Exhibit 4.1

EXECUTION VERSION

SECURITIES PURCHASE AGREEMENT

This SECURITIES PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of December 6, 2019 by and among Summit Therapeutics plc, a public limited company incorporated in England and Wales with the Registrar of Companies of England and Wales, with its principal place of business at 136a Eastern Avenue, Milton Park, Abingdon, Oxfordshire OX14 4SB, United Kingdom (the “Company”), and the investor named on Exhibit A hereto (the “Investor”).

RECITALS

A. The Company and the Investor are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by the provisions of Regulation D, as promulgated by the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended;

B. The Investor wishes to purchase from the Company, and the Company wishes to sell and issue to the Investor, upon the terms and subject to the conditions stated in this Agreement, (i) ordinary shares, with a nominal value of £0.01 per share, of the Company (the “Ordinary Shares”) and (ii) certain warrants to subscribe for Ordinary Shares pursuant to the warrant instrument to be executed by the Company in the form attached hereto as Exhibit B (the “Warrant Instrument”) (each, warrant under the Warrant Instrument a “Warrant” and collectively, the “Warrants”);

C. On or prior to the date hereof, the parties hereto and Cairn Financial Advisers LLP have executed and delivered a deed of termination (the “Deed of Termination”) to terminate that certain Relationship Agreement (the “Relationship Agreement”), dated as of December 14, 2018, by and among the Company, the Investor and Cairn Financial Advisers LLP, which shall be conditional upon, and shall take effect upon, the cancellation of trading of the Ordinary Shares on AIM (as defined below) becoming effective by way of the issue by the London Stock Exchange plc of a dealing notice (as such term is defined in the AIM Rules (as defined below)) (such effectiveness of cancellation, the “Termination Condition”); and

D. The Investor acknowledges that upon completion of the acquisition of the Purchased Securities pursuant to this Agreement, the Investor will continue to be subject to certain U.K. regulatory obligations including, amongst others, pursuant to the City Code and the Disclosure Guidance and Transparency Rules of the U.K. Financial Conduct Authority.

In consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Definitions. For the purposes of this Agreement, the following terms shall have the meanings set forth below:

“Admission” means admission of the Purchased Ordinary Shares to trading on AIM pursuant to Rule 6 of the AIM Rules.

“ADSs” means American Depositary Shares, each representing five (5) Ordinary Shares.

 

“Affiliate” means, with respect to any Person, any other Person which directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with, such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. Without limiting the generality of the foregoing, a Person shall be deemed to control another Person if any of the following conditions is met: (i) in the case of corporate entities, direct or indirect ownership of more than fifty percent (50%) of the stock or shares having the right to vote for the election of directors, and (ii) in the case of non-corporate entities, direct or indirect ownership of more than fifty percent (50%) of the equity interest with the power to direct the management and policies of such non-corporate entities.

“Aggregate Purchase Price” has the meaning set forth in Section 2.

“Agreement” has the meaning set forth in the preamble to this Agreement.

“AIM” has the meaning set forth in Section 4.12(e).

“AIM Documents” means the documents made publicly available by the Company by way of announcement via a Regulatory Information Service prior to the date hereof.

“AIM Rules” means the AIM Rules for Companies as published from time to time by London Stock Exchange plc.

“Appointment” shall mean the appointment of the Director Nominees to the Company’s Board of Directors.

“Business Day” means a day, other than a Saturday, Sunday or United Kingdom public holiday, on which banks in New York City are open for the general transaction of business.

“City Code” shall mean the City Code on Takeovers and Mergers as promulgated from time to time by the Panel on Takeovers and Mergers.

“Closing” has the meaning set forth in Section 3.1.

“Closing Date” has the meaning set forth in Section 3.1.

“Company” has the meaning set forth in the preamble to this Agreement.

“Company SEC Documents” has the meaning set forth in Section 4.12(a).

“Deed of Termination” has the meaning set forth in the recitals to this Agreement.

“Delisting Approval” means all necessary approvals of the Company’s shareholders required to be obtained in relation to the consummation of the cancellation of trading of the Ordinary Shares on AIM.

“Director Nominees” shall mean Dr. Elaine Stracker, Dr. Ventzislav Stefanov, Manmeet Soni and the Investor.

