in connection with this Agreement are governed by English law.

 

37. ENFORCEMENT

 

37.1 Jurisdiction

 

(a) The English courts have exclusive jurisdiction to settle any dispute in connection with any Finance Document or any non-contractual obligations arising out of or in connection with any Finance Document.

 

(b) The English courts are the most appropriate and convenient courts to settle any such dispute and each Obligor waives objection to those courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with any Finance Documents.

 

(c) This Clause is for the benefit of the Finance Parties only. To the extent allowed by law, a Finance Party may take:

 

  (i) proceedings in any other court; and

 

  (ii) concurrent proceedings in any number of jurisdictions.

 

37.2 Service of process

 

(a) Each Obligor (including, for the avoidance of doubt, each Additional Obligor) not incorporated in England and Wales irrevocably appoints the Company as its agent under the Finance Documents for service of process in any proceedings before the English courts (which appointment the Company hereby accepts).

 

(b) If any person appointed as process agent is unable for any reason to act as agent for service of process, the Company (on behalf of all the Obligors) must immediately appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another agent for this purpose.

 

Page 93


(c) Each Obligor agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings.

 

(d) This Clause does not affect any other method of service allowed by law.

THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.

 

Page 94


SCHEDULE 1

ORIGINAL LENDERS

 

Name of Original Lender   

Facility A
Commitment

(U.S.$)

  

Facility B
Commitment

(U.S.$)

   Facility Office    Qualifying Lender
status
   HMRC Double Taxation
Treaty Passport scheme
reference number and
jurisdiction of tax residence
(if applicable)
Barclays Bank PLC    76,923,076.94    114,166,666.65    Barclays Bank PLC    Qualifying Lender (other than a Treaty Lender)   
JPMorgan Chase Bank, N.A.    76,923,076.94    114,166,666.65    JPMorgan Chase Bank, N.A., London Branch    Qualifying Lender (other than a Treaty Lender)   
Bank of America Merrill Lynch International Limited    76,923,076.92    114,166,666.67    Bank of America Merrill Lynch International Limited, 2 King Edward Street, London EC1A 1HQ United Kingdom    Qualifying Lender (other than a Treaty Lender)   
Bank of China Limited, London Branch    76,923,076.92    114,166,666.67    Bank of China Limited, London Branch    Qualifying Lender (other than a Treaty Lender)   
The Bank of Tokyo- Mitsubishi UFJ, Ltd.    76,923,076.92    114,166,666.67    London Branch    Qualifying Lender (other than a Treaty Lender)   
HSBC Bank plc    76,923,076.92    114,166,666.67    HSBC Bank plc, 8 Canada Square, Canary Wharf, London E14 5HQ United Kingdom    Qualifying Lender (other than a Treaty Lender)   

 

Page 95


Name of Original Lender    Facility A
Commitment
(U.S.$)
  

Facility B

Commitment

(U.S.$)

   Facility Office    Qualifying Lender
status
  

HMRC Double Taxation Treaty
Passport scheme

reference number and
jurisdiction of tax residence

(if applicable)

Mizuho Bank, Ltd.    76,923,076.92    114,166,666.67    Mizuho Bank, Ltd.    Qualifying Lender
(other than a
Treaty Lender)
  
National Australia Bank Limited ABN 12 004 044 937    76,923,076.92    114,166,666.67    National Australia Bank
Limited

ABN 12 004 044 937

   Treaty Lender    2/N/11208/DTTP, Australia
The Royal Bank of Scotland plc    76,923,076.92    114,166,666.67    The Royal Bank of Scotland
plc
   Qualifying Lender
(other than a
Treaty Lender)
  
Societe Generale, London Branch    76,923,076.92    114,166,666.67    Societe Generale, London
Branch 41 Tower Hill,
London EC3N 4SG, United
Kingdom
   Qualifying Lender
(other than a
Treaty Lender)
  
Sumitomo Mitsui Banking Corporation    76,923,076.92    114,166,666.67    Sumitomo Mitsui Banking
Corporation
   Treaty Lender    43/S/274647/DTTP, Japan
Wells Fargo Bank International    76,923,076.92    114,166,666.67    Wells Fargo Bank
International,

2 Harbourmaster Place, IFSC,

Dublin 1 Ireland

   Treaty Lender    012/W/035/6771/DTTP,
Ireland
Deutsche Bank AG, London Branch    76,923,076.92    30,000,000.00    Deutsche Bank AG,

London Branch

   Qualifying Lender
(other than a
Treaty Lender)
  
Total    1,000,000,000    1,400,000,000         

 

Page 96


SCHEDULE 2

CONDITIONS PRECEDENT DOCUMENTS

Part A

To Be Delivered Before The First Request

Company

1. A copy of the constitutional documents of the Company.

2. A copy of a resolution of the board of directors (or a committee of the board of directors) of the Company approving the terms of, and the transactions contemplated by, this Agreement.

3. If applicable, a copy of a resolution of the board of directors of the Company establishing the committee referred to in paragraph 2 above.

4. A specimen of the signature of each person authorised on behalf of the Company to execute or witness the execution of any Finance Document or to sign or send any document or notice in connection with any Finance Document.

5. A certificate of an authorised signatory of the Company:

 

(a) confirming that utilising the Total Commitments in full would not breach any borrowing or guaranteeing limit binding on it; and

 

(b) certifying that each copy document specified in Part A of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.

6. A Group structure chart.

Legal opinions

7. A legal opinion of Allen & Overy LLP (legal advisers to the Mandated Lead Arrangers) as to matters of English law, in form and substance satisfactory to the Mandated Lead Arrangers.

Other documents and evidence

8. Duly executed copies of each Fee Letter.

9. Original Financial Statements.

 

10. Evidence that:

 

(a) the loans under the Existing Facility Agreement have been or will be prepaid in full and the commitments of each lender under the Existing Facility Agreement have been or will be cancelled in full on or before the date of this Agreement; and

 

(b) the commitments of each lender under the Initial Term Loan Agreement have been or will be cancelled in full on or before the date of this Agreement.

Part B

To Be Delivered Before The First Request to Utilisation of Facility B

1. A duly executed copy of the Merger Agreement.

 

Page 97


2. A certificate of the Company (signed by an authorised signatory) that:

 

(a) all conditions to the consummation of the Acquisition under the Merger Agreement shall have been, or shall be, satisfied or waived prior to or concurrently with the utilisation of Facility B; and

 

(b) the payment of the aggregate amount of the Merger Consideration (as such term is defined in the Merger Agreement) will be payable in accordance with the terms of the Merger Agreement within five Business Days.

3. A customary legal opinion of Davis Polk & Wardwell LLP (legal advisers to the Company on matters of U.S. law) in form and substance satisfactory to the Mandated Lead Arrangers, with respect to no violation of the Margin Regulations.

Part C

For An Additional Obligor

Additional Obligors

1. An Accession Agreement, duly executed by the Company and the Additional Obligor.

2. A copy of the constitutional documents of the Additional Obligor.

3. A copy of a resolution of the board of directors of the Additional Obligor approving the terms of, and the transactions contemplated by, the Accession Agreement and the Finance Documents.

4. A specimen of the signature of each person authorised on behalf of the Additional Obligor to execute or witness the execution of any Finance Document or to sign or send any document or notice in connection with any Finance Document.

5. In the case of an Additional Guarantor incorporated in the U.K., a copy of a resolution, signed by all (or any lower percentage agreed by the Facility Agent) of the holders of its issued or allotted shares, approving the terms of, and the transactions contemplated by, the Accession Agreement.

6. If applicable, a copy of a resolution of the board of directors of each corporate shareholder in the Additional Guarantor approving the resolution referred to in paragraph 5 above.

7. In the case of an Additional Guarantor incorporated in any jurisdiction other than the U.K., a copy of a resolution of the shareholders of that Additional Guarantor approving the terms of, and the transactions contemplated by, the Accession Agreement and the Finance Documents.

8. A certificate of an authorised signatory of the Additional Obligor:

 

(a) confirming that utilising and/or guaranteeing (as applicable) the Total Commitments in full would not breach any limit binding on it; and

 

(b) certifying that each copy document specified in Part C of this Schedule is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Agreement.

9. If available, a copy of the latest audited accounts of the Additional Obligor.

10. Compliance with Clause 18.5 (“ Know Your Customer” checks )

 

Page 98


Legal opinions

11. A legal opinion of Allen & Overy LLP, legal advisers to the Facility Agent, addressed to the Finance Parties.

12. If the Additional Obligor is incorporated in a jurisdiction other than England or the United States of America (or any state thereof, including the District of Columbia), a legal opinion from legal advisers to the Facility Agent in that jurisdiction, addressed to the Finance Parties.

13. If the Additional Obligor is incorporated or formed in the United States of America (or any state thereof, including the District of Columbia), a legal opinion from legal advisers to the Additional Guarantor in that jurisdiction, addressed to the Finance Parties.

Other documents and evidence

14. A copy of any other authorisation or other document, opinion or assurance which the Facility Agent has notified the Company is necessary in connection with the entry into and performance of, and the transactions contemplated by, the Accession Agreement or for the validity and enforceability of any Finance Document.

 

Page 99


SCHEDULE 3

REQUESTS

Part A

Form of Request

 

To: The Royal Bank of Scotland plc as Facility Agent
From: [BORROWER]
Date: [            ]

Smith & Nephew PLC – U.S.$2,400,000,000 Facilities Agreement dated [•], 2014 (the Agreement )

1. We refer to the Agreement. This is a Request. Terms defined in the Agreement have the same meaning in this Request unless given a different meaning in this Request.

2. We wish to borrow a Loan on the following terms: (a) Utilisation Date: [            ]

 

(b) Facility to be utilised: [            ]

 

(c) Amount/currency: [            ]

 

(d) Term: [            ].

3. Our payment instructions are: [            ].

4. We confirm that each condition precedent under the Agreement which must be satisfied on the date of this Request is so satisfied.

5. [This Loan is to be made in [whole] / [part] for the purpose of refinancing [            ]. The proceeds of this Loan should be credited to [            ].]

6. This Request is irrevocable.

By:

[BORROWER]

 

Page 100


Part B

Form of Selection Notice

 

From: Smith & Nephew PLC
To: The Royal Bank of Scotland plc as Facility Agent
Dated: [            ]

Smith & Nephew PLC – U.S.$2,400,000,000 Facilities Agreement dated [•], 2014 (the Agreement )

1. We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.

2. We refer to the following Facility B Loan[s] with a Term ending on [            ].*

3. [We request that the above Facility B Loan[s] be divided into [            ] Facility B Loans with the following amounts and Terms:]**

or

[We request that the next Term for the above Facility B Loan[s] is [            ]].***

4. This Selection Notice is irrevocable.

Yours faithfully

__________________________

authorised signatory for

Smith & Nephew PLC

 

* Insert details of all Facility B Loans which have a Term ending on the same date.
** Use this option if division of Facility B Loans is requested.
*** Use this option if sub-division is not required.

 

Page 101


SCHEDULE 4

FORM OF TRANSFER CERTIFICATE

 

To: The Royal Bank of Scotland plc as Facility Agent and Smith & Nephew PLC as the Company, for and on behalf of each Obligor
From: [THE EXISTING LENDER] (the Existing Lender ) and [THE NEW LENDER] (the New Lender )
Dated: [            ]

Smith & Nephew PLC – U.S.$2,400,000,000 Facilities Agreement dated [•], 2014 (the Agreement )

1. We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.

2. The Existing Lender transfers by novation to the New Lender the Existing Lender’s rights and obligations referred to in the Schedule below in accordance with the terms of the Agreement.

3. The proposed Transfer Date is [            ].

4. [The New Lender confirms that it is:

 

(a) [not a Qualifying Lender;

 

(b) a Qualifying Lender (other than a Treaty Lender); or

 

(c) a Treaty Lender.] 1

5. [The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

 

(a) a company resident in the United Kingdom for United Kingdom tax purposes;

 

(b) a partnership each member of which is:

 

  (i) a company so resident in the United Kingdom; or

 

  (ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

(c) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.] 2

 

1   Delete as applicable – each New Lender is required to confirm which of these three categories it falls within.
2 Include if New Lender comes within paragraph (i)(B) of the definition of Qualifying Lender in clause 13.1.

 

Page 102


6. [The New Lender hereby confirms that it is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, that its reference number is [            ], that it is tax resident in [ ], and notifies the Company that the relevant Borrower must make an application to HMRC under form DTTP2 within 30 days of the Transfer Date.

7. The administrative details of the New Lender for the purposes of the Agreement are set out in the Schedule.

8. This Transfer Certificate and any non-contractual obligations arising out of or in connection with this Transfer Certificate are governed by English law.

 

Page 103


THE SCHEDULE

Rights and obligations to be transferred by novation

[insert relevant details, including applicable Commitment (or part)]

Administrative details of the New Lender

[insert details of Facility Office, address for notices and payment details etc.]

 

[EXISTING LENDER] [NEW LENDER]
By: By:

The Transfer Date is confirmed by the Facility Agent as [            ].

[FACILITY AGENT]

By:

 

Page 104


SCHEDULE 5

FORM OF ACCESSION AGREEMENT

 

To: The Royal Bank of Scotland plc as Facility Agent
From: Smith & Nephew PLC and [Proposed [Borrower]/[Guarantor]]
Date: [            ]

Smith & Nephew PLC – U.S.$2,400,000,000 Facilities Agreement dated [•], 2014 (the Agreement )

1. We refer to the Agreement. This is an Accession Agreement. Terms defined in the Agreement have the same meaning in this Accession Agreement unless given a different meaning in this Accession Agreement.

2. [Proposed [Borrower]/[Guarantor]]of [address/registered office] agrees to become an Additional [Borrower]/[Guarantor] and to be bound by the terms of the Agreement as an Additional [Borrower]/[Guarantor] pursuant to Clause 28.6 ( Additional Obligors ) of the Agreement.

3. [Proposed [Borrower]/[Guarantor]] is a company duly incorporated under the laws of [name of relevant jurisdiction]. [Proposed [Borrower]/[Guarantor]]’s administrative details are as follows:

Address:

Fax No:

Attention:

4. This Accession Agreement and any non-contractual obligations arising out of or in connection with this Accession Agreement are governed by English law.

Smith & Nephew PLC

By:

[EXECUTED AND DELIVERED AS A DEED BY [PROPOSED [BORROWER]/[GUARANTOR]]

[By:]

 

Page 105


SCHEDULE 6

FORM OF RESIGNATION REQUEST

 

To: The Royal Bank of Scotland plc as Facility Agent
From: Smith & Nephew PLC and [resigning Obligor]
Date: [            ]

Smith & Nephew PLC – U.S.$2,400,000,000 Facilities Agreement dated [•], 2014 (the Agreement )

1. We refer to the Agreement. This is a Resignation Request. Terms defined in the Agreement have the same meaning in this Resignation Request unless given a different meaning in this Resignation Request.

2. Pursuant to Clause 28.7 (Resignation of an Obligor (other than the Company), we request that [resigning Obligor] be released from its obligations as a [Borrower]/[Guarantor] under the Agreement.

3. We confirm that no Default is outstanding or would result from the acceptance of this Resignation Request.

4. We confirm that as at the date of this Resignation Request no amount owed by [resigning Obligor] under the Agreement is outstanding.

5. This Resignation Request and any non-contractual obligations arising out of or in connection with this Resignation Request are governed by English law.

 

Smith & Nephew PLC [RESIGNING OBLIGOR]

 

By: By:

The Facility Agent confirms that this resignation takes effect on [ ].

[FACILITY AGENT]

By:

 

Page 106


SCHEDULE 7

FORM OF COMPLIANCE CERTIFICATE

 

To: The Royal Bank of Scotland plc as Facility Agent
From: Smith & Nephew PLC
Date: [            ]

Smith & Nephew PLC – U.S.$2,400,000,000 Facilities Agreement dated [•], 2014 (the Agreement )

1. We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning in this Compliance Certificate unless given a different meaning in this Compliance Certificate.

2. We confirm that as at [relevant testing date]:

(a) Consolidated EBITDA for the Measurement period then ending was [            ]; and Consolidated Total Net Borrowings are [            ]; therefore, Consolidated Total Net Borrowings are [            ] x Consolidated EBITDA; and

(b) Consolidated EBITA for the Measurement period then ending was [            ] and Consolidated Net Interest Payable was [            ]; therefore, the ratio of Consolidated EBITA to Consolidated Net Interest Payable was [            ] to 1.

3. We set out below calculations establishing the figures in paragraph 2 above: [            ].

4. [We confirm that no Default is outstanding as at [relevant testing date]*

Smith & Nephew PLC

By:

[insert applicable certification language]

 

* If this statement cannot be made, the certificate should identify any Default that is outstanding and the steps, if any, being taken to remedy it.

 

Page 107


SCHEDULE 8

FORM OF INCREASE CONFIRMATION

 

To: The Royal Bank of Scotland plc as Facility Agent and Smith & Nephew PLC as the Company, for and on behalf of each Obligor
From: [the Increase Lender] (the Increase Lender )
Dated: [            ]

Smith & Nephew PLC – U.S.$2,400,000,000 Facilities Agreement dated [•], 2014 (the Agreement )

1. We refer to the Agreement. This is an Increase Confirmation. Terms defined in the Agreement have the same meaning in this Increase Confirmation unless given a different meaning in this Increase Confirmation.

2. We refer to Clause 2.2 ( Increase ).

3. The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule (the Relevant Commitment) as if it was an Original Lender under the Agreement.

4. The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment is to take effect (the Increase Date) is [•].

5. On the Increase Date, the Increase Lender becomes party to the Finance Documents as a Lender.

6. The Facility Office and address, fax number and attention details for notices to the Increase Lender for the purposes of Clause 34.2 ( Contact details) are set out in the Schedule.

7. The Increase Lender expressly acknowledges the limitations on the Lenders’ obligations referred to in paragraph (f) of Clause 2.2 ( Increase ).

8. [The Increase Lender confirms that it is:

 

(a) [not a Qualifying Lender]

 

(b) [a Qualifying Lender (other than a Treaty Lender);]

 

(c) [a Treaty Lender;] 3

9. [The Increase Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

 

(a) a company resident in the United Kingdom for United Kingdom tax purposes;

 

(b) a partnership each member of which is:

 

  (i) a company so resident in the United Kingdom; or

 

3   Delete as applicable — each Increase Lender is required to confirm which of these three categories it falls within.

 

Page 108


  (ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

(c) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.] 4

10. [The Increase Lender hereby confirms that it is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, that its reference number is [            ], that it is tax resident in [ ], and notifies the Company that the relevant Borrower must make an application to HMRC under form DTTP2 within 30 days of the Relevant Increase Date.

11. Each Finance Document may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of a counterpart of a Finance Document by e-mail attachment or telecopy shall be an effective mode of delivery.

12. This Increase Confirmation and any non contractual obligations arising out of or in connection with this Increase Confirmation are governed by English law.

This Increase Confirmation has been entered into on the date stated at the beginning of this Increase Confirmation.

 

4   Include if Increase Lender comes within paragraph (i)(B)of the definition of Qualifying Lender in clause 12.1.

 

Page 109


THE SCHEDULE

Relevant Commitment/rights and obligations to be assumed by the Increase Lender

[ insert relevant details ]

[ Facility office address, fax number and attention details for notices and account details for payments ]

[Increase Lender]

By:

This Increase Confirmation is accepted as an Increase Confirmation for the purposes of the Agreement by the Facility Agent and the Increase Date is confirmed as [•].

[FACILITY AGENT]

By:

 

Page 110


SCHEDULE 9

FORM OF EXTENSION NOTICE

 

From: Smith & Nephew PLC as Company, for and on behalf of each Obligor
To: The Royal Bank of Scotland plc as Facility Agent
Dated: [            ]

Smith & Nephew PLC – U.S.$2,400,000,000 Facilities Agreement dated [•], 2014 (the Agreement )

1. We refer to the Agreement. This is an Extension Notice. Terms defined in the Agreement have the same meaning in this Extension Notice unless given a different meaning in this Extension Notice.

2. We refer to Clause 7.3 ( Extension option) of the Agreement and hereby request the extension of the Facility A Final Maturity Date from [•] to [•].

3. We hereby confirm that, as of the date of this Extension Notice:

 

(a) no Default has occurred and is continuing under the terms of the Agreement; and

 

(b) each of the Term Representations (as defined in Clause 17.15(b) ( Time for making representations)) is true and correct.

4. This Extension Notice is a Finance Document.

5. The proposed date on which the extension of the Agreement is to take effect is [•].

6. This Extension Notice is irrevocable.

Yours faithfully

__________________________

authorised signatory for

Smith & Nephew PLC

 

Page 111


SCHEDULE 10

TIMETABLES

 

    

Loans in U.S. Dollars
or Euro

  

Loans in Sterling

  

Loans in other
currencies

Facility Agent notifies the Company if a currency is approved as an Optional Currency (other than a Committed Currency) in accordance with Clause 6.2 ( Conditions relating to Optional Currencies )          3.00 p.m. on the fifth Business Day from receipt of the Optional Currency request
Delivery of a duly completed Request (Clause 5.1 ( Giving of Requests )) or Selection Notice (Clause 10.1 ( Selection of Terms ))    3.00 p.m. three Business Days before the Utilisation Date    12.00 noon one Business Day before the Utilisation Date    12.00 noon three Business Days before the Utilisation Date
Facility Agent determines (in relation to a Utilisation) the U.S. Dollar amount of the Loan, if required under Clause 6.5 ( Notification ) and notifies the Lenders of the Loan in accordance with Clause 5.4 ( Advance of Loan )    5.00 p.m. three Business Days before the Utilisation Date    5.00 p.m. one Business Day before the Utilisation Date    5.00 p.m. three Business Days before the Utilisation Date
Facility Agent receives a notification from a Lender under Clause 6.3 ( Unavailability of a currency )    9.30 a.m. on the Rate Fixing Day    9.30 a.m. on the Rate Fixing Day    9.30 a.m. on the Rate Fixing Day

Facility Agent gives notice in accordance with Clause 6.3 ( Unavailability of a currency )

  

11.00 a.m. on the Rate Fixing Day

  

11.00 a.m. on the Rate Fixing Day

  

11.00 a.m. on the Rate Fixing Day

LIBOR or EURIBOR is fixed.    Rate Fixing Day as of 11.00 a.m. (Brussels time in the case of EURIBOR)    Rate Fixing Day as of 11.00 a.m.    Rate Fixing Day as of 11.00 a.m.

 

Page 112


SIGNATORIES

 

The Company
SMITH & NEPHEW PLC
/s/ Julie Brown                                                                           /s/ Susan Swabey                                                                 
By: JULIE BROWN By: SUSAN SWABEY
Title: Director Title: Company Secretary


The Mandated Lead Arrangers
BARCLAYS BANK PLC
/s/ John Hogarth                                                                 
By: JOHN HOGARTH
Title: Director
J.P. MORGAN LIMITED
/s/ Jonathan Richards                                                         
By: JONATHAN RICHARDS
Title: Executive Director
BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED
/s/ Stefano Cavalleri                                                      /s/ Anne Gravier                                                             
By: STEFANO CAVALLERI By: ANNE GRAVIER
Title: Director Title: Director
BANK OF CHINA LIMITED, LONDON BRANCH
/s/ Huabin Wang                                                      /s/ Eric Xie                                                     
By: HUABIN WANG By: ERIC XIE
Title: Chief Corporate Banking Officer Title: Head of Corporate Banking

 

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
/s/ Andrew Trenouth                                                                                                                                                       
By: ANDREW TRENOUTH
Title: Deputy General Manager and Managing Director, Corporate Banking Division for EMEA
HSBC BANK PLC
/s/ Guy Jolly                                                                                                                                   
By: GUY JOLLY
Title: Vice-President
MIZUHO BANK, LTD.
/s/ Robert Pettitt                                                                         
By: ROBERT PETTITT
Title: Deputy General Manager
NATIONAL AUSTRALIA BANK LIMITED
ABN 12 004 044 937
/s/ Lyons O’Keeffe                                                                     
By: LYONS O’KEEFFE
Title: Director


The Mandated Lead Arrangers
THE ROYAL BANK OF SCOTLAND PLC
/s/ Jaron Stallard                                                                                 
By: JARON STALLARD
Title: Director, Loan Capital Markets
SOCIETE GENERALE
/s/ Nick Ball                                                                                 
By: NICK BALL
Title: Managing Director
SUMITOMO MITSUI BANKING CORPORATION
/s/ Thierry Muschs                                                              /s/ Nadine Boudart                                                                 
By: THIERRY MUSCHS By: NADINE BOUDART
Title: Deputy General Manager Title: Assistant Manager

 

WELLS FARGO BANK INTERNATIONAL
/s/ Andrew Kyle                                                                  /s/ Frances Gibney                                                                 
By: ANDREW KYLE By: FRANCES GIBNEY
Title: Chief Financial Officer Title: Compliance Manager
DEUTSCHE BANK AG, LONDON BRANCH
/s/ David Garcia-Capel                                                                     
By: DAVID GARCIA-CAPEL
Title: Director


The Original Lenders
BARCLAYS BANK PLC
/s/ John Hogarth                                                                             
By: JOHN HOGARTH
Title: Director
JPMORGAN CHASE BANK, N.A.
/s/ Jonathan Richards                                                                     
By: JONATHAN RICHARDS
Title: Executive Director
BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED
/s/ Stefano Cavalleri                                                                      /s/ Anne Gravier                                                                     
By: STEFANO CAVALLERI By: ANNE GRAVIER
Title: Director Title: Director
BANK OF CHINA LIMITED, LONDON BRANCH
/s/ Huabin Wang                                                                          /s/ Eric Xie                                                                             
By: HUABIN WANG By: ERIC XIE
Title: Chief Corporate Banking Officer Title: Head of Corporate Banking
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
/s/ Andrew Trenouth                                                                                                                                               
By: ANDREW TRENOUTH
Title: Deputy General Manager and Managing Director, Corporate Banking Division for EMEA

 

HSBC BANK PLC
/s/ Guy Jolly                                                                                              
By: GUY JOLLY
Title: Vice-President
MIZUHO BANK, LTD.
/s/ Robert Pettitt                                                                                      
By: ROBERT PETTITT
Title: Deputy General Manager
NATIONAL AUSTRALIA BANK LIMITED
ABN 12 004 044 937
/s/ Lyons O’Keeffe                                                                                 
By: LYONS O’KEEFFE
Title: Director


The Original Lenders
THE ROYAL BANK OF SCOTLAND PLC
/ s/ Jaron Stallard                                                                             
By: JARON STALLARD
Title: Director, Loan Capital Markets
SOCIETE GENERALE, LONDON BRANCH
/s/ Nick Ball                                                                                      
By: NICK BALL
Title: Managing Director
SUMITOMO MITSUI BANKING CORPORATION
/s/ Thierry Muschs                                                                              /s/ Nadine Boudart                                                                     
By: THIERRY MUSCHS By: NADINE BOUDART
Title: Deputy General Manager Title: Assistant Manager
WELLS FARGO BANK INTERNATIONAL
/s/ Andrew Kyle                                                                                  /s/ Frances Gibney                                                                     
By: ANDREW KYLE By: FRANCES GIBNEY
Title: Chief Financial Officer Title: Compliance Manager

 

DEUTSCHE BANK AG, LONDON BRANCH
/s/ Karen Arzumanyan                                                                      /s/ David Garcia-Capel                                                             
By: KAREN ARZUMANYAN By: DAVID GARCIA-CAPEL
Title: Vice President Title: Director


The Facility Agent
THE ROYAL BANK OF SCOTLAND PLC
/s/ Jaron Stallard                                                                                          
By: JARON STALLARD
Title: Director, Loan Capital Markets

Exhibit 4 (a) (iv)

EXECUTION VERSION

 

 

 

NOTE PURCHASE AGREEMENT

Dated as of November 19, 2014

SMITH & NEPHEW PLC

$80,000,000 2.47% Series A Senior Notes due November 19, 2019

$45,000,000 Floating Rate Series B Senior Notes due November 19, 2019

$190,000,000 2.97% Series C Senior Notes due November 19, 2021

$50,000,000 3.15% Series D Senior Notes due November 19, 2022

$105,000,000 3.26% Series E Senior Notes due November 19, 2023

$305,000,000 3.36% Series F Senior Notes due November 19, 2024

$25,000,000 Floating Rate Series G Senior Notes due November 19, 2024

 

 

 

 

LOGO

5 Old Broad Street

London EC2N 1DW


TABLE OF CONTENTS

 

               Page  
1.    AUTHORIZATION OF NOTES      4   
2.    SALE AND PURCHASE OF NOTES      5   
3.    CLOSING      5   
4.    CONDITIONS TO CLOSING      6   
   4.1    Representations and Warranties      6   
   4.2    Performance; No Default      6   
   4.3    Compliance Certificates      6   
   4.4    Opinions of Counsel      6   
   4.5    Purchase Permitted by Applicable Law, etc.      7   
   4.6    Sale of Other Notes      7   
   4.7    Payment of Special Counsel Fees      7   
   4.8    Private Placement Number      7   
   4.9    Changes in Corporate Structure      7   
   4.10    Acceptance of Appointment to Receive Service of Process      7   
   4.11    Funding Instructions      8   
   4.12    Offeree Letter      8   
   4.13    Proceedings and Documents      8   
5.    REPRESENTATIONS AND WARRANTIES OF THE COMPANY      8   
   5.1    Organization; Power and Authority      8   
   5.2    Authorization, etc.      8   
   5.3    Disclosure      9   
   5.4    Organization and Ownership of Shares of Subsidiaries      9   
   5.5    Financial Statements; Material Liabilities      10   
   5.6    Compliance with Laws, Other Instruments, etc.      10   
   5.7    Governmental Authorizations, etc.      10   
   5.8    Litigation; Observance of Statutes and Orders      11   
   5.9    Taxes      11   
   5.10    Title to Property; Leases      11   
   5.11    Licenses, Permits, etc.      12   
   5.12    U.S. Plan Compliance with ERISA; Non-U.S. Plans      12   
   5.13    Private Offering      13   
   5.14    Use of Proceeds; Margin Regulations      13   
   5.15    Existing Financial Indebtedness; Future Security Interest      14   
   5.16    Foreign Assets Control Regulations, etc.      14   
   5.17    Status under Certain Statutes      15   
   5.18    Ranking of Obligations      15   
6.    REPRESENTATIONS OF THE PURCHASERS      15   
   6.1    Purchase for Investment      15   
   6.2    Confirmation of United Kingdom tax status of U.K. Holders      16   
   6.3    Source of Funds      16   
   6.4    Qualifying Institution      18   
7.    INFORMATION AS TO THE COMPANY      18   
   7.1    Financial and Business Information      18   
   7.2    Officer’s Certificate      22   
   7.3    Visitation      22   
   7.4    Limitation on Disclosure Obligation      23   

 

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8. INTEREST AND PREPAYMENT OF THE NOTES 23  
8.1 Interest. Payments at Maturity   23   
8.2 Optional Prepayments with Make-Whole Amount   26   
8.3 Prepayment for Tax Reasons   27   
8.4 Allocation of Partial Prepayments   28   
8.5 Maturity; Surrender, etc.   28   
8.6 Purchase of Notes   29   
8.7 Make-Whole Amount and Modified Make-Whole Amount   29   
8.8 Prepayment upon a Disposal   31   
8.9 Change of Control Prepayment   31   
8.10 Prepayment in Connection with a Noteholder Sanctions Event   32   
9. AFFIRMATIVE COVENANTS   33   
9.1 Compliance with Law   33   
9.2 Insurance   34   
9.3 Maintenance of Properties   34   
9.4 Payment of Taxes and Claims   34   
9.5 Corporate Existence, etc.   34   
9.6 Books and Records   35   
9.7 Priority of Obligations   35   
9.8 Subsidiary Guarantees   35   
10. NEGATIVE COVENANTS   37   
10.1 Transactions with Affiliates   37   
10.2 Merger, Consolidation, etc.   37   
10.3 Economic Sanctions, Etc.   38   
10.4 Financial Condition   38   
10.5 Negative Pledge   44   
10.6 Disposals   45   
10.7 Subsidiary Debt Test   47   
10.8 Line of Business   48   
11. EVENTS OF DEFAULT   48   
12. REMEDIES ON DEFAULT, ETC.   51   
12.1 Acceleration   51   
12.2 Other Remedies   52   
12.3 Rescission   52   
12.4 No Waivers or Election of Remedies, Expenses, etc.   52   
13. TAX GROSS-UP   52   
13.1 Tax Gross-Up with respect to U.K. Holders   52   
13.2 Tax Gross-Up with respect to Non-U.K. Holders   53   
13.3 Passport Scheme   57   
13.4 Obligations Continuing   57   
14. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES   58   
14.1 Registration of Notes   58   
14.2 Transfer and Exchange of Notes   58   
14.3 Replacement of Notes   58   
15. PAYMENTS ON NOTES   59   
15.1 Place of Payment   59   
15.2 Home Office Payment   59   
16. EXPENSES, ETC.   60   
16.1 Transaction Expenses   60   
16.2 Certain Taxes   60   
  16.3 Survival 60  

 

-2-


17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT   61   
18. AMENDMENT AND WAIVER   61   
18.1 Requirements   61   
18.2 Solicitation of Holders of Notes   61   
18.3 Binding Effect, etc.   62   
18.4 Notes Held by the Company, etc.   62   
19. NOTICES; ENGLISH LANGUAGE   62   
20. REPRODUCTION OF DOCUMENTS   63   
21. CONFIDENTIAL INFORMATION   63   
22. SUBSTITUTION OF PURCHASER   64   
23. MISCELLANEOUS   65   
23.1 Successors and Assigns   65   
23.2 Payments Due on Non-Business Days   65   
23.3 Accounting Terms   65   
23.4 Severability   65   
23.5 Construction, etc.   65   
23.6 Counterparts   66   
23.7 Governing Law   66   
23.8 Jurisdiction and Process; Waiver of Jury Trial   66   
23.9 Obligation to Make Payment in Dollars   67   

 

SCHEDULE A INFORMATION RELATING TO PURCHASERS
SCHEDULE B DEFINED TERMS
SCHEDULE 5.3 Disclosure
SCHEDULE 5.4 Organization and Ownership of Shares of Subsidiaries
SCHEDULE 5.5 Financial Statements
SCHEDULE 5.15 Existing Financial Indebtedness
SCHEDULE 5.16 Certain Section 5.16 Disclosures
EXHIBIT 1(a) Form of 2.47% Series A Senior Notes due November 19, 2019
EXHIBIT 1(b) Form of Floating Rate Series B Senior Notes due November 19, 2019
EXHIBIT 1(c) Form of 2.97% Series C Senior Notes due November 19, 2021
EXHIBIT 1(d) Form of 3.15% Series D Senior Notes due November 19, 2022
EXHIBIT 1(e) Form of 3.26% Series E Senior Notes due November 19, 2023
EXHIBIT 1(f) Form of 3.36% Series F Senior Notes due November 19, 2024
EXHIBIT 1(g) Form of Floating Rate Series G Senior Notes due November 19, 2024
EXHIBIT 4.4(a)(i) Form of Opinion of Special Counsel to the Company (U.S.)
EXHIBIT 4.4(a)(ii) Form of Opinion of Special Counsel to the Company (English)
EXHIBIT 4.4(b) Form of Opinion of Special Counsel to the Purchasers (U.S.)
EXHIBIT 9.8 Form of Subsidiary Guarantee

 

-3-


SMITH & NEPHEW PLC

15 Adam Street

London WC2N 6LA

England

$80,000,000 2.47% Series A Senior Notes due November 19, 2019

$45,000,000 Floating Rate Series B Senior Notes due November 19, 2019

$190,000,000 2.97% Series C Senior Notes due November 19, 2021

$50,000,000 3.15% Series D Senior Notes due November 19, 2022

$105,000,000 3.26% Series E Senior Notes due November 19, 2023

$305,000,000 3.36% Series F Senior Notes due November 19, 2024

$25,000,000 Floating Rate Series G Senior Notes due November 19, 2024

As of November 19, 2014

TO EACH OF THE PURCHASERS LISTED IN

THE ATTACHED SCHEDULE A:

Ladies and Gentlemen:

SMITH & NEPHEW PLC, a public limited company organized under the laws of England and Wales (the “ Company ”), agrees with each of the purchasers listed in Schedule A (the “ Purchasers ”) as follows:

 

1. AUTHORIZATION OF NOTES.

The Company will authorize the issue and sale of: (i) $80,000,000 aggregate principal amount of its 2.47% Series A Senior Notes due November 19, 2019 (as amended, restated or otherwise modified from time to time pursuant to Section 18 and including any such notes issued in substitution therefor pursuant to Section 14, the “ Series A Notes ”); (ii) $45,000,000 aggregate principal amount of its Floating Rate Series B Senior Notes due November 19, 2019 (as amended, restated or otherwise modified from time to time pursuant to Section 18 and including any such notes issued in substitution therefor pursuant to Section 14, the “ Series B Notes ”); (iii) $190,000,000 aggregate principal amount of its 2.97% Series C Senior Notes due November 19, 2021 (as amended, restated or otherwise modified from time to time pursuant to Section 18 and including any such notes issued in substitution therefor pursuant to Section 14, the “ Series C Notes ”); (iv) $50,000,000 aggregate principal amount of its 3.15% Series D Senior Notes due November 19, 2022 (as amended, restated or otherwise modified from time to time pursuant to Section 18 and including any such notes issued in substitution therefor pursuant to Section 14, the “ Series D Notes ”); (v)

 

-4-


$105,000,000 aggregate principal amount of its 3.26% Series E Senior Notes due November 19, 2023 (as amended, restated or otherwise modified from time to time pursuant to Section 18 and including any such notes issued in substitution therefor pursuant to Section 14, the “ Series E Notes ”); (vi) $305,000,000 aggregate principal amount of its 3.36% Series F Senior Notes due November 19, 2024 (as amended, restated or otherwise modified from time to time pursuant to Section 18 and including any such notes issued in substitution therefor pursuant to Section 14, the “ Series F Notes ”); and (vi) $25,000,000 aggregate principal amount of its Floating Rate Series G Senior Notes due November 19, 2024 (as amended, restated or otherwise modified from time to time pursuant to Section 18 and including any such notes issued in substitution therefor pursuant to Section 14, the “ Series G Notes ”, and together with the Series A Notes, the Series B Notes, the Series C Notes, the Series D Notes, the Series E Notes and the Series F Notes, the “ Notes ”). The Notes shall be substantially in the forms set out in Exhibits 1(a), 1(b), 1(c), 1(d), 1(e), 1(f) and 1(g) respectively. Certain capitalized terms used in this Agreement are defined in Schedule B; references to a “ Schedule ” or an “ Exhibit ” are, unless otherwise specified, to a Schedule or an Exhibit attached to this Agreement.

 

2. SALE AND PURCHASE OF NOTES.

Subject to the terms and conditions of this Agreement, the Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Section 3, Notes in the principal amount and Series specified opposite such Purchaser’s name in Schedule A at the purchase price of 100% of the principal amount thereof. Each Purchaser’s obligations hereunder are several and not joint obligations, and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser.

 

3. CLOSING.

The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the offices of White & Case, 5 Old Broad Street, London EC2N 1DW, at 2:00 p.m., London time, at a closing (the “ Closing ”) on November 19, 2014, or on such other Business Day thereafter on or prior to November 19, 2014 as may be agreed upon by the Company and each Purchaser. At the Closing the Company will deliver to each Purchaser the Notes of each Series to be purchased by such Purchaser in the form of a single Note for each Series (or such greater number of Notes of each Series in denominations of at least $500,000 as such Purchaser may request prior to the Closing) dated the date of the Closing and registered in such Purchaser’s name or in the name of such Purchaser’s nominee (it being understood and agreed by such Purchaser that such Purchaser and nominee may not receive the benefit of any tax gross-up pursuant to Section 13 if under the law of the relevant Taxing Jurisdiction or any double taxation treaty to which the relevant Taxing Jurisdiction is party (or the current regulatory interpretation of such law or treaty) a nominee is disregarded (by reason of its holding securities as a nominee) for the purposes of an exemption from the Relevant Tax), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company per the details below:

Correspondent Bank: JP Morgan, New York

Correspondent Swift: CHASUS33XXX (ABA 021000021)

Beneficiary Bank: NatWest Bank Plc, London

Beneficiary Swift: NWBKGB2L

Beneficiary: Smith & Nephew plc

Account number: 06632572

IBAN: GB11 NWBK 6073 0106 6325 72

 

-5-


If at the Closing the Company shall fail to tender such Notes to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment.

 

4. CONDITIONS TO CLOSING.

Each Purchaser’s obligation to purchase and pay for the Notes to be sold to it at the Closing is subject to the fulfillment to such Purchaser’s satisfaction, prior to or at the Closing, of the following conditions:

 

4.1 Representations and Warranties.

The representations and warranties of the Company in this Agreement shall be correct when made and at the time of the Closing.

 

4.2 Performance; No Default.

The Company shall have performed and complied with all agreements and conditions contained in this Agreement required to be performed or complied with by it prior to or at the Closing; and after giving effect to the issue and sale of the Notes (and the application of the proceeds thereof as contemplated by Section 5.14) no (a) Default or Event of Default shall have occurred and be continuing, or (b) Change of Control shall have occurred.

 

4.3 Compliance Certificates.

 

  (a) Officer’s Certificate . The Company shall have delivered to each Purchaser an Officer’s Certificate, dated the date of the Closing, certifying that the conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.

 

  (b) Secretary’s or Director’s Certificate . The Company shall have delivered to each Purchaser a certificate of its Secretary or an Assistant Secretary or a Director or other appropriate person, dated the date of the Closing, certifying as to (i) the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of this Agreement and the Notes and (ii) the Company’s organizational documents as then in effect.

 

4.4 Opinions of Counsel.

Each Purchaser shall have received opinions in form and substance satisfactory to it, dated the date of the Closing (a) from (i) White & Case, special U.S. counsel for the Company, and (ii) White & Case, special English counsel for the Company, substantially in the respective forms set forth in Exhibits 4.4(a)(i) and 4.4(a)(ii) and covering such other matters incident to the transactions contemplated hereby as such Purchaser or its counsel may reasonably request (and the Company hereby instructs such counsel to deliver such opinions to each Purchaser), and (b) from Bingham McCutchen LLP, special U.S. counsel to the Purchasers in connection with such transactions, substantially in the form set forth in Exhibit 4.4(b) and covering such other matters incident to such transactions as such Purchaser may reasonably request.

 

-6-


4.5 Purchase Permitted by Applicable Law, etc.

On the date of the Closing such Purchaser’s purchase of Notes shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section 1405(a)(8) of the New York Insurance Law but excluding any “ foreign basket ” or equivalent provisions) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (b) not violate any applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date hereof. If requested by any Purchaser, such Purchaser shall have received an Officer’s Certificate of the Company certifying as to such matters of fact as it may reasonably specify to enable it to determine whether such purchase is so permitted.

 

4.6 Sale of Other Notes.

Contemporaneously with the Closing, the Company shall sell to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at the Closing as specified in Schedule A.

 

4.7 Payment of Special Counsel Fees.

Without limiting the provisions of Section 16.1, the Company shall have paid on or before the Closing the reasonable fees, charges and disbursements of the special counsel to the Purchasers referred to in Section 4.4(b) to the extent reflected in a statement of such counsel rendered to the Company at least two Business Days prior to the Closing.

 

4.8 Private Placement Number.

A private placement number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for each Series of the Notes.

 

4.9 Changes in Corporate Structure.

The Company shall not have changed its jurisdiction of incorporation or organization, as applicable, or been a party to any merger or consolidation or succeeded to all or any substantial part of the liabilities of any other entity at any time following the date of the most recent financial statements referred to in Schedule 5.5.

 

4.10 Acceptance of Appointment to Receive Service of Process.

Such Purchaser shall have received evidence of the acceptance by CT Corporation System of the appointments and designations provided for by Section 23.8(e) of this Agreement for the period from the date of Closing through November 19, 2025 (and the payment in full of all fees in respect thereof).

 

-7-


4.11 Funding Instructions.

At least three Business Days prior to the date of the Closing, each Purchaser shall have received written instructions signed by a Responsible Officer on letterhead of the Company confirming the information specified in Section 3, including (i) the name and address of the transferee bank, (ii) such transferee bank’s ABA number and (iii) the account name and number into which the purchase price for the Notes is to be transferred.

 

4.12 Offeree Letter.

SG Americas Securities, LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated shall have delivered to the Company’s counsel and the Purchasers’ special counsel an offeree letter, in form and substance reasonably satisfactory to the Company and its counsel and each Purchaser and its special counsel, confirming the manner of the offering of the Notes by SG Americas Securities, LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated.

 

4.13 Proceedings and Documents.

All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be satisfactory to each Purchaser and its special counsel, and such Purchaser and its special counsel shall have received all such counterpart originals or certified or other copies of such documents as such Purchaser or such special counsel may reasonably request.

 

5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY .

The Company represents and warrants to each Purchaser as of the date of this Agreement and as of the date of the Closing that:

 

5.1 Organization; Power and Authority.

The Company is a company duly organized, validly existing and, where legally applicable, in good standing under the laws of its jurisdiction of incorporation and is duly qualified as a foreign corporation and, where legally applicable, is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has the corporate power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and the Notes and to perform the provisions hereof and thereof.

 

5.2 Authorization, etc.

This Agreement and the Notes have been duly authorized by all necessary corporate action on the part of the Company and this Agreement constitutes, and upon execution and delivery thereof each Note will constitute, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

-8-


5.3 Disclosure.

This Agreement and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Company in connection with the transactions contemplated hereby and identified in Schedule 5.3, and the financial statements listed in Schedule 5.5 (this Agreement and such documents, certificates or other writings and financial statements delivered to each Purchaser prior to October 17, 2014 being referred to, collectively, as the “ Disclosure Documents ”), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made. Except as disclosed in the Disclosure Documents, since December 31, 2013 there has been no change in the financial condition, operations, business or properties of the Company or any Subsidiary except changes that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. Notwithstanding the foregoing, the Company makes no representation or warranty as to the accuracy of any forecast or projection contained in the Disclosure Documents, except that such forecasts and projections were based on good faith estimates and assumptions believed by the Company to be reasonable as of the date of the applicable forecasts and projections.

 

5.4 Organization and Ownership of Shares of Subsidiaries.

 

  (a) Schedule 5.4 is (except as noted therein) a complete and correct list of the Company’s Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the jurisdiction of its organization, and the percentage of shares of each class of its capital stock or similar equity interests outstanding owned by the Company and each other Subsidiary.

 

  (b) Except where the inaccuracy of any of the warranties set out in sub-clauses (i) – (iii) below (inclusive) would not reasonably be expected to have a Material Adverse Effect:

 

  (i) all of the outstanding shares of capital stock or similar equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company and its Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by the Company or another Subsidiary free and clear of any Security Interest (except as otherwise disclosed in Schedule 5.4);

 

  (ii) each Subsidiary identified in Schedule 5.4 is a corporation or other legal entity duly organized, validly existing and, where legally applicable, in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign corporation or other legal entity and, where legally applicable, is in good standing in each jurisdiction in which such qualification is required by law. Each such Subsidiary has the corporate or other power and authority to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact; and

 

  (iii) no Subsidiary is a party to, or otherwise subject to any legal, regulatory, contractual or other restriction (other than this Agreement, the agreements listed on Schedule 5.4 and customary limitations imposed by corporate law or similar statutes) restricting the ability of such Subsidiary to pay dividends out of profits or make any other similar distributions of profits to the Company or any of its Subsidiaries that owns outstanding shares of capital stock or similar equity interests of such Subsidiary.

 

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5.5 Financial Statements; Material Liabilities.

The Company has delivered to each Purchaser copies of the consolidated financial statements of the Company and its Subsidiaries listed in Schedule 5.5. All of said financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the respective dates specified in such Schedule and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with IFRS consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). The Company and its Subsidiaries do not have any Material liabilities that are not disclosed on such financial statements or otherwise disclosed in the other Disclosure Documents.

 

5.6 Compliance with Laws, Other Instruments, etc.

The execution, delivery and performance by the Company of this Agreement and the Notes will not (a) contravene, result in any breach of, or constitute a default under, or result in the creation of any Security Interest in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter, memorandum and articles of association, regulations or by-laws, or any other agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (b) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (c) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary.

 

5.7 Governmental Authorizations, etc.

No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by the Company of this Agreement or the Notes, including without limitation any thereof required in connection with obtaining Dollars to make payments under this Agreement or the Notes and the payment of such Dollars to Persons resident in the United States of America. It is not necessary to ensure the legality, validity, enforceability or admissibility into evidence in England of this Agreement or the Notes that any thereof or any other document be filed, recorded or enrolled with any Governmental Authority, or that any such agreement or document be stamped with any stamp, registration or similar transaction tax.

 

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5.8 Litigation; Observance of Statutes and Orders.

 

  (a) There are no actions, suits, investigations or proceedings pending or, to the knowledge of the Company, threatened against or affecting the Company or any Subsidiary or any property of the Company or any Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental Authority that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

 

  (b) Neither the Company nor any Subsidiary is in default under any term of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or is in violation of any applicable law, ordinance, rule or regulation (including without limitation the USA Patriot Act) of any Governmental Authority, which default or violation, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

 

5.9 Taxes.

The Company and each Subsidiary have filed all material tax returns that are required to have been filed by them in any jurisdiction, and have paid all taxes shown to be due and payable on such returns and all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (a) the amount of which is not individually or in the aggregate Material or (b) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which the Company or such Subsidiary, as the case may be, has established adequate reserves in accordance with IFRS. The charges, accruals and reserves on the books of the Company and its Subsidiaries in respect of taxes which are individually or in the aggregate Material for all fiscal periods are adequate.

No liability for any Tax, directly or indirectly, imposed, assessed, levied or collected by or for the account of any Governmental Authority of the United Kingdom or any political subdivision thereof will be incurred by the Company or any holder of a Note as a result of the execution or delivery of this Agreement or the Notes. No Tax Deduction imposed by or for the account of the United Kingdom or, to the knowledge of the Company, any other Taxing Jurisdiction, is required to be made from any payment by the Company under this Agreement or the Notes except for any such Tax Deduction imposed, assessed, levied or collected by or for the account of any such Governmental Authority of the United Kingdom arising (x) in respect of payments to U.K. Holders that are not Qualifying Noteholders or (y) in the circumstances described in clause (a), (b) or (c) of Section 13.2 or (z) in respect of payments to any Non-U.K. Holder other than a Non-U.K. Holder (i) who is resident in a jurisdiction with which the United Kingdom has an appropriate double taxation treaty under which the payment of interest by the Company to that Non-U.K. Holder may be made without the deduction or withholding of United Kingdom income tax; and (ii) in respect of which the Company has received a direction from HM Revenue & Customs allowing for payments to be made to such Non-U.K. Holder without a Tax Deduction imposed by or for the account of the United Kingdom and such direction has not been revoked.

 

5.10 Title to Property; Leases.

The Company and each Subsidiary have good and sufficient title to their respective properties that individually or in the aggregate are Material, including all such properties reflected in the most recent audited balance sheet referred to in Schedule 5.5 or purported to have been acquired by the Company or any Subsidiary after said date (except as sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Security

 

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Interests prohibited by this Agreement, except for those defects in title and Security Interests that, individually or in the aggregate, would not have a Material Adverse Effect. All leases that individually or in the aggregate are Material are valid and subsisting and are in full force and effect in all material respects.

 

5.11 Licenses, Permits, etc.

The Company and its Subsidiaries own or possess all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks and trade names, or rights thereto, that individually or in the aggregate are Material, without known conflict with the rights of others, except for those conflicts that, individually or in the aggregate, would not have a Material Adverse Effect.

 

5.12 U.S. Plan Compliance with ERISA; Non-U.S. Plans.

 

  (a) The Company and each ERISA Affiliate have operated and administered each Plan in compliance with all applicable laws except for such instances of noncompliance as have not resulted in and could not reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3(3) of ERISA), and no event, transaction or condition has occurred or exists that could reasonably be expected to result in the incurrence of any such liability by the Company or any ERISA Affiliate, or in the imposition of any Security Interest on any of the rights, properties or assets of the Company or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to section 430(k) of the Code or to any such penalty or excise tax provisions under the Code or federal law or section 4068 of ERISA or by the granting of Security Interests in connection with the amendment of a Plan, other than such liabilities or Security Interests as would not be individually or in the aggregate Material.

 

  (b) The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan allocable to such benefit liabilities by more than $250,000,000 in the aggregate for all Plans. The present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan that is funded, determined as of the end of the Company’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities by more than £200,000,000 in the aggregate for all Non-U.S. Plans. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA.

 

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  (c) The Company and its ERISA Affiliates have not incurred (i) withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are Material or (ii) any obligation in connection with the termination of or withdrawal from any Non-U.S. Plan that individually or in the aggregate are Material.

 

  (d) The expected postretirement benefit obligation (determined as of the last day of the Company’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 715-60, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of the Company and its Subsidiaries is not Material.

 

  (e) The execution and delivery of this Agreement and the issuance and sale of the Notes hereunder will not involve any non-exempt transaction that is subject to the prohibitions of section 406(a)(1) of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation by the Company in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of each Purchaser’s representation in Section 6.3, and with respect to any transferee, the accuracy of any representation made by such transferee pursuant to Section 6.3, as to the sources of the funds used to pay the purchase price of the Notes to be purchased by such Purchaser or transferee, as applicable.

 

  (f) All Non-U.S. Plans have been established, operated, administered and maintained in compliance with all laws, regulations and orders applicable thereto, except where failure so to comply could not be reasonably expected to have a Material Adverse Effect. All premiums, contributions and any other amounts required by applicable Non-U.S. Plan documents or applicable laws to be paid or accrued by the Company and its Subsidiaries have been paid or accrued as required, except where failure so to pay or accrue would not be reasonably expected to have a Material Adverse Effect.

 

5.13 Private Offering.

Neither the Company nor anyone acting on its behalf has offered the Notes or any similar Securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the Purchasers and not more than 20 other Institutional Investors, each of which has been offered the Notes at a private sale for investment. Neither the Company nor anyone acting on its behalf has, with respect to the Notes, engaged in any form of “general solicitation or general advertising,” as defined under Rule 502(c) of the Securities Act. Neither the Company nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes to the registration requirements of section 5 of the Securities Act or to the registration requirements of any securities or blue sky laws of any applicable jurisdiction. As used in this Section, the terms “ Securities ” shall have the meaning assigned to the term in the Securities Act.

 

5.14 Use of Proceeds; Margin Regulations.

The Company will apply the proceeds of the sale of the Notes to the repayment of existing Financial Indebtedness and/or general corporate purposes, including for the avoidance of doubt for acquisitions. No part of the proceeds from the sale of the Notes hereunder will be

 

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used, directly or indirectly, for the purpose of buying or carrying any margin stock in violation of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any securities under such circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute more than 10% of the value of the consolidated assets of the Company and its Subsidiaries and the Company does not have any present intention that margin stock will constitute more than 10% of the value of such assets. As used in this Section, the terms “ margin stock ” and “ purpose of buying or carrying ” shall have the meanings assigned to them in said Regulation U. As used in this Section, the terms “Securities” shall have the meaning assigned to the term in the Securities Act.

 

5.15 Existing Financial Indebtedness; Future Security Interest.

 

  (a) Except as described therein, Schedule 5.15 sets forth a complete and correct list of all outstanding Financial Indebtedness of the Company and its Subsidiaries as of September 27, 2014 (including a description of the obligors and obligees, principal amount outstanding and whether secured or not), since which date there has been no Material change in the amounts, interest rates, sinking funds, installment payments or maturities of the Financial Indebtedness of the Company or its Subsidiaries. Neither the Company nor any Subsidiary is in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Financial Indebtedness of the Company or such Subsidiary and no event or condition exists with respect to any Financial Indebtedness of the Company or any Subsidiary the outstanding principal amount of which exceeds £10,000,000 (or its equivalent) that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Financial Indebtedness to become due and payable before its stated maturity or before its regularly scheduled dates of payment.

 

  (b) Neither the Company nor any Subsidiary is a party to, or otherwise subject to any provision contained in, any instrument evidencing Financial Indebtedness of the Company or such Subsidiary, any agreement relating thereto or any other agreement (including, but not limited to, its charter or other organizational document) which limits the amount of, or otherwise imposes restrictions on the incurring of, Financial Indebtedness of the Company, except as specifically indicated in Schedule 5.15.

 

5.16 Foreign Assets Control Regulations, etc.

 

  (a) Neither the Company nor any Controlled Entity (i) is a Blocked Person, (ii) has been notified that its name appears or may in the future appear on a State Sanctions List or (iii) is a target of sanctions that have been imposed by the United Nations or the European Union.

 

  (b) Except as specified in Schedule 5.16, neither the Company nor any Controlled Entity within the past three (3) years (i) has violated, been found in violation of, or been charged or convicted under, any applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws or (ii) to the Company’s knowledge, is under investigation by any Governmental Authority for possible violation of any U.S. Economic Sanctions Laws, Anti-Money Laundering Laws or Anti-Corruption Laws, in each case that, individually or in the aggregate are Material.

 

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  (c) No part of the proceeds from the sale of the Notes hereunder:

 

  (i) constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used by the Company or any Controlled Entity, directly or indirectly, (A) in connection with any investment in, or any transactions or dealings with, any Blocked Person, (B) for any purpose that would cause any Purchaser to be in violation of any U.S. Economic Sanctions Laws or (C) otherwise in violation of any U.S. Economic Sanctions Laws;

 

  (ii) will be used, directly or indirectly, in violation of, or cause any Purchaser to be in violation of, any applicable Anti-Money Laundering Laws; or

 

  (iii) will be used, directly or indirectly, for the purpose of making any improper payments, including bribes, to any Governmental Official or commercial counterparty in order to obtain, retain or direct business or obtain any improper advantage, in each case which would be in violation of, or cause any Purchaser to be in violation of, any applicable Anti-Corruption Laws.

 

  (d) The Company has established procedures and controls which it reasonably believes are adequate (and otherwise comply with applicable law) to ensure that the Company and each Controlled Entity is and will continue to be in compliance with all applicable U.S. Economic Sanctions Laws, Anti-Money Laundering Laws and Anti-Corruption Laws.

 

5.17 Status under Certain Statutes.

Neither the Company nor any Subsidiary is subject to regulation under the Investment Company Act of 1940, as amended, the ICC Termination Act of 1995, as amended, or the Federal Power Act, as amended.

 

5.18 Ranking of Obligations

The Company’s payment obligations under this Agreement and the Notes will, upon issuance of the Notes, rank at least pari passu , without preference or priority, with all other unsecured and unsubordinated Financial Indebtedness of the Company.

 

6. REPRESENTATIONS OF THE PURCHASERS.

 

6.1 Purchase for Investment.

Each Purchaser severally represents that it is purchasing the Notes for its own account or for one or more separate accounts maintained by it or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of its or their property shall at all times be within its or their control. Each Purchaser further severally represents that it is a sophisticated institutional investor and an “accredited investor” as defined in paragraph (1), (2), (3) or (7) of Rule 501(a) of the Securities Act and

 

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has knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of its investment in the Notes and is able to bear the economic risk of holding the Notes for an indefinite period of time. Each Purchaser also severally represents that the Company has provided such Purchaser an opportunity to discuss with the Company’s management the consolidated financial statements delivered pursuant to Section 5.5, as well as the Company’s business, management, financial affairs and the terms and conditions of the offering of the Notes; provided, however, that the foregoing does not limit or modify the representations and warranties in Section 5 of this Agreement or the right of the Purchasers to rely thereon. Each Purchaser understands that the Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Notes.

 

6.2 Confirmation of United Kingdom tax status of U.K. Holders.

 

  (a) Each U.K. Holder on a date when interest is payable under the Notes, represents to the Company that it is a Qualifying Noteholder, provided that no such representation will be made where a U.K. Holder has notified the Company, in accordance with (b) below, that it is not or will not be a Qualifying Noteholder.

 

  (b) A U.K. Holder shall notify the Company as soon as reasonably practicable after it becomes aware either that it will not be able to give the representation in Section 6.2(a) on the next date when interest is payable under the Notes, or that it erroneously gave such a representation previously (or that the basis of such previous representation was incorrect) (which notice shall include reasonable details of that inability or error).

 

  (c) A U.K. Holder shall promptly upon becoming a party to this Agreement notify the Company which (if any) of the categories set out in sub-sections (a) to (d) of the Qualifying Noteholder definition applies to it and, where sub-section (c) of that definition applies, shall give a reasonable level of detail as to the basis on which it applies.

 

6.3 Source of Funds.

Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “ Source ”) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:

 

  (a) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“ PTE ”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the “ NAIC Annual Statement ”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or

 

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  (b) the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or

 

  (c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or

 

  (d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “ QPAM Exemption ”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or

 

  (e) the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “ INHAM Exemption ”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% or more interest in the Company and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or

 

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  (f) the Source is a governmental plan or church plan that is covered neither by ERISA nor section 4975 of the Code and neither the purchase of, nor the subsequent holding of, the Notes will result in, arise from, constitute or involve a transaction that violates applicable state or local law; or

 

  (g) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this clause (g); or

 

  (h) the Source does not include assets of any employee benefit plan or a “plan” as defined in section 4975(e) of the Code, other than an employee benefit plan exempt from the coverage of ERISA.

As used in this Section 6.3, the terms “ employee benefit plan ”, “ governmental plan ”, and “ separate account ”, shall have the respective meanings assigned to such terms in section 3 of ERISA.

 

6.4 Qualifying Institution.

Each Purchaser that is not a U.K. Holder, severally represents that it (i) is a Person resident (as such term is defined in the appropriate double taxation treaty) in the United States of America or in another jurisdiction with which the United Kingdom has an appropriate double taxation treaty under which the payment of interest by the Company to that Person may be made without the deduction or withholding of United Kingdom income tax (subject to completion of procedural formalities); and (ii) does not carry on business in the United Kingdom through a permanent establishment with which the indebtedness under the Notes in respect of which the interest or premium is paid is effectively connected (for the avoidance of doubt, this does not include its United Kingdom-incorporated parent company, if any, provided that such parent company is not and does not become the beneficial owner of any interest payments made by the Company on the Notes and any interest payments on the Notes are not paid to or attributable to and do not arise in such parent company).

 

7. INFORMATION AS TO THE COMPANY.

 

7.1 Financial and Business Information.

The Company shall deliver to each holder of Notes that is an Institutional Investor:

 

  (a) Interim Statements — promptly after the same are available and in any event within 120 days after the end of the first semi-annual fiscal period in each fiscal year of the Company, duplicate copies of,

 

  (i) a consolidated balance sheet of the Company and its Subsidiaries as at the end of such period, and

 

  (ii) consolidated statements of income, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries, for such period,

setting forth in each case in comparative form the figures for the corresponding period in the previous fiscal year, all in reasonable detail, prepared in accordance with IFRS applicable to interim financial statements generally, and certified by a Senior Financial Officer of the Company as fairly presenting, in all material respects, the financial position of the companies

 

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being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments, provided that, delivery to each holder of Notes that is an Institutional Investor, within the time period specified above, of the financial information that the Company is required to furnish to the regulatory information services in the United Kingdom pursuant to the Listing Rules of the UK Listing Authority for each such interim period shall be deemed to satisfy the requirements of this Section 7.1(a) so long as such financial information includes the information specified in clauses (i) and (ii) of this clause (a) and is accompanied by a comparison to the corresponding period in the previous fiscal year and otherwise satisfies the requirements of this paragraph, provided further that, if the financial reporting requirements for companies listed on the Official List of the UK Listing Authority are altered, the Company shall deliver to each holder of Notes that is an Institutional Investor such alternative financial information as the Company shall be required to disclose to its shareholders pursuant to the requirements of the UK Listing Authority in force at such time, as well as such supplemental information as is reasonably necessary to provide such holder with the same substantive consolidated financial information as such holder would have received (including, without limitation, all such information necessary to verify compliance with the covenants in Sections 10.4 through 10.7, inclusive) had the form and detail of the accounts not been changed from the form and detail of the most recent interim accounts listed in Schedule 5.5;

 

  (b) Annual Statements — promptly after the same are available and in any event within 180 days after the end of each fiscal year of the Company, duplicate copies of,

 

  (i) a consolidated balance sheet of the Company and its Subsidiaries, as at the end of such year, and

 

  (ii) consolidated statements of income, changes in shareholders’ equity and cash flows of the Company and its Subsidiaries for such year,

setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with IFRS, and accompanied by an opinion thereon of independent public accountants of recognized international standing, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with IFRS, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances, provided that, delivery to each holder of Notes that is an Institutional Investor, within the time period specified above, of the financial information that the Company is required to furnish to the UK Listing Authority for each such fiscal year shall be deemed to satisfy the requirements of this Section 7.1(b) so long as such financial information includes the information specified in clauses (i) and (ii) of this clause (b) and is accompanied by the opinion referred to above and a comparison to the corresponding period in the previous fiscal year and otherwise satisfies the requirements of this paragraph, provided further that, if

 

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the financial reporting requirements for companies listed on the Official List of the UK Listing Authority are altered, the Company shall deliver to each holder of Notes that is an Institutional Investor such alternative financial information as the Company shall be required to disclose to its shareholders pursuant to the requirements of the UK Listing Authority in force at such time, as well as such supplemental information as is reasonably necessary to provide such holder with the same substantive consolidated financial information as such holder would have received (including, without limitation, all such information necessary to verify compliance with the covenants set forth in Sections 10.4 through 10.7, inclusive) had the form and detail of the accounts not been changed from the form and detail of the most recent audited accounts listed in Schedule 5.5;

 

  (c) Other Reports — promptly upon their becoming available, one copy of (i) each financial statement, report, circular, notice or proxy statement or similar statement sent by the Company or any Subsidiary (x) to its principal lending banks as a whole (excluding information sent to such banks in the ordinary course of administration of a bank facility, such as information relating to pricing and borrowing availability) or (y) to its public securities holders generally, (ii) each regular or periodic report, each registration statement (without exhibits except as expressly requested by such holder), and each prospectus or circular and all amendments thereto filed by the Company or any Subsidiary with the Securities and Exchange Commission, the UK Listing Authority or any similar Governmental Authority or securities exchange, and (iii) each press release or other statement made available generally by the Company or any Subsidiary to the public concerning developments that are Material; provided , however , that it is acknowledged and agreed by the holders of Notes that any such report or document as contemplated by this clause (c) which has been posted to the Company’s official website with general access rights for the public shall be deemed to have been delivered to the holders of Notes as contemplated by this Section 7.1 so long as the Company shall have provided email notification to each holder of Notes of such posting;

 

  (d) Notice of Default or Event of Default — promptly, and in any event within five Business Days after a Responsible Officer of the Company becomes aware of the existence of any Default or Event of Default, a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto;

 

  (e) Employee Benefit Matters — promptly and in any event within five days after a Responsible Officer becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Company or an ERISA Affiliate (or, in the case of clause (iv) below, any Subsidiary) proposes to take with respect thereto:

 

  (i) with respect to any Plan, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; or

 

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  (ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or

 

  (iii) any event, transaction or condition that could result in the incurrence of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Security Interest on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Security Interest, taken together with any other such liabilities or Security Interests then existing, would reasonably be expected to have a Material Adverse Effect; or

 

  (iv) receipt of notice of the imposition of a Material financial penalty (which for this purpose shall mean any tax, penalty or other liability, whether by way of indemnity or otherwise) with respect to one or more Non-U.S. Plans;

 

  (f) Requested Information — with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of the Company or any of its Subsidiaries or relating to the ability of the Company to perform its obligations under this Agreement or the Notes as from time to time may be reasonably requested by any such Purchaser (prior to Closing only) or holder of Notes, including information readily available to the Company explaining the Company’s financial statements if such information has been requested by the SVO in order to assign or maintain a designation of the Notes.

Subject to the immediately following sentence, any documents delivered pursuant to this Section 7.1 and Section 7.2 may be delivered electronically by the Company to the holder of a Note by email to the email address of such holder listed in Schedule A hereto or at such other email address as such holder shall from time to time specify to the Company in writing, provided that upon the request of any holder, the Company shall promptly deliver a hard copy of any such document. Notwithstanding the foregoing, any holder of a Note shall have the right at any time, by written notice to the Company, to require that some or all of the documents required to be delivered pursuant to this Section 7.1 or Section 7.2 be delivered in the form of hard copies (rather than electronically) at the physical address set forth in Schedule A hereto or at such other physical address as such holder shall from time to time specify to the Company in writing.

 

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7.2 Officer’s Certificate.

Each set of financial statements delivered to a Purchaser (prior to the Closing only) or a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer of the Company setting forth:

 

  (a) Covenant Compliance — the information (including detailed calculations) required in order to establish whether the Company was in compliance with the requirements of Sections 10.4 through 10.7 hereof, inclusive, during the interim or annual period covered by the statements then being furnished (including with respect to each such Section, where applicable, the calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Sections, and the calculation of the amount, ratio or percentage then in existence);

 

  (b) Event of Default — a statement that such Senior Financial Officer has reviewed the relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Company and its Subsidiaries from the beginning of the half yearly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Company shall have taken or proposes to take with respect thereto; and

 

  (c) Material Subsidiaries – with the delivery of the annual financial statements pursuant to Section 7.1(b), a list of the then current Material Subsidiaries.

 

7.3 Visitation.

The Company shall permit the representatives of each Purchaser (prior to the Closing only) and each holder of Notes that is an Institutional Investor:

 

  (a) No Default — if no Default or Event of Default then exists, at the expense of such Purchaser (prior to Closing only) or holder, during reasonable business hours and upon reasonable prior notice to the Company, to visit the principal executive office of the Company, to discuss the affairs, finances and accounts of the Company and its Subsidiaries with the Responsible Officers of the Company and (with the consent of the Company, which consent will not be unreasonably withheld) to visit the other offices and properties of the Company and each Subsidiary, all at such reasonable times and as often as may be reasonably requested in writing; and

 

  (b) Default — if a Default or Event of Default then exists, at the expense of the Company to visit and inspect any of the offices or properties of the Company or any Subsidiary, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and independent chartered accountants (and by this provision the Company authorizes said accountants to discuss the affairs, finances and accounts of the Company and its Subsidiaries), all at such times and as often as may be requested.

 

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7.4 Limitation on Disclosure Obligation.

The Company shall not be required to disclose the following information pursuant to Sections 7.1(c), 7.1(f) or 7.3:

 

  (a) information that the Company determines after consultation with counsel qualified to advise on such matters that, notwithstanding the confidentiality requirements of Section 21, it would reasonably be likely to be prohibited from disclosing by applicable law or regulations without making public disclosure thereof, or

 

  (b) information that, notwithstanding the confidentiality requirements of Section 21, the Company is prohibited from disclosing by the terms of an obligation of confidentiality contained in any agreement with any non-Affiliate binding upon the Company or relevant Subsidiary and not entered into in contemplation of this clause (b), provided that the Company shall use commercially reasonable efforts to obtain consent from the party in whose favor the obligation of confidentiality was made to permit the disclosure of the relevant information.

Promptly after a request therefor from any holder of Notes that is an Institutional Investor, the Company will provide such holder with a written opinion of counsel (which may be addressed to the Company) relied upon as to any requested information that the Company is prohibited from disclosing to such holder under circumstances described in sub-clauses (a) or (b) above of this Section 7.4.

 

8. INTEREST AND PREPAYMENT OF THE NOTES.

 

8.1 Interest; Payments at Maturity.

 

  (a) Interest

 

  (i) Interest (computed on the basis of a 360-day year of twelve 30-day months) on each Series A Note will accrue and be payable semi-annually on such Series A Note in the amounts and at the times specified in the first paragraph of each such Series A Note.

 

  (ii) Interest (computed on the basis of a 360-day year of twelve 30-day months) on each Series C Note will accrue and be payable semi-annually on such Series C Note in the amounts and at the times specified in the first paragraph of each such Series C Note.

 

  (iii) Interest (computed on the basis of a 360-day year of twelve 30-day months) on each Series D Note will accrue and be payable semi-annually on such Series D Note in the amounts and at the times specified in the first paragraph of each such Series D Note.

 

  (iv) Interest (computed on the basis of a 360-day year of twelve 30-day months) on each Series E Note will accrue and be payable semi-annually on such Series E Note in the amounts and at the times specified in the first paragraph of each such Series E Note.

 

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  (v) Interest (computed on the basis of a 360-day year of twelve 30-day months) on each Series F Note will accrue and be payable semi-annually on such Series F Note in the amounts and at the times specified in the first paragraph of each such Series F Note.

 

  (vi)

Subject to Section 8.1(a)(vii), interest (computed on the basis of a 360-day year and actual days elapsed) shall accrue on the unpaid principal balance of each Floating Rate Note outstanding from time to time during each Floating Interest Period at a rate per annum equal to the Floating Interest Rate for Floating Rate Notes of such Series determined in accordance with this Section 8.1(a)(vi) for such Floating Interest Period. Such interest shall accrue for such Floating Interest Period (determined as provided in the definition thereof) and shall be payable semi-annually in arrears on each Floating Rate Note Payment Date, commencing with the first Floating Rate Note Payment Date occurring after the date of the Closing. The rate of interest applicable to the unpaid principal balance of the Floating Rate Notes of any Series will in no event be higher than the maximum rate of interest permitted by applicable law. In the case of each Series of Floating Rate Notes, for each Floating Interest Period the Floating Interest Rate for such Series applicable thereto shall be determined on the Floating Interest Rate Determination Date for such Floating Interest Period and, as so determined, shall become applicable to the then unpaid principal balances of the Floating Rate Notes of such Series on the first day of such Floating Interest Period. The Floating Interest Rate for each Series of Floating Rate Notes shall be determined by the Company on the Floating Interest Rate Determination Date for each Floating Interest Period, and the Company shall notify in writing (via email or facsimile transmission) on such Floating Interest Rate Determination Date each holder of any Floating Rate Note of the Floating Interest Rate applicable to such Floating Rate Note. In the event that any holder of a Floating Rate Note believes in good faith that the Company incorrectly determined the Floating Interest Rate applicable to such Floating Rate Note as aforesaid, such holder shall, within five Business Days of the date that the Company’s notice was transmitted to such holder by email or facsimile transmission, send a notification in writing (via email or facsimile transmission) to the Company stating that it disagrees with the Company’s calculation and setting out in reasonable detail the reasons behind its disagreement with such calculation and what it believes such calculation should be. The Company shall, within three Business Days of receipt of such email or facsimile notice, send a copy of such notice (via email or facsimile transmission) to each (other) holder of a Floating Rate Note. If, within five Business Days of the Company sending such notice, the holders of more than 50% in principal amount of the Floating Rate Notes of such Series at the time outstanding (exclusive of Floating Rate Notes then owned by the Company or any of its Affiliates) notify the Company (via email or facsimile transmission) that they agree with the objections and revised calculations set forth in the objecting holder’s notice, the Company shall either (a) apply the revised calculations set

 

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  forth in such objecting holder’s notice or (b) refer the objections to such calculations to an independent financial institution (that does not act as a lender to, or regular underwriter of the securities of, or advisor to, the Company or any of its Affiliates) selected by the Company (after consultation with the holders of the Floating Rate Notes of such Series) and reasonably acceptable to the holders of more than 50% in principal amount of the Floating Rate Notes of such Series at the time outstanding (exclusive of Floating Rate Notes then owned by the Company or any of its Affiliates). Within 5 Business Days of the determination by such institution as to the applicable calculation for determining the Floating Interest Rate for such Series, the Company shall notify the holders of the Floating Rate Notes of such calculation, which calculation shall be the Floating Interest Rate for such Series for such period absent manifest error. If for any reason the Company fails to determine the USD LIBOR Base Rate for any Floating Interest Period on the Floating Interest Rate Determination Date for such Floating Interest Period, the USD LIBOR Base Rate for such Floating Interest Period shall be the rate agreed upon by the holders of more than 50% in principal amount of the Floating Rate Notes (without regard to Series) at the time outstanding (exclusive of Floating Rate Notes then owned by the Company or any of its Affiliates) as specified in a written notice to the Company, which rate shall be final and binding absent manifest error. Failure by the any such holders to notify the Company of any such agreement shall not affect the obligations of the Company hereunder.

 

  (vii)

If, after the date of the Closing, any change in any law or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the administration or interpretation thereof (whether or not having the force of law) shall make it unlawful for any holder of Floating Rate Notes to hold or collect upon any Floating Rate Note because of its relationship to the USD LIBOR Base Rate or to give effect to its obligations as contemplated hereby with respect to any Floating Rate Note based on the USD LIBOR Base Rate, then by written notice to the Company: (A) such holder shall promptly (x) notify the Company of such circumstances, including the effective date of such law, regulation or interpretation (which notice shall be withdrawn whenever such circumstances no longer exist) and (y) request the Substituted Rate Bank to specify the rate described in clause (b) of the definition of “Substituted Rate” applicable to the Floating Rate Notes of such Series; and (B) if such notice is given, (1) the interest rate applicable to the Floating Rate Notes of such Series (for purposes of this Section 8.1(a)(vii), “such Notes”) shall be the relevant Substituted Rate, effective as of the effective date specified in such notice, (2) each reference herein with respect to such Notes and in such Notes to the “Floating Interest Rate” shall be deemed thereafter to be a reference to the relevant Substituted Rate, and (3) such Substituted Rate shall be imposed retroactively on such Notes, beginning with the effective date specified in such notice, and shall continue until the first day of the next succeeding Floating Interest Period after which the

 

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  notice referred to in clause (A) above shall be withdrawn. As used in this Section 8.1(a)(vii), “ Substituted Rate ” means, at any time, the sum of (a) with respect to the Series B Notes, 0.9% (90 basis points), and with respect to the Series G Notes, 1.05% (105 basis points), plus (b) the annual rate determined by the Substituted Rate Bank to be the rate at which the Substituted Rate Bank, in accordance with its customary practices, offers to place deposits in USD for a period of time comparable to the relevant Floating Interest Period with first class banks in the London interbank market at approximately 11.00 a.m. (London time) two Business Days prior to the first day of the applicable Floating Interest Period (or portion thereof), in the approximate aggregate principal amount of the Floating Rate Notes of the relevant Series outstanding at the time of such determination, and “ Substituted Rate Bank ” means any leading bank participating in the London interbank market which does not act as lender to, or regular underwriter of the securities of, the Company or any of its Affiliates and which is selected by the Company (after consultation with the holders of the Floating Rate Notes) and reasonably acceptable to the holders of more than 50% in principal amount of the Floating Rate Notes (without regard to Series) at the time outstanding (exclusive of Floating Rate Notes then owned by the Company or any of its Affiliates).

 

  (b) The outstanding principal amount, if any, of the Series A Notes shall be repaid in full at par and without payment of the Make-Whole Amount or any premium on November 19, 2019. The outstanding principal amount, if any, of the Series B Notes shall be repaid in full at par and without payment of the Make-Whole Amount or any premium on November 19, 2019. The outstanding principal amount, if any, of the Series C Notes shall be repaid in full at par and without payment of the Make-Whole Amount or any premium on November 19, 2021. The outstanding principal amount, if any, of the Series D Notes shall be repaid in full at par and without payment of the Make-Whole Amount or any premium on November 19, 2022. The outstanding principal amount, if any, of the Series E Notes shall be repaid in full at par and without payment of the Make-Whole Amount or any premium on November 19, 2023. The outstanding principal amount, if any, of the Series F Notes shall be repaid in full at par and without payment of the Make-Whole Amount or any premium on November 19, 2024. The outstanding principal amount, if any, of the Series G Notes shall be repaid in full at par and without payment of the Make-Whole Amount or any premium on November 19, 2024.

 

8.2 Optional Prepayments with Make-Whole Amount.

The Company may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes (in a minimum principal amount of $5,000,000 and otherwise in multiples of $1,000,000) at 100% of the principal amount so prepaid, plus the Make-Whole Amount determined for the prepayment date with respect to such principal amount. The Company will give each holder of Notes written notice of each optional prepayment under this Section 8.2 not less than 30 days and not more than 60 days prior to the date fixed for such prepayment. Each such notice shall specify such date (which shall be

 

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a Business Day), the aggregate principal amount of the Notes to be prepaid on such date, the principal amount and Series of each Note held by such holder to be prepaid (determined in accordance with Section 8.4), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such prepayment, the Company shall deliver to each holder of Notes a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.

 

8.3 Prepayment for Tax Reasons.

If at any time as a result of a Change in Tax Law (as defined below) the Company is or becomes obligated to make any Additional Payments (as defined below) in respect of any payment of interest on account of any of the Notes, the Company may give the holders of all affected Notes irrevocable written notice (each, a “ Tax Prepayment Notice ”) of the prepayment of such affected Notes on a specified prepayment date (which shall be a Business Day not less than 30 days nor more than 60 days after the date of such notice) and the circumstances giving rise to the obligation of the Company to make any Additional Payments and the amount thereof and stating that all of the affected Notes shall be prepaid on the date of such prepayment at 100% of the principal amount so prepaid together with interest accrued thereon to the date of such prepayment plus an amount equal to the Modified Make-Whole Amount for each such Note, except in the case of an affected Note if the holder of such affected Note shall, by written notice given to the Company no more than 20 days after receipt of the Tax Prepayment Notice, reject such prepayment of such Note (each, a “ Rejection Notice ”). Such Tax Prepayment Notice shall be accompanied by a certificate of a Senior Financial Officer of the Company as to the estimated Modified Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. The form of Rejection Notice shall also accompany the Tax Prepayment Notice and shall state with respect to each Note covered thereby that execution and delivery thereof by the holder of such Note shall operate as a permanent waiver of such holder’s right to receive the Additional Payments arising as a result of the circumstances described in the Tax Prepayment Notice in respect of all future payments of interest on such Note (but not of such holder’s right to receive any Additional Payments that arise out of circumstances not described in the Tax Prepayment Notice or which exceed the amount of the Additional Payment described in the Tax Prepayment Notice), which waiver shall be binding upon all subsequent transferees of such Note. The Tax Prepayment Notice having been given as aforesaid to each holder of the affected Notes, the principal amount of such Notes together with interest accrued thereon to the date of such prepayment plus the Modified Make-Whole Amount shall become due and payable on such prepayment date, except in the case of Notes the holders of which shall timely give a Rejection Notice as aforesaid. Two Business Days prior to such prepayment, the Company shall deliver to each holder of a Note being so prepaid a certificate of a Senior Financial Officer of the Company specifying the calculation of such Modified Make-Whole Amount as of such prepayment date.

No prepayment of the Notes pursuant to this Section 8.3 shall affect the obligation of the Company to pay Additional Payments in respect of any payment made on or prior to the date of such prepayment. For purposes of this Section 8.3, any holder of more than one affected Note may act separately with respect to each affected Note so held (with the effect that a holder of more than one affected Note may accept such offer with respect to one or more affected Notes so held and reject such offer with respect to one or more other affected Notes so held).

 

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The Company may not offer to prepay or prepay Notes pursuant to this Section 8.3 (a) if a Default or Event of Default then exists, (b) until the Company shall have taken commercially reasonable steps to mitigate the requirement to make the related Additional Payments or (c) if the obligation to make such Additional Payments directly results or resulted from actions taken by the Company or any Subsidiary (other than actions required to be taken under applicable law), and any Tax Prepayment Notice given pursuant to this Section 8.3 shall certify to the foregoing and describe such mitigation steps, if any.

For purposes of this Section 8.3: “ Additional Payments ” means additional amounts required to be paid to a holder of any Note pursuant to Section 13 by reason of a Change in Tax Law; and a “ Change in Tax Law ” means (individually or collectively with one or more prior changes) (i) an amendment to, or change in, any law, treaty, rule or regulation of the United Kingdom after the date of the Closing, or an amendment to, or change in, an official interpretation or application of such law, treaty, rule or regulation after the date of the Closing, which amendment or change is in force and continuing and meets the opinion and certification requirements described below or (ii) in the case of any other jurisdiction that becomes a Taxing Jurisdiction after the date of the Closing, an amendment to, or change in, any law, treaty, rule or regulation of such jurisdiction, or an amendment to, or change in, an official interpretation or application of such law, treaty, rule or regulation, in any case after such jurisdiction shall have become a Taxing Jurisdiction, which amendment or change is in force and continuing and meets such opinion and certification requirements. No such amendment or change shall constitute a Change in Tax Law unless the same would in the opinion of the Company (which shall be evidenced by an Officer’s Certificate of the Company and supported by a written opinion of counsel having recognized expertise in the field of taxation in the Taxing Jurisdiction, both of which shall be delivered to all holders of the Notes prior to or concurrently with the Tax Prepayment Notice in respect of such Change in Tax Law) affect the deduction or require the withholding of any Tax imposed by such Taxing Jurisdiction on any payment payable on the Notes.

 

8.4 Allocation of Partial Prepayments.

In the case of each partial prepayment of the Notes pursuant to Section 8.2, the principal amount of the Notes to be prepaid shall be allocated among all of the Notes (without regard to Series) at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment.

 

8.5 Maturity; Surrender, etc.

In the case of each prepayment of Notes pursuant to this Section 8, the principal amount of each Note to be prepaid shall mature and become due and payable on the date fixed for such prepayment (which shall be a Business Day), together with interest on such principal amount accrued to such date and the applicable Make-Whole Amount or Modified Make-Whole Amount, if any. From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest and Make-Whole Amount or Modified Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to the Company and cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.

 

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8.6 Purchase of Notes.

The Company will not, and will not permit any Affiliate which it controls to, purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes except (a) upon the payment or prepayment of the Notes in accordance with the terms of this Agreement and the Notes or (b) pursuant to an offer to purchase made by the Company or an Affiliate pro rata to the holders of all Notes at the time outstanding upon the same terms and conditions (but taking into account the differences in interest rates and maturities of the different Series of Notes). Any such offer shall provide each holder with sufficient information to enable it to make an informed decision with respect to such offer, and shall remain open for at least 10 Business Days. If the holders of more than 50% of the principal amount of the Notes then outstanding accept such offer, the Company shall promptly notify the remaining holders of such fact and the expiration date for the acceptance by holders of Notes of such offer shall be extended by the number of days necessary to give each such remaining holder at least five Business Days from its receipt of such notice to accept such offer. The Company will promptly cancel all Notes acquired by the Company or any Affiliate which it controls pursuant to any payment, prepayment or purchase of Notes pursuant to any provision of this Agreement and no Notes may be issued in substitution or exchange for any such Notes.

 

8.7 Make-Whole Amount and Modified Make-Whole Amount.

The terms “ Make-Whole Amount ” and “ Modified Make-Whole Amount ” mean, with respect to (a) any Fixed Rate Note of any Series, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note of such Series over the amount of such Called Principal, provided that neither the Make-Whole Amount nor the Modified Make-Whole Amount may in any event be less than zero and with respect to (b) any Floating Rate Note, an amount equal to the Breakage Amount, if any, with respect to such Floating Rate Note. For the purposes of determining the Make-Whole Amount or the Modified Make-Whole Amount with respect to any Fixed Rate Note of any Series, the following terms have the following meanings:

Applicable Percentage ” means, in the case of a computation of the Modified Make-Whole Amount for purposes of Section 8.3, 100 basis points, and in the case of a computation of the Make-Whole Amount for any other purpose means 50 basis points.

Called Principal ” means, with respect to any Fixed Rate Note of any Series, the principal of such Fixed Rate Note that is to be prepaid pursuant to Section 8.2 or 8.3 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.

Discounted Value ” means, with respect to the Called Principal of any Fixed Rate Note of any Series, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on such Series of the Fixed Rate Notes is payable) equal to the Reinvestment Yield with respect to such Called Principal.

 

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Reinvestment Yield ” means, with respect to the Called Principal of any Fixed Rate Note of any Series, the sum of the (x) Applicable Percentage plus (y) the yield to maturity implied by the ask-side yield(s) reported as of 10:00 A.M. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX1” (or such other display as may replace Page PX1 on Bloomberg Financial Markets (“Bloomberg”) or, if Page PX1 (or its successor screen on Bloomberg) is unavailable, the Telerate Access Service screen which corresponds most closely to Page PX1 for the most recently issued actively traded on the run U.S. Treasury securities (“ Reported ”) having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there are no such U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then such implied yield to maturity will be determined by (a) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between the ask-side yields Reported for the applicable most recently issued actively traded on-the-run U.S. Treasury securities with the maturities (1) closest to and greater than such Remaining Average Life and (2) closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Fixed Rate Note.

Remaining Average Life ” means, with respect to any Called Principal of any Fixed Rate Note of any Series, the number of years obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years, computed on the basis of a 360-day year comprised of twelve 30-day months and calculated to two decimal places, that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.

Remaining Scheduled Payments ” means, with respect to the Called Principal of any Fixed Rate Note of any Series, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the terms of the Fixed Rate Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.2, 8.3 or 12.1.

Settlement Date ” means, with respect to the Called Principal of any Fixed Rate Note of any Series, the date on which such Called Principal is to be prepaid pursuant to Section 8.2 or 8.3 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.

 

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8.8 Prepayment upon a Disposal.

 

  (a) If the Company makes an offer of prepayment of the Notes pursuant to Section 10.6(b)(vii)(B), the Company shall give written notice thereof (a “Sale of Assets Notice” ) to each holder of the Notes, which shall (i) refer to this Section 8.8(a) and the rights of such holders hereunder, (ii) contain an offer by the Company to prepay such holder’s ratable portion of the aggregate principal amount of the Notes offered to be prepaid pursuant to Section 10.6(b)(vii)(B), at par plus accrued and unpaid interest thereon to the prepayment date selected by the Company (as provided below) but without payment of any Make-Whole Amount or Modified Make-Whole Amount (or, for the avoidance of doubt, Breakage Amount) with respect thereto, which prepayment shall be on a date specified in the Sale of Assets Notice, which date (the “ Sale of Assets Prepayment Date ”) shall be a Business Day not more than 60 days after the date of such Sale of Assets Notice (and which date shall be, if no date is selected by the Company, the last Business Day on or preceding the 60th day after the date of delivery of the Sale of Assets Notice), and (iii) request each such holder to notify the Company in writing by a stated date, which date is not less than 30 days after such holder’s receipt of the Sale of Assets Notice, of its acceptance or rejection of such offer. A holder’s failure to respond shall be deemed a rejection of such offer.