 

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“Disposition” or “Dispose of” shall mean any (i) pledge, sale, contract to sell, sale of any option or contract to purchase, purchase of any option or contract to sell, grant of any option, right or warrant for the sale of, or other disposition of or transfer of any ADSs, Ordinary Shares, or any Ordinary Share Equivalents, including, without limitation, any “short sale” or similar arrangement, or (ii) swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the ADSs or the Ordinary Shares, whether any such swap or transaction is to be settled by delivery of securities, in cash or otherwise.

“Enforceability Exceptions” has the meaning set forth in Section 4.4(b).

“Governmental Authority” shall mean any court, agency, authority, department, regulatory body or other instrumentality of any government or country or of any national, federal, state, provincial, regional, county, city or other political subdivision of any such government or country or any supranational organization of which any such country is a member.

“Group” means the Company and its subsidiary undertakings (and “Group Company” shall be construed accordingly).

“IFRS” has the meaning set forth in Section 4.12(d).

“Investor” has the meaning set forth in the preamble to this Agreement.

“Law” or “Laws” shall mean all laws, statutes, rules, regulations, orders, judgments, injunctions and/or ordinances of any Governmental Authority.

“Material Adverse Effect” means a material adverse effect on (i) the assets, liabilities, results of operations, financial condition or business of the Company and its subsidiaries taken as a whole, (ii) the legality or enforceability of this Agreement or (iii) the ability of the Company to perform its obligations under this Agreement.

“Nasdaq” means The Nasdaq Stock Market.

“Ordinary Share Equivalents” shall mean any options, warrants or other securities or rights convertible into or exercisable or exchangeable for, whether directly or following conversion into or exercise or exchange for other options, warrants or other securities or rights, Ordinary Shares of the Company, including those represented by ADSs, or any swap, hedge or similar agreement or arrangement that transfers in whole or in part, the economic risk of ownership of, or voting or other rights of, the Ordinary Shares.

“Ordinary Shares” has the meaning set forth in the recitals to this Agreement.

“Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, Governmental Authority or any other form of entity not specifically listed herein.

“Placing” means the concurrent placing of Ordinary Shares and Warrants to investors outside of the United States pursuant to an exemption from registration under Section 4(a)(2) of the 1933 Act and Regulation S under the 1933 Act.

 

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“Press Release” has the meaning set forth in Section 10.7.

“Purchased Ordinary Shares” has the meaning set forth in Section 2.

“Purchased Securities” has the meaning set forth in Section 2.

“Purchased Warrants” has the meaning set forth in Section 2.

“Registrar” means Link Asset Services, a trading name for Link Market Services Limited, being the Company’s registrar, or such other registrar as the Company may appoint from time to time.

“Registration Rights Agreement” means the Registration Rights Agreement, dated as of January 9, 2019, by and between the Company and the Investor.

“Regulatory Information Service” shall have the same meaning set forth in the AIM Rules.

“Relationship Agreement” has the meaning set forth in the recitals to this Agreement.

“Relevant Accounting Standards” shall mean generally accepted United Kingdom accounting policies, practices, principles and conventions using all relevant International Financial Reporting Standards as adopted by the European Union, including all IFRS, International Accounting Standards, Interpretations issued by the International Financial Reporting Interpretations Committee and the Standing Interpretations Committee and all relevant statements and recommendations from professional accountancy bodies.

“Resignation” shall mean the resignations of each of the Resigning Directors from the Company’s Board of Directors.

“Resigning Directors” shall mean Frank Armstrong, Leopoldo Zambeletti and David Wurzer, each of whom are members of the Company’s Board of Directors as of the date of this Agreement.

“Sarbanes-Oxley Act” has the meaning set forth in Section 4.12(g).

“SEC” has the meaning set forth in the recitals to this Agreement.

“Shareholder Approval” means all necessary approvals of the Company’s shareholders required to be obtained in relation to the consummation of the transactions contemplated by the Transaction Documents, including without limitation the Delisting Approval.

“Shareholder Circular” means the circular (including the appended notice of general meeting) to be circulated by the Company to its shareholders in connection with the Shareholder Approval and which is in the form attached as Exhibit G hereto.

“Shareholders’ Meeting” has the meaning set forth in Section 7.3.

“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the 1934 Act (but shall not be deemed to include the location and/or reservation of borrowable Ordinary Shares or ADSs).

 

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“Termination Condition” has the meaning set forth in the recitals to this Agreement.

“Third Party” shall mean any Person, including a Governmental Authority, other than the Investor, the Company or any Affiliate of the Investor or the Company or any of their respective representatives.

“Trading Day” shall mean a day on which trading in the Ordinary Shares generally occurs on AIM.