 

  (b) On the Sale of Assets Prepayment Date, the applicable unpaid principal amount of Notes held by each holder of Notes who has accepted the Company’s prepayment offer (in accordance with Section 8.8(a)(iii)), together with any accrued and unpaid interest thereon to the Sale of Assets Prepayment Date but without payment of any Make-Whole Amount or Modified Make-Whole Amount (or, for the avoidance of doubt, Breakage Amount) with respect thereto, shall become due and payable.

 

8.9 Change of Control Prepayment.

 

  (a) Promptly, and in any event within five (5) Business Days, upon becoming aware that a Change of Control has occurred, the Company shall give written notice of such fact (the “ Company Notice ”) to all holders of the Notes. The Company Notice shall (i) describe the facts and circumstances of such Change of Control in reasonable detail, (ii) refer to this Section 8.9 and the rights of the holders hereunder and state that a Change of Control has occurred, (iii) contain an offer by the Company to prepay the entire unpaid principal amount of Notes held by each holder, together with interest thereon to the prepayment date selected by the Company with respect to each Note but without payment of any Make-Whole Amount or Modified Make-Whole Amount (or, for the avoidance of doubt, Breakage Amount) with respect thereto, which prepayment shall be on a date specified in the Company Notice, which date shall be a Business Day not less than 35 days and not more than 45 days after such Company Notice is given, and (iv) request each holder to notify the Company in writing by a stated date (the “ Change of Control Response Date ”), which date is not less than 30 days after such holder’s receipt of the Company Notice, of its acceptance or rejection of such prepayment offer. If a holder does not notify the Company as provided above, then the holder shall be deemed to have rejected such offer.

 

  (b) On the prepayment date specified in the Company Notice, the entire unpaid principal amount of the Notes held by each holder of Notes who has accepted such prepayment offer (in accordance with subclause (iv) of subparagraph (a) of this Section 8.9), together with interest thereon to the prepayment date with respect to each such Note but without payment of any Make-Whole Amount or Modified Make-Whole Amount (or, for the avoidance of doubt, Breakage Amount) with respect thereto shall become due and payable.

 

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8.10 Prepayment in Connection with a Noteholder Sanctions Event.

 

  (a) Upon the Company’s receipt of notice from any Affected Noteholder that a Noteholder Sanctions Event has occurred (which notice shall refer specifically to this Section 8.10(a) and describe in reasonable detail such Noteholder Sanctions Event), the Company shall promptly, and in any event within 10 Business Days, make an offer (the “ Sanctions Prepayment Offer ”) to prepay the entire unpaid principal amount of Notes held by such Affected Noteholder (the “ Affected Notes ”), together with interest thereon to the prepayment date selected by the Company with respect to each Affected Note but without payment of any Make-Whole Amount or Modified Make-Whole Amount with respect thereto, which prepayment shall be on a Business Day not less than 30 days and not more than 60 days after the date of the Sanctions Prepayment Offer (the “ Sanctions Prepayment Date ”). Such Sanctions Prepayment Offer shall provide that such Affected Noteholder notify the Company in writing by a stated date (the “ Sanctions Prepayment Response Date ”), which date is not later than 10 Business Days prior to the stated Sanctions Prepayment Date, of its acceptance or rejection of such prepayment offer. If such Affected Noteholder does not notify the Company as provided above, then the holder shall be deemed to have accepted such offer.

 

  (b) Subject to the provisions of subparagraphs (c) and (d) of this Section 8.10, the Company shall prepay on the Sanctions Prepayment Date the entire unpaid principal amount of the Affected Notes held by such Affected Noteholder who has accepted such prepayment offer (in accordance with subparagraph (a)), together with interest thereon to the Sanctions Prepayment Date with respect to each such Affected Note, but without payment of any Make-Whole Amount or Modified Make-Whole Amount with respect thereto.

 

  (c) If a Noteholder Sanctions Event has occurred but the Company and/or its Controlled Entities have taken such action(s) in relation to their activities so as to remedy such Noteholder Sanctions Event (with the effect that a Noteholder Sanctions Event no longer exists, as reasonably determined by such Affected Noteholder) prior to the Sanctions Prepayment Date, then the Company shall no longer be obliged to prepay such Affected Notes in relation to such Noteholder Sanctions Event. If the Company and/or its Controlled Entities shall undertake any actions to remedy any such Noteholder Sanctions Event, the Company shall keep the holders reasonably and timely informed of such actions and the results thereof.

 

  (d)

If any Affected Noteholder that has given written notice to the Company of its acceptance of (or has been deemed to have accepted) the Company’s prepayment offer in accordance with subparagraph (a) also gives notice to the Company prior to the relevant Sanctions Prepayment Date that it has determined (in its sole discretion) that it requires clearance from any United States Governmental Authority in order to receive a prepayment pursuant to

 

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  this Section 8.10, the principal amount of each Note held by such Affected Noteholder, together with interest accrued thereon to the date of prepayment, shall become due and payable on the later to occur of (i) such Sanctions Prepayment Date and (ii) the date that is 10 Business Days after such Affected Noteholder gives notice to the Company that it is entitled to receive a prepayment pursuant to this Section 8.10 (which may include payment to an escrow account designated by such Affected Noteholder to be held in escrow for the benefit of such Affected Noteholder until such Affected Noteholder obtains such clearance from such United States Governmental Authority), and in any event, any such delay in accordance with the foregoing clause (ii) shall not be deemed to give rise to any Default or Event of Default.

 

  (e) Promptly, and in any event within 5 Business Days, after the Company’s receipt of notice from any Affected Noteholder that a Noteholder Sanctions Event shall have occurred with respect to such Affected Noteholder, the Company shall forward a copy of such notice to each other holder of Notes.

 

  (f) The Company shall promptly, and in any event within 10 Business Days, give written notice to the holders after the Company or any Controlled Entity having been notified that (i) its name appears or may in the future appear on a State Sanctions List or (ii) it is in violation of, or is subject to the imposition of sanctions under, any U.S. Economic Sanctions Laws, in each case which notice shall describe the facts and circumstances thereof and set forth the action, if any, that the Company or a Controlled Entity proposes to take with respect thereto.

 

  (g) The foregoing provisions of this Section 8.10 shall be in addition to any rights or remedies available to any holder of Notes that may arise under this Agreement as a result of the occurrence of a Noteholder Sanctions Event; provided , that, if the Notes shall have been declared due and payable pursuant to Section 12.1 as a result of the events, conditions or actions of the Company or its Controlled Entities that gave rise to a Noteholder Sanctions Event, the remedies set forth in Section 12 shall control.

 

9. AFFIRMATIVE COVENANTS.

The Company covenants that so long as any of the Notes are outstanding:

 

9.1 Compliance with Law.

Without limiting Section 10.3, the Company will and will cause each of its Subsidiaries to comply with all laws, ordinances or governmental rules or regulations to which each of them is subject, including, without limitation, ERISA, the USA PATRIOT Act and Environmental Laws, and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

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9.2 Insurance.

The Company will and will cause each of its Subsidiaries to maintain (whether directly or through coverage obtained under umbrella policies taken out by other members of the Group), with institutions it reasonably believes to be financially sound and reputable (to the extent not self-insured as described below), insurance to the extent commercially available with respect to their respective properties and businesses (other than in relation to immaterial properties or businesses) against such casualties and contingencies, of such types, on such terms and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto in the reasonable judgment of the Company) as is customary in the case of entities of established reputations engaged in the same or a similar business and similarly situated, except where the failure to maintain any such insurance would not reasonably be expected to have a Material Adverse Effect.

 

9.3 Maintenance of Properties.

The Company will and will cause each of its Subsidiaries to maintain and keep, or cause to be maintained and kept, their respective properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried on in connection therewith may be properly conducted at all times, provided that this Section shall not prevent the Company or any Subsidiary from discontinuing the operation and the maintenance of any of its properties if the Company or such Subsidiary has concluded that such discontinuance (i) is desirable in the conduct of its business and (ii) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

9.4 Payment of Taxes and Claims.

The Company will, and will cause each of its Subsidiaries to, file all tax returns required to be filed in any jurisdiction and to pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments, governmental charges or levies payable by any of them to the extent the same have become due and payable and before they have become delinquent, provided that neither the Company nor any Subsidiary need file a tax return or pay any such tax, assessment, charge or levy if (a) the amount, applicability or validity thereof is contested by the Company or such Subsidiary on a timely basis in good faith and in appropriate proceedings, and the Company or a Subsidiary has established adequate reserves therefor in accordance with IFRS on the books of the Company or such Subsidiary or (b) the non-filing of all such tax returns and the nonpayment of all such taxes, assessments, charges and levies in the aggregate would not reasonably be expected to have a Material Adverse Effect.

 

9.5 Corporate Existence, etc.

Subject to Section 10.2, the Company will at all times preserve and keep in full force and effect its corporate existence. Subject to Sections 10.2 and 10.6, the Company will at all times preserve and keep in full force and effect the corporate existence of each of its Subsidiaries (unless merged into the Company or a Subsidiary) and all rights and franchises of the Company and its Subsidiaries unless, in the good faith judgment of the Company or Subsidiary, the termination of or failure to preserve and keep in full force and effect such corporate existence, right or franchise would not, individually or in the aggregate, have a Material Adverse Effect.

 

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9.6 Books and Records.

The Company will, and will cause each of its Subsidiaries to, maintain in all Material respects proper books of record and account in conformity with IFRS (or to the extent a Subsidiary applies local accounting principles in effect in its jurisdiction of organization, in conformity with such local accounting principles as in effect from time to time) and all applicable requirements of any Governmental Authority having legal or regulatory jurisdiction over the Company or such Subsidiary, as the case may be.

 

9.7 Priority of Obligations.

The Company will ensure that its payment obligations under this Agreement and the Notes and the payment obligations of any Subsidiary Guarantor under its Subsidiary Guarantee, will at all times rank at least pari passu , without preference or priority, with all other unsecured and unsubordinated Financial Indebtedness of the Company and such Subsidiary Guarantor, as applicable.

 

9.8 Subsidiary Guarantees.

 

  (a) The Company shall cause each Additional Subsidiary Guarantor to execute and deliver, or otherwise accede to (concurrently upon becoming an Additional Subsidiary Guarantor), a Subsidiary Guarantee substantially in the form of Exhibit 9.8 hereto (with such modifications as may be required to reflect the legal requirements of the jurisdiction of incorporation of the relevant Subsidiary) or otherwise in form and substance reasonably satisfactory to the Required Holders.

 

  (b) The Company may, from time to time at its discretion and upon written notice from the Company to the holders of Notes, cause any of its Subsidiaries which are not otherwise Subsidiary Guarantors pursuant to Section 9.8(a) to enter into or accede to a Subsidiary Guarantee substantially in the form of Exhibit 9.8 hereto (with such modifications as may be required to reflect the legal requirements of the jurisdiction of incorporation of the relevant Subsidiary) or otherwise in form and substance reasonably satisfactory to the Required Holders (an “ Optional Subsidiary Guarantee ”). A Subsidiary that enters into an Optional Subsidiary Guarantee shall be referred to as an “ Optional Subsidiary Guarantor ”.

 

  (c) The delivery of a Subsidiary Guarantee by each Subsidiary Guarantor shall be accompanied by the following:

 

  (i) an officer’s certificate from such Subsidiary Guarantor confirming that the representations and warranties of such Subsidiary Guarantor contained in such Subsidiary Guarantee are true and correct;

 

  (ii) copies of the articles of association or certificate or articles of incorporation, and all other constitutive documents, of such Subsidiary Guarantor, resolutions of the board of directors of such Subsidiary Guarantor authorizing its execution and delivery of the Subsidiary Guarantee and the transactions contemplated thereby and the performance of its obligations thereunder, and specimen signatures of authorized officers of such Subsidiary Guarantor (in each case, certified as correct and complete copies by the secretary or an assistant secretary (or an equivalent officer) of such Subsidiary Guarantor);

 

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  (iii) a legal opinion, satisfactory in form, scope and substance to the Required Holders, of independent legal counsel to the effect that, subject to customary qualifications and assumptions, (1) such Subsidiary Guarantor is duly and validly organized and existing under the laws of its jurisdiction of organization and (if applicable in such jurisdiction) is in good standing, (2) such Subsidiary Guarantee shall have been duly authorized, executed and delivered by such Subsidiary Guarantor, and (3) such Subsidiary Guarantee is enforceable in accordance with its terms and covering such other matters relating to such Subsidiary Guarantor and such Subsidiary Guarantee as the Required Holders may reasonably request; and

 

  (iv) evidence of the appointment of CT Corporation System, as required by Section 3.9(e) of the Subsidiary Guarantee, as such Subsidiary Guarantor’s agent to receive, for it and on its behalf, service of process in the United States of America and the payment of fees for such service through November 19, 2025.

An original executed counterpart of each such Subsidiary Guarantee shall be delivered to each holder of Notes promptly after the execution thereof.

 

  (d) In the event that an Additional Subsidiary Guarantor at any time ceases to guarantee the obligations of the Company or other Group members under the Principal Credit Facility and is no longer a guarantor under such Principal Credit Facility, the Company may upon written notice to the holders of the Notes referring to this Section 9.8(d), which notices shall be accompanied by an Officer’s Certificate certifying as to the matters set forth in clauses (i) and (ii) below, terminate the Subsidiary Guarantee issued by the Additional Subsidiary Guarantor, as the case may be, with effect from the date of such notice so long as (i) no Default or Event of Default shall have occurred and then be continuing or shall result therefrom (including, without limitation, an Event of Default arising from a breach of Section 10.7 following the termination of such Subsidiary Guarantee), and (ii) no payment by such Subsidiary Guarantor is due under such Subsidiary Guarantor’s Subsidiary Guarantee.

 

  (e) The Company may further, from time to time at its discretion and upon written notice from the Company to the holders of the Notes referring to this Section 9.8(e), which shall be accompanied by an Officer’s Certificate certifying as to the matters set forth in clauses (i) and (ii) below, terminate an Optional Subsidiary Guarantee issued by an Optional Subsidiary Guarantor with effect from the date of such notice so long as (i) no Default or Event of Default shall have occurred and then be continuing or shall result therefrom (including, without limitation, an Event of Default arising from a breach of Section 10.7 following the termination of such Optional Subsidiary Guarantee), (ii) no payment by such Optional Subsidiary Guarantor is due under such Optional Subsidiary Guarantor’s Optional Subsidiary Guarantee, and (iii) such Optional Subsidiary Guarantor is not a guarantor under any Principal Credit Facility.

 

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10. NEGATIVE COVENANTS.

The Company covenants that so long as any of the Notes are outstanding:

 

10.1 Transactions with Affiliates.

The Company will not and will not permit any Subsidiary to enter into directly or indirectly any Material transaction or Material group of related transactions (including without limitation the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate (other than the Company or another Subsidiary), except pursuant to the reasonable requirements of the Company’s or such Subsidiary’s business and upon fair and reasonable terms no less favorable to the Company or such Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an Affiliate.

 

10.2 Merger, Consolidation, etc.

The Company will not consolidate with or merge with any other Person or convey, transfer or lease all or substantially all of its assets in a single transaction or series of transactions to any Person unless:

 

  (a) the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Company as an entirety shall be a solvent corporation or limited liability company organized and existing under the laws of England and Wales, the United States or any State thereof (including the District of Columbia) or any other Permitted Jurisdiction, and, if the Company is not such corporation or limited liability company: (i) such corporation or limited liability company shall have executed and delivered to each holder of any Notes its assumption of the due and punctual performance and observance of each covenant and condition of this Agreement and the Notes; (ii) such corporation or limited liability company shall have caused to be delivered to each holder of any Notes an opinion of internationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof and (iii) the successor formed by such consolidation or survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Company, as the case may be, shall have provided to the holders evidence of the acceptance by CT Corporation System of the appointment and designation provided for by Section 23.8(e) for the period of time from such merger to November 19, 2025 (and the payment in full of all fees in respect thereof);

 

  (b) each Subsidiary Guarantor under any Subsidiary Guaranty that is outstanding at the time such transaction or each transaction in such a series of transactions occurs reaffirms its obligations under such Subsidiary Guaranty in writing at such time pursuant to documentation that is reasonably acceptable to the Required Holders; and

 

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  (c) immediately before and immediately after giving effect to such transaction or each transaction in any such series of transactions, no Default or Event of Default shall have occurred and be continuing.

No such conveyance, transfer or lease of substantially all of the assets of the Company shall have the effect of releasing the Company or any successor corporation or limited liability company that shall theretofore have become such in the manner prescribed in this Section 10.2, from its liability under this Agreement or the Notes.

 

10.3 Economic Sanctions, Etc.

The Company will not and will not permit any Controlled Entity to (a) become (including by virtue of being owned or controlled by a Blocked Person), own or control a Blocked Person or (b) directly or indirectly have any investment in or engage in any dealing or transaction (including any investment, dealing or transaction involving the proceeds of the Notes) with any Person if such investment, dealing or transaction would be in violation of, or could result in the imposition of sanctions under, any U.S. Economic Sanctions Laws applicable to the Company or such Controlled Entity, except, in the case of this clause (b), to the extent that such violation or sanctions, if imposed, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

10.4 Financial Condition.

 

  (a) The Company shall ensure that:

 

  (i) subject to the remainder of this Section 10.4, the ratio of Consolidated Total Net Borrowings (as at each Testing Date) to Consolidated EBITDA (for the Measurement Period ending on that Testing Date) is not more than 3:1; and

 

  (ii) on each Testing Date the ratio of Consolidated EBITA to Consolidated Net Interest Payable for the Measurement Period ending on that Testing Date is not less than 3:1.

 

  (b) The Company may on two separate occasions (each, a “ Spike Election ”) during the term of the Notes, solely as a result of increased Financial Indebtedness arising from or in relation to a Material Acquisition Event (defined below) and not, for the avoidance of doubt, because of any decline in operating performance or financial condition of the Group, taken as a whole, allow the ratio of Consolidated Total Net Borrowings to Consolidated EBITDA set forth in clause (a)(i) above at the end of any such Measurement Period to be more than 3:1 but not more than 3.5:1 (the “ 3.5 Ratio ”). On each Spike Election, such 3.5 Ratio may apply for no more than two consecutive Testing Dates (the application of the 3.5 Ratio to either one or two consecutive Testing Dates shall be hereinafter referred to as the (“ 3.5 Ratio Period ”)). After election of the first Spike Election, at least one Testing Date must pass after the end of the 3.5 Ratio Period applying to such first Spike Election whereby the Company does not allow the ratio of Consolidated Total Net Borrowings to Consolidated EBITDA set forth in clause (a)(i) above at the end of any such Measurement Period to be more than 3:1 before the Company may make a second Spike Election. For the avoidance of doubt, even if the first Spike Election results in the 3.5 Ratio Period being only one Testing Date, the second Spike Election may only allow the 3.5 Ratio Period to be no more than two consecutive Testing Dates.

 

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  (c) If the Company elects to rely on the allowance set forth in clause (b) above to apply the 3.5 Ratio to a particular Testing Date, then on the next interest payment date with respect to each Note immediately following the date of such election (such election being deemed to have occurred as of the date of the Officer’s Certificate delivered by the Company to the holders of Notes pursuant to Section 7.2 for the relevant accounting period notifying the holders of Notes of such election and describing the circumstances giving rise to such election), the interest payable by the Company on such interest payment date with respect to each Note (for the full six-month period relating to such interest payment date) shall be increased by 0.25% (twenty-five basis points) per annum; provided , that if a prepayment or repayment (whether at maturity or at a date fixed for prepayment or by declaration or otherwise) shall occur after such notification but prior to such interest payment date, the accrued interest payable in connection with such prepayment or repayment shall be calculated using such increased interest rate, provided further , however, that any payment of any Make-Whole Amount of Modified Make-Whole Amount shall be calculated assuming that no increase in interest applies to any Notes.

 

  (d) For purposes of this Agreement, a “ Material Acquisition Event ” means any single acquisition, or any amount of separate acquisitions effected over a rolling twelve-month period, by any members of the Group which in total have a value exceeding £1,500,000,000.

 

  (e) For purposes of this Agreement, the following terms shall have the following meaning:

 

  (i) Consolidated Cash and Cash Equivalents ” means, at any time, the aggregate of the following:

 

  (A) cash in hand or on deposit with any Acceptable Bank, which, in either case, is not subject to any security interest and is readily remittable to the U.K or capable of being applied against Consolidated Total Borrowings;

 

  (B) certificates of deposit, maturing within one year after the relevant date of calculation, issued by an Acceptable Bank;

 

  (C) any investment in marketable obligations issued or guaranteed by the government of the United States of America or the U.K. or by an instrumentality or agency of the government of the United States of America or the U.K. having an equivalent credit rating;

 

  (D) any investment in debt instruments permitting cash withdrawals on not more than one month’s notice and which have a rating of A or higher by Standard and Poor’s or Fitch or A2 or higher by Moody’s;

 

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  (E) open market commercial paper:

 

  (1) for which a recognized trading market exists;

 

  (2) issued in the United States of America or the U.K.;

 

  (3) which matures within one year after the relevant date of calculation; and

 

  (4) which has a credit rating of either A-1 by Standard & Poor’s or Fitch or P-1 by Moody’s, or, if no rating is available in respect of the commercial paper or indebtedness, the issuer of which has, in respect of its long term debt obligations, an equivalent rating;

 

  (F) debt securities eligible for rediscount at the Bank of England and accepted by an Acceptable Bank;

 

  (G) any cash deposited as collateral against any Consolidated Total Borrowings up to the maximum amount of those Consolidated Total Borrowings; or

 

  (H) any other instrument, security or investment approved by the Required Holders,

in each case, to which any member of the Group is beneficially entitled at that time and which is capable of being applied against Consolidated Total Borrowings.

Any amount outstanding in a currency other than U.S. Dollars is to be taken into account at its Dollar equivalent calculated on the basis of:

 

  (I) the Royal Bank of Scotland plc’s Dollar Rate of Exchange; or

 

  (J) if the amount is to be calculated on the last day of a financial period of the Company, the rate of exchange used by the Company in its financial statements for that last day of the financial period. However, if by using this rate the Company does not comply with any term of this Section 10.4, the Company may apply the average rate of exchange used by the Company in its financial statements for that period instead.

(ii) “ Consolidated EBITA ” means Consolidated EBITDA for a Measurement Period adjusted by deducting depreciation.

(iii) “ Consolidated EBITDA ” means the consolidated net pre-taxation profits of the Group for a Measurement Period, adjusted by:

 

  (A) adding back Consolidated Net Interest Payable;

 

  (B) adding back any other finance costs included in consolidated net pre-taxation profits;

 

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  (C) taking no account of any exceptional or extraordinary item;

 

  (D) adding back the profit and loss effect of any adjustment to the carrying value of inventory or any other asset or liability arising from purchase accounting adjustments, to the extent that any such adjustment (in whole or part) is included in consolidated net pre-taxation profits;

 

  (E) adding back depreciation and amortization;

 

  (F) adding back any charges in respect of share based payments; and

 

  (G) including the EBITDA (calculated on the same basis as Consolidated EBITDA, mutatis mutandis) of any member of the Group treated as held for sale.

 

  (iv) Consolidated Interest Payable ” means all interest and recurring financing charges including acceptance commission, commitment fees (but excluding for the avoidance of doubt any one-off or up-front fees), the interest element of rental payments on finance or capital leases (whether, in each case, paid or payable) and any other finance costs having the nature of interest included in consolidated pre-taxation profits, incurred by the Group in effecting, servicing or maintaining Consolidated Total Borrowings during a Measurement Period, after taking into account any amount relating to the current Measurement Period in respect of any interest rate hedging transactions in respect of the Consolidated Total Borrowings whether or not designated as IAS 39 hedges.

 

  (v) Consolidated Net Interest Payable ” means Consolidated Interest Payable less all interest and financing charges received or receivable by the Group during the relevant Measurement Period.

 

  (vi) Consolidated Total Borrowings ” means, in respect of the Group, at any time the aggregate of the following:

 

  (A) the outstanding principal amount of any moneys borrowed;

 

  (B) the outstanding principal amount of any acceptance under any acceptance credit;

 

  (C) the outstanding principal amount of any bond, note, debenture, loan stock or other similar instrument;

 

  (D) the capitalized element of indebtedness under a finance or capital lease as defined in accordance with accounting principles applied in preparation of the Original Financial Statements;

 

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  (E) the outstanding principal amount of all moneys owing in connection with the sale or discounting of receivables (otherwise than on a non-recourse basis);

 

  (F) the outstanding principal amount of any indebtedness arising from any deferred payment agreements arranged primarily as a method of raising finance or financing the acquisition of an asset;

 

  (G) any fixed or minimum premium due and payable on the repayment or redemption of any instrument referred to in paragraph (C) above;

 

  (H) the outstanding principal amount of any indebtedness arising in connection with any other transaction (including any forward sale or purchase agreement) which has the commercial effect of a borrowing;

 

  (I) the outstanding principal amount of any indebtedness of any person who is not a member of the Group of a type referred to in paragraphs (A) to (H) above which is the subject of a guarantee, indemnity or similar assurances against financial loss provided by a member of the Group; and

 

  (J) the value of any assets or liabilities arising from the mark-to-market valuation of any derivative financial instruments in respect of currency hedging on Consolidated Total Borrowings which gives rise to balance sheet assets or liabilities.

Any amount outstanding in a currency other than U.S. Dollars is to be taken into account at its Dollar equivalent calculated on the basis of:

 

  (1) the Royal Bank of Scotland plc’s Dollar Rate of Exchange; or

 

  (2) if the amount is to be calculated on the last day of a financial period of the Company, the rate of exchange used by the Company in its financial statements for that last day of the financial period. However, if by using this rate the Company does not comply with any term of this Section 10.4, the Company may apply the average rate of exchange used by the Company in its financial statements for that period instead.

 

  (vii) Consolidated Total Net Borrowings ” means at any time Consolidated Total Borrowings less Consolidated Cash and Cash Equivalents.

 

  (viii) Measurement Period ” means a period of 12 months ending on a Testing Date.

 

  (ix) Testing Date ” means the last day of a financial year or financial half year of the Company.

 

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  (f) For the purpose of calculation of the covenant in Section 10.4(a)(i) only:

 

  (i) there shall be included in determining Consolidated EBITDA for any Measurement Period (including that portion thereof occurring prior to the relevant acquisition) the EBITDA (calculated on the same basis as Consolidated EBITDA, mutatis mutandis) of any material person, property, business or fixed asset acquired by any member of the Group during such Measurement Period as if they were acquired as of the first day of that Measurement Period; and

 

  (ii) there shall be excluded in determining Consolidated EBITDA for any Measurement Period the EBITDA (calculated on the same basis as Consolidated EBITDA, mutatis mutandis ) of any material person, property, business or fixed asset sold by any member of the Group during such Measurement Period (including that portion thereof occurring prior to the relevant disposal) as if they were disposed of as of the first day of that Measurement Period.

For the avoidance of doubt, there shall be no corresponding adjustments to Consolidated EBITA for the purposes of calculating the covenant in Section 10.4(a)(ii).

 

  (g) The financial covenants set out in this Section 10.4 shall be tested by reference to the most recent set of financial statements delivered pursuant to Section 7.1(a) or (b). If the financial statements delivered pursuant to Section 7.1(a) or (b) are not prepared using IFRS, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements, then the Company shall notify each holder of Notes that there has been a change in IFRS, accounting practices or reference periods and deliver to each holder of Notes:

 

  (i) a description of any change necessary for those financial statements to reflect the IFRS, accounting practices and reference periods upon which the Original Financial Statements were prepared; and

 

  (ii) sufficient information, in form and substance as may be reasonably required by the Required Holders, to enable the holders of Notes to determine whether this Section 10.4 has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.

Any reference in this Agreement to the financial statements of the Company for purposes of testing the financial covenants set out in this Section 10.4 shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared, and compliance with such financial covenants shall be determined using the IFRS, the accounting principles and financial reference periods applied in the preparation of the Original Financial Statements.

 

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  (h) If the Company notifies the holders of Notes of a change in accordance with paragraph (g)(i) above, then the Company and the holders of Notes shall enter into negotiations in good faith for a period of not more than 180 days with a view to agreeing:

 

  (i) whether or not the change might result in any material alteration in the commercial effect of any of the terms of this Agreement; and

 

  (ii) if so, any amendments to this Agreement which may be necessary to ensure that the change does not result in any material alteration in the commercial effect of those terms,

and if any amendments are agreed by the Required Holders they shall take effect and be binding on the Company and all holders of Notes in accordance with their terms.

 

10.5 Negative Pledge.

 

  (a) Except as provided in clause (b) below, no member of the Group may create or allow to exist any Security Interest on any of its assets.

 

  (b) Clause (a) above does not apply to:

 

  (i) any Security Interest comprising a netting, set off or lien arrangement entered into by a member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;

 

  (ii) any lien arising by operation of law and in the ordinary course of business;

 

  (iii) any Security Interest on an asset, or an asset of any person, acquired by a member of the Group after the date of this Agreement to the extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, or since, the acquisition;

 

  (iv) any Security Interest arising under any contract for the purchase of goods entered into in the normal course of trading;

 

  (v) any Security Interest over goods and products or over the documents of title or insurance policies relating to such goods and products, arising in the ordinary course of trading in connection with letters of credit and similar transactions, provided such Security Interest secures only so much of the acquisition cost or selling price (and amounts incidental thereto) of these goods and products which is required to be paid within 6 months after the date upon which the same was first incurred;

 

  (vi) set-off rights on market standard terms contained in any hedging agreement;

 

  (vii) set-off rights in the ordinary course of trading;

 

  (viii) any Security Interest created in substitution for any of the above Security Interests but only:

 

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  (A) if the Security Interest is over the same asset;

 

  (B) if the principal amount secured by that Security Interest does not exceed the principal amount secured by the Security Interest which is replaced; and

 

  (C) if the Security Interest which is replaced was only permitted to be outstanding for a certain period of time, to the extent the new Security Interest is not outstanding for any greater period; and

 

  (ix) any Security Interest securing indebtedness incurred by the Company or any Subsidiary in addition to those described in paragraphs (i)-(viii) above; provided that the sum, without duplication of (i) the aggregate principal amount of all Financial Indebtedness of Subsidiaries outstanding pursuant to Section 10.7(i), plus (ii) the aggregate principal amount of all Financial Indebtedness secured by any Security Interest pursuant to this paragraph (ix) (when aggregated with the amount of assets or receivables sold, transferred or disposed of under paragraph (c) below) shall not at any time exceed 15% of Consolidated Gross Assets.

 

  (c) No member of the Group may sell, transfer or otherwise dispose of any of its receivables on recourse terms, in circumstances where the transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset unless the amount of assets or receivables sold, transferred or disposed of under this paragraph (including any assets the subject of any such arrangement on the date of this Agreement), when aggregated with the amount of Financial Indebtedness secured under clause (b)(ix) above and the aggregate principal amount of all Financial Indebtedness of Subsidiaries outstanding pursuant to Section 10.7(i) does not exceed 15% of the Consolidated Gross Assets.

 

  (d) Notwithstanding anything to the contrary in the foregoing, the Company shall not, and shall not permit any of its Subsidiaries to, permit the obligations of the Company or any of its Subsidiaries under or in respect of any Principal Credit Facility to be secured by any Security Interest pursuant to Section 10.5(b)(ix), unless and until the Notes (and any guaranty delivered in connection therewith including, without limitation, any Subsidiary Guarantee) shall be concurrently secured equally and ratably pursuant to documentation in form and substance reasonably acceptable to the Required Holders.

 

10.6 Disposals.

 

  (a) The Company will not, and will procure that no other member of the Group will, either in a single transaction or in a series of transactions, whether related or not and whether voluntarily or involuntarily, sell, transfer, grant or lease or otherwise dispose of its assets (each, a “ Disposal ”).

 

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  (b) Paragraph (a) does not apply to:

 

  (i) Disposals made in the ordinary course of business of the disposing entity;

 

  (ii) Disposals of assets in exchange for other assets comparable or superior as to type, value and quality;

 

  (iii) Disposals (A) to the Company, (B) by the Company to a Wholly-Owned Subsidiary or (C) by one Subsidiary to another Subsidiary; provided that in the case of Disposals made pursuant to sub-clause (iii) (C), in the event the Company’s percentage ownership in the receiving Subsidiary is less than the Company’s percentage ownership in the disposing Subsidiary, then only such portion of such Disposal equal to the product of (x) the aggregate net book value of such Disposal multiplied by (y) a fraction the numerator of which is the Company’s percentage ownership interest in the receiving Subsidiary and the denominator of which is the Company’s percentage ownership interest in the disposing Subsidiary shall be excluded from the application of paragraph (a) pursuant to this sub-clause (iii);

 

  (iv) Disposals on arm’s length terms of obsolete assets not required for the efficient operation of the business of the Group;

 

  (v) (A) Disposals by the Company of any of its own shares held in treasury and (B) Disposals of cash, including through cash distributions, share buybacks in cash or cash dividends made to shareholders of any Group member;

 

  (vi) Disposals pursuant to Section 10.2;

 

  (vii) Disposals for fair value to the extent that all or a portion of the net after-tax proceeds of such Disposal is applied within 12 months before or after the date of such Disposal, to

 

  (A) reinvestments in the business of the Group, including the acquisition of assets and companies; and/or

 

  (B) the repayment or prepayment of unsubordinated Financial Indebtedness of the Company or a Subsidiary (other than Financial Indebtedness owing to another Subsidiary or Affiliate of the Company or any Subsidiary); provided that the Company has, on or prior to the application of any such proceeds to the repayment or prepayment of any other unsubordinated Financial Indebtedness pursuant to this sub-clause (B), offered to prepay the Notes pro rata with all other unsubordinated Financial Indebtedness then being repaid or prepaid (which prepayment of the Notes shall be in accordance with the terms of Section 8.8 hereof);

 

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provided that only the proportion of the net after-tax proceeds of such Disposal which is applied as described in sub-clauses (A) and (B) above will be exempted from the prohibition against Disposals provided in this Section 10.6; provided further that for the purposes of this Section 10.6, “ net after-tax proceeds ” shall mean net of any reasonable costs and expenses associated with such Disposal; or

 

  (viii) other Disposals (or portion thereof not otherwise excepted under sub-clause (b)(i) to (vii) above), provided that:

 

  (A) such Disposal is to a Person other than an Affiliate or, if to an Affiliate, the requirements of Section 10.1 have been satisfied;

 

  (B) immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; and

 

  (C) immediately after giving effect thereto, the aggregate net book value of property or assets sold, leased or otherwise disposed of pursuant to this Section 10.6(b)(viii)(C) does not during the 365 day period ending on and including the date of such Disposal exceed 15% of Consolidated Gross Assets.

 

10.7 Subsidiary Debt Test.

The Company will not at any time permit any Subsidiary to create, incur, assume, guarantee, have outstanding, or otherwise become or remain liable with respect to, any Financial Indebtedness other than:

 

  (a) for the avoidance of doubt, Financial Indebtedness of any Subsidiary (other than a Finance Subsidiary) owing to the Company or to any other member of the Group;

 

  (b) Financial Indebtedness of a Subsidiary Guarantor (so long as such Subsidiary Guarantor shall have complied with the requirements of Section 9.8 in respect of its Subsidiary Guarantee);

 

  (c) Finance Subsidiary Indebtedness;

 

  (d) any Financial Indebtedness of any person acquired by a member of the Group which is incurred under arrangements in existence at the date of acquisition, but only for a period of six months from the date of acquisition;

 

  (e) any derivative transaction protecting against or benefiting from fluctuations in any rate or price entered into in the ordinary course of business;

 

  (f) the capital element of any liability under finance or capital leases up to a maximum amount not exceeding $50,000,000 (or the equivalent in any other currency) or any higher amount which is approved in writing by the Required Holders;

 

  (g) foreign exchange, interest rate or similar hedging arrangements entered into only for the purposes of managing the interest rate and foreign exchange rates of the Group and not for any speculative purpose or pursuant to any financial trading;

 

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  (h) Financial Indebtedness incurred in favor of banks or other financial institutions as a result of netting or set off arrangements entered into by a member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances on accounts maintained with such banks or financial institutions but only to the extent that such Financial Indebtedness does not exceed the amount of such credit balances; and

 

  (i) Financial Indebtedness not otherwise permitted by the foregoing clauses (a) through (h), provided that the sum (without duplication) of: (x) the aggregate principal amount of all Financial Indebtedness secured by any Security Interests described in Section 10.5(b)(ix) (when aggregated with the amount of assets or receivables sold, transferred or disposed of under Section 10.5(c)); and (y) the aggregate principal amount of Financial Indebtedness of Subsidiaries outstanding pursuant to the provisions of this clause (i) shall not at any time exceed 15% of Consolidated Gross Assets.

 

10.8 Line of Business

The Company shall ensure that there are no substantial changes made to the general nature of the business of the Group, taken as a whole, as exists at the date of this Agreement such that the principal activities of the Group, taken as a whole, are no longer consistent with such business.

 

11. EVENTS OF DEFAULT.

An “ Event of Default ” shall exist if any of the following conditions or events shall occur and be continuing:

 

  (a) the Company defaults in the payment of any principal or Make-Whole Amount or Modified Make-Whole Amount, if any, on any Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, unless such default is the direct result of a technical failure by the transmitting bank in transmission of payment, in which case the Company shall have two Business Days to remedy such default; or

 

  (b) the Company defaults in the payment of any interest on any Note or any amount payable pursuant to Section 13 for more than five Business Days after the same becomes due and payable; or

 

  (c) the Company defaults in the performance of or compliance with any term contained in Section 7.1(d) or 10.4; or

 

  (d)

the Company or any Subsidiary Guarantor defaults in the performance of or compliance with any term contained herein (other than those referred to in paragraphs (a), (b) and (c) of this Section 11) or in any Subsidiary Guarantee and, if capable of remedy such default is not remedied within 30 days after the earlier of (i) a Responsible Officer of the Company obtaining actual

 

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  knowledge of such default and (ii) the Company receiving written notice of such default from any holder of a Note (any such written notice to be identified as a “ notice of default ” and to refer specifically to this paragraph (d) of Section 11); or

 

  (e) (i) any representation or warranty made in writing by or on behalf of the Company or by any officer of the Company in this Agreement or in any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which made, or (ii) any representation or warranty made in writing by or on behalf of any Subsidiary Guarantor or by any officer of such Subsidiary Guarantor in any Subsidiary Guarantee or any writing furnished in connection with such Subsidiary Guarantee proves to have been false or incorrect in any material respect on the date as of which made; or

 

  (f)    (i) the Company or any Subsidiary is in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or make-whole amount or interest on any Financial Indebtedness that is outstanding in an aggregate principal amount of at least $30,000,000 (or its equivalent in the relevant currency of payment) beyond any period of grace provided with respect thereto, or

 

  (ii) the Company or any Subsidiary is in default in the performance of or compliance with any term of any evidence of any Financial Indebtedness in an aggregate outstanding principal amount of at least $30,000,000 (or its equivalent in the relevant currency of payment) or of any mortgage, indenture or other agreement relating thereto or any other condition exists, and as a consequence of such default or condition such Financial Indebtedness has become, or has been declared, due and payable before its stated maturity or before its regularly scheduled dates of payment, or

 

  (g) the Company or any Material Subsidiary (i) is generally not paying, or admits in writing its inability to pay, its debts as they become due, (ii) files, or consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, (v) is adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for the purpose of any of the foregoing; or

 

  (h) a court or Governmental Authority of competent jurisdiction enters an order appointing, without consent by the Company or any Material Subsidiary, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company or any Material Subsidiary, or any such petition shall be filed against the Company or any Material Subsidiary and such petition shall not be dismissed within 60 days; or

 

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  (i) any event occurs with respect to the Company or any Material Subsidiary which under the laws of any jurisdiction is analogous to any of the events described in Section 11(g) or (h), provided that the applicable grace period, if any, which shall apply shall be the one applicable to the relevant proceeding which most closely corresponds to the proceeding described in Section 11(g) or (h); or

 

  (j) a final judgment or judgments for the payment of money aggregating in excess of $30,000,000 (or its equivalent in the relevant currency of payment), exclusive of judgment amounts covered by insurance where the insurer has acknowledged that it will pay such amounts, are rendered against one or more of the Company and its Subsidiaries and which judgments are not, within 90 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 90 days after the expiration of such stay; or

 

  (k) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the sum of (x) the aggregate “amount of unfunded benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA, plus (y) the amount (if any) by which the aggregate present value of accrued benefit liabilities under all funded Non-U.S. Plans exceeds the aggregate current value of the assets of such Non-U.S. Plans allocable to such liabilities, shall exceed £750,000,000, (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, (vi) the Company or any Subsidiary establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company or any Subsidiary thereunder, (vii) the Company or any Subsidiary fails to administer or maintain any Plan or Non-U.S. Plan in compliance with the requirements of any and all applicable laws, statutes, rules, regulations or court orders or any Plan or Non-U.S. Plan is involuntarily terminated or wound up, or (viii) the Company or any Subsidiary becomes subject to the imposition of a financial penalty (which for this purpose shall mean any penalty tax or other penalty) with respect to one or more Plans or Non-U.S. Plans; and any such event or events described in clauses (i) through and including (viii) above, either individually or together with any other such event or events, would reasonably be expected to have a Material Adverse Effect; or

 

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  (l) any Subsidiary Guarantee shall cease to be in full force and effect, any Subsidiary Guarantor or any Person acting on behalf of any Subsidiary Guarantor shall contest in any manner the validity, binding nature or enforceability of any Subsidiary Guarantee, or the obligations of any Subsidiary Guarantor under any Subsidiary Guarantee are not or cease to be legal, valid, binding and enforceable in accordance with the terms of such Subsidiary Guarantee.

As used in Section 11(k), the terms “ employee benefit plan ” and “ employee welfare benefit plan ” shall have the respective meanings assigned to such terms in section 3 of ERISA.

 

12. REMEDIES ON DEFAULT, ETC.

 

12.1 Acceleration.

 

  (a) If an Event of Default with respect to the Company described in Section 11(g), (h) or (i) (other than an Event of Default described in clause (i) of Section 11(g) or described in clause (vi) of Section 11(g) by virtue of the fact that such clause encompasses clause (i) of Section 11(g)) has occurred, all the Notes then outstanding shall automatically become immediately due and payable.

 

  (b) If any other Event of Default has occurred and is continuing, the Required Holders may at any time at their option, by notice or notices to the Company, declare all the Notes then outstanding to be immediately due and payable.

 

  (c) If any Event of Default described in Section 11(a) or (b) has occurred and is continuing, any holder or holders of Notes at the time outstanding affected by such Event of Default may at any time, at its or their option, by notice or notices to the Company, declare all the Notes held by it or them to be immediately due and payable.

Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest thereon (including, without limitation, interest accrued thereon at the Default Rate) and (y) the Make-Whole Amount determined in respect of such principal amount (to the full extent permitted by applicable law), shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. The Company acknowledges, and the parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Company in the event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.

 

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12.2 Other Remedies.

If any Default or Event of Default has occurred and is continuing, and irrespective of whether any Notes have become or have been declared immediately due and payable under Section 12.1, the holder of any Note at the time outstanding may proceed to protect and enforce the rights of such holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or in any Note or Subsidiary Guarantee, or for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise.

 

12.3 Rescission.

At any time after any Notes have been declared due and payable pursuant to Section 12.1(b) or (c), the Required Holders, by written notice to the Company, may rescind and annul any such declaration and its consequences if (a) the Company has paid all overdue interest on the Notes, all principal of and Make-Whole Amount or Modified Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid other than by reason of such declaration, and all interest on such overdue principal and Make-Whole Amount or Modified Make-Whole Amount, if any, and (to the extent permitted by applicable law) any overdue interest in respect of the Notes, at the applicable Default Rate for each Series of Notes, (b) all Events of Default and Defaults, other than non-payment of amounts that have become due solely by reason of such declaration, have been cured or have been waived pursuant to Section 18, and (c) no judgment or decree has been entered for the payment of any monies due pursuant hereto or to the Notes. No rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of Default or Default or impair any right consequent thereon.

 

12.4 No Waivers or Election of Remedies, Expenses, etc.

No course of dealing and no delay on the part of any holder of any Note in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice such holder’s rights, powers or remedies. No right, power or remedy conferred by this Agreement any Subsidiary Guarantee or by any Note upon any holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the obligations of the Company under Section 16, the Company will pay to the holder of each Note on demand such further amount as shall be sufficient to cover all costs and expenses of such holder incurred in any enforcement or collection under this Section 12, including, without limitation, reasonable attorneys’ fees, expenses and disbursements.

 

13. TAX GROSS-UP.

 

13.1 Tax Gross-Up with respect to U.K. Holders

The Company shall make all payments (whether under this Agreement or the Notes) to be made by it to holders of Notes resident in the United Kingdom (each a “ U.K. Holder ”) without any Tax Deduction, unless a Tax Deduction is required by law.

 

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If a Tax Deduction is required by law to be made by the Company, the amount of the payment due to U.K. Holders shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required. The Company is not required to make an increased payment to any U.K. Holders for a Tax Deduction in respect of Tax on any payment of interest under the Note held by that U.K. Holder, if, on the date on which the payment falls due, the payment could have been made to such U.K. Holder without a Tax Deduction if it was a Qualifying Noteholder, but on that date such U.K. Holder is not or has ceased to be a Qualifying Noteholder other than as a result of any change after the date of this Agreement in (or in the interpretation, administration, or application of) any law or any published practice or concession of any relevant taxing authority.

If the Company is required to make a Tax Deduction, it shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

Within thirty days of making a Tax Deduction and/or any payment required in connection with that Tax Deduction, the Company shall deliver to the affected U.K. Holder evidence reasonably satisfactory to such U.K. Holder that the Tax Deduction has been made and/or (as applicable) any appropriate payment paid to the relevant taxing authority.

If the Company makes a Tax Payment, the relevant U.K. Holder shall take what it determines to be reasonable steps to obtain any Tax Credit attributable to the Tax Deduction, or to an increased payment of which that Tax Payment forms part, or to that Tax Payment. If subsequently any U.K. Holder determines that:

 

  (a) a Tax Credit is attributable to the Tax Deduction, or to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and

 

  (b) the U.K. Holder has obtained, utilised and retained that Tax Credit,

the U.K. Holder shall pay an amount to the Company, which such U.K. Holder determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Company.

In this Section 13.1 and in Section 13.2 below a reference to “determines” means a determination made in the absolute discretion of the person making the determination.

Nothing herein contained shall interfere with the right of a U.K. Holder to arrange its Tax affairs in whatever manner it thinks fit and, in particular, no U.K. Holder shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such Tax Credit in priority to any other claims, reliefs, credits or deductions available to it or oblige any U.K. Holder to disclose any information relating to its Tax affairs or any computations in respect thereof.

 

13.2 Tax Gross-Up with respect to Non-U.K. Holders

This Section 13.2 shall apply in respect of holders of Notes not resident in the United Kingdom (each, a “ Non-U.K. Holder ”). All payments whatsoever under this Agreement and the Notes will be made by the Company in US Dollars free and clear of, and without liability or withholding or deduction for or on account of, any present or future Taxes of whatever nature (hereinafter called “ Relevant Tax ”, which term shall, in any event, exclude any of the foregoing withheld or deducted by the jurisdiction in which the Non-U.K. Holder is resident

 

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for tax purposes or any authority thereof or therein and exclude any FATCA Deduction) imposed or levied by the United Kingdom or any political subdivision or relevant taxing authority thereof or therein, or by the government of any other country or jurisdiction (or any authority therein or thereof) (other than the jurisdiction in which the Non-U.K. Holder is resident for tax purposes) in which the Company is organized or resident for tax purposes from time to time or from or through which payments under the Notes are actually made (hereinafter a “ Taxing Jurisdiction ”), unless the withholding or deduction of such Relevant Tax is required by law.

If any deduction or withholding for any Relevant Tax of a Taxing Jurisdiction shall at any time be required in respect of any amounts to be paid by the Company under this Agreement or the Notes, the Company will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and pay to the relevant Non-U.K. Holder such additional amounts as may be necessary in order that the net amounts paid to such Non-U.K. Holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including, without limitation, any required deduction or withholding of Relevant Tax on or with respect to such additional amount), shall be not less than the amounts that would have been due and payable to such Non-U.K. Holder under the terms of this Agreement or the Notes, as the case may be, had no such withholding, deduction or payment of Tax been due, provided that no payment of any additional amounts shall be required to be made for or on account of:

 

  (a) any Relevant Tax that would not have been imposed but for the existence of any present or former connection between such Non-U.K. Holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such Non-U.K. Holder, if such Non-U.K. Holder is an estate, trust, partnership or corporation or any Person other than the Non-U.K. Holder to whom the Notes or any amount payable thereon is attributable for the purposes of such Relevant Tax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof, including, without limitation, such Non-U.K. Holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a Relevant Tax that would not have been imposed but for the Company, after the date of this Agreement, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to, the Taxing Jurisdiction imposing the Relevant Tax;

 

  (b)

any Relevant Tax that would not have been imposed but for the delay or failure by such Non-U.K. Holder (following a written request by the Company) in the filing with the relevant Taxing Jurisdiction of Forms (as defined below) that are required to be filed by such Non-U.K. Holder to avoid or reduce such Taxes (including for such purpose any refilings or renewals of filings that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such Non-U.K. Holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such Non-U.K. Holder or result in any confidential

 

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  or proprietary income tax return information being revealed, either directly or indirectly, to any Person, and such delay or failure could have been lawfully avoided by such Non-U.K. Holder, and provided further that such Non-UK Holder shall be deemed to have satisfied the requirements of this clause (b) upon (i) the good faith completion and submission of such Forms (including refilings or renewals of filings) as may be specified in a written request of the Company no later than 60 days after receipt by such Non-U.K. Holder of such written request (accompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof) or (ii) compliance by such Non-U.K. Holder with the requirements of the HMRC DT Treaty Passport Scheme applicable to it in connection with its election to apply the HMRC DT Treaty Passport Scheme to this Agreement; or

 

  (c) any combination of clauses (a) and (b) above;

and provided further that in no event shall the Company be obligated to pay such additional amounts to any Non-U.K. Holder (i) who is not a Qualifying OP Holder in excess of the amounts that the Company would be obligated to pay if such Non-U.K. Holder had been a Qualifying OP Holder at the time of the payment in question or (ii) holding Notes registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law by the relevant taxing authority) securities held in the name of a nominee do not qualify for an exemption from the Relevant Tax.

By acceptance of any Note, such Non-U.K. Holder agrees, subject to the limitations of clause (b) above, that it will from time to time with reasonable promptness either (i) comply with the requirements of the HMRC DT Treaty Passport Scheme applicable to it in connection with its election to apply the HMRC DT Treaty Passport Scheme to this Agreement or (ii) (x) duly complete and deliver to or as reasonably directed by the Company all such forms, certificates, documents and returns provided to such Non-U.K. Holder by the Company (collectively, together with instructions for completing the same, “ Forms ”) required to be filed by or on behalf of such Non-U.K. Holder in order to avoid or reduce any such Relevant Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or of a tax treaty between the United States or Japan or any other jurisdiction of residence of the Non-U.K. Holder (as applicable) and such Taxing Jurisdiction and (y) provide the Company with such information with respect to such Non-U.K. Holder as the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 13.2 shall require any Non-U.K. Holder to provide information with respect to any such Form or otherwise if in the reasonable opinion of such Non-U.K. Holder such Form or disclosure of information would involve the disclosure of Tax return or other information that is confidential or proprietary to such Non-U.K. Holder, and provided further that each such Non-U.K. Holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such Non-U.K. Holder to the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue & Customs Form US-Company 2002 or Form Japan-3-DT or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service or other relevant tax authority in accordance with instructions contained in such Form), whichever is applicable, within 60 days following a written request of the Company (which request shall be accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to the relevant interest payment date.

 

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On or before the Closing, the Company will furnish each Purchaser (other than a Purchaser which has provided HMRC DT Treaty Passport Scheme Information as contemplated by this Section 13) who is not resident in the United Kingdom with copies of the appropriate Form currently required to be filed in the United Kingdom pursuant to clause (b) of the second paragraph of this Section 13.2, if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note (other than a transferee which has provided HMRC DT Treaty Passport Scheme Information as contemplated by this Section 13) with copies of any Form and English translation then required.

If any payment is made by the Company to or for the account of a Non-U.K. Holder after deduction or withholding for or on account of any Relevant Tax, and increased payments are made by the Company pursuant to this Section 13.2, then, if such Non-U.K. Holder at its sole discretion determines that it has received or been granted a refund of such Relevant Tax, such Non-U.K. Holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such amount as such Non-U.K. Holder shall, in its sole discretion, determine to be attributable to the relevant Relevant Tax or deduction or withholding. Nothing herein contained shall interfere with the right of the Non-U.K. Holder to arrange its Tax affairs in whatever manner it thinks fit and, in particular, no Non-U.K. Holder shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such Relevant Tax in priority to any other claims, reliefs, credits or deductions available to it or (other than as set forth in clause (b) above) oblige any Non-U.K. Holder to disclose any information relating to its Tax affairs or any computations in respect thereof.

The Company will furnish the Non-U.K. Holders, promptly and in any event within 60 days after the date of any payment by the Company of any Relevant Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Company, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any Non-U.K. Holder.

If the Company is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any Relevant Tax in respect of which the Company would be required to pay any additional amount under this Section 13.2, but for any reason (other than the failure by a holder of any Note to furnish any documentation or assistance required by this Section 13.2 and which failure would cause the additional amount not to be payable) does not make such deduction or withholding with the result that a liability in respect of such Relevant Tax is assessed directly against the Non-U.K. Holder, and such Non-U.K. Holder pays such liability, then the Company will promptly reimburse such Non-U.K. Holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Company) upon demand by such Non-U.K. Holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.

 

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If the Company makes payment to or for the account of any Non-U.K. Holder and such holder is entitled to a refund of the Relevant Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such Non-U.K. Holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above.

 

13.3 Passport Scheme

Any Purchaser (or holder of a Note) who holds a passport under the HMRC DT Treaty Passport Scheme, and which wishes the scheme to apply to this Agreement, shall include an indication to that effect by providing its scheme reference number and its jurisdiction of tax residence as follows: (a) in the case of each Purchaser, providing such information in Schedule A at the date of this Agreement, and (b) in the case of any transferee of a Note, providing such information in the materials provided by the holder of a Note to the Company in writing at the time of transfer.

Where a Purchaser has provided its HMRC DT Treaty Passport Scheme reference number and jurisdiction of tax residence in Schedule A at the date of this Agreement or in a written notice delivered to the Company prior to the relevant Closing (or in the information provided by the holder of a Note to the Company in writing upon transfer) as provided above, the Company shall file a duly completed form DTTP2 in respect of such Purchaser with HMRC within 30 days of the date of the Closing (or, in the case of any transferee of a Note, within 30 days of completion of the transfer thereof) and shall provide such Purchaser (or, in the case of any transferee of a Note, such holder) with a copy of that filing if so requested by such Purchaser or transferee.

In the event that the Company is required from time to time by HMRC to renew or refile any form DTTP2 filed under this Section 13.3, the Company, as applicable, shall renew or refile such form DTTP2, as applicable, prior to the expiration thereof.

Where a Purchaser or other holder of a Note has provided its Passport Scheme reference number and jurisdiction of tax residence to the Company as contemplated by Section 13.2(a), the relevant Purchaser or holder shall be deemed to have received a written request from the Company relating to Forms for the purposes of Section 13 on but not before the date upon which the Company first informs the relevant Purchaser or holder in writing that the relevant form DTTP2 was not filed within the Passport Scheme deadline or was otherwise not accepted by HMRC and requests that the relevant Forms are filed.

 

13.4 Obligations Continuing

The obligations of the Company under this Section 13 shall survive the payment or transfer of any Note and the provisions of this Section 13 shall also apply to successive transferees of the Notes.

 

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14. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.

 

14.1 Registration of Notes.

The Company shall keep at its principal executive office a register for the registration and registration of transfers of Notes. The name and address of each holder of one or more Notes, each transfer thereof and the name and address of each transferee of one or more Notes shall be registered in such register. If any holder of one or more Notes is a nominee, then (a) the name and address of the beneficial owner of such Note or Notes shall also be registered in such register as an owner and holder thereof and (b) at any such beneficial owner’s option, either such beneficial owner or its nominee may execute any amendment, waiver or consent pursuant to this Agreement. Prior to due presentment for registration of transfer, the Person in whose name any Note shall be registered shall be deemed and treated as the owner and holder thereof for all purposes hereof, and the Company shall not be affected by any notice or knowledge to the contrary. The Company shall give to any holder of a Note that is an Institutional Investor, promptly upon request therefor, a complete and correct copy of the names and addresses of all registered holders of Notes.

 

14.2 Transfer and Exchange of Notes.

Upon surrender of any Note to the Company at the address and to the attention of the designated officer (all as specified in Section 19) for registration of transfer or exchange (and in the case of a surrender for registration of transfer, accompanied by a written instrument of transfer duly executed by the registered holder of such Note or such holder’s attorney duly authorized in writing and accompanied by the relevant name, address and other details for notices of each transferee of such Note or part thereof), within fifteen Business Days thereafter the Company shall execute and deliver, at the Company’s expense (except as provided below), one or more new Notes of the same Series (as requested by the holder thereof) in exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the surrendered Note; provided , however , that the Company shall not be required to execute any new Note, or register the transfer of any Note, to a transferee who is a Competitor of the Group unless an Event of Default has occurred and is continuing at the time of surrender of such Note. Each such new Note shall be payable to such Person as such holder may request and shall be substantially in the form of Exhibit 1(a), 1(b), 1(c), 1(d), 1(e), 1(f) or 1(g) as the case may be. Each such new Note shall be dated and bear interest from the date to which interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if no interest shall have been paid thereon. The Company may require payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes. Notes shall not be transferred in denominations of less than $500,000, provided that if necessary to enable the registration of transfer by a holder of its entire holding of Notes, one Note may be in a denomination of less than $500,000. Any transferee, by its acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have made the representation set forth in Section 6.3.

 

14.3 Replacement of Notes.

Upon receipt by the Company at the address and to the attention of the designated officer (all as specified in Section 19(iii)) of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of an Institutional Investor, notice from such Institutional Investor of such ownership and such loss, theft, destruction or mutilation), and

 

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  (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it ( provided that if the holder of such Note is, or is a nominee for, an original Purchaser or another holder of a Note with a minimum net worth of at least $50,000,000 (or its equivalent in other currencies) or a Qualified Institutional Buyer such Person’s own unsecured agreement of indemnity shall be deemed to be satisfactory), or

 

  (b) in the case of mutilation, upon surrender and cancellation thereof,

within fifteen Business Days thereafter the Company at its own expense shall execute and deliver, in lieu thereof, a new Note of the same Series, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.

 

15. PAYMENTS ON NOTES.

 

15.1 Place of Payment.

Subject to Section 15.2, payments of principal, Make-Whole Amount or Modified Make-Whole Amount, if any, Additional Payments, if any, and interest becoming due and payable on the Notes shall be made in New York City at the principal office of JP Morgan Chase in such jurisdiction. The Company may at any time, by notice to each holder of a Note, change the place of payment of the Notes so long as such place of payment shall be either the principal office of the Company in such jurisdiction or the principal office of a bank or trust company in such jurisdiction.

 

15.2 Home Office Payment.

So long as a Purchaser or its nominee shall be the holder of any Note, and notwithstanding anything contained in Section 15.1 or in such Note to the contrary, the Company will pay all sums becoming due on such Note for principal, Make-Whole Amount or Modified Make-Whole Amount, if any, and interest (and all other amounts due under this Agreement or the Notes) by the method and at the address specified for such purpose below such Purchaser’s name in Schedule A, or by such other reasonable method or at such other address as such Purchaser shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Note or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably promptly after payment or prepayment in full of any Note, such Purchaser shall surrender such Note for cancellation, reasonably promptly after any such request, to the Company at its principal executive office or at the place of payment most recently designated by the Company pursuant to Section 15.1. Prior to any sale or other disposition of any Note held by a Purchaser or its nominee such Purchaser will, at its election, either endorse thereon the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender such Note to the Company in exchange for a new Note or Notes pursuant to Section 14.2. The Company will afford the benefits of this Section 15.2 to any Institutional Investor that is the direct or indirect transferee of any Note purchased by any Purchaser under this Agreement and that has made the same agreement relating to such Note as such Purchaser has made in this Section 15.2.

 

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16. EXPENSES, ETC.

 

16.1 Transaction Expenses.

Whether or not the transactions contemplated hereby are consummated, the Company agrees to pay all costs and expenses (including reasonable attorneys’ fees of a special counsel and, if reasonably required by the Required Holders, local or other counsel) reasonably incurred by the Purchasers and each other holder of a Note in connection with such transactions and in connection with any amendments, waivers or consents under or in respect of this Agreement, the Notes or any Subsidiary Guarantee (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (a) the costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under this Agreement, the Notes or any Subsidiary Guarantee or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this Agreement, the Notes or any Subsidiary Guarantee, or by reason of being a holder of any Note, and (b) the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated hereby and by the Notes and any Subsidiary Guarantee. The Company agrees to pay, and to save each Purchaser and each other holder of a Note harmless from, (i) all claims in respect of any fees, costs or expenses if any, of brokers and finders (other than those, if any, retained by a Purchaser or other holder in connection with its purchase of the Notes) and (ii) any and all wire transfer fees that any bank deducts from any payment under such Note to such holder or otherwise charges to a holder of a Note with respect to a payment under such Note.

 

16.2 Certain Taxes.

The Company agrees to pay all stamp, documentary or similar taxes or fees which may be payable in respect of the execution and delivery or the enforcement of this Agreement or any Subsidiary Guarantee or the execution and delivery (but not the transfer) or the enforcement of any of the Notes in the United States or the United Kingdom or any other jurisdiction of organization of the Company or any Subsidiary Guarantor or any other jurisdiction where the Company or any Subsidiary Guarantor has assets or of any amendment of, or waiver or consent under or with respect to, this Agreement or any Subsidiary Guarantee or of any of the Notes, and to pay any value added tax due and payable in respect of reimbursement of costs and expenses by the Company pursuant to this Section 16, and will save each holder of a Note to the extent permitted by applicable law harmless against any loss or liability resulting from non-payment or delay in payment of any such tax or fee required to be paid by the Company hereunder.

 

16.3 Survival.

The obligations of the Company under this Section 16 will survive the payment or transfer of any Note, the enforcement, amendment or waiver of any provision of this Agreement, any Subsidiary Guarantee or the Notes and the termination of this Agreement.

 

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17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.

All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Notes, the purchase or transfer by any Purchaser of any Note or portion thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent holder of a Note, regardless of any investigation made at any time by or on behalf of such Purchaser or any other holder of a Note. All statements contained in any certificate or other instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed representations and warranties of the Company under this Agreement. Subject to the preceding sentence, this Agreement, the Notes any Subsidiary Guarantee and any Subsidiary Guarantees embody the entire agreement and understanding between each Purchaser and the Company and supersede all prior agreements and understandings relating to the subject matter hereof.

 

18. AMENDMENT AND WAIVER.

 

18.1 Requirements.

This Agreement and the Notes may be amended, and the observance of any term hereof or of the Notes may be waived (either retroactively or prospectively), with (and only with) the written consent of the Company and the Required Holders, except that (a) no amendment or waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 22, or any defined term (as it is used therein), will be effective as to any Purchaser unless consented to by such Purchaser in writing, and (b) no such amendment or waiver may, without the written consent of the holder of each Note at the time outstanding affected thereby, (i) subject to the provisions of Section 12 relating to acceleration or rescission, change the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of interest or of the Make-Whole Amount or Modified Make-Whole Amount on, the Notes, (ii) change the percentage of the principal amount of the Notes the holders of which are required to consent to any such amendment or waiver or, prior to the Closing, the principal amount of the Notes that the Purchasers are to purchase pursuant to Section 2 upon the satisfaction of the conditions to Closing that appear in Section 4, or (iii) amend Section 8, 11(a), 11(b), 12, 13, 18, 21 or 23.9.

 

18.2 Solicitation of Holders of Notes.

 

  (a) Solicitation . The Company will provide each Purchaser (prior to the Closing only) and each holder of the Notes (irrespective of the amount of Notes then owned by it) with sufficient information, sufficiently far in advance of the date a decision is required, to enable such Purchaser and such holder to make an informed and considered decision with respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof or of the Notes or any Subsidiary Guarantee. The Company will deliver executed or true and correct copies of each amendment, waiver or consent effected pursuant to the provisions of this Section 18 or any Subsidiary Guarantee to each Purchaser and each holder of outstanding Notes promptly following the date on which it is executed and delivered by, or receives the consent or approval of, the requisite Purchasers or holders of Notes.

 

  (b)

Payment . The Company will not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any security or provide other credit support, to any Purchaser or holder of Notes as consideration for or as an inducement to the entering into by any Purchaser or holder of Notes of any waiver or amendment of any of the terms and provisions hereof or of any Subsidiary Guarantee

 

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  unless such remuneration is concurrently paid, or security or guaranty is concurrently granted or other credit support concurrently provided, on the same terms, ratably to each Purchaser (prior to the Closing only) or each holder of Notes then outstanding even if such Purchaser or holder did not consent to such waiver or amendment.

 

  (c) Consent in Contemplation of Transfer . Any consent given pursuant to this Section 18 or any Subsidiary Guarantee by any Purchaser or holder of a Note that has transferred or has agreed to transfer its Note to the Company, any Subsidiary or any Affiliate of the Company (or to any Person acquiring or merging with the Company) in connection with such consent shall be void and of no force or effect except solely as to such Purchaser or holder with respect to such Note, and any amendments effected or waivers granted or to be effected or granted that would not have been or would not be so effected or granted but for such consent (and the consents of all other Purchasers and holders of Notes that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such Purchaser or transferring holder with respect to such Note.

 

18.3 Binding Effect, etc.

Any amendment or waiver consented to as provided in this Section 18 or any Subsidiary Guarantee applies equally to all Purchasers and holders of Notes and is binding upon them and upon each future holder of any Note and upon the Company without regard to whether such Note has been marked to indicate such amendment or waiver. No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or impair any right consequent thereon. No course of dealing between the Company and any Purchaser or holder of a Note nor any delay in exercising any rights hereunder or under any Note or any Subsidiary Guarantee shall operate as a waiver of any rights of any Purchaser or holder of such Note. As used herein, the term “ this Agreement ” and references thereto shall mean this Agreement as it may from time to time be amended or supplemented.

 

18.4 Notes Held by the Company, etc.

Solely for the purpose of determining whether the holders of the requisite percentage of the aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under this Agreement or the Notes or any Subsidiary Guarantee, or have directed the taking of any action provided herein or in the Notes or any Subsidiary Guarantee to be taken upon the direction of the holders of a specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding.

 

19. NOTICES; ENGLISH LANGUAGE.

All notices and communications provided for hereunder shall be in writing and sent (a) by telecopy if the sender on the same day sends a confirming copy of such notice by a recognized international commercial delivery service (charges prepaid), or (b) by a recognized international commercial delivery service (with charges prepaid). Any such notice must be sent:

 

  (i) if to a Purchaser or its nominee, to such Purchaser or its nominee at the address specified for such communications in Schedule A, or at such other address as such Purchaser or its nominee shall have specified to the Company in writing,

 

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  (ii) if to any other holder of any Note, to such holder at such address as such other holder shall have specified to the Company in writing, and

 

  (iii) if to the Company, to the Company at the address set forth at the beginning of this Agreement (and if by facsimile, to the following facsimile number: +44 (0)20 7960 2357), to the attention of the Company Secretary, or at such other address as the Company shall have specified to the holder of each Note in writing.

Notices under this Section 19 will be deemed given only when actually received.

Each document, instrument, financial statement, report, notice or other communication delivered in connection with this Agreement shall be in English or accompanied by an English translation thereof.

 

20. REPRODUCTION OF DOCUMENTS.

This Agreement and all documents relating thereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by any Purchaser at the Closing (except the Notes themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to any Purchaser, may be reproduced by such Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such Purchaser may destroy any original document so reproduced. The Company agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such Purchaser in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Section 20 shall not prohibit the Company or any other holder of Notes from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.

 

21. CONFIDENTIAL INFORMATION.

For the purposes of this Section 21, “Confidential Information” means information delivered to any Purchaser by or on behalf of the Company or any Subsidiary in connection with the transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was clearly marked or labeled or otherwise adequately identified when received by such Purchaser as being confidential information of the Company or such Subsidiary, provided that such term does not include information that (a) was publicly known or otherwise known to such Purchaser prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by such Purchaser or any Person acting on such Purchaser’s behalf, (c) otherwise becomes known to such Purchaser other than through disclosure by the Company or any Subsidiary or any other Person that such Purchaser knows is under any obligation of confidentiality or (d) constitutes financial

 

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statements delivered to such Purchaser under Section 7.1 that are otherwise publicly available. Each Purchaser will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by such Purchaser in good faith to protect confidential information of third parties delivered to such Purchaser, provided that such Purchaser may deliver or disclose Confidential Information to (i) its directors, trustees, officers, employees, agents, attorneys and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by its Notes), (ii) its auditors, financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 21, (iii) any other holder of any Note, (iv) any Institutional Investor to which such Purchaser sells or offers to sell such Note or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Section 21), (v) any Person from which such Purchaser offers to purchase any security of the Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Section 21), (vi) any federal or state regulatory authority having jurisdiction over such Purchaser, (vii) the NAIC or the SVO or, in each case, any similar organization, or any nationally recognized rating agency that requires access to information about such Purchaser’s investment portfolio, or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate: (w) to effect compliance with any law, rule, regulation or order applicable to such Purchaser, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which such Purchaser is a party or (z) if an Event of Default has occurred and is continuing, to the extent such Purchaser may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under such Purchaser’s Notes, this Agreement or any Subsidiary Guarantee. Each holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Section 21 as though it were a party to this Agreement. On reasonable request by the Company in connection with the delivery to any holder of a Note of information required to be delivered to such holder under this Agreement or requested by such holder (other than a holder that is a party to this Agreement or its nominee), such holder will enter into an agreement with the Company embodying the provisions of this Section 21.

 

22. SUBSTITUTION OF PURCHASER.

Each Purchaser shall have the right to substitute any one of its Affiliates as the purchaser of the Notes that it has agreed to purchase hereunder, by written notice to the Company, which notice shall be signed by both it and such Affiliate, shall contain such Affiliate’s agreement to be bound by this Agreement and shall contain a confirmation by such Affiliate of the accuracy with respect to it of the representations set forth in Section 6. Upon receipt of such notice, any reference to such Purchaser in this Agreement (other than in this Section 22) shall be deemed to refer to such Affiliate in lieu of such original Purchaser. In the event that such Affiliate is so substituted as a Purchaser hereunder and such Affiliate thereafter transfers to such original Purchaser all of the Notes then held by such Affiliate, upon receipt by the Company of notice of such transfer, any reference to such Affiliate as a “Purchaser” in this Agreement (other than in this Section 22) shall no longer be deemed to refer to such Affiliate, but shall refer to such original Purchaser, and such original Purchaser shall have all the rights of an original holder of the Notes under this Agreement.

 

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23. MISCELLANEOUS.

 

23.1 Successors and Assigns.

All covenants and other agreements contained in this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their respective successors and assigns (including, without limitation, any subsequent holder of a Note) whether so expressed or not.

 

23.2 Payments Due on Non-Business Days.

Anything in this Agreement or the Notes to the contrary notwithstanding (but without limiting the requirement in Section 8.5 that notice of any optional prepayment specify a Business Day as the date fixed for such prepayment), any payment of principal of or Make-Whole Amount or Modified Make-Whole Amount or interest on any Note that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of any Note is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.

 

23.3 Accounting Terms.

All accounting terms used herein which are not expressly defined in this Agreement have the meanings respectively given to them in accordance with IFRS. Except as otherwise specifically provided herein, all computations made pursuant to this Agreement shall be made in accordance with IFRS, and all financial statements deliverable under Section 7.1 shall be prepared in accordance with IFRS. Notwithstanding the foregoing or any other provision of this Agreement, for purposes of determining compliance with the financial covenants contained in this Agreement, any election by the Company to measure any portion of a non-derivative financial liability at fair value (as permitted by International Accounting Standard 39 or any similar accounting standard), other than to reflect a hedge of such non-derivative financial liability (including both interest rate and foreign currency hedges), shall be disregarded and such determination shall be made as if such election had not been made.

 

23.4 Severability.

Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

 

23.5 Construction, etc.

Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.

 

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For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall be deemed to be a part hereof.

 

23.6 Counterparts.

This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.

 

23.7 Governing Law.

This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

 

23.8 Jurisdiction and Process; Waiver of Jury Trial.

 

  (a) The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Agreement or the Notes. To the fullest extent permitted by applicable law, the Company irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

  (b) The Company agrees, to the fullest extent permitted by applicable law, that a final judgment in any suit, action or proceeding of the nature referred to in Section 23.8(a) brought in any such court shall be conclusive and binding upon it subject to rights of appeal, as the case may be, and may be enforced in the courts of the United States of America or the State of New York (or any other courts to the jurisdiction of which it or any of its assets is or may be subject) by a suit upon such judgment.

 

  (c) The Company consents to process being served by or on behalf of any holder of a Note in any suit, action or proceeding of the nature referred to in Section 23.8(a) by mailing a copy thereof by registered or certified or priority mail, postage prepaid, return receipt requested, or delivering a copy thereof in the manner for delivery of notices specified in Section 19, to CT Corporation System, with offices at 111 Eighth Avenue, New York, New York 10011, as its agent for the purpose of accepting service of any process in the United States. The Company agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it.

 

-66-


  (d) Nothing in this Section 23.8 shall affect the right of any holder of a Note to serve process in any manner permitted by law, or limit any right that the holders of any of the Notes may have to bring proceedings against the Company in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.

 

  (e) The Company hereby irrevocably appoints CT Corporation System, with offices at 111 Eighth Avenue, New York, New York 10011, to receive for it, and on its behalf, service of process in the United States.

 

  (f) THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT, THE NOTES OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH.

 

23.9 Obligation to Make Payment in Dollars.

Any payment on account of an amount that is payable hereunder or under the Notes in Dollars which is made to or for the account of any holder of Notes in any other currency, whether as a result of any judgment or order or the enforcement thereof or the realization of any security or the liquidation of the Company, shall constitute a discharge of the obligation of the Company under this Agreement or the Notes only to the extent of the amount of Dollars which such holder could purchase in the foreign exchange markets in London, England, with the amount of such other currency in accordance with normal banking procedures at the rate of exchange prevailing on the London Banking Day following receipt of the payment first referred to above. If the amount of Dollars that could be so purchased is less than the amount of Dollars originally due to such holder, the Company agrees to the fullest extent permitted by law, to indemnify and save harmless such holder from and against all loss or damage arising out of or as a result of such deficiency. This indemnity shall, to the fullest extent permitted by law, constitute an obligation separate and independent from the other obligations contained in this Agreement and the Notes, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by such holder from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due hereunder or under the Notes or under any judgment or order. As used herein the term “ London Banking Day ” shall mean any day other than Saturday or Sunday or a day on which commercial banks are required or authorized by law to be closed in London, England.

 

-67-


If each Purchaser is in agreement with the foregoing, please sign the form of agreement on a counterpart of this Agreement and return it to the Company, whereupon this Agreement shall become a binding agreement between the Purchasers and the Company.

 

Very truly yours,
SMITH & NEPHEW PLC
By: /s/ Susan Swabey
Name: SUSAN MARGART SWABEY
Title: Company Secretary

 

-68-


This Agreement is hereby

accepted and agreed to as of the

date thereof.

 

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, as Investment Adviser
By: /s/ Mark B. Ackerman                                
Name: Mark B. Ackerman
Title: Managing Director
C.M. LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, as Investment Adviser
By: /s/ Mark B. Ackerman                                
Name: Mark B. Ackerman
Title: Managing Director

 

-69-


STATE FARM LIFE INSURANCE COMPANY
By:

/s/ Jeffrey Attwood

Jeffrey Attwood
Investment Officer
By:

/s/ Shane T. Young

Shane T. Young
Assistant Secretary
STATE FARM LIFE AND ACCIDENT ASSURANCE COMPANY
By:

/s/ Jeffrey Attwood

Jeffrey Attwood
Investment Officer
By:

/s/ Shane T. Young

Shane T. Young
Assistant Secretary

 

-70-


THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By:

/s/ David A. Barras

Name: David A. Barras
Title: Its Authorized Representative

 

-71-


NEW YORK LIFE INSURANCE COMPANY
By: /s/ Aron Davidowitz                                
Name: Aron Davidowitz
Title: Corporate Vice President
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: NYL Investors LLC, its Investment Manager
By: /s/ Aron Davidowitz                        
Name: Aron Davidowitz
Title: Director

 

-72-


ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA
By: /s/ Brian F. Landry                            
Name: Brian F. Landry
Title: Assistant Treasurer
ALLIANZ GLOBAL RISKS US INSURANCE COMPANY
By: /s/ Brian F. Landry                            
Name: Brian F. Landry
Title: Assistant Treasurer
FIREMAN’S FUND INSURANCE COMPANY
By: Allianz Investment Management LLC,
as the authorized signatory and investment manager
By: /s/ Brian F. Landry                            
Name: Brian F. Landry
Title: Assistant Treasurer

 

-73-


METROPOLITAN TOWER LIFE INSURANCE COMPANY

by Metropolitan Life Insurance Company, its Investment Manager

METLIFE REINSURANCE COMPANY OF CHARLESTON, TRUST ACCOUNT B

by Metropolitan Life Insurance Company, its Investment Manager

METLIFE INSURANCE COMPANY USA

by Metropolitan Life Insurance Company, its Investment Manager

 

By:

/s/ John A. Wills

Name: John A. Wills
Title: Managing Director

JUST RETIREMENT LIMITED

By MetLife Investment Management, LLC, Its Investment Manager

 

By:

/s/ John A. Wills

Name: John A. Wills
Title: Managing Director

 

-74-


TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY
By: AEGON USA Investment Management, LLC, its investment manager
By: /s/ Frederick B. Howard                                
Name: Frederick B. Howard
Title: Vice President
TRANSAMERICA LIFE INSURANCE COMPANY
By: AEGON USA Investment Management, LLC, its investment manager
By: /s/ Frederick B. Howard                                
Name: Frederick B. Howard
Title: Vice President

 

-75-


USAA LIFE INSURANCE COMPANY

USAA LIFE INSURANCE COMPANY OF NEW YORK

 

By:

/s/ James F. Jackson, Jr.

Name: James F. Jackson, Jr.
Title: Executive Director

 

-76-


UNITED SERVICES AUTOMOBILE ASSOCIATION

USSA CASUALTY INSURANCE COMPANY

 

By:

/s/ Donna Baggerly

Name: Donna Baggerly
Title: Vice President – Insurance Portfolios

 

-77-


THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By:

Delaware Investment Advisers, a series of Delaware Management Business Trust,

Attorney in Fact

By: /s/ Philip Lee                                        
Name: Philip Lee
Title: Vice President
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By:

Delaware Investment Advisers, a series of Delaware Management Business Trust,

Attorney in Fact

By: /s/ Philip Lee                                         
Name: Philip Lee
Title: Vice President

 

-78-


THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ William Engelking
Name: William Engelking
Title: Vice President
PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY
By: Prudential Investment Management, Inc., as investment manager
By: /s/ William Engelking
Name: William Engelking
Title: Vice President
ZURICH AMERICAN INSURANCE COMPANY
By: Prudential Private Placement Investors, L.P. (as Investment Adviser)
By: Prudential Private Placement Investors, Inc. (as its General Partner)
By: /s/ William Engelking
Name: William Engelking
Title: Vice President

 

-79-


JACKSON NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as attorney in fact
By: /s/ Elena S. Unger                            
Name: Elena S. Unger
Title: Assistant Vice President
JACKSON NATIONAL LIFE INSURANCE COMPANY OF NEW YORK
By: PPM America Inc., as attorney in fact
By: /s/ Elena S. Unger                            
Name: Elena S. Unger
Title: Assistant Vice President

 

-80-


SCHEDULE A

I NFORMATION R ELATING TO P URCHASERS

 

Purchaser Name

  

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY

Name in which to register Note(s)    MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
Note registration number(s); principal amount(s)   

RC-1; $28,250,000

RF-1; $76,750,000

Payment on account of Note

 

Method

 

Account information

  

 

 

Wire Transfer

 

MassMutual Co-Owned Account

Citibank, N.A.

New York, NY

ABA No.: 021000089

Account No.: 30510685

Ref: “Accompanying Information” below.

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

2.97% Series C Senior Notes due 2021         G8228* AG7

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address/Fax#/Email for notices related to payments   

Massachusetts Mutual Life Insurance Company

1295 State Street

Springfield, MA 01111

Attn: Janelle Tarantino, Treasury Operations Liquidity Management

 

With a copy to:

Massachusetts Mutual Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street, Suite 2200

Springfield, MA 01115

 

And to:

Treasury Operations Liquidity Management Department at mmincometeam@massmutual.com or Fax: 413-226-4295

 

-1-


Address/Fax#/Email for all other notices

Massachusetts Mutual Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street, Suite 2200

PO Box 15189

Springfield, MA 01115-5189

 

Electronic delivery of financials and other information to:

 

Massachusetts Mutual Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street, Suite 2200

Springfield, MA 01115

Attn: Securities Investment Division

 

With email notification to:

privateplacements@babsoncapital.com

mackerman@babsoncapital.com

Instructions re Delivery of Notes

Babson Capital Management LLC

1500 Main Street, Suite 2800

Springfield, MA 01115

Attn: Peter Mugo, Esq.

Signature Block

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY

By:   Babson Capital Management LLC

 as Investment Adviser

 

 By:______________________________

 Name:

 Title:

Tax identification number 04-1590850
HMRC DT Treaty Passport Scheme 13/M/63867/DTTP
Tax Residence United States of America

 

-2-


Purchaser Name

  

C.M. LIFE INSURANCE COMPANY

Name in Which Note is Registered    C.M. LIFE INSURANCE COMPANY
Note Registration Number; Series; Principal Amount   

RC-2; $1,750,000

RF-2; $3,250,000

Payment on Account of Note

Method

 

Account Information

  

 

Wire Transfer

 

MassMutual Co-Owned Account

Citibank, N.A.

New York, NY

ABA No.: 021000089

Account No.: 30510685

Ref: “Accompanying Information” below.

Accompanying Information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

2.97% Series C Senior Notes due 2021         G8228* AG7

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address/Fax for Notices Related to Payments   

C.M. Life Insurance Company

1295 State Street

Springfield, MA 01111

Attn: Janelle Tarantino, Treasury Operations Liquidity Management

 

With a copy to:

C.M. Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street, Suite 2200

Springfield, MA 01115

 

And to:

Treasury Operations Liquidity Management Department at mmincometeam@massmutual.com or Fax: 413-226-4295

 

-3-


Purchaser Name

  

C.M. LIFE INSURANCE COMPANY

Address/Fax for All Other Notices   

C.M. Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street, Suite 2200

PO Box 15189

Springfield, MA 01115-5189

 

Electronic delivery of financials and other information to:

 

C.M. Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street, Suite 2200

Springfield, MA 01115

Attn: Securities Investment Division

 

With email notification to:

privateplacements@babsoncapital.com

mackerman@babsoncapital.com

Instructions re: Delivery of Notes   

Babson Capital Management LLC

1500 Main Street, Suite 2800

Springfield, MA 01115

Attn: Peter Mugo, Esq.

Signature Block   

C.M. LIFE INSURANCE COMPANY

 

By:   Babson Capital Management LLC

as Investment Adviser

 

By:_____________________________

Name:

Title:

Tax Identification Number    06-1041383
HMRC DT Treaty Passport Scheme    13/C/65904/DTTP
Tax Residence    United States of America

 

-4-


Purchaser Name

  

STATE FARM LIFE INSURANCE COMPANY

Name in which to register Note(s)    STATE FARM LIFE INSURANCE COMPANY
Note registration number(s); principal amount(s)   

RA-1; $34,000,000

RC-3; $19,000,000

RE-1; $28,000,000

RF-3; $14,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

JPMorganChase

ABA#      021000021

Attn:         SSG Private Income Processing

A/C#        900 9 000200

For further credit to:         State Farm Life Insurance Company

                                           Custody Account # G06893

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                               SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

2.47% Series A Senior Notes due 2019         G8228* AE2

2.97% Series C Senior Notes due 2021         G8228* AG7

3.26% Series E Senior Notes due 2023         G8228* AJ1

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

State Farm Life Insurance Company

Investment Dept. E-8

One State Farm Plaza

Bloomington, IL 61710

Email: privateplacements@statefarm.com

 

and

 

State Farm Life Insurance Company

Investment Accounting Dept. D-3

One State Farm Plaza

Bloomington, IL 61710

Address / Fax # and/or Email For All Other Notices   

State Farm Life Insurance Company

Investment Dept. E-8

One State Farm Plaza

Bloomington, IL 61710

Email: privateplacements@statefarm.com

Instructions re Delivery of Note(s)   

JPMorgan Chase Bank, N.A.

4 Chase Metrotech Center, 3rd Floor

Brooklyn, NY 11245-0001

Attn: Physical Receive Dept.

Account: G06893

 

-5-


Purchaser Name

  

STATE FARM LIFE INSURANCE COMPANY

Signature Block   

STATE FARM LIFE INSURANCE COMPANY

 

By:__________________________________

Name:

Title:

By:__________________________________

Name:

Title:

Tax identification number    37-0533090
HMRC DT Treaty Passport Scheme    13/S/67412/DTTP
Tax Residence    United States of America

 

-6-


Purchaser Name

  

STATE FARM LIFE AND ACCIDENT ASSURANCE COMPANY

Name in which to register Note(s)    STATE FARM LIFE AND ACCIDENT ASSURANCE COMPANY
Note registration number(s); principal amount(s)   

RA-2; $1,000,000

RC-4; $1,000,000

RE-2; $2,000,000

RF-4; $1,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

JPMorganChase

ABA#      021000021

Attn:         SSG Private Income Processing

A/C#        900 9 000200

For further credit to:         State Farm Life and Accident Assurance Company

                                           Custody Account # G06895

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                               SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

2.47% Series A Senior Notes due 2019         G8228* AE2

2.97% Series C Senior Notes due 2021         G8228* AG7

3.26% Series E Senior Notes due 2023         G8228* AJ1

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

State Farm Life and Accident Assurance Company

Investment Dept. E-8

One State Farm Plaza

Bloomington, IL 61710

Email: privateplacements@statefarm.com

 

and

 

State Farm Life and Accident Assurance Company

Investment Accounting Dept. D-3

One State Farm Plaza

Bloomington, IL 61710

Address / Fax # and/or Email For All Other Notices   

State Farm Life and Accident Assurance Company

Investment Dept. E-8

One State Farm Plaza

Bloomington, IL 61710

Email: privateplacements@statefarm.com

Instructions re Delivery of Note(s)   

JPMorgan Chase Bank, N.A.

4 Metrotech Center, 3rd Floor

Brooklyn, NY 11245-0001

Attn: Physical Receive Dept.

Account: G06895

 

-7-


Purchaser Name

  

STATE FARM LIFE AND ACCIDENT ASSURANCE COMPANY

Signature Block   

STATE FARM LIFE AND ACCIDENT ASSURANCE COMPANY

 

By:__________________________________

Name:

Title:

By:__________________________________

Name:

Title:

Tax identification number    37-0805091
HMRC DT Treaty Passport Scheme    13/S/67791/DTTP
Tax Residence    United States of America

 

-8-


Purchaser Name

  

THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY

Name in which to register Note(s)    THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
Note registration number(s); principal amount(s)   

RA-3; $25,000,000

RC-5; $75,000,000

Payment on account of Note

 

Method

 

Account information

  

 

 

Wire Transfer

 

Please contact our Treasury & Investment Operations Department to securely obtain wire transfer instructions.

E-mail: payments@northwesternmutual.com

Phone: (414) 665-1679

 

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                               SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

2.47% Series A Senior Notes due 2019         G8228* AE2

2.97% Series C Senior Notes due 2021         G8228* AG7

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address/Fax#/Email for notices related to payments and for all other notices   

The Northwestern Mutual Life Insurance Company

720 East Wisconsin Avenue

Milwaukee, WI 53202

Attention: Investment Operations

Email: payments@northwesternmutual.com

Tel: 414-665-1679

Address/Fax#/Email for all other notices   

The Northwestern Mutual Life Insurance Company

720 East Wisconsin Avenue

Milwaukee, WI 53202

Attention: Securities Department

Email: privateinvest@northwesternmutual.com

Instructions re Delivery of Notes   

The Northwestern Mutual Life Insurance Company

720 East Wisconsin Avenue

Milwaukee, WI 53202

Attention: Matthew E. Gabrys, Esq.

Signature Block

  

THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY

 

By: ___________________________________

Name:

Title:     Its Authorized Representative

Tax identification number

   39-0509570

HMRC DT Treaty Passport Scheme

   13/N/80348/DTTP

Tax Residence

   United States of America

 

-9-


Purchaser Name

  

NEW YORK LIFE INSURANCE COMPANY

Name in which to register Note(s)    NEW YORK LIFE INSURANCE COMPANY
Note registration number(s); principal amount(s)    RE-3; $27,500,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

JPMorgan Chase Bank

New York, New York 10019

ABA No. 021-000-021

Credit: New York Life Insurance Company

General Account No. 008-9-00687

Ref: “Accompanying Information” below

 

Any changes to the foregoing payment instructions shall be confirmed by email to NYLIMWireConfirmation@nylim.com prior to becoming effective.

Accompanying information   

Name of Issuer :                                               SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.26% Series E Senior Notes due 2023         G8228* AJ1

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

New York Life Insurance Company

c/o NYL Investors LLC

51 Madison Avenue, Room 208

New York, New York 10010-1603

Attention:        Investment Services

Private Group, 2 nd Floor

Fax: 908-840-3385

With a copy electronically to: FIIGLibrary@nylim.com and TraditionalPVtOps@nylim.com

Address / Fax # and/or Email For All Other Notices   

New York Life Insurance Company

c/o NYL Investors LLC

51 Madison Avenue, Room 208

New York, New York 10010-1603

Attention:        Private Capital Investors

2 nd Floor

Fax: 908-840-3385

With a copy electronically to: FIIGLibrary@nylim.com and

TraditionalPVtOps@nylim.com

 

With a copy of any notice of default or Event of Default to:

Office of General Counsel

Investment Section, Room 1016

Fax: 212-576-8340

Instructions re Delivery of Note(s)   

New York Life Insurance Company

51 Madison Avenue, Room 1016

New York, New York 10010-1603

Attn: Dean Morini

 

-10-


Purchaser Name

  

NEW YORK LIFE INSURANCE COMPANY

Signature Block   

NEW YORK LIFE INSURANCE COMPANY

By:___________________________

Name:

Title:

Tax identification number    13-5582869
HMRC DT Treaty Passport Scheme    13/N/60131/DTTP
Tax Residence    United States of America

 

-11-


Purchaser Name

  

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION

Name in which to register Note(s)    NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
Note registration number(s); principal amount(s)    RE-4; $47,500,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

JPMorgan Chase Bank

New York, New York 10019

ABA No. 021-000-021

Credit: New York Life Insurance and Annuity Corporation

General Account No. 323-8-47382

Ref: “Accompanying Information” below

 

Any changes to the foregoing payment instructions shall be confirmed by email to NYLIMWireConfirmation@nylim.com prior to becoming effective.

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.26% Series E Senior Notes due 2023         G8228* AJ1

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

New York Life Insurance and Annuity Corporation

c/o NYL Investors LLC

51 Madison Avenue, Room 208

New York, New York 10010-1603

Attention:        Investment Services

Private Group, 2 nd Floor

Fax: 908-840-3385

 

With a copy electronically to: FIIGLibrary@nylim.com and TraditionalPVtOps@nylim.com

Address / Fax # and/or Email For All Other Notices   

New York Life Insurance and Annuity Corporation

c/o NYL Investors LLC

51 Madison Avenue, Room 208

New York, New York 10010-1603

Attention :        Private Capital Investors

2 nd Floor

Fax: 908-840-3385

 

With a copy electronically to: FIIGLibrary@nylim.com and

TraditionalPVtOps@nylim.com

 

With a copy of any notice of default or Event of Default to:

Office of General Counsel

Investment Section, Room 1016

Fax: 212-576-8340

 

-12-


Purchaser Name

  

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION

Instructions re Delivery of Note(s)   

New York Life Insurance Company

51 Madison Avenue, Room 1016

New York, New York 10010-1603

Attn: Dean Morini

Signature Block   

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION

By:   NYL Investors LLC, its Investment Manager

By:                                                              

Name:

Title:

Tax identification number    13-3044743
HMRC DT Treaty Passport Scheme    13/N/70400/DTTP
Tax Residence    United States of America

 

-13-


Purchaser Name

  

ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA

Name in which to register Note(s)    ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA
Note registration number(s); principal amount(s)    RF-5; $55,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

The Bank of New York Mellon

ABA # 011001234

BNY Mellon Account No AZAF6700422

DDA 0000169064

Cost Center 1178

Re: “Accompanying Information” below

For Credit to Portfolio Account: AZL Special Investments AZAF6700422

Attn. Stacey Fletcher

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

Allianz Life Insurance Company of North America

c/o Allianz Investment Management

Attn: Private Placements

55 Greens Farms Road

Westport, Connecticut 06880

Phone: 203-293-1900

Email: PPT@allianzlife.com

 

With a copy to :

Kathy Muhl

Supervisor – Income Group

The Bank of New York Mellon

Three Mellon Center – Room 153-1818

Pittsburgh, Pennsylvania 15259

Phone: 412-234-5192

Email: kathy.muhl@bnymellon.com

Address / Fax # and/or Email For All Other Notices   

Allianz Life Insurance Company of North America

c/o Allianz Investment Management

Attn: Private Placements

55 Greens Farms Road

Westport, Connecticut 06880

Phone: 203-293-1900

Email: ppt@allianzlife.com

 

-14-


Purchaser Name

  

ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA

Instructions re Delivery of Note(s)   

Mellon Securities Trust Company

One Wall Street

3 rd Floor Receive Window C

New York, NY 10286

For Credit to: Allianz Life Insurance Company of North America,

AZL Special Investments AZAF6700422

Signature Block   

ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA

 

By:                                                              

Name:

Title:

Tax identification number    41-1366075
HMRC DT Treaty Passport Scheme    13/A/312524/DTTP
Tax Residence    United States of America

 

-15-


Purchaser Name

  

ALLIANZ GLOBAL RISKS US INSURANCE COMPANY

Name in which to register Note(s)    ALLIANZ GLOBAL RISKS US INSURANCE COMPANY
Note registration number(s); principal amount(s)    RA-4; $10,500,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

The Bank of New York Mellon

ABA # 011001234

BNY Mellon Account No. AZAF6100032

DDA 0000169064

Cost Center 1178

Re: “Accompanying Information” below

For Credit to Portfolio Account: AGR US3 AZAF6100032

Attn. Stacey Fletcher

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

2.47% Series A Senior Notes due 2019         G8228* AE2

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

Allianz Global Risks US Insurance Company

c/o Allianz Investment Management

Attn: Private Placements

55 Greens Farms Road

Westport, Connecticut 06880

Phone: 203-293-1900

Email: ppt@allianzlife.com

 

With a copy to :

Kathy Muhl

Supervisor – Income Group

The Bank of New York Mellon

Three Mellon Center – Room 153-1818

Pittsburgh, Pennsylvania 15259

Phone: 412-234-5192

Email: kathy.muhl@bnymellon.com

Address / Fax # and/or Email For All Other Notices   

Allianz Global Risks US Insurance Company

c/o Allianz Investment Management

Attn: Private Placements

55 Greens Farms Road

Westport, Connecticut 06880

Phone: 203-293-1900

Email: ppt@allianzlife.com

 

-16-


Purchaser Name

  

ALLIANZ GLOBAL RISKS US INSURANCE COMPANY

Instructions re Delivery of Note(s)   

Mellon Securities Trust Company

One Wall Street

3 rd Floor Receive Window C

New York, NY 10286

For Credit to: Allianz Global Risks US Insurance Company,

AGR US3 AZAF6100032

Signature Block   

ALLIANZ GLOBAL RISKS US INSURANCE COMPANY

 

By:                                                              

Name:

Title:

Tax identification number    95-3187355
HMRC DT Treaty Passport Scheme    13/A/363927
Tax Residence    United States of America

 

-17-


Purchaser Name

  

FIREMAN’S FUND INSURANCE COMPANY

Name in which to register Note(s)    FIREMAN’S FUND INSURANCE COMPANY
Note registration number(s); principal amount(s)    RA-5; $4,500,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

The Bank of New York Mellon

ABA # 011001234

BNY Mellon Account No. AZAF0010112

DDA 0000169064

Cost Center 1178

Re: “Accompanying Information” below

For Credit to Portfolio Account: FFIC Special Investments AZAF0010112

Attn: Stacey Fletcher

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

2.47% Series A Senior Notes due 2019         G8228* AE2

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

Fireman’s Fund Insurance Company

c/o Allianz Investment Management

Attn: Private Placements

55 Greens Farms Road

Westport, Connecticut 06880

Phone: 203-293-1900

Email: ppt@allianzlife.com

 

With a copy to :

Kathy Muhl

Supervisor – Income Group

The Bank of New York Mellon

Three Mellon Center – Room 153-1818

Pittsburgh, Pennsylvania 15259

Phone: 412-234-5192

Email: kathy.muhl@bnymellon.com

Address / Fax # and/or Email For All Other Notices   

Allianz Life Insurance Company of North America

c/o Allianz Investment Management

Attn: Private Placements

55 Greens Farms Road

Westport, Connecticut 06880

Phone: 203-293-1900

Email: ppt@allianzlife.com

 

-18-


Purchaser Name

  

FIREMAN’S FUND INSURANCE COMPANY

Instructions re Delivery of Note(s)   

Mellon Securities Trust Company

One Wall Street

3 rd Floor Receive Window C

New York, NY 10286

For Credit to: Fireman’s Fund Insurance Company,

FFIC Special Investments AZAF0010112

Signature Block   

FIREMAN’S FUND INSURANCE COMPANY

By:   Allianz Investment Management LLC,

as the authorized signatory and investment manager

 

By:                                                              

Name:

Title:

Tax identification number    94-1610280
HMRC DT Treaty Passport Scheme    13/F/362373/DTTP
Tax Residence    United States of America

 

-19-


Purchaser Name

  

METROPOLITAN TOWER LIFE INSURANCE COMPANY

Name in which to register Note(s)    METROPOLITAN TOWER LIFE INSURANCE COMPANY
Note registration number(s); principal amount(s)    RB-1; $5,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

Bank Name:           JPMorgan Chase Bank

ABA Routing #:    021-000-021

Account No.:          002-2-403778

Account Name:      Metropolitan Tower Life Insurance Company

Ref: “Accompanying Information” below

 

For all payments other than scheduled payments of principal and interest, the Company shall seek instructions form the holder, and in the absence of instructions to the contrary, will make such payments to the account and in the manner set forth above.

Accompanying information   

Name of Issuer :                                                          SMITH & NEPHEW PLC

 

Description of Security :                                              PPN :

 

Floating Rate Series B Senior Notes due 2019         G8228* AF9

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # / Email for All Notices   

Metropolitan Tower Life Insurance Company

c/o Metropolitan Life Insurance Company

Investments, Private Placements

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Director

Facsimile (973) 355-4250

 

Metropolitan Tower Life Insurance Company

c/o MetLife Investments Limited

Level 34

One Canada Square

Canary Wharf

London E14 5AA, England

Attention: Investments, Private Placements

Fax: 011-44-20-7632-8101

Email: jrothenberg@metlife.com

 

With a copy OTHER than with respect to deliveries of financial statements to:

 

Metropolitan Tower Life Insurance Company

c/o Metropolitan Life Insurance Company

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Chief Counsel-Securities Investments (PRIV)

Email: sec_invest_law@metlife.com

 

-20-


Purchaser Name

  

METROPOLITAN TOWER LIFE INSURANCE COMPANY

Instructions re Delivery of Notes   

Metropolitan Tower Life Insurance Company

c/o Metropolitan Life Insurance Company

Securities Investments, Law Department

10 Park Avenue

Morristown, New Jersey 07962

Attention: Daniel Scudder, Esq.

Signature Block   

METROPOLITAN TOWER LIFE INSURANCE COMPANY

By: Metropolitan Life Insurance Company, its Investment Manager

 

By:                                                              

Name:

Title:

Tax identification number    13-3114906
HMRC DT Treaty Passport Scheme    13/M/298329/DTTP
Tax Residence    United States of America

 

-21-


Purchaser Name

  

METLIFE INSURANCE COMPANY USA

Name in which to register Note(s)    METLIFE INSURANCE COMPANY USA
Note registration number(s); principal amount(s)    RG-1; $3,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

Bank Name:          JPMorgan Chase Bank

ABA Routing #:    021-000-021

Account No.:         496559365

Account Name:     MetLife Insurance Company USA, Separate Account SA (Structured Annuity)

Ref: “Accompanying Information” below

 

For all payments other than scheduled payments of principal and interest, the Company shall seek instructions from the holder, and in the absence of instructions to the contrary, will make such payments to the account and in the manner set forth above.

Accompanying information   

Name of Issuer :                                                          SMITH & NEPHEW PLC

 

Description of Security :                                              PPN :

 

Floating Rate Series G Senior Notes due 2024         G8228* AL6

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

 

-22-


Purchaser Name

  

METLIFE INSURANCE COMPANY USA

Address / Fax # / Email for All Notices   

MetLife Insurance Company USA

c/o Metropolitan Life Insurance Company

Investments, Private Placements

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Director

Facsimile (973) 355-4250

 

MetLife Insurance Company USA

c/o MetLife Investments Limited

Level 34

One Canada Square

Canary Wharf

London E14 5AA, England

Attention: Investments, Private Placements

Fax: 011-44-20-7632-8101

Email: jrothenberg@metlife.com

 

With a copy OTHER than with respect to deliveries of financial statements to:

 

MetLife Insurance Company USA

c/o Metropolitan Life Insurance Company

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Chief Counsel-Securities Investments (PRIV)

Email: sec_invest_law@metlife.com

Instructions re Delivery of Note(s)   

MetLife Insurance Company USA

c/o Metropolitan Life Insurance Company

Securities Investments, Law Department

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Daniel Scudder, Esq.

Signature Block   

METLIFE INSURANCE COMPANY USA

By: Metropolitan Life Insurance Company, its Investment Manager

 

By:                                                              

Name:

Title:

Tax identification number    06-0566090
HMRC DT Treaty Passport Scheme    13/M/61653/DTTP
Tax Residence    United States of America

 

-23-


Purchaser Name

  

JUST RETIREMENT LIMITED

Name in which to register Note(s)    JUST RETIREMENT LIMITED
Note registration number(s); principal amount(s)    RB-2; $40,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

Bank Name:         Barclays Bank

SWIFT:                BARCGB22

Account No.:        58906544

Sort Code:            202400

IBAN:                  GB36BARC20240058906544

For Further Credit: N/A

Ref: “Accompanying Information” below

 

For all payments other than scheduled payments of principal and interest, the Company shall seek instructions from the holder, and in the absence of instructions to the contrary, will make such payments to the account and in the manner set forth above.

Accompanying information   

Name of Issuer :                                                          SMITH & NEPHEW PLC

 

Description of Security :                                              PPN :

 

Floating Rate Series B Senior Notes due 2019         G8228* AF9

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # / Email for All Notices   

Just Retirement Limited

c/o MetLife Investment Management, LLC

Investments, Private Placements

P.O. Box 1902, 10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Director

Facsimile (973) 355-4250

 

With a copy OTHER than with respect to deliveries of financial statements to:

 

Just Retirement Limited

c/o MetLife Investment Management, LLC

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Chief Counsel-Securities Investments (PRIV)

Email: sec_invest_law@metlife.com

 

And

 

Mr. Jonathan Bell, Treasury Dept.

Just Retirement Limited

Vale House, Roebuck Close, Bancroft Road

Reigate, Surrey RH27RU

United Kingdom

 

-24-


Purchaser Name

  

JUST RETIREMENT LIMITED

Instructions re Delivery of Note(s)   

Mr. Jonathan Bell, Treasury Dept.

Just Retirement Limited

Vale House, Roebuck Close, Bancroft Road

Reigate, Surrey RH27RU

United Kingdom

Cc: Lhill@metlife.com

Signature Block   

JUST RETIREMENT LIMITED

By: MetLife Investment Management, LLC, its Investment Manager

 

By:                                                              

Name:

Title:

Tax identification number    268 18068 14229
HMRC DT Treaty Passport Scheme    N/A
Tax Residence    United Kingdom

 

-25-


Purchaser Name

  

METLIFE REINSURANCE COMPANY OF CHARLESTON, TRUST ACCOUNT B

Name in which to register Note(s)    METLIFE REINSURANCE COMPANY OF CHARLESTON, TRUST ACCOUNT B
Note registration number(s); principal amount(s)    RG-2; $22,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

Bank Name:                        U.S. Bank N.A.

ABA Routing #:                 091-000-022

DDA/General Acct No.:    173103198383

For Further Credit For:      19-5986

Account Name:                  MRC Trust B for the Benefit of Metropolitan

                                             Life Insurance Company

ATTN:                                  Carol Hopewell (215)761-9337 or Antoinette

                                              Delia (215)761-9340

Ref: 19-5986 and “Accompanying Information” below

 

For all payments other than scheduled payments of principal and interest, the Company shall seek instructions from the holder, and in the absence of instructions to the contrary, will make such payments to the account and in the manner set forth above.

Accompanying information   

Name of Issuer :                                                          SMITH & NEPHEW PLC

 

Description of Security :                                              PPN :

 

Floating Rate Series G Senior Notes due 2024         G8228* AL6

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

 

-26-


Purchaser Name

  

METLIFE REINSURANCE COMPANY OF CHARLESTON, TRUST ACCOUNT B

Address / Fax # / Email for All Notices   

MetLife Reinsurance Company of Charleston

c/o Metropolitan Life Insurance Company

Investments, Private Placements

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Director

Facsimile (973) 355-4250

 

MetLife Reinsurance Company of Charleston

c/o MetLife Investments Limited

Level 34

One Canada Square

Canary Wharf

London E14 5AA, England

Attention: Investments, Private Placements

Fax: 011-44-20-7632-8101

Email: jrothenberg@metlife.com

 

With a copy OTHER than with respect to deliveries of financial statements to:

MetLife Reinsurance Company of Charleston

c/o Metropolitan Life Insurance Company

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Chief Counsel-Securities Investments (PRIV)

Email: sec_invest_law@metlife.com

Instructions re Delivery of Note(s)   

MetLife Reinsurance Company of Charleston

c/o Metropolitan Life Insurance Company

Securities Investments, Law Department

P.O. Box 1902

10 Park Avenue

Morristown, New Jersey 07962-1902

Attention: Daniel Scudder, Esq.

Signature Block   

METLIFE REINSURANCE COMPANY OF CHARLESTON, TRUST ACCOUNT B

By: Metropolitan Life Insurance Company, its Investment Manager

 

By:_________________________________________

Name:

Title:

Tax identification number    20-5819518
HMRC DT Treaty Passport Scheme    Application Pending
Tax Residence    United States of America

 

-27-


Purchaser Name

  

TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY

Name in which to register Note(s)    TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY
Note registration number(s); principal amount(s)    RC-6; $10,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Federal Funds Wire Transfer

 

Bank of New York

1 Wall Street

New York, NY 10286

ABA #021000018

GLA111-566

FC: TFLIC- ESPA 10 - 101166 8400

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

2.97% Series C Senior Notes due 2021         G8228* AG7

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

Email: paymentnotifications@aegonusa.com

 

AEGON USA Investment Management, LLC

Attn: Custody Operations-Privates MS 5335

4333 Edgewood Road NE

Cedar Rapids, IA 52499-5335

Address / Fax # and/or Email For All Other Notices   

AEGON USA Investment Management, LLC

Attn: Director of Private Placements MS 5335

4333 Edgewood Road N.E.

Cedar Rapids, IA 52499-5335

Tel: (319) 355-2432

Fax: (319) 355-2666

Email: privateplacements@aegonusa.com

 

And

 

AEGON USA Investment Management, LLC

Attn: Director of Private Placements MS 3341

100 Light St., B1

Baltimore, MD 21202-2559

Tel: (443)-475-3130

Fax: (443) 475-3095

Email: privateplacements@aegonusa.com

Instructions re Delivery of Note(s)    A signed copy of the Note must be sent to Custody Operations-Privates via email: INVCustodayTeam@AEGONUSA.com for verification. A letter with Custody Bank Instructions will be sent back.

 

-28-


Purchaser Name

  

TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY

Signature Block   

TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY

By:         AEGON USA Investment Management, LLC,

               Its investment manager

 

               By:_________________________

               Name:

               Title:

Tax identification number    36-6071399
HMRC DT Treaty Passport Scheme    13/T/0271475/DTTP
Tax Residence    United States of America

 

-29-


Purchaser Name

  

TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY

Name in which to register Note(s)    TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY
Note registration number(s); principal amount(s)    RC-7; $10,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Federal Funds Wire Transfer

 

Bank of New York

1 Wall Street

New York, NY 10286

ABA #021000018

GLA111-566

FC: TFLIC LPG0 10 - 2519538400

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

2.97% Series C Senior Notes due 2021         G8228* AG7

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

Email: paymentnotifications@aegonusa.com

 

AEGON USA Investment Management, LLC

Attn: Custody Operations-Privates MS 5335

4333 Edgewood Road NE

Cedar Rapids, IA 52499-5335

Address / Fax # and/or Email For All Other Notices   

AEGON USA Investment Management, LLC

Attn: Director of Private Placements MS 5335

4333 Edgewood Road N.E.

Cedar Rapids, IA 52499-5335

Tel: (319) 355-2432

Fax: (319) 355-2666

Email: privateplacements@aegonusa.com

 

And

 

AEGON USA Investment Management, LLC

Attn: Director of Private Placements MS 3341

100 Light St., B1

Baltimore, MD 21202-2559

Tel: (443)-475-3130

Fax: (443) 475-3095

Email: privateplacements@aegonusa.com

Instructions re Delivery of Note(s)    A signed copy of the Note must be sent to Custody Operations-Privates via email: INVCustodayTeam@AEGONUSA.com for verification. A letter with Custody Bank Instructions will be sent back.

 

-30-


Purchaser Name

  

TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY

Signature Block   

TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY

By:         AEGON USA Investment Management, LLC,

               Its investment manager

 

               By:_________________________

               Name:

               Title:

Tax identification number    36-6071399
HMRC DT Treaty Passport Scheme    13/T/0271475/DTTP
Tax Residence    United States of America

 

-31-


Purchaser Name

  

TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY

Name in which to register Note(s)    TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY
Note registration number(s); principal amount(s)   

RC-8; $10,000,000

RF-6; $20,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Federal Funds Wire Transfer

 

Bank of New York

1 Wall Street

New York, NY 10286

ABA #021000018

GLA111-566

FC: TFLIC ESPS 10 - 2516248400

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

2.97% Series C Senior Notes due 2021         G8228* AG7

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

Email: paymentnotifications@aegonusa.com

 

AEGON USA Investment Management, LLC

Attn: Custody Operations-Privates MS 5335

4333 Edgewood Road NE

Cedar Rapids, IA 52499-5335

Address / Fax # and/or Email For All Other Notices   

AEGON USA Investment Management, LLC

Attn: Director of Private Placements MS 5335

4333 Edgewood Road N.E.

Cedar Rapids, IA 52499-5335

Tel: (319) 355-2432

Fax: (319) 355-2666

Email: privateplacements@aegonusa.com

 

And

 

AEGON USA Investment Management, LLC

Attn: Director of Private Placements MS 3341

100 Light St., B1

Baltimore, MD 21202-2559

Tel: (443)-475-3130

Fax: (443) 475-3095

Email: privateplacements@aegonusa.com

Instructions re Delivery of Note(s)    A signed copy of the Note must be sent to Custody Operations-Privates via email: INVCustodayTeam@AEGONUSA.com for verification. A letter with Custody Bank Instructions will be sent back.

 

-32-


Purchaser Name

  

TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY

Signature Block   

TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY

By:         AEGON USA Investment Management, LLC,

               Its investment manager

 

               By:_________________________

               Name:

               Title:

Tax identification number    36-6071399
HMRC DT Treaty Passport Scheme    13/T/0271475/DTTP
Tax Residence    United States of America

 

-33-


Purchaser Name

  

TRANSAMERICA LIFE INSURANCE COMPANY

Name in which to register Note(s)    TRANSAMERICA LIFE INSURANCE COMPANY
Note registration number(s); principal amount(s)    RF-7; $15,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Federal Funds Wire Transfer

 

Citibank, N.A.

111 Wall Street

New York, NY 10043

ABA #021000089

DDA #36218394

Custody Account No. 204911

FC TLIC LPG0 07

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

Email: paymentnotifications@aegonusa.com

 

AEGON USA Investment Management, LLC

Attn: Custody Operations-Privates MS 5335

4333 Edgewood Road NE

Cedar Rapids, IA 52499-5335

Address / Fax # and/or Email For All Other Notices   

AEGON USA Investment Management, LLC

Attn: Director of Private Placements MS 5335

4333 Edgewood Road N.E.

Cedar Rapids, IA 52499-5335

Tel: (319) 355-2432

Fax: (319) 355-2666

Email: privateplacements@aegonusa.com

 

And

 

AEGON USA Investment Management, LLC

Attn: Director of Private Placements MS 3341

100 Light St., B1

Baltimore, MD 21202-2559

Tel: (443)-475-3130

Fax: (443) 475-3095

Email: privateplacements@aegonusa.com

Instructions re Delivery of Note(s)    A signed copy of the Note must be sent to Custody Operations-Privates via email: INVCustodayTeam@AEGONUSA.com for verification. A letter with Custody Bank Instructions will be sent back.

 

-34-


Purchaser Name

  

TRANSAMERICA LIFE INSURANCE COMPANY

Signature Block   

TRANSAMERICA LIFE INSURANCE COMPANY

By:         AEGON USA Investment Management, LLC,

               Its investment manager

 

               By:_________________________

               Name:

               Title:

Tax identification number    39-0989781
HMRC DT Treaty Passport Scheme    13/T/291675/DTTP
Tax Residence    United States of America

 

-35-


Purchaser Name

  

USAA LIFE INSURANCE COMPANY

Name in which to register Note(s)    USAA LIFE INSURANCE COMPANY
Note registration number(s); principal amount(s)    RF-8; $29,000,000

Payment on account of Note

 

Method

 

Account information

  

 

 

Wire Transfer

 

Northern Chgo/Trust

ABA#071000152

Credit Wire Account # 5186061000

FFC: Account Name: USAA Life Insurance Company

Account No. 26-11042

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address/Fax#/Email for notices related to payments   

USAA Life Insurance Company

c/o Northern Trust Company

P.O. Box 92395

Chicago, IL 60675-92395

Attn: Income Collections

Ref: G8228* AK8

 

And:

John Spear

VP Insurance Portfolios

9800 Fredericksburg Road

San Antonio, TX 78288

(210) 498-8661

Email: John.spear@usaa.com

Address/Fax#/Email for all other notices   

John Spear

VP Insurance Portfolios

9800 Fredericksburg Road

San Antonio, TX 78288

(210) 498-8661

Email: John.spear@usaa.com

Instructions re Delivery of Notes   

Depository Trust & Clearing Corporation

Newport Office Center

570 Washington Blvd

5 th Floor

Jersey City, NJ 07310

Attn: Tanya Stackhouse-Bowen or Robert Mendez

RE: Account: 26-11042

USAA Life Insurance Company

212-855-2484

 

-36-


Purchaser Name

  

USAA LIFE INSURANCE COMPANY

Signature Block   

USAA LIFE INSURANCE COMPANY

 

By:_________________________

Name: James F. Jackson, Jr.

Title: Executive Director

Tax identification number    74-1472662
HMRC DT Treaty Passport Scheme    13/U/352594/DTTP
Tax Residence    United States of America

 

-37-


Purchaser Name

  

USAA LIFE INSURANCE COMPANY OF NEW YORK

Name in which to register Note(s)    USAA LIFE INSURANCE COMPANY OF NEW YORK
Note registration number(s); principal amount(s)    RF-9; $1,000,000

Payment on account of Note

 

Method

 

Account information

  

 

 

Wire Transfer

 

Northern Chgo/Trust

ABA#071000152

Credit Wire Account # 5186061000

FFC: Account Name: USAA Life Insurance Company of New York

Account No. 26-11044

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address/Fax#/Email for notices related to payments   

USAA Life Insurance Company of New York

c/o Northern Trust Company

P.O. Box 92395

Chicago, IL 60675-92395

Attn: Income Collections

Ref: G8228* AK8

Address/Fax#/Email for all other notices   

John Spear

VP Insurance Portfolios

9800 Fredericksburg Road

San Antonio, TX 78288

(210) 498-8661

Email: John.spear@usaa.com

Instructions re Delivery of Notes   

Depository Trust & Clearing Corporation

Newport Office Center

570 Washington Blvd, 5 th Floor

Jersey City, NJ 07310

Attn: Tanya Stackhouse-Bowen or Robert Mendez

RE: Account: 26-11044

USAA Life Insurance Company of New York

212-855-2484

Signature Block   

USAA LIFE INSURANCE COMPANY OF NEW YORK

 

By:_________________________

Name: James F. Jackson, Jr.

Title:   Executive Director

Tax identification number    16-1530706
HMRC DT Treaty Passport Scheme    13/U/363658/DTTP
Tax Residence    United States of America

 

-38-


Purchaser Name

  

UNITED SERVICES AUTOMOBILE ASSOCIATION

Name in which to register Note(s)    UNITED SERVICES AUTOMOBILE ASSOCIATION
Note registration number(s); principal amount(s)    RC-9; $20,000,000

Payment on account of Note

 

Method

 

Account information

  

 

 

Wire Transfer

 

Northern Chgo/Trust

ABA#071000152

Credit Wire Account # 5186061000

FFC: Account Name: United Services Automobile Association

Account No. 26-11037

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                  PPN :

 

2.97% Series C Senior Notes due 2021         G8228* AG7

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address/Fax#/Email for notices related to payments   

United Services Automobile Association

c/o Northern Trust Company

P.O. Box 92395

Chicago, IL 60675-92395

Attn: Income Collections

Ref: G8228* AG7

Address/Fax#/Email for all other notices   

Donna Baggerly

VP Insurance Portfolios

9800 Fredericksburg Road

San Antonio, TX 78288

(210) 498-5195

Email: Donna.baggerly@usaa.com

Instructions re Delivery of Notes   

Depository Trust & Clearing Corporation

Newport Office Center

570 Washington Blvd., 5th Floor

Jersey City, NJ 07310

Attn: Tanya Stackhouse-Bowen or Robert Mendez

Reference: Northern Trust Account #26-11037/USAA

212-855-2484

Signature Block   

UNITED SERVICES AUTOMOBILE ASSOCIATION

 

By:_________________________

Name: Donna Baggerly

Title:   Vice President - Insurance Portfolios

Tax identification number    74-0959140
HMRC DT Treaty Passport Scheme    13/U/351885/DTTP
Tax Residence    United States of America

 

-39-


Purchaser Name

  

USAA CASUALTY INSURANCE COMPANY

Name in which to register Note(s)    USAA CASUALTY INSURANCE COMPANY
Note registration number(s); principal amount(s)    RC-10; $10,000,000

Payment on account of Note

 

Method

 

Account information

  

 

 

Wire Transfer

 

Northern Chgo/Trust

ABA#071000152

Credit Wire Account # 5186061000

FFC: Account Name: USAA Casualty Insurance Company

Account No. 26-11038

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                  PPN :

 

2.97% Series C Senior Notes due 2021         G8228* AG7

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address/Fax#/Email for notices related to payments   

USAA Casualty Insurance Company

c/o Northern Trust Company

P.O. Box 92395

Chicago, IL 60675-92395

Attn: Income Collections

Ref: G8228* AG7

Address/Fax#/Email for all other notices   

Donna Baggerly

VP Insurance Portfolios

9800 Fredericksburg Road

San Antonio, TX 78288

(210) 498-5195

Email: Donna.baggerly@usaa.com

Instructions re Delivery of Notes   

Depository Trust & Clearing Corporation

Newport Office Center

570 Washington Blvd., 5 th Floor

Jersey City, NJ 07310

Attn: Tanya Stackhouse-Bowen or Robert Mendez

Reference: Northern Trust Account # 26-11038/CIC

Tel: 212-855-2484

Signature Block   

USAA CASUALTY INSURANCE COMPANY

 

By:_________________________

Name: Donna Baggerly

Title: Vice President - Insurance Portfolios

Tax identification number    59-3019540
HMRC DT Treaty Passport Scheme    13/U/356898/DTTP
Tax Residence    United States of America

 

-40-


Purchaser Name

  

THE LINCOLN NATIONAL LIFE INSURANCE COMPANY

Name in which to register Note(s)    THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
Note registration number(s); principal amount(s)   

RA-6; $5,000,000

RC-11; $5,000,000

RF-10; $4,000,000

RF-11; $4,000,000

RF-12; $6,000,000

RF-13; $8,000,000

RF-14; $8,000,000

RF-15; $8,000,000

RF-16; $8,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

The Bank of New York Mellon

New York, NY

ABA #: 021000018

Beneficiary Account #: GLA111566

Attn: The Bank of New York Mellon Private Placement P&I Department

Bank to Bank Information Ref: Registered Holder: The Lincoln National Life Insurance Company, “Accompanying Information” below and Custody Account# as follows:

 

RA-6; $5,000,000, Custody Account #215736

RC-11; $5,000,000, Custody Account #215736

RF-10; $4,000,000, Custody Account #216625

RF-11; $4,000,000, Custody Account #186228

RF-12; $6,000,000, Custody Account #215736

RF-13; $8,000,000, Custody Account #215732

RF-14; $8,000,000, Custody Account #215714

RF-15; $8,000,000, Custody Account #215715

RF-16; $8,000,000, Custody Account #215726

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                  PPN :

 

2.47% Series A Senior Notes due 2019        G8228* AE2

2.97% Series C Senior Notes due 2021        G8228* AG7

3.36% Series F Senior Notes due 2024        G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

 

-41-


Purchaser Name

  

THE LINCOLN NATIONAL LIFE INSURANCE COMPANY

Address / Fax # and/or Email For Notices Relating To Payments   

The Bank of New York Mellon

P.O. Box 19266

Newark, NJ 07195

Attn: Priv Placement P&I Department

Reference: The Lincoln National Life Insurance Company/Sec Desc/PPN#

 

And

 

Delaware Investment Advisers

2005 Market Street, Mail Stop 41-104

Philadelphia, PA 19103

Attn: Fixed Income Private Placements

Fax: (215) 255-1654 – Private Placements

 

and

 

Lincoln Financial Group

1300 South Clinton Street

Fort Wayne, IN 46802

Attn: K. Estep – Treasury Operations

Fax: (260) 455-1441

Address / Fax # and/or Email For All Other Notices   

The Lincoln National Life Insurance Company

c/o Delaware Investment Advisers

2005 Market Street, Mail Stop 41-104

Philadelphia, PA 19103

Attn: Fixed Income Private Placements

Fax: (215) 255-1654 – Private Placements

Instructions re Delivery of Note(s)   

The Bank of New York Mellon

One Wall Street, 3 rd Floor

New York, NY 10286

Attn: Anthony Saviano- Free Receive Department (212-635-6764)

Ref: The Lincoln National Life Insurance Company – Applicable Account #

 

Fax cover letter copy to: Karen Costa - The Bank of New York Mellon

Fax #: (315) 414-5017

Cc: Andrea Fox Tierney (via email)

Signature Block   

THE LINCOLN NATIONAL LIFE INSURANCE COMPANY

By: Delaware Investment Advisers, a series of Delaware Management Business Trust, Attorney in Fact

 

By: ______________________________

Name:

Title:

Tax identification number    35-0472300
HMRC DT Treaty Passport Scheme    13/L/62122/DTTP
Tax Residence    United States of America

 

-42-


Purchaser Name

  

LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK

Name in which to register Note(s)    LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
Note registration number(s); principal amount(s)    RF-17; $4,000,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

Northern Chgo/Trust

801 South Canal St., Chicago, IL 60607

ABA #: 071000152

Credit A/C#: 5186041000

Attn: Northern Trust Income Dept.

For Further Credit to the Account of: Lincoln Life & Annuity Company of New York

Further Credit Custody A/C #: 2624509

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                  PPN :

 

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

The Northern Trust Company

801 South Canal Street

Income Collections C-3N

Attn: Julie Motley / Oscell Owens

Chicago, IL 60607

Fax: 312-849-8494

Reference: Lincoln Life & Annuity Company of New York – Seg 1166 and

PPN # 127097 E#6

 

and

 

Delaware Investment Advisers

2005 Market Street, Mail Stop 41-104

Philadelphia, PA 19103

Attn: Fixed Income Private Placements

Fax: 215-255-1654 (Private Placements)

 

and

 

Lincoln Financial Group

1300 South Clinton Street

Fort Wayne, IN 46802

Attn: K. Estep – Investment Accounting

Fax: 260-455-1441 (Investment Accounting)

Address / Fax # and/or Email For All Other Notices   

Delaware Investment Advisers

2005 Market Street, Mail Stop 41-104

Philadelphia, PA 19103

Attn: Fixed Income Private Placements

Fax: 215-255-1654 (Private Placements)

 

-43-


Purchaser Name

  

LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK

Instructions re Delivery of Note(s)   

The Northern Trust Company

    (via express delivery)

Attn: Wanda Leshone Ross (Telephone 312-557-9507)

Trade Securities Processing, C1N

801 South Canal Street

Chicago, IL 60607

Ref: Lincoln Life & Annuity Company of New York, Account #2624509

Cc:         Andrea Fox Tierney (via email)

Signature Block   

LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK

By:        Delaware Investment Advisers, a series of Delaware

      Management Business Trust, Attorney in Fact

              By:_________________________

              Name:

              Title:

Tax identification number    22-0832760
HMRC DT Treaty Passport Scheme    13/L/212662/DTTP
Tax Residence    United States of America

 

-44-


Purchaser Name

  

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA

Name in which to register Note(s)    THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
Note registration number(s); principal amount(s)    RD-1; $10,150,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

JPMorgan Chase Bank New York

New York, NY

ABA No.: 021-000-021

Account Name: Prudential Managed Portfolio

Account No.: P86188

Ref: “Accompanying Information” below and Security No. INV11724

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.15% Series D Senior Notes due 2022         G8228* AH5

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

The Prudential Insurance Company of America

c/o Investment Operations Group

Gateway Center Two, 10 th Floor

100 Mulberry Street

Newark, NJ 07102-4077

Attn: Manager, Billings and Collections

 

Recipient of telephonic prepayment Notices:

Manager, Trade Management Group

Telephone: (973) 367-3141

Facsimile:   (888) 889-3832

Address / Fax # and/or Email For All Other Notices   

The Prudential Insurance Company of America

c/o Pricoa Capital Group

47 King William Street, 6 th Floor

London EC4R 9AF

United Kingdom

Attention: Managing Director, PRICOA

Instructions re Delivery of Note(s)   

Prudential Capital Group

Two Prudential Plaza

180 N. Stetson Avenue

Suite 5600

Chicago, IL 60601

Attention: Kim Maranda

 

-45-


Purchaser Name

  

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA

Signature Block   

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA

 

By:___________________________________

Name:

Title:    Vice President

Tax identification number    22-1211670
HMRC DT Treaty Passport Scheme    13/P/61325/DTTP
Tax Residence    United States of America

 

-46-


Purchaser Name

  

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA

Name in which to register Note(s)    THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
Note registration number(s); principal amount(s)    RD-2; $11,100,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

JPMorgan Chase Bank New York

New York, NY

ABA No.: 021-000-021

Account Name: The Prudential - Privest Portfolio

Account No.: P86189

Ref: “Accompanying Information” below and Security No. INV11724

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.15% Series D Senior Notes due 2022         G8228* AH5

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

The Prudential Insurance Company of America

c/o Investment Operations Group

Gateway Center Two, 10 th Floor

100 Mulberry Street

Newark, NJ 07102-4077

Attn: Manager, Billings and Collections

 

Recipient of telephonic prepayment Notices:

Manager, Trade Management Group

Telephone: (973) 367-3141

Facsimile:  (888) 889-3832

Address / Fax # and/or Email For All Other Notices   

The Prudential Insurance Company of America

c/o Pricoa Capital Group

47 King William Street, 6 th Floor

London EC4R 9AF

United Kingdom

Attention: Managing Director, PRICOA

Instructions re Delivery of Note(s)   

Prudential Capital Group

Two Prudential Plaza

180 N. Stetson Avenue

Suite 5600

Chicago, IL 60601

Attention: Kim Maranda

 

-47-


Purchaser Name

  

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA

Signature Block   

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA

 

By:___________________________________

Name:

Title:     Vice President

Tax identification number    22-1211670
HMRC DT Treaty Passport Scheme    13/P/61325/DTTP
Tax Residence    United States of America

 

-48-


Purchaser Name

  

PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY

Name in which to register Note(s)    PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY
Note registration number(s); principal amount(s)    RD-3; $14,850,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

JPMorgan Chase Bank New York

New York, NY

ABA No. 021-000-021

Account Name: PRIAC

Account No.: P86329

Ref: “Accompanying Information” below and Security No. INV11724

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.15% Series D Senior Notes due 2022         G8228* AH5

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

Prudential Retirement Insurance and Annuity Company

c/o Prudential Investment Management, Inc.

Private Placement Trade Management

PRIAC Administration

Gateway Center Four, 7th Floor

100 Mulberry Street

Newark, NJ 07102

Phone: 973-802-8107

Fax: 888-889-3832

Address / Fax # and/or Email For All Other Notices   

Prudential Retirement Insurance and Annuity Company

c/o Pricoa Capital Group

47 King William Street, 6 th Floor

London EC4R 9AF

United Kingdom

Attention: Managing Director, PRICOA

Instructions re Delivery of Note(s)   

Prudential Capital Group

Two Prudential Plaza

180 N. Stetson Avenue

Suite 5600

Chicago, IL 60601

Attention: Kim Maranda

 

-49-


Purchaser Name

  

PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY

Signature Block   

PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY

By:         Prudential Investment Management, Inc.,

               as investment manager

 

               By:___________________________________

               Name:

               Title:     Vice President

Tax identification number    06-1050034
HMRC DT Treaty Passport Scheme    13/P/301448/DTTP
Tax Residence    United States of America

 

-50-


Purchaser Name

  

ZURICH AMERICAN INSURANCE COMPANY

Name in which to register Note(s)    ZURICH AMERICAN INSURANCE COMPANY
Note registration number(s); principal amount(s)    RD-4; $13,900,000

Payment on account of Note(s)

 

Method

 

Account information

  

 

 

Wire Transfer

 

The Bank of New York

ABA No: 021000018

BNF: IOC566

Attn: PP P&I Department

Ref: ZAIC Private Placements

Ref: “Accompanying Information” below

Accompanying information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.15% Series D Senior Notes due 2022         G8228* AH5

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address / Fax # and/or Email For Notices Relating To Payments   

Zurich North America

Attn: Treasury T1-19

1400 American Lane

Schaumburg, IL 60196-1056

 

Contact: Mary Fran Callahan, Vice President-Treasurer

Telephone: (847) 605-6447

Facsimile: (847) 605-7895

E-mail: mary.callahan@zurichna.com

Address / Fax # and/or Email For All Other Notices   

Prudential Private Placement Investors, L.P.

c/o Pricoa Capital Group

47 King William Street, 6 th Floor

London EC4R 9AF

United Kingdom

Attention: Managing Director, PRICOA

Instructions re Delivery of Note(s)   

Bank of New York

Window A

One Wall Street, 3rd Floor

New York, NY 10286

Ref: Zurich American Insurance Co.-Private Placements; Account Number: 399141

cc: Prudential Capital Group, Trade Management, Manager

 

-51-


Purchaser Name

  

ZURICH AMERICAN INSURANCE COMPANY

Signature Block   

ZURICH AMERICAN INSURANCE COMPANY

By:         Prudential Private Placement Investors,

               L.P. (as Investment Advisor)

               By:         Prudential Private Placement Investors, Inc.

                               (as its General Partner)

 

                               By:___________________________

                               Name:

                               Title:     Vice President

Tax identification number    36-4233459
HMRC DT Treaty Passport Scheme    13/Z/301503/DTTP
Tax Residence    United States of America

 

-52-


Purchaser Name

  

JACKSON NATIONAL LIFE INSURANCE COMPANY

Name in Which Note is Registered    JACKSON NATIONAL LIFE INSURANCE COMPANY
Note Registration Number; Series; Principal Amount    RF-18; $18,500,000

Payment on Account of Note

Method

 

Account Information

  

 

 

Wire Transfer

 

The Bank of New York Mellon

ABA # 021-000-018

Account #: IOC566

Ref: 187242 and “Accompanying Information” below

Accompanying Information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address/Fax for Notices Related to Payments   

Jackson National Life Insurance Company

c/o The Bank of New York Mellon

Attn: P & I Department

P.O. Box 19266

Newark, NJ 07195

Tel: (718) 315-3035

Fax: (718) 315-3076

Email: PPMAPrivateReporting@ppmamerica.com

Address/Fax for All Other Notices   

PPM America, Inc.

225 West Wacker Drive, Suite 1200

Chicago, IL 60606-1228

Attn: Private Placements – Elena Unger

Phone: (312) 634-7853, Fax: (312) 634-0054

Email: PPMAPrivateReporting@ppmamerica.com

 

With copies of Financial Information also to:

 

Jackson National Life Insurance Company

One Corporate Way

Lansing, MI 48951

Attn: Investment Accounting – Mark Stewart

Tel: (517) 367-3190

Fax: (517) 706-5503

Instructions re: Delivery of Notes   

The Bank of New York Mellon

Special Processing – Window A

One Wall Street, 3 rd Floor

New York, NY 10286

Ref: JNL - JNL ELI A/C #187242

 

-53-


Purchaser Name

  

JACKSON NATIONAL LIFE INSURANCE COMPANY

Signature Block   

JACKSON NATIONAL LIFE INSURANCE COMPANY

By:         PPM America, Inc., as attorney in fact

 

               By:_____________________________

               Name:

               Title:

Tax Identification Number    38-1659835
HMRC DT Treaty Passport Scheme    13/J/216375/DTTP
Tax Residence    United States of America

 

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Purchaser Name

  

JACKSON NATIONAL LIFE INSURANCE COMPANY

Name in Which Note is Registered    JACKSON NATIONAL LIFE INSURANCE COMPANY
Note Registration Number; Series; Principal Amount    RF-19; $18,500,000

Payment on Account of Note

Method

 

Account Information

  

 

 

Wire Transfer

 

The Bank of New York Mellon

ABA # 021-000-018

Account #: IOC566

Ref: 187244 and “Accompanying Information” below

Accompanying Information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address/Fax for Notices Related to Payments   

Jackson National Life Insurance Company

c/o The Bank of New York Mellon

Attn: P & I Department

P.O. Box 19266

Newark, NJ 07195

Tel: (718) 315-3035

Fax: (718) 315-3076

Email: PPMAPrivateReporting@ppmamerica.com

Address/Fax for All Other Notices   

PPM America, Inc.

225 West Wacker Drive, Suite 1200

Chicago, IL 60606-1228

Attn: Private Placements – Elena Unger

Phone: (312) 634-7853, Fax: (312) 634-0054

Email: PPMAPrivateReporting@ppmamerica.com

 

With copies of Financial Information also to:

 

Jackson National Life Insurance Company

One Corporate Way

Lansing, MI 48951

Attn: Investment Accounting – Mark Stewart

Tel: (517) 367-3190

Fax: (517) 706-5503

Instructions re: Delivery of Notes   

The Bank of New York Mellon

Special Processing – Window A

One Wall Street, 3 rd Floor

New York, NY 10286

Ref: JNL - JNL MVA A/C #187244

 

-55-


Purchaser Name

  

JACKSON NATIONAL LIFE INSURANCE COMPANY

Signature Block   

JACKSON NATIONAL LIFE INSURANCE COMPANY

By:         PPM America, Inc., as attorney in fact

 

               By:_____________________________

               Name:

               Title:

Tax Identification Number    38-1659835
HMRC DT Treaty Passport Scheme    13/J/216375/DTTP
Tax Residence    United States of America

 

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Purchaser Name

  

JACKSON NATIONAL LIFE INSURANCE COMPANY OF NEW YORK

Name in Which Note is Registered    JACKSON NATIONAL LIFE INSURANCE COMPANY OF NEW YORK
Note Registration Number; Series; Principal Amount    RF-20; $3,000,000

Payment on Account of Note

Method

 

Account Information

  

 

 

Wire Transfer

 

The Bank of New York Mellon

ABA # 021-000-018

Account #: IOC566

Ref: 187271 and “Accompanying Information” below

Accompanying Information   

Name of Issuer :                                              SMITH & NEPHEW PLC

 

Description of Security :                                 PPN :

 

3.36% Series F Senior Notes due 2024         G8228* AK8

 

With sufficient information to identify the source and application of such funds, including issuer, PPN#, interest rate, maturity and whether payment is of principal, interest, Make-Whole Amount, Modified Make-Whole Amount or otherwise.

Address/Fax for Notices Related to Payments   

Jackson National Life Insurance Company of New York

c/o The Bank of New York Mellon

Attn: P & I Department

P.O. Box 19266

Newark, NJ 07195

Tel: (718) 315-3035

Fax: (718) 315-3076

Email: PPMAPrivateReporting@ppmamerica.com

Address/Fax for All Other Notices   

PPM America, Inc.

225 West Wacker Drive, Suite 1200

Chicago, IL 60606-1228

Attn: Private Placements – Elena Unger

Phone: (312) 634-7853, Fax: (312) 634-0054

Email: PPMAPrivateReporting@ppmamerica.com

 

With copies of Financial Information also to:

 

Jackson National Life Insurance Company of New York

One Corporate Way

Lansing, MI 48951

Attn: Investment Accounting – Mark Stewart

Tel: (517) 367-3190

Fax: (517) 706-5503

Instructions re: Delivery of Notes   

The Bank of New York Mellon

Special Processing – Window A

One Wall Street, 3 rd Floor

New York, NY 10286

Ref: JNL - JNLNY Gen. Account A/C #187271

 

-57-


Purchaser Name

  

JACKSON NATIONAL LIFE INSURANCE COMPANY OF NEW YORK

Signature Block   

JACKSON NATIONAL LIFE INSURANCE COMPANY OF NEW YORK

By:         PPM America, Inc., as attorney in fact

 

               By:_____________________________

               Name:

               Title:

Tax Identification Number    13-3873709
HMRC DT Treaty Passport Scheme    13/J/280646/DTTP
Tax Residence    United States of America

 

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SCHEDULE B

DEFINED TERMS

As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:

3.5 Ratio ” is defined in Section 10.4(b).

3.5 Ratio Period is defined in Section 10.4(b).

Acceptable Bank ” means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by Standard & Poor’s or Fitch or A3 or higher by Moody’s or a comparable rating from an internationally recognized credit rating agency.

Additional Payments ” is defined in Section 8.3.

Additional Subsidiary Guarantor ” means each Subsidiary of the Company which guarantees the obligations of the Company under any Principal Credit Facility.

“Affected Noteholder” is defined within the definition of “Noteholder Sanctions Event.”

Affected Notes ” is defined in Section 8.10(b).

Affiliate ” means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person. As used in this definition, “ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of the Company.

Agreement ” is defined in Section 18.3.

Anti-Corruption Laws ” means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding bribery or any other corrupt activity, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010.

Anti-Money Laundering Laws ” means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes, including the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act) and the USA PATRIOT Act.

Applicable Percentage ” is defined in Section 8.7.

Blocked Person ” means (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by OFAC, (ii) a Person, entity, organization, country or regime that is blocked or a target of sanctions that have been imposed under U.S. Economic Sanctions Laws or (iii) a Person that is an agent, department or instrumentality of, or is otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, any Person, entity, organization, country or regime described in clause (i) or (ii).

 

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Breakage Amount ” means:

 

  (a) any net loss, cost or expense reasonably incurred by any holder of a Note as a result of any payment or prepayment of any portion of any Floating Rate Note (whether voluntary, mandatory, automatic, by reason of acceleration or otherwise) on a day other than a Floating Rate Note Payment Date for such Floating Rate Note or at scheduled maturity thereof, and any net loss or expense arising from the liquidation or redeployment of funds obtained by such holder or from fees payable to terminate the deposits from which such funds were obtained. Each holder shall determine the Breakage Amount with respect to the principal amount of Floating Rate Notes then being paid or prepaid (or required to be paid or prepaid) by written notice to the Company setting forth such determination in reasonable detail not less than five (5) Business Days prior to the date of prepayment (if the Breakage Amount can then be calculated and otherwise as promptly as possible) or, in the event of a prepayment event of which a holder has no advance notice, on or within five (5) Business Days following the date of prepayment; plus

 

  (b) in the case of any Series B Note, with respect to a prepayment of all or any portion of the principal amount of such Series B Note pursuant to Section 8.2 or in the case of an acceleration under Section 12.1, that percentage of such principal amount that is indicated opposite the applicable time period listed below:

 

Date of prepayment    Premium  

Prior to or on the first anniversary of the date of the Closing

     2

After the first anniversary and prior to or on the second anniversary of the date of the Closing

     1

After the second anniversary of the date of the Closing

     0

 

  (c) in the case of any Series G Note, with respect to a prepayment of all or any portion of the principal amount of such Series G Note pursuant to Section 8.2 or in the case of an acceleration under Section 12.1, that percentage of such principal amount that is indicated opposite the applicable time period listed below:

 

Date of prepayment    Premium  

Prior to or on the second anniversary of the date of the Closing

     2

After the second anniversary and prior to or on the fourth anniversary of the date of the Closing

     1

After the fourth anniversary of the date of the Closing

     0

 

-2-


Business Day ” means (a) for the purposes of Section 8.7 only, any day other than a Saturday, a Sunday or a day on which commercial banks in New York City are required or authorized to be closed, and (b) for the purposes of any other provision of this Agreement, any day other than a Saturday, a Sunday or a day on which commercial banks in New York City or London are required or authorized to be closed.

Called Principal ” is defined in Section 8.7.

Change in Tax Law ” is defined in Section 8.3.

Change of Control ” means if at any time any single person or group of persons acting in concert acquires control of the Company, where (x) “ control ” has the meaning given to it in section 450 and 451 of the Corporation Tax Act 2010; and (y) “ acting in concert ” has the meaning given to it in the City Code on Takeovers and Mergers.

Change of Control Response Date ” is defined in Section 8.9(a).

Closing ” is defined in Section 3.

Code ” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.

Company ” means Smith & Nephew plc, a public limited company organized under the laws of England and Wales with registered number 00324357, or any successor that becomes such in the manner prescribed in Section 10.2.

Company Notice ” is defined in Section 8.9(a).

“Competitor” means any Person (other than a Purchaser) which is involved, directly or indirectly, to a material extent in the business of the sale or manufacture of medical equipment; provided that

 

  (a) in no event shall an Institutional Investor that maintains purely passive investments in any Person that is a Competitor be deemed a Competitor; and

 

  (b) the provision of investment advisory services by a Person to a Plan or Non-U.S. Plan which is owned or controlled by a Person which would otherwise be a Competitor shall not of itself cause the Person providing such services to be deemed to be a Competitor if such Person has established procedures which will prevent confidential information supplied to such Person by any member of the Group from being transmitted or otherwise made available to such Plan or Non-U.S. Plan or Person owning or controlling such Plan or Non-U.S. Plan.

Confidential Information ” is defined in Section 21.

 

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Controlled Entity ” means any of the Subsidiaries of the Company and any of their or the Company’s respective Controlled Affiliates. As used in this definition, “ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

Consolidated Cash and Cash Equivalents ” is defined in Section 10.4(e).

Consolidated EBITA ” is defined in Section 10.4(e).

Consolidated EBITDA ” is defined in Section 10.4(e).

Consolidated Gross Assets ” means the consolidated gross assets of the Group as shown on the most recent consolidated balance sheet of the Company delivered to the holders of Notes pursuant to Section 7.1(a) or (b), as applicable, or if no balance sheet has been so delivered subsequent to the Closing, then as shown on the most recent balance sheet listed on Schedule 5.5.

Consolidated Interest Payable ” is defined in Section 10.4(e).

Consolidated Net Interest Payable ” is defined in Section 10.4(e).

Consolidated Total Borrowings ” is defined in Section 10.4(e).

Consolidated Total Net Borrowings ” is defined in Section 10.4(e).

Default ” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.

Default Rate ” means that rate of interest for the Notes of any Series that is the greater of (i) 1% per annum above the rate of interest stated in clause (a) of the first paragraph of the Notes of such Series or (ii) 1% above the rate of interest publicly announced by Citibank, N.A. from time to time at its principal office in New York City as its “base” or “prime” rate.

Disclosure Documents ” is defined in Section 5.3.

Discounted Value ” is defined in Section 8.7.

Dollar ” or “ $ ” means the lawful money of the United States of America.

ERISA ” means the United States Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

ERISA Affiliate ” means any trade or business (whether or not incorporated) that is treated as a single employer together with the Company under section 414(b) or (c) of the Code.

Event of Default ” is defined in Section 11.

 

-4-


FATCA ” means:

 

  (a) sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended, or any associated regulations or other official guidance;

 

  (b) any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the U.S. and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or

 

  (c) any agreement pursuant to the implementation of paragraphs (a) or (b) above with the U.S. Internal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction.

FATCA Deduction ” means a deduction or withholding from a payment under this Agreement and/or under a Note and/or under any Subsidiary Guarantee required by FATCA.

Finance Subsidiary ” has the meaning set forth for such term in the definition of “Finance Subsidiary Indebtedness”.

Finance Subsidiary Indebtedness ” means any Financial Indebtedness of a Subsidiary (a “ Finance Subsidiary ”) (a) whose primary activities are issuance of debt obligations to Persons other than Affiliates (which debt obligations are non-recourse to the assets of such Finance Subsidiary except for the assets constituting loans of the net proceeds of such debt issuance to the Company, or, subject as provided below, other members of the Group), and the lending of the net proceeds of such debt issuance to the Company and, subject as provided below, other members of the Group and activities incidentally related thereto, and (b) which has no significant assets other than promissory notes (or other instruments or evidence of such indebtedness) evidencing such loans to the Company, or (subject as provided below) to any other member of the Group; provided that where such Finance Subsidiary lends the net proceeds of such debt issuance to a member of the Group other than the Company, the Financial Indebtedness of such Finance Subsidiary which generated such net proceeds shall only be treated as Finance Subsidiary Indebtedness if and to the extent such member of the Group which borrows such net proceeds provides the holders with a guarantee of the Notes in form and substance satisfactory to the Required Holders and with opinions from counsel satisfactory to the Required Holders in all relevant jurisdictions, which opinions shall be in form and substance satisfactory to the Required Holders as to the due authorization, execution and delivery of such guarantee and the valid, binding and enforceable nature of such guarantee (and shall otherwise comply with the requirements of Section 9.8 in respect of such guarantee) and, in addition, either (i) such opinion shall state that the obligations of such member of the Group under such guarantee would rank pari passu with other senior debt of such member of the Group in an insolvency proceeding of such member of the Group or (ii) the holders of the Notes are made parties to, or beneficiaries under, an intercreditor agreement with such Finance Subsidiary lending to such member of the Group and the lender(s) to such Finance Subsidiary, which intercreditor agreement is in form and substance satisfactory to the Required Holders.

Financial Indebtedness ” means any indebtedness (without double counting) for or in respect of:

 

  (a) moneys borrowed;

 

-5-


  (b) any amount raised by acceptance under any acceptance credit facility (or dematerialized equivalent);

 

  (c) any bond, note, debenture, loan stock or other similar instrument;

 

  (d) any finance or capital lease as defined in accordance with the accounting principles applied in connection with the Original Financial Statements;

 

  (e) receivables sold or discounted (otherwise than on a non-recourse basis);

 

  (f) the acquisition cost of any asset to the extent payable after its acquisition or possession by the party liable where the deferred payment is arranged primarily as a method of raising finance or financing the acquisition of that asset;

 

  (g) any derivative transaction protecting against or benefiting from fluctuations in any rate or price (and at any time the then marked to market value of the derivative transaction will be used to calculate its amount, such marked to market value being determined by reference to the documentation of that transaction or, if there is no such provision in the documentation, determined by the Company acting reasonably and on the basis of quotations from the relevant counterparty);

 

  (h) any other transaction (including any forward sale or purchase agreement) which has the commercial effect of a borrowing;

 

  (i) any counter indemnity obligation in respect of any guarantee, indemnity, bond, letter of credit or any other instrument issued by a bank or financial institution; or

 

  (j) any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in paragraphs (a) to (i) above,

provided that the definition of Financial Indebtedness does not include any indebtedness owing from a member of the Group to another member of the Group.

Fitch ” means Fitch Ratings Limited or Fitch Ratings Inc. (as appropriate), or any successor to its ratings business.

Fixed Rate Note ” means a Series A Note, a Series C Note, a Series D Note, a Series E Note or a Series F Note.

Floating Interest Period ” means each period from and including a Floating Rate Note Payment Date to but excluding the immediately subsequent Floating Rate Note Payment Date. Notwithstanding the foregoing, the first Floating Interest Period shall begin on the date of the Closing.

Floating Interest Rate ” means, with respect to any Series B Note, for any Floating Interest Period, the sum of the USD LIBOR Base Rate calculated for such Floating Interest Period plus ninety (90) basis points (.90%) and, with respect to any Series G Note, for any Floating Interest Period, the sum of the USD LIBOR Base Rate calculated for such Floating Interest Period plus one hundred five (105) basis points (1.05%).

 

-6-


Floating Interest Rate Determination Date ” means, with respect to any Floating Interest Period, the day that is two Business Days preceding the first day of such Floating Interest Period.

Floating Rate Note Payment Date ” means, with respect to any Floating Rate Note, May 19 and November 19 in each year, commencing with May 19 or November 19 next succeeding the date of such Note; provided that, if such Floating Rate Note Payment Date falls on a day that is not a Business Day, such Floating Rate Note Payment Date shall be the first following day that is a Business Day unless the next succeeding Business Day would fall in the next calendar month on or after the maturity of such Floating Rate Note, in which case such Floating Rate Note Payment Date shall be the next preceding Business Day.

Floating Rate Note ” means a Series B Note or a Series G Note.

Forms ” is defined in Section 13.

Governmental Authority ” means

(a) the government of

(i) the United States of America or the United Kingdom or any state or other political subdivision of either thereof, or

(ii) any other jurisdiction in which the Company or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over any properties of the Company or any Subsidiary, or

(b) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.

Governmental Official ” means any governmental official or employee, employee of any government-owned or government-controlled entity, political party, any official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity.

Group ” means the Company and its Subsidiaries from time to time and “ member of the Group ” means any one of them.

holder ” means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by the Company pursuant to Section 14.1.

IFRS ” means the international financial reporting standards issued by the International Accounting Standards Board from time to time as approved for use by the European Commission.

INHAM Exemption ” is defined in Section 6.3(e).

 

-7-


Institutional Investor ” means (a) any Purchaser of a Note, (b) any holder of a Note holding (together with one or more of its affiliates) more than 10% of the aggregate principal amount of the Notes then outstanding, (c) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form, and (d) any Related Fund of any holder of any Note.

London Banking Day ” is defined in Section 23.9.

Make-Whole Amount ” is defined in Section 8.7.

Material ” means material in relation to the business, operations, affairs, financial condition, assets or properties of the Group taken as a whole.

Material Acquisition Event ” is defined in Section 10.4(d).

Material Adverse Effect ” means a material adverse effect on (a) the business, operations, affairs, financial condition, assets or properties of the Company and its Subsidiaries taken as a whole, or (b) the ability of the Company to perform its respective obligations under this Agreement or the Notes or (c) the validity or enforceability of this Agreement or the Notes.

Material Subsidiary ” means, at any time, a Subsidiary of the Company:

 

  (a) whose gross assets (excluding intra Group items) then equal or exceed 15% of the gross assets of the Group; or

 

  (b) whose earnings before interest and tax (excluding intra Group items) then equal or exceed 15% of the earnings before interest and tax of the Group.

For this purpose:

 

  (i) the gross assets or earnings before interest and tax of a Subsidiary of the Company will be determined from its financial statements (consolidated if it has Subsidiaries) upon which the latest audited financial statements of the Group have been based;

 

  (ii) if a Subsidiary of the Company becomes a member of the Group after the date on which the latest audited financial statements of the Group have been prepared, the gross assets or earnings before interest and tax of that Subsidiary will be determined from its latest financial statements;

 

  (iii) the gross assets or earnings before interest and tax of the Group will be determined from its latest audited financial statements, adjusted (where appropriate) to reflect the gross assets or earnings before interest and tax of any company or business subsequently acquired or disposed of; and

 

  (iv) if a Material Subsidiary disposes of all or substantially all of its assets to another Subsidiary of the Company, it will immediately cease to be a Material Subsidiary and the other Subsidiary (if it is not already) will immediately become a Material Subsidiary; the subsequent financial statements of those Subsidiaries and the Group will be used to determine whether those Subsidiaries are Material Subsidiaries or not.

 

-8-


If there is a dispute as to whether or not a company is a Material Subsidiary, a certificate of the auditors of the Company will be, in the absence of manifest error, conclusive.

Measurement Period ” is defined in Section 10.4(e).

Modified Make-Whole Amount ” is defined in Section 8.7.

Moody’s ” means Moody’s Investors Service Limited or any successor to its ratings business.

Multiemployer Plan ” means any Plan that is a “ multiemployer plan ” (as such term is defined in section 4001(a)(3) of ERISA).

NAIC ” means the National Association of Insurance Commissioners or any successor thereto.

NAIC Annual Statement ” is defined in Section 6.3(a).

Non-U.K. Holder ” is defined in Section 13.2

Non-U.S. Plan ” means any plan, fund or other similar program that (a) is established or maintained outside the United States of America by the Company or any Subsidiary primarily for the benefit of employees of the Company or one or more Subsidiaries residing outside the United States of America, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and (b) is not subject to ERISA or the Code.

Noteholder Sanctions Event ” means, with respect to any holder of a Note (an “Affected Noteholder”), such holder or any of its affiliates being in violation of or subject to sanctions (a) under any U.S. Economic Sanctions Laws as a result of the Company or any Controlled Entity becoming a Blocked Person or, directly or indirectly, having any investment in or engaging in any dealing or transaction (including any investment, dealing or transaction involving the proceeds of the Notes) with any Blocked Person or (b) under any similar laws, regulations or orders adopted by any State within the United States as a result of the name of the Company or any Controlled Entity appearing on a State Sanctions List.

Notes ” is defined in Section 1.

OFAC ” means Office of Foreign Assets Control, United States Department of the Treasury.

OFAC Sanctions Program ” means any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx .

Officer’s Certificate ” means a certificate of a Senior Financial Officer or of any other officer of the Company whose responsibilities extend to the subject matter of such certificate.

Optional Subsidiary Guarantee ” is defined in Section 9.8(b).

 

-9-


Optional Subsidiary Guarantor ” is defined in Section 9.8(b).

Original Financial Statements ” means the audited consolidated financial statements of the Company for the year ended December 31, 2013.

PBGC ” means the Pension Benefit Guaranty Corporation.

Permitted Jurisdiction ” means any of the United States, Switzerland, Canada, Australia and any country that on April 30, 2004 was a member of the European Union (other than Greece, Italy, Portugal or Spain).

Person ” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or Governmental Authority.

Plan ” means an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA that is or, within the preceding five years, has been established or maintained, or to which contributions are or, within the preceding five years, have been made or required to be made, by the Company or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate may have any liability.

Principal Credit Facility ” means any bank agreement, instrument or facility or bond or note facility or note purchase agreement, and any renewal, refinancing, refunding or replacement thereof, or any two or more of any of the foregoing forming part of a common interrelated financing or other transaction (collectively, a “ Facility Agreement ”) providing for the incurrence of Financial Indebtedness by the Company in an aggregate principal amount equal to or in excess of $250,000,000 (or the equivalent thereof in any other currency), regardless of the principal amount outstanding thereunder from time to time, provided that such Facility Agreement shall immediately cease to be a Principal Credit Facility at such time as such aggregate principal amount permitted to be incurred thereunder shall be less than $250,000,000 (or the equivalent thereof in any other currency).

property ” or “ properties ” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.

PTE ” is defined in Section 6.3.

Purchaser ” is defined in the first paragraph of this Agreement.

QPAM Exemption ” is defined in Section 6.3(d).

Qualified Institutional Buyer ” means any Person who is a “qualified institutional buyer” within the meaning of such term as set forth in Rule 144A(a)(1) under the Securities Act.

Qualifying Noteholder ” means any holder of such Notes who is:

 

  (a) beneficially entitled to income in respect of such Notes and is a company resident of the United Kingdom for UK tax purposes; or

 

  (b) beneficially entitled to income in respect of such Notes and is a company not resident in the United Kingdom for United Kingdom tax purposes which carries on a trade through a permanent establishment in the United Kingdom and the whole or any share of such income falls to be brought into account in computing its chargeable profits (within the meaning of section 19 of the Corporation Tax Act 2009);

 

-10-


  (c) any other entity satisfying one or more of the conditions in sections 935 or 936 of the Income Tax Act 2007 (other than those described in (a) and (b) above); or

 

  (d) a partnership each member of which is a person falling within (a) or (b) above or a person or body mentioned in section 936 of the Income Tax Act 2007,

and, in each case set out in (a) to (d), no direction has been given by an officer of HM Revenue & Customs pursuant to section 931 of the Income Tax Act 2007.

Qualifying OP Holder ” means a holder resident in the United States of America or any other jurisdiction in which an original Purchaser was resident for tax purposes on the date of the Closing and who, at the time of the payment in question, satisfies all the conditions that relate to the holder for full exemption from tax imposed by the United Kingdom on interest under the double taxation treaty between the United States of America or such other jurisdiction, as applicable, and the United Kingdom as at the date of the Closing (or who would satisfy all the conditions but for a change after the date of the Closing in (or in the interpretation, administration, or application of) any law or any published practice or concession of any relevant taxing authority).

Reinvestment Yield ” is defined in Section 8.7.

Rejection Notice ” is defined in Section 8.3.

Related Fund ” means, with respect to any holder of any Note, any fund or entity that (a) invests in securities or bank loans, and (b) is advised or managed by such holder, the same investment advisor as such holder or by an affiliate of such holder or such investment advisor.

Relevant Tax ” is defined in Section 13.

Remaining Average Life ” is defined in Section 8.7.

Remaining Scheduled Payments ” is defined in Section 8.7.

Required Holders ” means, at any time, (i) prior to the Closing, the Purchasers and (ii) on or after the Closing, the holders of more than 50% in principal amount of the Notes (without regard to Series) at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates).

Responsible Officer ” means any Senior Financial Officer and any other officer of the Company with responsibility for the administration of the relevant portion of this Agreement.

Sale of Assets Notice ” is defined in Section 8.8(a).

Securities Act ” means the United States Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

 

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Security Interest ” means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest.

Senior Financial Officer ” means the chief financial officer, principal accounting officer, treasurer or comptroller of the Company.

Series ” means any or all of the Series A Notes, the Series B Notes, the Series C Notes, the Series D Notes, the Series E Notes, the Series F Notes or the Series G Notes, as the context may require.

Series A Notes ” is defined in Section 1.

Series B Notes ” is defined in Section 1.

Series C Notes ” is defined in Section 1.

Series D Notes ” is defined in Section 1.

Series E Notes ” is defined in Section 1.

Series F Notes ” is defined in Section 1.

Series G Notes ” is defined in Section 1.

Settlement Date ” is defined in Section 8.7.

Source ” is defined in Section 6.3.

Spike Election ” is defined in Section 10.4(b).

Standard & Poor’s ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies Inc., or any successor to its ratings business.

State Sanctions List ” means a list that is adopted by any state Governmental Authority within the United States of America pertaining to Persons that engage in investment or other commercial activities in Iran or any other country that is a target of economic sanctions imposed under U.S. Economic Sanctions Laws.

Subsidiary ” means (a) a subsidiary within the meaning of section 1159 of the Companies Act 2006; and (b) for the purposes of Section 10.4, unless the context otherwise requires, a subsidiary undertaking within the meaning of section 1162 of the Companies Act 2006. Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Company.

Subsidiary Guarantee ” means an agreement substantially in the form of the subsidiary guarantee attached hereto as Exhibit 9.8.

Subsidiary Guarantor ” means any Additional Subsidiary Guarantor or Optional Subsidiary Guarantor which executes and delivers, or accedes to, a Subsidiary Guarantee pursuant to the terms hereof.

Substituted Rate ” is defined in Section 8.1(a).

 

-12-


Substituted Rate Bank ” is defined in Section 8.1(a).

SVO ” means the Securities Valuation Office of the NAIC or any successor to such Office.

Tax ” and collectively “ Taxes ” means any tax (whether income, documentary, sales, stamp, registration, issue, capital, property, excise or otherwise), duty, levy, impost, fee, charge or withholding.

Tax Credit ” means a credit against, relief or remission for, or repayment of any Tax.

Tax Deduction ” means a deduction or withholding for or on account of Tax from a payment under this Agreement or the Notes, but excluding any FATCA Deduction.

Tax Payment ” means the increase in a payment made by the Company to a U.K. Holder under this Agreement or the Notes in accordance with Section 13.1.

Tax Prepayment Notice ” is defined in Section 8.3.

Taxing Jurisdiction ” is defined in Section 13.

Testing Date ” is defined in Section 10.4(e).

U.K. Holder ” is defined in Section 13.1.

UK Listing Authority ” means the Financial Conduct Authority acting in its capacity as competent authority for the purposes of the Financial Services and Markets Act 2000 of the United Kingdom.

USA PATRIOT Act ” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 and the rules and regulations promulgated thereunder from time to time in effect.

USD LIBOR Base Rate ” means, on any Floating Interest Rate Determination Date in respect of any Floating Interest Period and, with respect to the first Floating Interest Period, on the day that is two Business Days preceding the date of the Closing, the rate per annum (rounded, if necessary, to the nearest one thousandth of a percentage point (0.001%)) equal to the quotation which appears on the relevant Bloomberg screen for deposits in US Dollars for a six-month period (currently US0006M page) as of 11:00 a.m. (London time) on such date; provided, that if such quotation is less than zero, then the “USD LIBOR Base Rate” shall be deemed to be zero. If such rate does not appear on any such display screen (or such other display screen as may replace that display screen on that service, or such other display as may be agreed to by the Company and the holders of more than 50% in principal amount of the Floating Rate Notes (without regard to Series) at the time outstanding (exclusive of Floating Rate Notes then owned by the Company or any of its Affiliates), for the purpose of displaying rates or prices comparable to the USD LIBOR Base Rate), then “USD LIBOR Base Rate” will be determined on the basis of the average of the rates at which deposits in US Dollars are offered by three money center banks in London at approximately 11:00 a.m., London time, on any Floating Interest Rate Determination Date in respect of any Floating Interest Period, to prime banks in the European interbank market for a six-month period commencing on the first day of such Floating Interest Period in amounts of $1,000,000 or

 

-13-


more; provided, that if any such offered rate is less than zero, then such offered rate shall be deemed to be zero. The Company will request the principal London office of each of the three aforementioned banks to provide a quotation of their respective rates.

U.S. Economic Sanctions Laws ” means those laws, executive orders, enabling legislation or regulations administered and enforced by the United States pursuant to which economic sanctions have been imposed on any Person, entity, organization, country or regime, including the Trading with the Enemy Act, the International Emergency Economic Powers Act, the Iran Sanctions Act, the Sudan Accountability and Divestment Act and any other OFAC Sanctions Program.

Wholly-Owned Subsidiary ” means, at any time, any Subsidiary one hundred percent (100%) of all of the equity interests (except directors’ qualifying shares) and voting interests of which are owned by any one or more of the Company and the Company’s other Wholly-Owned Subsidiaries at such time.

 

-14-


SCHEDULE 5.3

Disclosure

None

 

-15-


SCHEDULE 5.4

Organization and Ownership of Shares of Subsidiaries

 

LOGO

 

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LOGO

 

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LOGO

 

-3-


LOGO

 

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LOGO

 

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LOGO

 

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LOGO

 

-7-


LOGO

 

-8-


SCHEDULE 5.5

Financial Statements

The audited annual consolidated financial statements of Smith & Nephew plc contained in the following Annual Reports:

2013 Annual Report for year ending 31 December 2013

2012 Annual Report for year ending 31 December 2012

2011 Annual Report for year ending 31 December 2011

2010 Annual Report for year ending 31 December 2010

2009 Annual Report for year ending 31 December 2009

The financial statements contained in the unaudited 2014 Q1 results announcement dated 1 May 2014 and the unaudited 2014 Q3 results announcement dated 1 August 2014.

 

-1-


SCHEDULE 5.15

Existing Financial Indebtedness as at September 27, 2014

 

Country

  

Borrower

  

Lender

  

Facility

   Ccy    Amt.
($m)
     USD
Equiv.
($m)
     Secured
(Y/N)

UK

   Smith and Nephew plc    Bank syndicate 1    RCF    USD      400.0         400.0       N

UK

   Smith and Nephew plc    Bank syndicate 1    Term Loan    USD      1,200.0         1,200.0       N

UK

   Smith and Nephew plc    Handelsbanken    Money market    USD      21.0         21.0       N

UK

   Smith and Nephew plc    Handelsbanken    Money market    GBP      0.7         1.1       N

UK

   Smith and Nephew plc    RBS    Overdraft    USD      0.6         0.6       N

UK

   Smith and Nephew plc    RBS    Overdraft    EUR      3.6         4.6       N

UK

   Smith and Nephew plc    RBS    Overdraft    GBP      2.0         3.2       N

UK

   Smith and Nephew plc    Various    PP Notes    USD      325.0         325.0       N

USA

   Smith and Nephew Inc    151 Minuteman    Finance lease    USD      12.6         12.6       Y

USA

   Smith and Nephew Inc    JP Morgan Chase    Overdraft    USD      8.8         8.8       N

USA

   Smith and Nephew Inc    Bank of America    Overdraft    USD      3.1         3.1       N

UAE

   Smith and Nephew FZE    HSBC    Overdraft    AED      83.0         10.7       N

Hong Kong

   Smith and Nephew Limited    HSBC    RCF    HKD      15.0         5.8       N

China

   Smith & Nephew Medical (Shanghai) Ltd    Mizuho Bank    RCF    CNY      31.1         5.1       N

China

   Smith & Nephew Orthopedics (Beijing) Ltd    Mizuho Bank    RCF    CNY      45.0         7.3       N

China

   Smith & Nephew Orthopedics (Beijing) Ltd    HSBC Pool    RCF    CNY      4.5         0.7       N

China

   Smith & Nephew Medical (Suzhou) Ltd    Bank of China    Working capital facility    USD      3.0         3.0       N

Singapore

   Smith and Nephew Pte    HSBC    RCF    SGD      2.5         2.0       N

Thailand

   Smith and Nephew Ltd    HSBC    Working capital facility    THB      59.0         1.8       N

Greece

   S&N Plus Holdings    Eurobank    Finance lease    EUR      0.1         0.1       Y

Costa Rica

   ArthroCare Costa Rica Srl    Banco Nacional    Overdraft    USD      2.9         2.9       N

Other 2

   Various    Various    Overdraft            7.2      
                 

 

 

    

Total, $m

  2,026.7   
                 

 

 

    

 

Note: 1 This facility contains financial and other covenants typical for a syndicated bank facility

Note: 2 ‘Other’ is represented by capitalised financial indebtedness across various business units which individually are not more than USD 1.0m

 

-1-


SCHEDULE 5.16

Certain Section 5.16 Disclosure

1. In September 2007, the SEC notified the Group that the SEC was conducting an informal investigation of companies in the medical devices industry, including the Group, regarding possible violations of the Foreign Corrupt Practices Act (“FCPA”) in connection with the sale of products in certain countries outside of the US. The US Department of Justice (“DOJ”) subsequently joined the SEC’s request. On 6 February 2012, Smith & Nephew announced that it had reached settlement with the SEC and DOJ in connection with this matter. Smith & Nephew has paid slightly less than $23m in fines and profit disgorgement and committed to maintain an enhanced compliance programme and appoint an independent monitor for at least 18 months to review and report on its compliance programme to both the SEC and DOJ. The settlement agreements impose detailed reporting, compliance and other requirements on Smith & Nephew for a three-year term.

2. On 31 May 2007, the Group completed the purchase of Plus Orthopedics Holding AG (“Plus”), a private Swiss orthopaedic company for a total of CHF1,086m ($889m) in cash, including assumed debt. On 1 May 2008, the Group announced that it had uncovered improper sales practices within Plus. The Group commenced arbitration against the vendors of Plus for breach of warranties, and in January 2009 the parties agreed to settle all disputes by reducing the total original purchase price by CHF159m

 

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EXHIBIT 1(a)

[FORM OF SERIES A NOTE]

SMITH & NEPHEW PLC

2.47% SERIES A SENIOR NOTES DUE NOVEMBER 19, 2019

 

No. RA-[              ] [                                       ]
$[              ] PPN G8228* AE2

FOR VALUE RECEIVED, the undersigned, SMITH & NEPHEW PLC (herein called the “Company”), a company organized and existing under the laws of England and Wales, hereby promises to pay to [                                  ], or registered assigns, the principal sum of [            ] DOLLARS ($              ) (or so much thereof as shall not have been prepaid) on November 19, 2019 with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of 2.47% per annum from the date hereof, payable semiannually, on May 19 and November 19 in each year, commencing with the 19 th  May or 19 th  November next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law on any overdue payment (including any overdue prepayment) of principal, any overdue payment of interest and any overdue payment of any Make-Whole Amount or Modified Make-Whole Amount (as defined in the Note Purchase Agreement referred to below), payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the greater of (i) 3.47% or (ii) 1% over the rate of interest publicly announced by Citibank, N.A. from time to time at its principal office in New York City as its “base” or “prime” rate. The interest rate set forth herein shall be increased by 0.25% (25 basis points) per annum for such periods as contemplated by, and in accordance with, Section 10.4(c) of the Note Purchase Agreement (as defined below).

Payments of principal of, interest on and any Make-Whole Amount or Modified Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America in New York City at JPMorgan Chase, New York Branch from time to time or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.

This Note is one of a Series of Senior Notes (herein called the “Notes”) issued pursuant to a Note Purchase Agreement, dated as of November 19, 2014 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and (ii) made the representations set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and

 

-1-


registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.

This Note is subject to prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.

If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount or Modified Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.

This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the laws of the State of New York, excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

 

SMITH & NEPHEW PLC
By:  
Name:
Title:

 

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EXHIBIT 1(b)

[FORM OF SERIES B NOTE]

SMITH & NEPHEW PLC

FLOATING RATE SERIES B SENIOR NOTES DUE NOVEMBER 19, 2019

 

No. RB-[              ] [                                       ]
$[              ] PPN G8228* AF9

FOR VALUE RECEIVED, the undersigned, SMITH & NEPHEW PLC (herein called the “Company”), a company organized and existing under the laws of England and Wales, hereby promises to pay to [                                  ], or registered assigns, the principal sum of [            ] DOLLARS ($              ) (or so much thereof as shall not have been prepaid) on November 19, 2019 with interest (computed on the basis of a 360-day year and actual days elapsed) (a) on the unpaid balance hereof at the Floating Interest Rate for each Floating Interest Period as determined in accordance with Section 8.1(a) of the Note Purchase Agreement referred to below, payable semiannually, on each Floating Rate Note Payment Date, commencing with the Floating Rate Note Payment Date next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law on any overdue payment (including any overdue prepayment) of principal, any overdue payment of interest and any overdue payment of any Breakage Amount (as defined in the Note Purchase Agreement referred to below), payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the greater of (i) 1% over the Floating Interest Rate borne by this Note at the time such overdue payment falls due or (ii) 1% over the rate of interest publicly announced by Citibank, N.A. from time to time at its principal office in New York City as its “base” or “prime” rate. The interest rate set forth herein shall be increased by 0.25% (25 basis points) per annum for such periods as contemplated by, and in accordance with, Section 10.4(c) of the Note Purchase Agreement (as defined below).

Payments of principal of, interest on and any Breakage Amount with respect to this Note are to be made in lawful money of the United States of America in New York City at JPMorgan Chase, New York Branch from time to time or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.

This Note is one of a Series of Senior Notes (herein called the “Notes”) issued pursuant to a Note Purchase Agreement, dated as of November 19, 2014 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and (ii) made the representations set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

 

-1-


This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.

This Note is subject to prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.

If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Breakage Amount) and with the effect provided in the Note Purchase Agreement.

This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the laws of the State of New York, excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

 

SMITH & NEPHEW PLC
By:  
Name:
Title:

 

-2-


EXHIBIT 1(c)

[FORM OF SERIES C NOTE]

SMITH & NEPHEW PLC

2.97% SERIES C SENIOR NOTES DUE NOVEMBER 19, 2021

 

No. RC-[              ] [                                       ]
$[              ] PPN G8228* AG7

FOR VALUE RECEIVED, the undersigned, SMITH & NEPHEW PLC (herein called the “Company”), a company organized and existing under the laws of England and Wales, hereby promises to pay to [                                  ], or registered assigns, the principal sum of [            ] DOLLARS ($              ) (or so much thereof as shall not have been prepaid) on November 19, 2021 with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of 2.97% per annum from the date hereof, payable semiannually, on May 19 and November 19 in each year, commencing with the 19 th  May or 19 th  November next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law on any overdue payment (including any overdue prepayment) of principal, any overdue payment of interest and any overdue payment of any Make-Whole Amount or Modified Make-Whole Amount (as defined in the Note Purchase Agreement referred to below), payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the greater of (i) 3.97% or (ii) 1% over the rate of interest publicly announced by Citibank, N.A. from time to time at its principal office in New York City as its “base” or “prime” rate. The interest rate set forth herein shall be increased by 0.25% (25 basis points) per annum for such periods as contemplated by, and in accordance with, Section 10.4(c) of the Note Purchase Agreement (as defined below).

Payments of principal of, interest on and any Make-Whole Amount or Modified Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America in New York City at JPMorgan Chase, New York Branch from time to time or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.

This Note is one of a Series of Senior Notes (herein called the “Notes”) issued pursuant to a Note Purchase Agreement, dated as of November 19, 2014 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and (ii) made the representations set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and

 

-3-


registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.

This Note is subject to prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.

If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount or Modified Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.

This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the laws of the State of New York, excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

 

SMITH & NEPHEW PLC
By:  
Name:
Title:

 

-4-


EXHIBIT 1(d)

[FORM OF SERIES D NOTE]

SMITH & NEPHEW PLC

3.15% SERIES D SENIOR NOTES DUE NOVEMBER 19, 2022

 

No. RD-[              ] [                                       ]
$[              ] PPN G8228* AH5

FOR VALUE RECEIVED, the undersigned, SMITH & NEPHEW PLC (herein called the “Company”), a company organized and existing under the laws of England and Wales, hereby promises to pay to [                                  ], or registered assigns, the principal sum of [            ] DOLLARS ($              ) (or so much thereof as shall not have been prepaid) on November 19, 2022 with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of 3.15% per annum from the date hereof, payable semiannually, on May 19 and November 19 in each year, commencing with the 19 th  May or 19 th  November next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law on any overdue payment (including any overdue prepayment) of principal, any overdue payment of interest and any overdue payment of any Make-Whole Amount or Modified Make-Whole Amount (as defined in the Note Purchase Agreement referred to below), payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the greater of (i) 4.15% or (ii) 1% over the rate of interest publicly announced by Citibank, N.A. from time to time at its principal office in New York City as its “base” or “prime” rate. The interest rate set forth herein shall be increased by 0.25% (25 basis points) per annum for such periods as contemplated by, and in accordance with, Section 10.4(c) of the Note Purchase Agreement (as defined below).

Payments of principal of, interest on and any Make-Whole Amount or Modified Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America in New York City at JPMorgan Chase, New York Branch from time to time or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.

This Note is one of a Series of Senior Notes (herein called the “Notes”) issued pursuant to a Note Purchase Agreement, dated as of November 19, 2014 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and (ii) made the representations set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and

 

-5-


registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.

This Note is subject to prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.

If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount or Modified Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.

This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the laws of the State of New York, excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

 

SMITH & NEPHEW PLC
By:  
Name:
Title:

 

-6-


EXHIBIT 1(e)

[FORM OF SERIES E NOTE]

SMITH & NEPHEW PLC

3.26% SERIES E SENIOR NOTES DUE NOVEMBER 19, 2023

 

No. RE-[              ] [                                       ]
$[              ] PPN G8228* AJ1

FOR VALUE RECEIVED, the undersigned, SMITH & NEPHEW PLC (herein called the “Company”), a company organized and existing under the laws of England and Wales, hereby promises to pay to [                                  ], or registered assigns, the principal sum of [            ] DOLLARS ($              ) (or so much thereof as shall not have been prepaid) on November 19, 2023 with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of 3.26% per annum from the date hereof, payable semiannually, on May 19 and November 19 in each year, commencing with the 19 th  May or 19 th  November next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law on any overdue payment (including any overdue prepayment) of principal, any overdue payment of interest and any overdue payment of any Make-Whole Amount or Modified Make-Whole Amount (as defined in the Note Purchase Agreement referred to below), payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the greater of (i) 4.26% or (ii) 1% over the rate of interest publicly announced by Citibank, N.A. from time to time at its principal office in New York City as its “base” or “prime” rate. The interest rate set forth herein shall be increased by 0.25% (25 basis points) per annum for such periods as contemplated by, and in accordance with, Section 10.4(c) of the Note Purchase Agreement (as defined below).

Payments of principal of, interest on and any Make-Whole Amount or Modified Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America in New York City at JPMorgan Chase, New York Branch from time to time or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.

This Note is one of a Series of Senior Notes (herein called the “Notes”) issued pursuant to a Note Purchase Agreement, dated as of November 19, 2014 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and (ii) made the representations set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and

 

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registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.

This Note is subject to prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.

If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount or Modified Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.

This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the laws of the State of New York, excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

 

SMITH & NEPHEW PLC
By:  
Name:
Title:

 

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EXHIBIT 1(f)

[FORM OF SERIES F NOTE]

SMITH & NEPHEW PLC

3.36% SERIES F SENIOR NOTES DUE NOVEMBER 19, 2024

 

No. RF-[              ] [                                       ]
$[              ] PPN G8228* AK8

FOR VALUE RECEIVED, the undersigned, SMITH & NEPHEW PLC (herein called the “Company”), a company organized and existing under the laws of England and Wales, hereby promises to pay to [                                  ], or registered assigns, the principal sum of [            ] DOLLARS ($              ) (or so much thereof as shall not have been prepaid) on November 19, 2024 with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the rate of 3.36% per annum from the date hereof, payable semiannually, on May 19 and November 19 in each year, commencing with the 19 th  May or 19 th  November next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law on any overdue payment (including any overdue prepayment) of principal, any overdue payment of interest and any overdue payment of any Make-Whole Amount or Modified Make-Whole Amount (as defined in the Note Purchase Agreement referred to below), payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the greater of (i) 4.36% or (ii) 1% over the rate of interest publicly announced by Citibank, N.A. from time to time at its principal office in New York City as its “base” or “prime” rate. The interest rate set forth herein shall be increased by 0.25% (25 basis points) per annum for such periods as contemplated by, and in accordance with, Section 10.4(c) of the Note Purchase Agreement (as defined below).

Payments of principal of, interest on and any Make-Whole Amount or Modified Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America in New York City at JPMorgan Chase, New York Branch from time to time or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.

This Note is one of a Series of Senior Notes (herein called the “Notes”) issued pursuant to a Note Purchase Agreement, dated as of November 19, 2014 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and (ii) made the representations set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and

 

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registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.

This Note is subject to prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.

If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount or Modified Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.

This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the laws of the State of New York, excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

 

SMITH & NEPHEW PLC
By:  
Name:
Title:

 

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EXHIBIT 1(g)

[FORM OF SERIES G NOTE]

SMITH & NEPHEW PLC

FLOATING RATE SERIES G SENIOR NOTES DUE NOVEMBER 19, 2024

 

No. RG-[              ] [                                       ]
$[              ] PPN G8228* AL6

FOR VALUE RECEIVED, the undersigned, SMITH & NEPHEW PLC (herein called the “Company”), a company organized and existing under the laws of England and Wales, hereby promises to pay to [                                  ], or registered assigns, the principal sum of [            ] DOLLARS ($              ) (or so much thereof as shall not have been prepaid) on November 19, 2024 with interest (computed on the basis of a 360-day year and actual days elapsed) (a) on the unpaid balance hereof at the Floating Interest Rate for each Floating Interest Period as determined in accordance with Section 8.1(a) of the Note Purchase Agreement referred to below, payable semiannually, on each Floating Rate Note Payment Date, commencing with the Floating Rate Note Payment Date next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law on any overdue payment (including any overdue prepayment) of principal, any overdue payment of interest and any overdue payment of any Breakage Amount (as defined in the Note Purchase Agreement referred to below), payable semiannually as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the greater of (i) 1% over the Floating Interest Rate borne by this Note at the time such overdue payment falls due or (ii) 1% over the rate of interest publicly announced by Citibank, N.A. from time to time at its principal office in New York City as its “base” or “prime” rate. The interest rate set forth herein shall be increased by 0.25% (25 basis points) per annum for such periods as contemplated by, and in accordance with, Section 10.4(c) of the Note Purchase Agreement (as defined below).

Payments of principal of, interest on and any Breakage Amount with respect to this Note are to be made in lawful money of the United States of America in New York City at JPMorgan Chase, New York Branch from time to time or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.

This Note is one of a Series of Senior Notes (herein called the “Notes”) issued pursuant to a Note Purchase Agreement, dated as of November 19, 2014 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and (ii) made the representations set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

 

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This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.

This Note is subject to prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.

If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Breakage Amount) and with the effect provided in the Note Purchase Agreement.

This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the laws of the State of New York, excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

 

SMITH & NEPHEW PLC
By:  
Name:
Title:

 

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EXHIBIT 4.4(a)(i)

FORM OF OPINION OF SPECIAL COUNSEL

TO THE COMPANY (U.S.)

Subject to customary qualifications and assumptions:

 

1. The Notes and the Note Purchase Agreement are legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms.

 

2. The execution and delivery by the Company of the Note Purchase Agreement and the Notes and the issuance by the Company of the Notes and the consummation and performance by the Company of the transactions contemplated thereby do not violate any United States Federal or New York law, rule or regulation having the force of law and applicable to the Company.

 

4. Neither the execution and delivery by the Company of the Notes or the Note Purchase Agreement or the issuance by the Company of the Notes nor the consummation and performance by the Company of any of the transactions contemplated thereby, requires the authorization, license, consent or approval of, the giving of notice to or the registration or filing with, or the taking of any other action in respect thereof by, any United States Federal or New York State governmental or regulatory authority or agency.

 

5. It is not necessary in connection with the offering, issuance, execution, sale and delivery, as applicable, of the Notes under the circumstances contemplated by the Note Purchase Agreement to register the Notes under the Securities Act of 1933, as amended, or to qualify an indenture in respect of the Notes under the Trust Indenture Act of 1939, as amended.

 

6. None of the issuance of the Notes, the extension of credit represented by the Notes or the intended use of the proceeds of the Notes by the Company (as set forth in Section 5.14 of the Note Purchase Agreement) will violate or result in a violation of Regulations T, U or X of the Board of Governors of the Federal Reserve System.

 

7. The Company is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

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EXHIBIT 4.4(a)(ii)

FORM OF OPINION OF SPECIAL COUNSEL

TO THE COMPANY (ENGLAND AND WALES)

Subject to customary qualifications and assumptions:

 

1. The Company is a company incorporated with limited liability under the laws of England and Wales with the corporate power to enter into and perform its obligations under the Note Purchase Agreement and the Notes (the “ Documents ”).

 

2. All corporate action required to authorize the Company’s entry into and performance of its obligations under the Documents has been duly taken and the Documents have been duly executed and delivered by the Company.

 

3. The entry into the Documents and the performance of the transactions contemplated thereby do not and will not violate any present law or regulation of or in England and Wales or the Memorandum and Articles of Association of the Company.

 

4. There is no requirement under English law for the consent or authorization of, or the filing, recording, registration or enrolment of any documents with, any court or other authority in England and Wales, to be obtained or made in order to ensure the legality, validity, enforceability or admissibility in evidence of the Documents.

 

5. No stamp duty or similar tax is payable in the United Kingdom in respect of the execution or delivery of the Documents.

 

6. The choice of the law of the State of New York to govern the Documents would be upheld by the English courts provided that the choice of law is bona fide and there are no reasons for avoiding the choice of law on the grounds of public policy.

 

7. (a)     It is not necessary under the laws of England:

 

  (i) in order to enable any Purchaser to enforce its rights under any Document; or

 

  (ii) by reason of the execution of any Document or the performance by it of its obligations under any Document,

that any Purchaser should be licensed, qualified or otherwise entitled to carry on business in England; and

 

  (b) no Purchaser is or will be deemed to be resident, domiciled or carrying on business or subject to taxation in England by reason only of the execution, performance and/or enforcement of any Document.

 

8. The Company will not be required to withhold on, or deduct from, any payment of interest or principal to any Purchasers under the Documents.

 

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9. The Company has the power to submit, and has taken all necessary corporate action to submit, to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, and to appoint CT Corporation as its authorised agent for the purposes and to the extent described in Section 23.8(c) of the Note Purchase Agreement.

 

10. A judgment for money obtained against the Company in the Federal courts of the United States of America or in the courts of the State of New York could not be enforced by registration in the English courts, but such judgment would be treated as itself constituting a cause of action against the Company and could be sued upon in the English courts. The English courts should enter judgment against the Company in such proceedings without substantive re-examination of the merits of the original judgment, provided that:

 

  (a) the original court had jurisdiction to deliver the original judgment under its own rules and under the rules of the English courts and the original judgment is final and conclusive between the parties, not subject to any pending or proposed appeal and enforceable in the state in which the original judgment was given;

 

  (b) there is payable under the original judgment a definite sum of money in respect of a cause of action known to English law and such original judgment has not been wholly satisfied;

 

  (c) the original judgment is not for multiple damages or for taxes or charges of a like nature or fines or other penalties;

 

  (d) the original judgment was not obtained by fraud or in proceedings contrary to natural justice and its enforcement is not contrary to English public policy;

 

  (e) restrictions have not been imposed under the Protection of Trading Interests Act 1980 prior to judgment being enforced (no relevant restrictions exist under the Act as of the date of this opinion); and

 

  (f) enforcement proceedings are instituted within six years after the date of the original judgment.

 

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EXHIBIT 4.4(b)

FORM OF OPINION OF SPECIAL COUNSEL

TO THE PURCHASERS (U.S.)

1. Each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms.

2. The execution and delivery by the Company of each Transaction Document, the issuance and sale of the Notes by the Company and the performance by the Company of its obligations under the Transaction Documents will not constitute a violation of any law, statute, rule or regulation of the State of New York.

3. No consents, approvals or authorizations of Governmental Authorities of the State of New York or the United States of America are required under the laws of the United States of America or the State of New York on behalf of the Company in connection with (a) the execution and delivery of the Transaction Documents, or (b) the offer, issuance, sale and delivery of the Notes by the Company on the date hereof.

4. It is not necessary in connection with the offer and sale of the Notes delivered to you today under the circumstances contemplated by the Transaction Documents to register the offer and sale to you today of the Notes under the Securities Act of 1933, as amended, or to qualify an indenture in respect of the issuance of the Notes under the Trust Indenture Act of 1939, as amended.

5. Each Chosen-Law Provision is enforceable in accordance with New York General Obligations Law section 5-1401, as applied by a New York State court or a federal court sitting in New York and applying New York choice of law principles.

 

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EXHIBIT 9.8

FORM OF SUBSIDIARY GUARANTEE

GUARANTEE AGREEMENT (as amended, supplemented, restated or otherwise modified from time to time, this “ Guarantee Agreement ” or this “ Agreement ”), dated as of [                      ], entered into by [                      ] (together with its successors and assigns, each a “ Guarantor ”), a [                      ] company organized under the laws of [                      ], in favor of each of the Noteholders (defined herein).

PRELIMINARY STATEMENTS :

A. SMITH & NEPHEW PLC (together, with its successors and assigns, the “ Company ”), a company incorporated under the laws of England and Wales, has authorized the issuance of: (i) $80,000,000 aggregate principal amount of its 2.47% Series A Senior Notes due November 19, 2019; (ii) $45,000,000 aggregate principal amount of its Floating Rate Series B Senior Notes due November 19, 2019; (iii) $190,000,000 aggregate principal amount of its 2.97% Series C Senior Notes due November 19, 2021; (iv) $50,000,000 aggregate principal amount of its 3.15% Series D Senior Notes due November 19, 2022; (v) $105,000,000 aggregate principal amount of its 3.26% Series E Senior Notes due November 19, 2023; (vi) $305,000,000 aggregate principal amount of its 3.36% Series F Senior Notes due November 19, 2024; and (vi) $25,000,000 aggregate principal amount of its Floating Rate Series G Senior Notes due November 19, 2024 (together, the “ Notes ”), pursuant to that certain Note Purchase Agreement (as amended from time to time, the “ Note Purchase Agreement ”), dated as of November 19, 2014 entered into by and between the Company and the purchasers named on Schedule A to such Note Purchase Agreement (the “ Purchasers ”).

B. In order to induce the Purchasers to purchase the Notes, the Company has agreed that certain Subsidiaries are required to, or may be asked to, guarantee unconditionally all of the obligations of the Company under and in respect of the Notes and the Note Purchase Agreement pursuant to the terms and provisions hereof. Accordingly, this Guarantee Agreement is issued in consideration of the purchase of the Notes by the Purchasers

C. Pursuant to the terms of the Note Purchase Agreement, the Guarantor is required to, or is being asked to, execute this Guarantee Agreement.

D. All acts and proceedings required by law and by the memorandum or articles of association, bylaws or other governing and charter documents of the Guarantor necessary to constitute this Guarantee Agreement a valid and binding agreement for the uses and purposes set forth herein in accordance with its terms, have been done and taken, and the execution and delivery hereof have been in all respects duly authorized.

E. The Guarantor and the Company are operated as part of one consolidated business entity and are directly dependent upon each other for and in connection with their respective business activities and their respective financial resources. The Guarantor will receive a direct economic and financial benefit from the indebtedness incurred under the Note Purchase Agreement and the Notes by the Company, and under this Guarantee Agreement by the Guarantor, and the incurrence of such indebtedness is or was in the best interests of the Guarantor.

 

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F. The Company provides certain financial accommodations to the Guarantor as needed from time to time and is responsible for supplying the recurring working capital needs and other financial support of the Guarantor on an ongoing basis.

G. By agreeing to enter into this Guarantee Agreement, the Guarantor will gain substantial financial and other benefits, both direct and indirect.

NOW THEREFORE , in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged, the Guarantor does hereby covenant and agree, for the benefit of all present and future Noteholders, as follows:

AGREEMENT :

 

1. GUARANTEE AND OTHER RIGHTS AND UNDERTAKINGS

 

  1.1 Guaranteed Obligations

The Guarantor hereby irrevocably, unconditionally and absolutely guarantees to each Noteholder, as principal obligor and as and for the Guarantor’s own debt, until final and indefeasible payment has been made:

(a) the due and punctual payment of the principal of and interest (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) and Make-Whole Amount or Modified Make-Whole Amount on the Notes at any time outstanding and the due and punctual payment of all other amounts payable, and all other indebtedness owing, by the Company to any Noteholder under the Note Purchase Agreement and the Notes (all such obligations so guaranteed are herein collectively referred to as the “ Guaranteed Obligations ”), in each case when and as the same shall become due and payable, whether at maturity, pursuant to mandatory or optional prepayment, by acceleration or otherwise, all in accordance with the terms and provisions thereof; it being the intent of the Guarantor that the guarantee set forth in this Section 1 shall be a guarantee of payment and not a guarantee of collection; and

(b) the punctual and faithful performance, keeping, observance and fulfillment by the Company of all duties, agreements, covenants and obligations of the Company contained in the Note Purchase Agreement and the Notes.

 

  1.2 Payments and Performance

In the event that the Company fails to make, on or before the due date thereof, any payment to be made of any principal amount of, or interest or Make-Whole Amount or Modified Make-Whole Amount on, or in respect of, the Notes or of any other amounts due to any Noteholder under the Note Purchase Agreement or the Notes, or if the Company shall fail to perform, keep, observe, or fulfill any other obligation referred to in clause (a) or clause (b) of Section 1.1 in the manner provided in the Note Purchase Agreement or the Notes after in

 

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each case giving effect to any applicable grace periods or cure provisions or waivers or amendments, the Guarantor shall cause forthwith to be paid the moneys, or to be performed, kept, observed or fulfilled each of such obligations, in respect of which such failure has occurred in accordance with the terms and provisions of the Note Purchase Agreement and the Notes. In furtherance of the foregoing, if an Event of Default pursuant to Section 11(g), (h) or (i) of the Note Purchase Agreement shall exist, all of the Guaranteed Obligations shall, in the manner and subject to the limitations provided in the Note Purchase Agreement for the acceleration of the Notes (including, without limitation, the provisions related to actions required by a requisite percentage of Noteholders) forthwith become due and payable without notice to the Guarantor, regardless of whether the acceleration of the Notes shall be stayed, enjoined, delayed or otherwise prevented.

Nothing shall discharge or satisfy the obligations of the Guarantor hereunder (so long as this Guarantee Agreement shall remain in full force and effect as contemplated by the Note Purchase Agreement) except the full and final performance and indefeasible payment of the Guaranteed Obligations; it being understood, however, that this Guarantee Agreement may be terminated by the Company in accordance with Sections 9.8(d) or (e) of the Note Purchase Agreement, in which case this Guarantee Agreement shall no longer be of any force or effect and the Guarantor shall no longer have any obligations or liabilities in respect of the Guaranteed Obligations.

Any settlement or discharge between the Guarantor and the Noteholders or any of them shall be conditional upon no payment to the Noteholders or any of them by the Company or any other person on the Company’s behalf being avoided or reduced by virtue of any laws relating to bankruptcy, insolvency, liquidation or similar laws of general application for the time being in force and, in the event of any such payment being so avoided or reduced, the Noteholders shall be entitled to recover the amount by which such payment is so avoided or reduced from the Guarantor subsequently as if such settlement or discharge had not occurred.

 

  1.3 Waivers

To the fullest extent permitted by law, the Guarantor does hereby waive:

(a) notice of acceptance of this Guarantee Agreement;

(b) notice of any purchase or acceptance of the Notes under the Note Purchase Agreement, or the creation, existence or acquisition of any of the Guaranteed Obligations, subject to the Guarantor’s right to make inquiry of each Noteholder to ascertain the amount of the Guaranteed Obligations at any reasonable time;

(c) notice of the amount of the Guaranteed Obligations, subject to the Guarantor’s right to make inquiry of each Noteholder to ascertain the amount of the Guaranteed Obligations at any reasonable time;

(d) notice of adverse change in the financial condition of the Company or any other guarantor or any other fact that might increase the Guarantor’s risk hereunder;

 

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(e) notice of presentment for payment, demand, protest, and notice thereof as to the Notes or any other instrument;

(f) notice of any Default or Event of Default;

(g) all other notices and demands to which the Guarantor might otherwise be entitled (except if such notice or demand is specifically otherwise required to be given to the Guarantor under this Guarantee Agreement);

(h) the right by statute or otherwise to require any or each Noteholder to institute suit against the Company, the Guarantor or any other guarantor or to exhaust the rights and remedies of any or each Noteholder against the Company, the Guarantor or any other guarantor, the Guarantor being bound to the payment of each and all Guaranteed Obligations, whether now existing or hereafter accruing, as fully as if such Guaranteed Obligations were directly owing to each Noteholder by the Guarantor;

(i) any defense arising by reason of any disability or other similar defense (other than the defense that the Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid) of the Company or by reason of the cessation from any cause whatsoever of the liability of the Company in respect thereof;

(j) any stay (except in connection with a pending appeal), valuation, appraisal, redemption or extension law now or at any time hereafter in force that, but for this waiver, might be applicable to any sale of property of the Guarantor made under any judgment, order or decree based on this Guarantee Agreement, and the Guarantor covenants that it will not at any time insist upon or plead, or in any manner claim or take the benefit or advantage of any such law; and

(k) at all times prior to the full and final performance and indefeasible payment of the Guaranteed Obligations, any claim of any nature arising out of any right of indemnity, contribution, reimbursement, indemnification or any similar right or any claim of subrogation (whether such right or claim arises under contract or by operation of law) arising in respect of any payment made under this Guarantee Agreement or in connection with this Guarantee Agreement, against the Company or any other guarantor or the estate of the Company or any other guarantor (including Security Interest on the property of the Company or any other guarantor or the estate of the Company or any other guarantor), in each case whether or not the Company or any such other guarantor at any time shall be the subject of any proceeding brought under any Bankruptcy Law, and the Guarantor further agrees that it will not file any claims against the Company or any other guarantor or the estate of the Company or any other guarantor in the course of any such proceeding or otherwise, and further agrees that each Noteholder may specifically enforce the provisions of this clause (k).

 

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  1.4 Releases

The Guarantor hereby consents and agrees that, without notice to or by the Guarantor and without affecting or impairing the obligations of the Guarantor under this Guarantee Agreement, each Noteholder, by action or inaction, may:

(a) compromise or settle, renew or extend the period of duration or the time for the payment, or discharge the performance of, or may refuse to, or otherwise not, enforce, or may, by action or inaction, release all or any one or more parties to, any one or more of the Notes or the Note Purchase Agreement;

(b) assign, sell or transfer, or otherwise dispose of, any one or more of the Notes;

(c) grant waivers, extensions, consents and other indulgences to the Company or any other guarantor in respect of any one or more of the Notes, the Note Purchase Agreement or any guarantee delivered in connection with either thereof;

(d) agree to amend, modify or supplement in any manner and at any time (or from time to time) any one or more of the Notes, the Note Purchase Agreement or any guarantee delivered in connection with either thereof;

(e) release or substitute any one or more of the endorsers or guarantors of the Guaranteed Obligations whether parties hereto or not;

(f) sell, exchange, release or surrender any property at any time pledged or granted as security in respect of the Guaranteed Obligations, whether so pledged or granted by the Company, the Guarantor or another guarantor of the obligations of the Company under the Note Purchase Agreement and the Notes; and

(g) exchange, enforce, waive, or release, by action or inactions, any security for the Guaranteed Obligations or any other guarantee of any of the Notes.

 

  1.5 Immediate Liability

The Guarantor agrees that the liability of the Guarantor in respect of this Section 1 shall be immediate and shall not be contingent upon the exercise or enforcement by any Noteholder or any other Person of whatever remedies such Noteholder or other Person may have against the Company or any other guarantor or the enforcement of any security or realization upon any security such Person may at any time possess.

 

  1.6 No Setoff, Counterclaim; Severability

(a) Except as otherwise required by law, each payment by the Guarantor shall be made without setoff or counterclaim.

(b) Each of the rights and remedies granted under this Section 1 to each Noteholder in respect of the Notes held by such Noteholder may be exercised by such Noteholder without notice to, or the consent of or any other action by, any other Noteholder.

 

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  1.7 Other Enforcement Rights

Each Noteholder may proceed to protect and enforce this Guarantee Agreement by suit or suits or proceedings in equity, at law or in bankruptcy, and whether for the specific performance of any covenant or agreement contained herein or in execution or aid of any power herein granted, or for the recovery of judgment for the obligations hereby guaranteed or for the enforcement of any other property, legal or equitable remedy available under applicable law.

 

  1.8 Delay or Omission; No Waiver

No course of dealing on the part of any Noteholder or any other Person and no delay or failure on the part of any Noteholder to exercise any right under this Guarantee Agreement shall impair such right or operate as a waiver of such right or otherwise prejudice any Noteholder’s rights, powers and remedies hereunder or under the Note Purchase Agreement or the Notes. Every right and remedy given by this Guarantee Agreement or by law to any Noteholder or any other Person may be exercised from time to time as often as may be deemed expedient by such Person.

 

  1.9 Cumulative Remedies

No remedy under this Guarantee Agreement, the Note Purchase Agreement or the Notes is intended to be exclusive of any other remedy, but each and every remedy shall be cumulative and in addition to any and every other remedy given under this Guarantee Agreement, the Note Purchase Agreement and the Notes.

 

  1.10 Survival

The obligations of the Guarantor herein contained shall constitute and be continuing obligations notwithstanding any settlement of account or other matter or thing whatsoever and shall not be considered satisfied by any intermediate payment or satisfaction of all or any of the Company’s obligations under or in respect of any Note or the Note Purchase Agreement and shall continue in full force and effect until all sums due from the Company in respect of the Notes and the Note Purchase Agreement have been indefeasibly paid, and all other actual or contingent obligations of the Company thereunder or in respect thereof have been satisfied, in full. So long as the Guaranteed Obligations shall not have been fully and finally performed and indefeasibly paid, the obligations of the Guarantor under this Section 1 shall survive the transfer and payment of any Note and the payment in full of all the Notes.

 

  1.11 Maintenance of Office

The Guarantor will maintain an office at the address of the Guarantor as provided in Section 3.3 hereof, where notices, presentations and demands in respect hereof or the Guaranteed Obligations may be made upon the Guarantor. Such office will be maintained at such address until such time as the Guarantor shall notify each Noteholder in writing of any change of location of such office.

 

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  1.12 Representations and Warranties

The Guarantor represents and warrants as follows:

(a) Organization; Power and Authority . The Guarantor is a company duly organized and validly existing under the laws of its jurisdiction of incorporation, and is duly qualified as a foreign corporation and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Guarantor has the corporate power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Guarantee Agreement and to perform the provisions hereof;

(b) Authorization, etc. This Guarantee Agreement has been duly authorized by all necessary corporate action on the part of the Guarantor, and this Guarantee Agreement constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

(c) Governmental Authorizations, etc. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by the Guarantor of this Guarantee Agreement;

(d) Filings; Registration. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body in the United States or the jurisdiction of organization of the Guarantor is required for the due execution, delivery and performance by the Guarantor of this Agreement or any other document or instrument to be delivered in connection herewith; and

(e) Compliance with Laws, Other Instruments, etc. The execution, delivery and performance by the Guarantor of this Agreement will not (a) contravene, result in any breach of, or constitute a default under, or result in the creation of any Security or other security in respect of any property of the Guarantor under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, memorandum and articles of association, corporate charter or by-laws, or any other Material agreement or instrument to which the Guarantor is bound or by which the Guarantor or any of its properties may be bound or affected, (b) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Guarantor or (c) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Guarantor.

(f) Ranking. The Guarantor’s payment obligations under this Guarantee Agreement will, upon the execution and delivery thereof, rank at least pari passu , without preference or priority, with all other unsecured and unsubordinated Financial Indebtedness of such Guarantor, other than Financial Indebtedness which is mandatorily preferred by law.

 

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(g) Solvency . After giving effect to the execution and delivery of this Guarantee Agreement and the transactions contemplated hereby, the Guarantor will not be unable to pay its debts (within the meaning of Section 123(1)(e) of the UK Insolvency Act 1986).

 

  1.13 Pari Passu Ranking

The Guarantor will ensure that its payment obligations under this Guarantee Agreement will at all times rank at least pari passu , without preference or priority, with all other present or future unsecured and unsubordinated Financial Indebtedness of the Guarantor, other than Financial Indebtedness which is mandatorily preferred by law.

 

  1.14 Tax Gross-Up

The obligations of the Guarantor under this Section 1.14 shall survive the payment or transfer of any Note and the provisions of this Section 1.14 shall also apply to successive transferees of the Notes.

 

  1.14.1 Tax Gross-Up with respect to U.K. Holders

The Guarantor shall make all payments (whether under this Agreement or the Notes) to be made by it to holders of Notes resident in the United Kingdom (each a “U.K. Holder”) without any Tax Deduction, unless a Tax Deduction is required by law.

If a Tax Deduction is required by law to be made by the Guarantor, the amount of the payment due to U.K. Holders shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required. The Guarantor is not required to make an increased payment to any U.K. Holders for a Tax Deduction in respect of Tax on any payment of interest under the Note held by that U.K. Holder, if, on the date on which the payment falls due, the payment could have been made to such U.K. Holder without a Tax Deduction if it was a Qualifying Noteholder, but on that date such U.K. Holder is not or has ceased to be a Qualifying Noteholder other than as a result of any change after the date of this Agreement in (or in the interpretation, administration, or application of) any law or any published practice or concession of any relevant taxing authority.

If the Guarantor is required to make a Tax Deduction, it shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

Within thirty days of making a Tax Deduction and/or any payment required in connection with that Tax Deduction, the Guarantor shall deliver to the affected U.K. Holder evidence reasonably satisfactory to such U.K. Holder that the Tax Deduction has been made and/or (as applicable) any appropriate payment paid to the relevant taxing authority.

If the Guarantor makes a Tax Payment, the relevant U.K. Holder shall take what it determines to be reasonable steps to obtain any Tax Credit attributable to the Tax Deduction, or to an increased payment of which that Tax Payment forms part, or to that Tax Payment. If subsequently any U.K. Holder determines that:

(a) a Tax Credit is attributable to the Tax Deduction, or to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and

 

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(b) the U.K. Holder has obtained, utilised and retained that Tax Credit,

the U.K. Holder shall pay an amount to the Guarantor which such U.K. Holder determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Guarantor, as applicable.

In this Section 1.14.1 and in Section 1.14.2 below a reference to “determines” means a determination made in the absolute discretion of the person making the determination.

Nothing herein contained shall interfere with the right of a U.K. Holder to arrange its Tax affairs in whatever manner it thinks fit and, in particular, no U.K. Holder shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such Tax Credit in priority to any other claims, reliefs, credits or deductions available to it or oblige any U.K. Holder to disclose any information relating to its Tax affairs or any computations in respect thereof.

 

  1.14.2 Tax Gross-Up with respect to Non-U.K. Holders

This Section 1.14.2 shall apply in respect of holders of Notes not resident in the United Kingdom (“Non-U.K. Holders”). All payments whatsoever under this Guarantee Agreement will be made by the Guarantor in USD free and clear of, and without liability or withholding or deduction for or on account of, any present or future Taxes of whatever nature (hereinafter called “Relevant Tax”, which term shall, in any event, exclude any of the foregoing withheld or deducted by the jurisdiction in which the Non-U.K. Holder is resident for tax purposes or any authority thereof or therein and exclude any FATCA Deduction) imposed or levied by [                                  ] or any political subdivision or relevant taxing authority thereof or therein, or by the government of any other country or jurisdiction (or any authority therein or thereof) (other than the jurisdiction in which the Non-U.K. Holder is resident for tax purposes) in which the Guarantor is organized or resident for tax purposes from time to time or from or through which payments under the Notes are actually made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such Relevant Tax is required by law.

If any deduction or withholding for any Relevant Tax of a Taxing Jurisdiction shall at any time be required in respect of any amounts to be paid by the Guarantor under this Agreement or the Notes, the Guarantor will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and pay to the relevant Non-U.K. Holder such additional amounts as may be necessary in order that the net amounts paid to such Non-U.K. Holder pursuant to the terms of this Agreement after such deduction, withholding or payment (including, without limitation, any required deduction or withholding of Relevant Tax on or with respect to such additional amount), shall be not less than the amounts that would have been due and payable to such Non-U.K. Holder under the terms of this Agreement had no such withholding, deduction or payment of Tax been due, provided that no payment of any additional amounts shall be required to be made for or on account of:

(a) any Relevant Tax that would not have been imposed but for the existence of any present or former connection between such Non-U.K. Holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such Non-U.K. Holder, if such Non-U.K. Holder is an estate, trust, partnership or corporation or any Person

 

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other than the Non-U.K. Holder to whom the Notes or any amount payable thereon is attributable for the purposes of such Relevant Tax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof, including, without limitation, such Non-U.K. Holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a Relevant Tax that would not have been imposed but for the Guarantor after the date of this Agreement, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to, the Taxing Jurisdiction imposing the Relevant Tax;

(b) any Relevant Tax that would not have been imposed but for the delay or failure by such Non-U.K. Holder (following a written request by the Guarantor) in the filing with the relevant Taxing Jurisdiction of Forms (as defined below) that are required to be filed by such Non-U.K. Holder to avoid or reduce such Taxes (including for such purpose any refilings or renewals of filings that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such Non-U.K. Holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such Non-U.K. Holder or result in any confidential or proprietary income tax return information being revealed, either directly or indirectly, to any Person, and such delay or failure could have been lawfully avoided by such Non-U.K. Holder, and provided further that such Non-UK Holder shall be deemed to have satisfied the requirements of this clause (b) upon (i) the good faith completion and submission of such Forms (including refilings or renewals of filings) as may be specified in a written request of the Guarantor no later than 60 days after receipt by such Non-U.K. Holder of such written request (accompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof) or (ii) if applicable, compliance by such Non-U.K. Holder with the requirements of the HMRC DT Treaty Passport Scheme applicable to it in connection with its election to apply the HMRC DT Treaty Passport Scheme to this Agreement; or

(c) any combination of clauses (a) and (b) above;

and provided further that in no event shall the Guarantor be obligated to pay such additional amounts to any Non-U.K. Holder (i) who is not a Qualifying OP Holder in excess of the amounts that the Guarantor would be obligated to pay if such Non-U.K. Holder had been a Qualifying OP Holder at the time of the payment in question or (ii) holding Notes registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law by the relevant taxing authority) securities held in the name of a nominee do not qualify for an exemption from the Relevant Tax.

By acceptance of any Note, such Non-U.K. Holder agrees, subject to the limitations of clause (b) above, that it will from time to time with reasonable promptness either (i) if applicable, comply with the requirements of the HMRC DT Treaty Passport Scheme applicable to it in connection with its election to apply the HMRC DT Treaty Passport Scheme to this Agreement or (ii) (x) duly complete and deliver to or as reasonably directed by the Guarantor all such forms, certificates, documents and returns provided to such Non-U.K. Holder by such Guarantor (collectively, together with instructions for completing the same, “Forms”) required to be filed by or on behalf of such Non-U.K. Holder in order to avoid or reduce any such Relevant Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or of a tax treaty

 

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between the United States or Japan or any other jurisdiction of residence of the Non-U.K. Holder (as applicable) and such Taxing Jurisdiction and (y) provide the Guarantor with such information with respect to such Non-U.K. Holder as the Guarantor may reasonably request in order to complete any such Forms, provided that nothing in this Section 1.14.2 shall require any Non-U.K. Holder to provide information with respect to any such Form or otherwise if in the reasonable opinion of such Non-U.K. Holder such Form or disclosure of information would involve the disclosure of Tax return or other information that is confidential or proprietary to such Non-U.K. Holder, and provided further that each such Non-U.K. Holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such Non-U.K. Holder to the Guarantor or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue & Customs Form US-Issuer 2002 or Form Japan-3-DT or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service or other relevant tax authority in accordance with instructions contained in such Form), whichever is applicable, within 60 days following a written request of the Guarantor (which request shall be accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to the relevant interest payment date.

The Guarantor will furnish each Purchaser (other than, if applicable, a Purchaser which has provided HMRC DT Treaty Passport Scheme Information as contemplated by this Section 1.14) who is not resident in the United Kingdom with copies of the appropriate Form currently required to be filed in the United Kingdom pursuant to clause (b) of the second paragraph of this Section 1.14.2, if any, and in connection with the transfer of any Note the Obligors will furnish the transferee of such Note (other than, if applicable, a transferee which has provided HMRC DT Treaty Passport Scheme Information as contemplated by this Section 1.14) with copies of any Form and English translation then required.

If any payment is made by the Guarantor to or for the account of a Non-U.K. Holder after deduction or withholding for or on account of any Relevant Tax, and increased payments are made by the Guarantor pursuant to this Section 1.14.2, then, if such Non-U.K. Holder at its sole discretion determines that it has received or been granted a refund of such Relevant Tax, such Non-U.K. Holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Guarantor such amount as such Non-U.K. Holder shall, in its sole discretion, determine to be attributable to the relevant Relevant Tax or deduction or withholding. Nothing herein contained shall interfere with the right of the Non-U.K. Holder to arrange its Tax affairs in whatever manner it thinks fit and, in particular, no Non-U.K. Holder shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such Relevant Tax in priority to any other claims, reliefs, credits or deductions available to it or (other than as set forth in clause (b) above) oblige any Non-U.K. Holder to disclose any information relating to its Tax affairs or any computations in respect thereof.

The Guarantor will furnish the Non-U.K. Holders, promptly and in any event within 60 days after the date of any payment by the Guarantor of any Relevant Tax in respect of any amounts paid under this Agreement, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Guarantor, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any Non-U.K. Holder.

 

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If the Guarantor is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any Relevant Tax in respect of which the Guarantor would be required to pay any additional amount under this Section 1.14.2, but for any reason (other than the failure by a holder of any Note to furnish any documentation or assistance required by this Section 1.14.2 and failure would cause the additional amount not to be payable) does not make such deduction or withholding with the result that a liability in respect of such Relevant Tax is assessed directly against the Non-U.K. Holder, and such Non-U.K. Holder pays such liability, then the Guarantor will promptly reimburse such Non-U.K. Holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Guarantor) upon demand by such Non-U.K. Holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.

If the Guarantor makes payment to or for the account of any Non-U.K. Holder and such holder is entitled to a refund of the Relevant Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such Non-U.K. Holder shall, as soon as practicable after receiving written request from the Guarantor (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Guarantor, subject, however, to the same limitations with respect to Forms as are set forth above.

The obligations of the Guarantor under this Section 1.14 shall survive the payment or transfer of any Note and the provisions of this Section 1.14 shall also apply to successive transferees of the Notes.

 

2. INTERPRETATION OF THIS AGREEMENT

 

  2.1 Terms Defined

As used in this Guarantee Agreement, the terms set forth below have the respective meanings specified below or set forth in the Section of this Guarantee Agreement referred to immediately following such term (such definitions, unless otherwise expressly provided, to be equally applicable to both the singular and plural forms of the terms defined); capitalized terms used herein and not defined herein have the respective meanings assigned to them by or pursuant to the Note Purchase Agreement.

Agreement —has the meaning assigned to such term in the introductory paragraph hereof.

Bankruptcy Law —means any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, whether now or hereafter in effect.

Company —has the meaning assigned to such term in Preliminary Statement A.

Forms —has the meaning assigned to such term in Section 1.14.

 

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Guarantee Agreement —has the meaning assigned to such term in the introductory paragraph hereof.

Guaranteed Obligations —has the meaning assigned to such term in Section 1.1.

Guarantor —has the meaning assigned to such term in the introductory paragraph hereof.

London Banking Day —has the meaning assigned to such term in Section 3.10.

Noteholder —means, at any time, each Person that is the registered holder of any Note at such time.

Note Purchase Agreement —has the meaning assigned to such term in the introductory paragraph hereof.

Notes —has the meaning assigned to such term in Preliminary Statement A.

Purchasers —has the meaning assigned to such term in Preliminary Statement A.

Relevant Tax – has the meaning assigned to such term in Section 1.14.

Taxing Jurisdiction —has the meaning assigned to such term in Section 1.14.

 

  2.2 Directly or Indirectly

Where any provision herein refers to action to be taken by any Person, or that such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person, including, without limitation, actions taken by or on behalf of any partnership in which such Person is a general partner.

 

  2.3 Section Headings and Construction

(a) Section Headings, etc. The titles of the Sections appear as a matter of convenience only, do not constitute a part hereof and shall not affect the construction hereof. The words “herein”, “hereof”, “hereunder” and “hereto” refer to this Guarantee Agreement as a whole and not to any particular Section or other subdivision.

(b) Construction . Each covenant contained herein shall be construed (absent an express contrary provision herein) as being independent of each other covenant contained herein, and compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with one or more other covenants.

 

3. MISCELLANEOUS

 

  3.1 Successors and Assigns

Whenever the Guarantor or any of the parties to the Note Purchase Agreement, the Notes, this Agreement or any other documents delivered in connection with any thereof is referred to, such reference shall be deemed to include the successors and

 

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assigns of such party, and all the covenants, promises and agreements contained in this Guarantee Agreement by or on behalf of the Guarantor shall bind its permitted successors and assigns of the Guarantor and shall inure to the benefit of each of the Noteholders from time to time whether so expressed or not and whether or not an assignment of the rights hereunder shall have been delivered in connection with any assignment or other transfer of Notes.

 

  3.2 Partial Invalidity

The unenforceability or invalidity of any provision or provisions hereof shall not render any other provision or provisions contained herein unenforceable or invalid.

 

  3.3 Communications

All communications to the Guarantor in respect of this Guarantee Agreement shall be directed to the Guarantor at its address set out in Schedule A hereto or to such other address as the Guarantor shall have indicated to each Noteholder in writing. All communications to any Noteholder in respect of this Guarantee Agreement shall be directed to such Noteholder as provided in the Note Purchase Agreement. All such communications shall be delivered in the manner set forth in Section 19 of the Note Purchase Agreement.

 

  3.4 Governing Law

This Guarantee Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

 

  3.5 Amendment

This Guarantee Agreement may be amended or waived by written instrument executed and delivered by the Guarantor and the Required Holders, except that no such amendment or waiver may, without the consent of each holder of Notes affected thereby, amend Section 1.1, 1.2, 1.14, 3.10 or this Section 3.5.

 

  3.6 Counterparts

This Guarantee Agreement may be executed and delivered in any number of counterparts, each of such counterparts constituting an original but altogether only one Guarantee Agreement.

 

  3.7 Benefits of Guarantee Agreement Restricted to Noteholders

(a) This Guarantee Agreement shall inure to the sole and exclusive benefit of each Noteholder and its (and any subsequent) successors and assigns, each of which shall be entitled severally to enforce this Guarantee Agreement against the Guarantor.

(b) Nothing express or implied in this Guarantee Agreement is intended or shall be construed to give to any Person other than the Guarantor and the Noteholders any legal or equitable right, remedy or claim under or in respect hereof or any covenant, condition or provision contained herein.

 

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  3.8 Survival of Representations and Warranties; Entire Agreement

All representations and warranties contained herein or made in writing by the Guarantor in connection herewith shall survive the execution and delivery hereof, the Note Purchase Agreement and the Notes. This Guarantee Agreement constitutes the final written expression of all of the terms hereof and is a complete and exclusive statement of those terms.

 

  3.9 Jurisdiction; Service of Process

(a) The Guarantor irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Agreement, the Note Purchase Agreement or the Notes. To the fullest extent permitted by applicable law, the Guarantor irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

(b) The Guarantor agrees, to the fullest extent permitted by applicable law, that a final judgment in any suit, action or proceeding of the nature referred to in Section 3.9(a) brought in any such court shall be conclusive and binding upon it subject to rights of appeal, as the case may be, and may be enforced in the courts of the United States of America or the State of New York (or any other courts to the jurisdiction of which it or any of its assets is or may be subject) by a suit upon such judgment.

(c) The Guarantor consents to process being served by or on behalf of any Noteholder in any suit, action or proceeding of the nature referred to in Section 3.9(a) by mailing a copy thereof by registered or certified or priority mail, postage prepaid, return receipt requested, or delivering a copy thereof in the manner for delivery of notices specified in Section 19 of the Note Purchase Agreement, to CT Corporation System, with offices at 111 Eighth Avenue, New York, New York 10011, as its agent for the purpose of accepting service of any process in the United States. The Guarantor agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it.

(d) Nothing in this Section 3.9 shall affect the right of any Noteholder to serve process in any manner permitted by law, or limit any right that the holders of any of the Notes may have to bring proceedings against the Guarantor in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.

(e) The Guarantor hereby irrevocably appoints CT Corporation System, with offices at 111 Eighth Avenue, New York, New York 10011, to receive for it, and on its behalf, service of process in the United States.

 

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(f) THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS GUARANTEE AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH.

 

  3.10 Obligation to Make Payment in Dollars

Any payment on account of an amount that is payable hereunder in Dollars which is made to or for the account of any Noteholder in any other currency, whether as a result of any judgment or order or the enforcement thereof or the realization of any security or the liquidation of the Guarantor, shall constitute a discharge of the obligation of the Guarantor under this Guarantee Agreement only to the extent of the amount of Dollars which such holder could purchase in the foreign exchange markets in London, England, with the amount of such other currency in accordance with normal banking procedures at the rate of exchange prevailing on the London Banking Day following receipt of the payment first referred to above. If the amount of Dollars that could be so purchased is less than the amount of Dollars originally due to such holder, the Guarantor agrees to the fullest extent permitted by law, to indemnify and save harmless such holder from and against all loss or damage arising out of or as a result of such deficiency. This indemnity shall, to the fullest extent permitted by law, constitute an obligation separate and independent from the other obligations contained in this Guarantee Agreement, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by such holder from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due hereunder or under the Notes or under any judgment or order. As used herein the term “London Banking Day” shall mean any day other than Saturday or Sunday or a day on which commercial banks are required or authorized by law to be closed in London, England.

[Remainder of page intentionally left blank; next page is signature page]

 

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IN WITNESS whereof the Guarantee Agreement has been delivered on the date stated at the beginning of this Guarantee Agreement.

[                                                   ]

 

By    
Name:  
Title:  

 

By    
Name:  
Title:  

 

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Exhibit 4 (c) (xv)

Vinita Bali

C/o Smith & Nephew plc

15 Adam Street

London

WC2N 6LA

30 October 2014

Dear Ms Bali,

SMITH & NEPHEW plc (THE “COMPANY”) AND YOUR APPOINTMENT

AS NON-EXECUTIVE DIRECTOR

Following the recommendation of the Nomination & Governance Committee, the Board of the Company (“the Board”) is pleased to hear that you have accepted our offer to join the Board as Non-Executive Director and with effect from 1 December 2014.

This letter confirms the main terms of your appointment to this office. It is agreed that this is a contract for services and not a contract of employment. You should be aware that your re-appointment will have to be ratified by the Company’s shareholders at the Annual General Meeting to be held on 9 April 2015 and is subject to the Company’s articles of association as amended from time to time. If there is a conflict between the terms of this letter and the articles of association then the articles shall prevail.

DUTIES

 

1. The Board as a whole is collectively responsible for promoting the success of the Company by directing and supervising the Company’s affairs. The Board’s role is to:

 

  (a) provide entrepreneurial leadership to the Company within a framework of prudent and effective controls which enable risk to be assessed and managed;

 

  (b) set the Company’s strategic aims, ensure that the necessary financial and human resources are in place for the Company to meet its objectives, and review management performance; and

 

  (c) set the Company’s values and standards and ensure that its obligations to its shareholders and others are understood and met.

 

2. In your role as Non-Executive Director you are required (with the other Non-Executive Directors) to:

 

  (a) constructively challenge and contribute to the development of strategy;

 

1


  (b) scrutinise the performance of management in meeting agreed goals and objectives and monitor the reporting of performance;

 

  (c) satisfy yourself that financial information is accurate and that financial controls and systems of risk management are robust and defensible; and

 

  (d) have a prime role in appointing, and where necessary removing, senior management and in succession planning and where required by the relevant policy of the Company from time to time be responsible for determining appropriate levels of remuneration of executive directors.

 

3. You will be required to:

 

  (a) exercise relevant powers under the Company’s Articles of Association;

 

  (b) perform your duties faithfully, efficiently and diligently and use all reasonable endeavours to promote the interests and reputation of the Company;

 

  (c) serve on various committees of the Board and attend wherever possible all meetings of such committees. You will be provided with the terms of reference of a committee on your appointment to such committees and are available from the Company Secretary;

 

  (d) attend all Annual General Meetings and other General Meetings of the Company;

 

  (e) attend all meetings of the Board, which normally meets at least six times a year, normally at 15 Adam Street, London WC2N 6LA (at least one meeting per year is held at one of the major divisions, and additional Board calls are held between physical meetings);

 

  (f) attend the Annual Strategy Review, which is usually held off-site over two days in September;

 

  (g) consider all relevant papers in advance of each meeting in order to ensure that you can play a full part in the work of the Board and its committees;

 

  (h) bring independent judgement to bear on issues of strategy, policy, resources, performance and standards of conduct;

 

  (i) make yourself available (on reasonable notice) to provide ad hoc advice to individual directors of the Company. We do not envisage that this would take more than three days of your time a year;

 

  (j) provide guidance and direction in planning, developing and enhancing the future strategic direction of the Company;

 

  (k) share responsibility with the other directors for the effective control of the Company and with the other non-executive directors for the supervision of the executive directors;

 

2


  (l) comply with the Financial Conduct Authority’s Model Code for securities transactions by directors of UK listed companies and with any code of conduct relating to securities transactions by directors and specified employees issued by the Company from time to time. The Smith & Nephew Code of Dealing in Securities will be sent to you on your appointment.

 

4. Overall the Company anticipates that you will need to spend a minimum of 15 days per year fulfilling your duties. This will include the board meetings, annual general meetings, one board away-day each year and board committee meetings. In addition you will be expected to spend an appropriate period of time preparing for each meeting and be prepared to be available for additional meetings and business when required. By accepting this appointment you confirm that you are able to commit sufficient time to the role to meet the Company’s expectations.

 

5. The Company seeks to adhere to the principles in The UK Corporate Governance Code. You will be expected to carry out your duties in accordance with the principles set out in this reports, copies of which are available from the Company Secretary.

 

6. The performance of the Board and its committees, and of individual directors, is evaluated on a regular basis.

 

7. You shall, in pursuance of your duties, be entitled to request such information from the Company, its subsidiary undertakings (as defined in section 1162 of the Companies Act 2006 as amended from time to time) or its or their employees, consultants or professional advisers as may be reasonably necessary to enable you to perform your role effectively. The Company shall use its reasonable endeavours to provide such information promptly.

CONFIDENTIALITY

During the course of your duties you will have access to confidential information belonging to the Company and its subsidiary undertakings (including, but not limited to, details of suppliers, customers, margins, know-how, marketing and other relevant business information). Unauthorised disclosure of this information could seriously damage the Company. You therefore undertake not to use or disclose such information save in pursuance of your duties or in accordance with any statutory obligation or court or similar order.

Your attention is drawn to the rules relating to the disclosure of price sensitive information. You must not make any statement or do anything which may be a breach of these rules without prior clearance from the Company Secretary.

OUTSIDE INTERESTS

The agreement of the Chairman should be sought before you accept any new outside interests which might affect the time you are able to devote to this appointment.

In accordance with the principles set out in The UK Corporate Governance Code you must inform the Company Secretary of any interests which you have, or acquire, which might reasonably be thought to jeopardise your independence from the Company.

 

3


During your appointment you must not take up any office or employment with, or have any interest in, any firm or company which is or may be in direct or indirect competition with the Company.

The Board has determined you to be independent, according to the provisions of The UK Corporate Governance Code.

INSURANCE

During your appointment you will be covered by the Company’s directors’ and officers’ liability insurance on the terms in place from time to time. Details of the policy are available from the Company Secretary. The Company does not guarantee to maintain this insurance cover after the termination of your appointment, but you will continue to be covered by the policy or any replacement on the same basis as the rest of the Board.

A deed of indemnity will be put in place between you and the Company.

APPOINTMENT

Your appointment will be from 1 December 2014 and is terminable at the will of the parties. However, it is envisaged that it will be for an initial period of 36 months from the date of appointment. The continuation of your appointment depends upon satisfactory performance and re-election at the Annual General Meeting to be held on 9 April 2015 and at each Annual General Meeting.

All appointments and reappointments to the Board are, of course, subject to the Company’s articles of association. If you are not re-elected to your position as a director of the Company by the shareholders at any time and for any reason then this appointment shall terminate automatically and with immediate effect.

On termination of the appointment your only entitlement shall be to such fees as may have accrued to the date of termination together with reimbursement in the normal way of any expenses properly incurred prior to that date.

REMUNERATION

The fee is $126,000 per annum (subject to income tax and other statutory deductions) of which $6,000 will be delivered in shares. The shares will be purchased for you net of tax and statutory deductions in August each year. There is an additional allowance relating to inter-continental travel of $7,000 per trip and there would be an additional fee, should you take over as Chairman of any of the Committees. These fees are reviewed on an annual basis.

EXPENSES

The Company will reimburse you for any expenses that you may incur properly and reasonably in performing your duties and which are properly documented. Such expenses would include reasonable legal fees if circumstances should arise in which it was necessary for you to seek separate legal advice about the performance of your duties. In such a situation, you are required to discuss the issue with the Senior Independent Director in advance.

 

4


INDEPENDENT PROFESSIONAL ADVICE

In some circumstances you may think that you need professional advice in the furtherance of your duties as a director. It may also be appropriate for you to seek advice from independent advisers at the Company’s expense. The Company will reimburse the full cost of any expenditure incurred.

DATA PROTECTION

By signing this agreement you consent to the Company holding and processing information about you which it may acquire during the course of this agreement, providing such use is in accordance with the Data Protection Act 1998.

THIRD PARTY RIGHTS

The Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement. No person other than the parties to this agreement shall have any rights under it and it will not be enforceable by any person other than the parties to it.

ENTIRE AGREEMENT

This agreement constitutes the entire and only agreement between you and any Group Company relating to your appointment with the Company.

Any previous agreement or arrangement between you and the Company or any Group company shall be deemed to have been terminated by mutual consent as from the commencement of this appointment.

Please sign and return the enclosed copy of this letter to confirm your agreement to your appointment on the above terms. I shall be in touch shortly to request further information to enable us to fulfil our statutory obligations.

I look forward to working with you in the future.

Yours sincerely

 

/s/ Susan Swabey
Susan Swabey
Company Secretary

I, Vinita Bali, agree to the above terms of appointment as non-executive director of Smith & Nephew plc.

 

Name /s/ Vinita Bali
Date 30 October 2014

 

5

Exhibit 4 (c) (xvi)

Erik Engstrom

C/o Smith & Nephew plc

15 Adam Street London

WC2N 6LA

12 November 2014

Dear Mr Engstrom,

SMITH & NEPHEW plc (THE “COMPANY”) AND YOUR APPOINTMENT

AS NON-EXECUTIVE DIRECTOR

Following the recommendation of the Nomination & Governance Committee, the Board of the Company (“the Board”) is pleased to hear that you have accepted our offer to join the Board as Non-Executive Director and with effect from 1 January 2015.

This letter confirms the main terms of your appointment to this office. It is agreed that this is a contract for services and not a contract of employment. You should be aware that your re-appointment will have to be ratified by the Company’s shareholders at the Annual General Meeting to be held on 9 April 2015 and is subject to the Company’s articles of association as amended from time to time. If there is a conflict between the terms of this letter and the articles of association then the articles shall prevail.

DUTIES

 

1. The Board as a whole is collectively responsible for promoting the success of the Company by directing and supervising the Company’s affairs. The Board’s role is to:

 

  (a) provide entrepreneurial leadership to the Company within a framework of prudent and effective controls which enable risk to be assessed and managed;

 

  (b) set the Company’s strategic aims, ensure that the necessary financial and human resources are in place for the Company to meet its objectives, and review management performance; and

 

  (c) set the Company’s values and standards and ensure that its obligations to its shareholders and others are understood and met.

 

2. In your role as Non-Executive Director you are required (with the other Non-Executive Directors) to:

 

  (a) constructively challenge and contribute to the development of strategy;

 

1


  (b) scrutinise the performance of management in meeting agreed goals and objectives and monitor the reporting of performance;

 

  (c) satisfy yourself that financial information is accurate and that financial controls and systems of risk management are robust and defensible; and

 

  (d) have a prime role in appointing, and where necessary removing, senior management and in succession planning and where required by the relevant policy of the Company from time to time be responsible for determining appropriate levels of remuneration of executive directors.

 

3. You will be required to:

 

  (a) exercise relevant powers under the Company’s Articles of Association;

 

  (b) perform your duties faithfully, efficiently and diligently and use all reasonable endeavours to promote the interests and reputation of the Company;

 

  (c) serve on the various committees of the Board (initially the Audit Committee) and attend wherever possible all meetings of such committees. You will be provided with the terms of reference of a committee on your appointment to such committees, which are available from the Company Secretary;

 

  (d) attend all Annual General Meetings and other General Meetings of the Company;

 

  (e) attend all meetings of the Board, which normally meets at least six times a year, normally at 15 Adam Street, London WC2N 6LA (at least one meeting per year is held at one of the major divisions, and additional Board calls are held between physical meetings);

 

  (f) attend the Annual Strategy Review, which is usually held off-site over two days in September;

 

  (g) consider all relevant papers in advance of each meeting in order to ensure that you can play a full part in the work of the Board and its committees;

 

  (h) bring independent judgement to bear on issues of strategy, policy, resources, performance and standards of conduct;

 

  (i) make yourself available (on reasonable notice) to provide ad hoc advice to individual directors of the Company. We do not envisage that this would take more than three days of your time a year;

 

  (j) provide guidance and direction in planning, developing and enhancing the future strategic direction of the Company;

 

  (k) share responsibility with the other directors for the effective control of the Company and with the other non-executive directors for the supervision of the executive directors;

 

2


  (l) comply with the Financial Conduct Authority’s Model Code for securities transactions by directors of UK listed companies and with any code of conduct relating to securities transactions by directors and specified employees issued by the Company from time to time. The Smith & Nephew Code of Dealing in Securities will be sent to you on your appointment.

 

4. Overall the Company anticipates that you will need to spend a minimum of 15 days per year fulfilling your duties. This will include the board meetings, annual general meetings, one board away-day each year and board committee meetings. In addition you will be expected to spend an appropriate period of time preparing for each meeting and be prepared to be available for additional meetings and business when required. By accepting this appointment you confirm that you are able to commit sufficient time to the role to meet the Company’s expectations.

 

5. The Company seeks to adhere to the principles in The UK Corporate Governance Code. You will be expected to carry out your duties in accordance with the principles set out in this Code, a copy of which is available from the Company Secretary.

 

6. The performance of the Board and its committees, and of individual directors, is evaluated on a regular basis.

 

7. You shall, in pursuance of your duties, be entitled to request such information from the Company, its subsidiary undertakings (as defined in section 1162 of the Companies Act 2006 as amended from time to time) or its or their employees, consultants or professional advisers as may be reasonably necessary to enable you to perform your role effectively. The Company shall use its reasonable endeavours to provide such information promptly.

CONFIDENTIALITY

During the course of your duties you will have access to confidential information belonging to the Company and its subsidiary undertakings (including, but not limited to, details of suppliers, customers, margins, know-how, marketing and other relevant business information). Unauthorised disclosure of this information could seriously damage the Company. You therefore undertake not to use or disclose such information save in pursuance of your duties or in accordance with any statutory obligation or court or similar order.

Your attention is drawn to the rules relating to the disclosure of price sensitive information. You must not make any statement or do anything which may be a breach of these rules without prior clearance from the Company Secretary.

OUTSIDE INTERESTS

The agreement of the Chairman should be sought before you accept any new outside interests which might affect the time you are able to devote to this appointment.

In accordance with the principles set out in The UK Corporate Governance Code you must inform the Company Secretary of any interests which you have, or acquire, which might reasonably be thought to jeopardise your independence from the Company.

 

3


During your appointment you must not take up any office or employment with, or have any interest in, any firm or company which is or may be in direct or indirect competition with the Company.

The Board has determined you to be independent, according to the provisions of The UK Corporate Governance Code.

INSURANCE

During your appointment you will be covered by the Company’s directors’ and officers’ liability insurance on the terms in place from time to time. Details of the policy are available from the Company Secretary. The Company does not guarantee to maintain this insurance cover after the termination of your appointment, but you will continue to be covered by the policy or any replacement on the same basis as the rest of the Board.

A deed of indemnity will be put in place between you and the Company.

APPOINTMENT

Your appointment will be from 1 January 2015 and is terminable at the will of the parties. However, it is envisaged that it will be for an initial period of 36 months from the date of appointment. The continuation of your appointment depends upon satisfactory performance and re-election at the Annual General Meeting to be held on 9 April 2015 and at each Annual General Meeting.

All appointments and reappointments to the Board are, of course, subject to the Company’s articles of association. If you are not re-elected to your position as a director of the Company by the shareholders at any time and for any reason then this appointment shall terminate automatically and with immediate effect.

On termination of the appointment your only entitlement shall be to such fees as may have accrued to the date of termination together with reimbursement in the normal way of any expenses properly incurred prior to that date.

REMUNERATION

The fee is £66,150 per annum (subject to income tax and other statutory deductions) of which £3,150 will be delivered in shares. The shares will be purchased for you net of tax and statutory deductions in August each year. There is an additional allowance relating to inter-continental travel of £3,500 per trip and there would be an additional fee, should you take over as Chairman of any of the Committees. These fees are reviewed on an annual basis.

EXPENSES

The Company will reimburse you for any expenses that you may incur properly and reasonably in performing your duties and which are properly documented. Such expenses would include reasonable legal fees if circumstances should arise in which it was necessary for you to seek separate legal advice about the performance of your duties. In such a situation, you are required to discuss the issue with the Senior Independent Director in advance.

 

4


INDEPENDENT PROFESSIONAL ADVICE

In some circumstances you may think that you need professional advice in the furtherance of your duties as a director. It may also be appropriate for you to seek advice from independent advisers at the Company’s expense. The Company will reimburse the full cost of any expenditure incurred.

DATA PROTECTION

By signing this agreement you consent to the Company holding and processing information about you which it may acquire during the course of this agreement, providing such use is in accordance with the Data Protection Act 1998.

THIRD PARTY RIGHTS

The Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement. No person other than the parties to this agreement shall have any rights under it and it will not be enforceable by any person other than the parties to it.

ENTIRE AGREEMENT

This agreement constitutes the entire and only agreement between you and any Group Company relating to your appointment with the Company.

Any previous agreement or arrangement between you and the Company or any Group company shall be deemed to have been terminated by mutual consent as from the commencement of this appointment.

Please sign and return the enclosed copy of this letter to confirm your agreement to your appointment on the above terms. I shall be in touch shortly to request further information to enable us to fulfil our statutory obligations.

I look forward to working with you in the future.

Yours sincerely

 

/s/ Susan Swabey

Susan Swabey

Company Secretary

I, Erik Engstrom, agree to the above terms of appointment as non-executive director of Smith & Nephew plc.

 

Name /s/ Erik Engstrom
Date 30 October 2014

 

5

Exhibit 4 (c) (xvii)

17 February 2015

Mr Brian Larcombe

C/o 15, Adam Street

London

WC2N 6LA

Dear Brian,

SMITH & NEPHEW plc (THE “COMPANY”) AND YOUR RE-APPOINTMENT

AS A NON-EXECUTIVE DIRECTOR

Following the recommendation of the Nomination & Governance Committee, the board of the Company (the “Board” ) confirms that you will remain on the Board as a Non-Executive Director of the Company from 1 January 2015. This letter confirms the main terms of your appointment to this office. It is agreed that this is a contract for services and not a contract of employment. You should be aware that your re-appointment will have to be ratified on an annual basis by the Company’s shareholders at the Annual General Meeting and is subject to the Company’s Articles of Association as amended from time to time. If there is a conflict between the terms of this letter and the Articles of Association then the Articles shall prevail. Subject to your re-election at the Annual General Meeting, you will continue the role of Senior Independent Director.

DUTIES

 

1. You are already aware how the Board is structured and what authorities are delegated to the Chief Executive Officer and his colleagues.

 

2. The Board as a whole is collectively responsible for promoting the success of the Company by directing and supervising the Company’s affairs. The Board’s role is to:

 

  (a) provide entrepreneurial leadership to the Company within a framework of prudent and effective controls which enable risk to be assessed and managed;

 

  (b) set the Company’s strategic aims, ensure that the necessary financial and human resources are in place for the Company to meet its objectives, and review management performance; and

 

  (c) set the Company’s values and standards and ensure that its obligations to its shareholders and others are understood and met.

 

3. In your role as a Non-Executive Director you are required (with the other non-executives) to:

 

  (a) constructively challenge and contribute to the development of strategy;

 

1


  (b) scrutinise the performance of management in meeting agreed goals and objectives and monitor the reporting of performance;

 

  (c) satisfy yourself that financial information is accurate and that financial controls and systems of risk management are robust and defensible; and

 

  (d) have a prime role in appointing, and where necessary removing, senior management and in succession planning and where required by the relevant policy of the Company from time to time be responsible for determining appropriate levels of remuneration of executive directors.

 

4. You will be required to:

 

  (a) exercise relevant powers under the Company’s Articles of Association;

 

  (b) perform your duties faithfully, efficiently and diligently and use all reasonable endeavours to promote the interests and reputation of the Company;

 

  (c) serve on various committees of the Board and attend wherever possible all meetings of such committees. You will be provided with the terms of reference of a committee on your appointment to such a committee;

 

  (d) attend wherever possible all Annual General Meetings and other General Meetings of the Company;

 

  (e) attend wherever possible all meetings of the Board, which meets at least six times a year, normally at 15 Adam Street, London WC2N 6LA (at least one meeting per year is held at one of the major divisions);

 

  (f) attend wherever possible the Annual Strategy Review, which is usually held off-site over two days in September;

 

  (g) consider all relevant papers in advance of each meeting in order to ensure that you can play a full part in the work of the Board and its committees;

 

  (h) bring independent judgement to bear on issues of strategy, policy, resources, performance and standards of conduct;

 

  (i) make yourself available (on reasonable notice) to provide ad hoc advice to individual directors of the Company. We do not envisage that this would take more than three days of your time a year;

 

  (j) provide guidance and direction in planning, developing and enhancing the future strategic direction of the Company;

 

  (k) share responsibility with the other directors for the effective control of the Company and with the other non-executive directors for the supervision of the executive directors;

 

2


  (l) comply with the Financial Conduct Authority’s Model Code for securities transactions by directors of UK listed companies and with any code of conduct relating to securities transactions by directors and specified employees issued by the Company from time to time (the Smith & Nephew Code of Dealing in Securities has been sent to you and further copies are available from the Company Secretary; and

 

  (m) comply with the New York Stock Exchange. You will be advised by the Company Secretary where these differ from requirements in the U.K.

 

5. In your role as Senior Independent Director, you will be expected to:

 

  (a) act as the sounding board and provide support to the Chairman in delivering his objectives;

 

  (b) lead the annual evaluation of the Chairman’s performance in accordance with the UK Corporate Governance Code 2012;

 

  (c) chair meetings of the Nomination & Governance Committee when it is considering succession to the role of the Chairman of the Board;

 

  (d) be available to shareholders if they have concerns which contact through the normal channels of Chairman, Chief Executive Officer or Chief Financial Officer has failed to resolve or where such contact is inappropriate;

 

  (e) attend sufficient meetings with major shareholders and financial analysts to obtain a balanced understanding of the issues and concerns of such shareholders; and

 

  (f) work with the Chairman and other Directors to resolve contentious issues.

 

6. Overall the Company anticipates that you will need to spend a minimum of 15 days per year fulfilling your duties. This will include the Board Meetings, Annual General Meetings, one Board away-day each year and Board committee meetings. In addition you will be expected to spend an appropriate period of time preparing for each meeting and be prepared to be available for additional meetings and business when required. By accepting this appointment you confirm that you are able to commit sufficient time to the role to meet the Company’s expectations.

 

7. The Company seeks to adhere to the principles in The UK Corporate Governance Code. You will be expected to carry out your duties in accordance with the principles set out in these reports, copies of which are available from the Company Secretary.

 

8. The performance of the Board and its committees, and of individual directors, is evaluated annually. At least every third year the performance will be reviewed by an external body.

 

9. You shall, in pursuance of your duties hereunder, be entitled to request such information from the Company, its subsidiary undertakings (as defined in section 1162 of the Companies Act 2006 as amended from time to time) or its or their employees, consultants or professional advisers as may be reasonably necessary to enable you to perform your role effectively. The Company shall use its reasonable endeavours to provide such information promptly.

 

3


CONFIDENTIALITY

During the course of your duties you will have access to confidential information belonging to the Company and its subsidiary undertakings (including, but not limited to, details of suppliers, customers, margins, know-how, marketing and other relevant business information). Unauthorised disclosure of this information could seriously damage the Company. You therefore undertake not to use or disclose such information save in pursuance of your duties or in accordance with any statutory obligation or court or similar order.

Your attention is drawn to the rules relating to the disclosure of price sensitive information. You must not make any statement or do anything which may be a breach of these rules without prior clearance from the Chairman or Company Secretary.

OUTSIDE INTERESTS

The agreement of the Chairman should be sought before you accept any new outside interests which might affect the time you are able to devote to this appointment.

In accordance with the principles set out in The UK Corporate Governance Code you must inform the Company Secretary of any interests which you have, or acquire, which might reasonably be thought to jeopardise your independence from the Company. You should also provide the Company Secretary with any change to your personal details.

During your appointment you must not take up any office or employment with, or have any interest in, any firm or company which is or may be in direct or indirect competition with the Company.

The Board has determined you to be independent, according to the provisions of The UK Corporate Governance Code.

INSURANCE

During your appointment you will be covered by the Company’s directors’ and officers’ liability insurance on the terms in place from time to time. Details of the policy are available from the Company Secretary. The Company does not guarantee to maintain this insurance cover after the termination of your appointment, but you will continue to be covered by the policy or any replacement on the same basis as the rest of the Board.

A deed of indemnity is in place between you and the Company.

APPOINTMENT

Your re-appointment will be from 1 January 2015 and is terminable at the will of the parties. However, it is envisaged that it will be for a further period of 12 months continuing until 31 December 2015 subject to an annual review taking into account the need for progressive refreshing of the Board. The continuation of your appointment depends upon satisfactory performance and re-election at each Annual General Meeting.

All appointments and re-appointments to the Board are, of course, subject to the Company’s Articles of Association. If you are not re-elected to your position as a director of the Company by the shareholders at any time and for any reason then this appointment shall terminate automatically and with immediate effect.

 

4


On termination of the appointment you shall only be entitled to such fees as may have accrued to the date of termination together with reimbursement in the normal way of any expenses properly incurred prior to that date and you will be expected to return all company property.

REMUNERATION

The fees are £63,000 per annum in cash and £3,150 delivered in shares in August each year (subject to income tax and statutory deductions) and will be reviewed each year. There is an additional allowance relating to inter-continental travel of £3,500 per trip.

As Senior Independent Director, you will receive an additional fee of £15,000 per annum (subject to income tax and statutory deductions).

EXPENSES

The Company will reimburse you for any expenses that you may incur properly and reasonably in performing your duties and which are properly documented. Such expenses would include reasonable legal fees if circumstances should arise in which it was necessary for you to seek separate legal advice about the performance of your duties. In such a situation, you are required to discuss the issue either with me or with one of your non-executive colleagues in advance.

INDEPENDENT PROFESSIONAL ADVICE

In some circumstances you may think that you need professional advice in the furtherance of your duties as a director. It may also be appropriate for you to seek advice from independent advisers at the Company’s expense. The Company will reimburse the full cost of any expenditure incurred.

DATA PROTECTION

By signing this agreement you consent to the Company holding and processing information about you which it may acquire during the course of this agreement, providing such use is in accordance with the Data Protection Act 1998.

THIRD PARTY RIGHTS

The Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement. No person other than the parties to this agreement shall have any rights under it and it will not be enforceable by any person other than the parties to it.

ENTIRE AGREEMENT

This agreement constitutes the entire and only agreement relating to your re-appointment between you and the Company and shall be construed in accordance with English law.

Any previous agreement or arrangement between you and the Company or any Group company shall be deemed to have been terminated by mutual consent as from the commencement of this re-appointment, including but not limited to the re-appointment letter dated 26 February 2014.

 

5


Please sign and return the enclosed copy of this letter to confirm your agreement to your re-appointment on the above terms.

I look forward to continue working with you in the future.

Yours sincerely

 

/s/ Susan Swabey

Susan Swabey

Company Secretary

I, Brian Larcombe, agree to the above terms of re-appointment as a Non-Executive Director of Smith & Nephew plc.

 

Name   /s/ Brian Larcombe
Date 17 February 2015

 

6

Exhibit 4 (c) (xviii)

17 February 2015

The Rt. Hon Baroness Bottomley of Nettlestone DL

c/o 15, Adam Street,

London

WC2N 6LA

Dear Virginia,

SMITH & NEPHEW plc (THE “COMPANY”) AND YOUR RE-APPOINTMENT

AS A NON-EXECUTIVE DIRECTOR

Following the recommendation of the Nomination & Governance Committee, the board of the Company (the “ Board ”) confirms that you will remain on the Board as a Non-Executive Director of the Company from 12 April 2015. This letter confirms the main terms of your appointment to this office. It is agreed that this is a contract for services and not a contract of employment. You should be aware that your re-appointment will have to be ratified by the Company’s shareholders at the Annual General Meeting and is subject to the Company’s articles of association as amended from time to time. If there is a conflict between the terms of this letter and the Articles of Association then the Articles shall prevail.

DUTIES

 

1. You are already aware of how the Board is structured and what authorities are delegated to the Chief Executive Officer and his colleagues.

 

2. The Board as a whole is collectively responsible for promoting the success of the Company by directing and supervising the Company’s affairs. The Board’s role is to:

 

  (a) provide entrepreneurial leadership to the Company within a framework of prudent and effective controls which enable risk to be assessed and managed;

 

  (b) set the Company’s strategic aims, ensure that the necessary financial and human resources are in place for the Company to meet its objectives, and review management performance; and

 

  (c) set the Company’s values and standards and ensure that its obligations to its shareholders and others are understood and met.

 

3. In your role as a non-executive director you will be required (with the other non-executives) to:

 

  (a) constructively challenge and contribute to the development of strategy;

 

  (b) scrutinise the performance of management in meeting agreed goals and objectives and monitor the reporting of performance;

 

1


  (c) satisfy yourself that financial information is accurate and that financial controls and systems of risk management are robust and defensible; and

 

  (d) have a prime role in appointing, and where necessary removing, senior management and in succession planning and where required by the relevant policy of the Company from time to time be responsible for determining appropriate levels of remuneration of executive directors.

 

4. You will be required to:

 

  (a) exercise relevant powers under the Company’s articles of association;

 

  (b) perform your duties faithfully, efficiently and diligently and use all reasonable endeavours to promote the interests and reputation of the Company;

 

  (c) serve on various committees of the Board and attend wherever possible all meetings of such committees. You will be provided with the terms of reference of a committee on your appointment to such a committee;

 

  (d) attend wherever possible all Annual General Meetings and Extraordinary General Meetings of the Company;

 

  (e) attend wherever possible all meetings of the Board, which meets at least six times a year, normally at 15 Adam Street, London WC2N 6LA (one meeting a year is held at one of the major business divisions);

 

  (f) attend wherever possible the Annual Strategy Review, which is usually held off-site over two days in September;

 

  (g) consider all relevant papers in advance of each meeting in order to ensure that you can play a full part in the work of the Board and its committees;

 

  (h) bring independent judgement to bear on issues of strategy, policy, resources, performance and standards of conduct;

 

  (i) make yourself available (on reasonable notice) to provide ad hoc advice to individual directors of the Company. We do not envisage that this would take more than three days of your time a year;

 

  (j) provide guidance and direction in planning, developing and enhancing the future strategic direction of the Company;

 

  (k) share responsibility with the other directors for the effective control of the Company and with the other non-executive directors for the supervision of the executive directors;

 

  (l) comply with the Financial Conduct Authority’s Model Code for securities transactions by directors of UK listed companies and with any code of conduct relating to securities transactions by directors and specified employees issued by the Company from time to time (the Smith & Nephew Code of Dealing in Securities will be sent to you and further copies are available from the Company Secretary); and

 

2


  (m) comply with the New York Stock Exchange. You will be advised by the Company Secretary where these differ from requirements in the U.K.

 

5. Overall the Company anticipates that you will need to spend a minimum of 15 days per year fulfilling your duties. This will include the board meetings, annual general meetings, one board away-day each year and board committee meetings. In addition you will be expected to spend an appropriate period of time preparing for each meeting and be prepared to be available for additional meetings and business when required. By accepting this appointment you confirm that you are able to commit sufficient time to the role to meet the Company’s expectations.

 

6. The Company seeks to adhere to the principles in UK Corporate Governance Code. You will be expected to carry out your duties in accordance with the principles set out in these reports, copies of which are available from the Company Secretary.

 

7. The performance of the Board and its committees, and of individual directors, is evaluated annually. At least every third year the performance will be reviewed by an external body.

 

8. You shall, in pursuance of your duties hereunder, be entitled to request such information from the Company, its subsidiary undertakings (as defined in section 1162 of the Companies Act 2006 as amended from time to time) or its or their employees, consultants or professional advisers as may be reasonably necessary to enable you to perform your role effectively. The Company shall use its reasonable endeavours to provide such information promptly.

CONFIDENTIALITY

During the course of your duties you will have access to confidential information belonging to the Company and its subsidiary undertakings (including, but not limited to, details of suppliers, customers, margins, know-how, marketing and other relevant business information). Unauthorised disclosure of this information could seriously damage the Company. You will therefore undertake not to use or disclose such information save in pursuance of your duties or in accordance with any statutory obligation or court or similar order.

Your attention is drawn to the rules relating to the disclosure of price sensitive information. You must not make any statement or do anything which may be a breach of these rules without prior clearance from the Chairman or Company Secretary.

OUTSIDE INTERESTS

The agreement of the Chairman will have to be sought before you accept any new outside interests which might affect the time you are able to devote to this appointment.

In accordance with the principles set out in the Combined Code you will have to inform the Company Secretary of any interests which you have, or acquire, which might reasonably be thought to jeopardise your independence from the Company.

During your appointment you will not be able to take up any office or employment with, or have any interest in, any firm or company which is or may be in direct or indirect competition with the Company.

The Board will determine you to be independent, according to the provisions of the Combined Code.

 

3


INSURANCE

During your appointment you will be covered by the Company’s directors’ and officers’ liability insurance on the terms in place from time to time. Details of the policy are available from the Company Secretary. The Company does not guarantee to maintain this insurance cover after the termination of your appointment, but you will continue to be covered by the policy or any replacement on the same basis as the rest of the Board.

A deed of indemnity will be put in place between you and the Company.

APPOINTMENT

Your appointment will be from 12 April 2015 and will be terminable at the will of the parties. However, it is envisaged that it will be for a further period of 3 years continuing until 12 April 2018 subject to an annual review taking into account the need for progressive refreshing of the Board. The continuation of your appointment depends upon satisfactory performance and re-election at each Annual General Meeting.

All appointments and reappointments to the Board will be subject to the Company’s articles of association. If you are not re-elected to your position as a director of the Company by the shareholders at any time and for any reason then this appointment shall terminate automatically and with immediate effect.

On termination of the appointment you shall only be entitled to such fees as may have accrued to the date of termination together with reimbursement in the normal way of any expenses properly incurred prior to that date and you will be expected to return all company property.

REMUNERATION

The fees are £63,000 per annum in cash and £3,150 delivered in shares in August each year (subject to income tax and statutory deductions) and will be reviewed each year. There is an additional allowance relating to inter-continental travel of £3,500 per trip and there would be an additional fee, should you take over as Chairman of any of the Committees.

EXPENSES

The Company will reimburse you for any expenses that you may incur properly and reasonably in performing your duties and which are properly documented. Such expenses would include reasonable legal fees if circumstances should arise in which it was necessary for you to seek separate legal advice about the performance of your duties. In such a situation, you will be required to discuss the issue either with me or with one of your non-executive colleagues in advance.

INDEPENDENT PROFESSIONAL ADVICE

In some circumstances you may think that you will need professional advice in the furtherance of your duties as a director. It may also be appropriate for you to seek advice from independent advisers at the Company’s expense. The Company will reimburse the full cost of any expenditure incurred.

 

4


DATA PROTECTION

By signing this agreement you consent to the Company holding and processing information about you which it may acquire during the course of this agreement, providing such use is in accordance with the Data Protection Act 1998.

THIRD PARTY RIGHTS

The Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement. No person other than the parties to this agreement shall have any rights under it and it will not be enforceable by any person other than the parties to it.

ENTIRE AGREEMENT

This agreement constitutes the entire and only agreement relating to your re-appointment between you and the Company and shall be construed in accordance with English law.

Any previous agreement or arrangement between you and the Company or any Group company shall be deemed to have been terminated by mutual consent as from the commencement of this re-appointment, including but not limited to the re-appointment letter dated 26 February 2014.

Please sign and return the enclosed copy of this letter to confirm your agreement to your re-appointment on the above terms.

I look forward to continue working with you in the future.

Yours sincerely

 

/s/ Susan Swabey
Susan Swabey
Company Secretary

I, Baroness Virginia Bottomley, agree to the above terms of re-appointment as a non-executive director of Smith & Nephew plc.

 

Signature /s/ Virginia Bottomley
Date 17 February 2015

 

5

Exhibit 8

PRINCIPAL SUBSIDIARIES

Smith & Nephew plc

Subsidiary Undertakings

 

Company

  

Country of Incorporation

A2 Surgical    France
Adler Mediquip Private Limted    India
ArthroCare (Australasia) Pty Ltd    Australia
ArthroCare (Deutschland) GmbH    Germany
ArthroCare (Hong Kong) Ltd    Hong Kong
ArthroCare Austria AG    Austria
ArthroCare Belgium SPRL    Belgium
ArthroCare BeNeLux BV    Netherlands
ArthroCare Canada Ltd    Canada
ArthroCare Corporation    USA
ArthroCare Corporation Cayman Islands    Cayman Islands
ArthroCare Costa Rica Srl    Costa Rica
ArthroCare Danmark Aps    Denmark
ArthroCare Europe Aktiebolag    Sweden
ArthroCare Finland Oy    Finland
ArthroCare France Sarl    France
ArthroCare India Medical Device Private Limited    India
ArthroCare Luxembourg Sarl    Luxembourg
ArthroCare Medical Corporation    USA
ArthroCare Medical Devices (Beijing) Co. Ltd    China
ArthroCare Singapore Pte Ltd    Singapore
ArthroCare UK Ltd    England
Atlantech Medical Devices (UK) Ltd    England
Bioventus LLC    USA
Blue Sky Medical Group Inc    USA
Device Reimbursement Services Inc.    USA
DiscoCare, Inc.    USA
Eleven Blade Solutions, Inc.    USA
ENTrigue Surgical, Inc.    USA
Healicoil Inc.    USA
Hipco Inc    USA
ICEMBE Medical (pty) Ltd    South Africa
Kalypto Medical, Inc.    USA
LLC Smith & Nephew    Russia
OC Acquisitions Sub, LLC    USA
Oratec Interventions, Inc    USA
Orthopaedic Biosystems Ltd., Inc.    USA
OsteoBiologics, Inc    USA
Plus Orthopaedics (UK) Ltd    UK
Plus Orthopedics GmbH    Austria
Plus Orthopedics Hellas SA    Greece
Plus Orthopedics Holding AG    Switzerland
Plus Orthopedics LLC    USA
Smith & Nephew (Alberta) Inc    Canada
Smith & Nephew (Europe) B.V.    Netherlands
Smith & Nephew (Overseas) Limited    England
Smith & Nephew (Pty) Limited    South Africa


Company

  

Country of Incorporation

Smith & Nephew A/S    Denmark
Smith & Nephew A/S    Norway
Smith & Nephew AB    Sweden
Smith & Nephew AHP Inc.    USA
Smith & Nephew Argentina Srl    Argentina
Smith & Nephew ARTC Limited    England
Smith & Nephew B.V.    Netherlands
Smith & Nephew Beijing Holdings Ltd    Hong Kong
Smith & Nephew Business Services Gmbh & Co. KG.    Germany
Smith & Nephew Business Services Verwaltungs Gmbh    Germany
Smith & Nephew Beta Limited    England
Smith & Nephew China Holdings UK Limited    England
Smith & Nephew Chusik Hoesia    Korea
Smith & Nephew Collagenase Limited    England
Smith & Nephew Comercio de Produtos Medicos LTDA    Brazil
Smith & Nephew Consolidated, Inc    USA
Smith & Nephew Curacao NV    Curacao
Smith & Nephew Deutschland (Holding) GmbH    Germany
Smith & Nephew do Brasil Participacoes SA    Brazil
Smith & Nephew Employees Trustees Limited    England
Smith & Nephew Endoscopy KK    Japan
Smith & Nephew ESN Limited    England
Smith & Nephew Executive Pension Scheme Trustee Limited    England
Smith & Nephew Extruded Films Limited    England
Smith & Nephew Finance    England
Smith & Nephew Finance Holdings Limited    Cayman Islands
Smith & Nephew Finance Ireland Limited    Ireland
Smith & Nephew Finance Lux LLP    England
Smith & Nephew Finance Oratec    England
Smith & Nephew Finance Sarl    Luxembourg
Smith & Nephew France SAS    France
Smith & Nephew FZE    United Arab Emirates
Smith & Nephew GmbH    Germany
Smith & Nephew GmbH    Austria
Smith & Nephew Healthcare Limited    England
Smith & Nephew Healthcare Private Limited    India
Smith & Nephew Healthcare Sdn Berhad    Malaysia
Smith & Nephew Hellas SA    Greece
Smith & Nephew Holdings Inc.    USA
Smith & Nephew Inc.    Canada
Smith & Nephew Inc.    Puerto Rico
Smith & Nephew Inc.    USA
Smith & Nephew International S.A.    Luxembourg
Smith & Nephew Investment Holdings Limited    England
Smith & Nephew KK    Japan
Smith & Nephew Lda    Portugal
Smith & Nephew Limited    Ireland
Smith & Nephew Limited    Thailand
Smith & Nephew Limited    New Zealand
Smith & Nephew Limited    Hong Kong
Smith & Nephew Management B.V.    Netherlands
Smith & Nephew Manufacturing AG    Switzerland
Smith & Nephew Medical (Shanghai) Limited    China
Smith & Nephew Medical (Suzhou) Limited    China


Company

  

Country of Incorporation

Smith & Nephew Medical Fabrics Limited    England
Smith & Nephew Medical Limited    England
Smith & Nephew Medikal Cihazlar Limited Sikreti    Turkey
Smith & Nephew Nederland C.V.    Netherlands
Smith & Nephew Nominee Company Limited    England
Smith & Nephew Nominee Services Limited    England
Smith & Nephew Optics B.V.    Netherlands
Smith & Nephew Orthopaedics AG    Switzerland
Smith & Nephew Orthopaedics (Beijing) Limited    China
Smith & Nephew Orthopaedics France SAS    France
Smith & Nephew Orthopaedics GmbH    Germany
Smith & Nephew Orthopaedics KK    Japan
Smith & Nephew Orthopaedics Limited    England
Smith & Nephew OUS, Inc.    USA
Smith & Nephew Oy    Finland
Smith & Nephew Pension Fund Trustees Limited    England
Smith & Nephew Pensions Nominees Limited    England
Smith & Nephew Pharmaceuticals (Proprietary) Limited    South Africa
Smith & Nephew Pharmaceuticals Limited    England
Smith & Nephew Pte Limited    Singapore
Smith & Nephew Pty Limited    Australia
Smith & Nephew Raisegrade Limited    England
Smith & Nephew Rareletter Limited    England
Smith & Nephew S.A.U    Spain
Smith & Nephew S.A. de C.V.    Mexico
Smith & Nephew S.A.-N.V    Belgium
Smith & Nephew S.A.S.    France
Smith & Nephew Schweiz AG    Switzerland
Smith & Nephew S.r.l.    Italy
Smith & Nephew Suzhou Holdings Limited    Hong Kong
Smith & Nephew sp. z.o.o.    Poland
Smith & Nephew Surgical Holdings Pty Limited    Australia
Smith & Nephew Surgical Limited    New Zealand
Smith & Nephew Surgical Pty Limited    Australia
Smith & Nephew TE I, LLC    USA
Smith & Nephew TE II, L.L.C    USA
Smith & Nephew Trading Group Limited    England
Smith & Nephew UK Limited    England
Smith & Nephew USD Limited    England
Smith & Nephew Wound Management (LaJolla)    USA
Smith & Nephew Wound Management KK    Japan
Sri Siam Medical Limited    Thailand
T. J. Smith and Nephew, Limited    England
TP Limited    Scotland
The Albion Soap Company Limited    England
Tenet Medical Engineer Inc    Canada

All companies trade under the name of Smith & Nephew and deal with Medical Device products.

Exhibit 12(a)

CERTIFICATION OF OLIVIER BOHUON

302 CERTIFICATION

I, Olivier Bohuon, certify that:

 

1. I have reviewed this annual report on Form 20-F of Smith & Nephew plc;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;

 

4. The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and


5. The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.

Date: March 5, 2015

 

By: /s/ Olivier Bohuon

Name:

Mr Olivier Bohuon

Title:

Chief Executive Officer

Exhibit 12(b)

CERTIFICATION OF JULIE BROWN

302 CERTIFICATION

I, Julie Brown, certify that:

 

1. I have reviewed this annual report on Form 20-F of Smith & Nephew plc;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;

 

4. The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:

 

  a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) Designed such internal control over financial reporting or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and


5. The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):

 

  a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and

 

  b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.

Date: March 5, 2015

 

By: /s/ Julie Brown
Name: Mrs Julie Brown
Title: Chief Financial Officer

Exhibit 13(a)

CERTIFICATION OF OLIVIER BOHUON AND JULIE BROWN

906 CERTIFICATION

The certification set forth below is being submitted in connection with the Annual Report on Form 20-F for the year ended December 31, 2014 (the “Report”) for the purpose of complying with Rule 13a-14(b) or Rule 15d-14(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Section 1350 of Chapter 63 of Title 18 of the United States Code.

Olivier Bohuon, the Chief Executive Officer and Julie Brown, the Chief Financial Officer of Smith & Nephew plc, each certifies that, to the best of their knowledge:

 

1. the Report fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act; and

 

2. the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Smith & Nephew plc.

Date: March 5, 2015

 

By: /s/ Olivier Bohuon
Name: Mr Olivier Bohuon
Title: Chief Executive Officer

 

By: /s/ Julie Brown
Name: Mrs Julie Brown
Title: Chief Financial Officer

Exhibit 15.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the following Registration Statements:

 

1. Registration Statement (Form S-8 No. 333-122801) pertaining to the Smith & Nephew 2004 Executive Share Option Scheme

 

2. Registration Statement (Form S-8 No. 333-122801) pertaining to the Smith & Nephew 2004 Performance Share Plan

 

3. Registration Statement (Form S-8 No. 333-122801) pertaining to the Smith & Nephew 2004 Co-investment Plan

 

4. Registration Statement (Form S-8 No. 333-13694) pertaining to the Smith & Nephew 2001 US Share Plan

 

5. Registration Statement (Form S-8 No. 333-12052) pertaining to the Smith & Nephew U.S. Employee Stock Purchase Plan

 

6. Registration Statement (Form S-8 No. 33-39814) pertaining to the Smith & Nephew Long Service Award Scheme

 

7. Registration Statement (Form S-8 No. 333-155173) pertaining to the Smith & Nephew 2001 US Share Plan

 

8. Registration Statement (Form S-8 No. 333-155172) pertaining to the Smith & Nephew 2004 Performance Share Plan

 

9. Registration Statement (Form S-8 No. 333-158239) pertaining to the Smith & Nephew plc Deferred Bonus Plan

 

10. Registration Statement (Form S-8 No. 333-168544) pertaining to the Smith & Nephew Global Share Plan 2010

 

11. Registration Statement (Form S-8 No. 333-199117) pertaining to the Smith & Nephew Global Share Plan 2010

of our reports dated February 25, 2015, with respect to the consolidated financial statements of Smith & Nephew plc, and the effectiveness of internal control over financial reporting of Smith & Nephew plc, included in the Annual Report (Form 20-F) for the year ended December 31, 2014.

/s/ Ernst & Young LLP

Ernst & Young LLP

London, England

March 5, 2015