“Transaction Documents” means this Agreement, the Warrant Instrument and the Shareholder Circular.

“Warrant” or “Warrants” has the meaning set forth in the recitals to this Agreement.

“Warrant Instrument” has the meaning set forth in the recitals to this Agreement.

“Warrant Shares” means the Ordinary Shares issuable upon exercise of the Purchased Warrants.

“1933 Act” means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

“1934 Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

“6-K Filing” has the meaning set forth in Section 10.7.

2. Purchase and Sale of the Ordinary Shares and Warrants. Subject to the terms and conditions of this Agreement, at the Closing, the Company shall issue and sell to the Investor, and the Investor shall purchase from the Company, (i) 166,157,050 Ordinary Shares (the “Purchased Ordinary Shares”) and (ii) 24,923,555 Warrants each entitling the Investor to purchase one Ordinary Share (the “Purchased Warrants” and together with the Purchased Ordinary Shares, the “Purchased Securities”), for an aggregate purchase price of $47,371,000 (the “Aggregate Purchase Price”). The Purchased Warrants shall have an exercise price equal to £0.243 per Warrant (subject to adjustment as provided therein).

3. Closing.

3.1. The completion of the purchase and sale of the Purchased Securities (the “Closing”) shall occur automatically upon Admission (the “Closing Date”), provided that all of the conditions set forth in Section 6 shall have been (or shall be, as the case may be) satisfied or (where capable of waiver) waived at such time. The Closing shall occur remotely on the Closing Date via exchange of documents and signatures or at such place as the Company and the Investor may agree in writing.

3.2. Following the attainment of the Shareholder Approval and by not later than the Business Day immediately prior to the Closing Date, the Investor shall deliver or cause to be delivered to the Company the Aggregate Purchase Price via wire transfer of immediately available funds pursuant to the wire instructions delivered to the Investor by the Company after the date of this Agreement. At the Closing, the Company shall deliver or cause to be delivered the Purchased Securities to the Investor. If the Closing has not occurred within two Business Days immediately following the date that the Aggregate

 

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Purchase Price has been delivered to the Company pursuant to this Section 3.2, then, unless the Investor shall provide otherwise in writing, the Company shall return the Aggregate Purchase Price funds so received to the Investor no later than the third Business Day following the Company’s receipt of such funds. The Company shall not spend or commit to spend any of the Aggregate Purchase Price funds received hereunder prior to the Closing and the Resignation and Appointment.

4. Representations and Warranties of the Company. The Company hereby represents and warrants to the Investor that, except as otherwise described in this Agreement, the Company SEC Documents and/or the AIM Documents, which qualify these representations and warranties in their entirety:

4.1. Organization, Good Standing and Qualification. The Company has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization, is duly qualified to do business and is in good standing in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, have a Material Adverse Effect.

4.2. Capitalization and Voting Rights.

(a) As of October 31, 2019, the issued share capital of the Company consists of 160,494,758 Ordinary Shares. The Company has also (i) granted outstanding options under the Company’s equity incentive plans over, in aggregate, 19,810,536 Ordinary Shares, (ii) granted restricted stock units under the Company’s directors’ remuneration policy over 709,379 Ordinary Shares and (iii) issued warrants for the purchase of nil Ordinary Shares, which are outstanding as of October 31, 2019. The issued share capital of the Company has been validly allotted and issued under due authority and is fully paid.

(b) Except as described or referred to in Section 4.2(a) above, arising pursuant to or referred to in the Transaction Documents or arising pursuant to the Placing, as of the date of this Agreement, there are no outstanding rights (including, without limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any share capital or other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any share capital of the Company, any such convertible or exchangeable securities or any such rights, warrants or options.

(c) Except as arising pursuant to the Registration Rights Agreement, no Person has any right to cause the Company to effect the registration under the 1933 Act of any securities of the Company.

(d) Except for the Relationship Agreement, the Company is not a party to or subject to any agreement or understanding relating to the voting of share capital of the Company or the giving of written consents by a stockholder or director of the Company. On or prior to the date hereof, the Company has executed the Deed of Termination in order to terminate the Relationship Agreement upon the Termination Condition being met.

 

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(e) If the Company obtains the Shareholder Approval, the execution and delivery of this Agreement and the Warrant Instrument, and the transactions contemplated by the Transaction Documents, will not result in the triggering of any anti-dilution rights, or otherwise increase the number of Ordinary Shares issuable or decrease the exercise or conversion price, under any warrant, option, convertible note or other instruments convertible or exchangeable for, any share capital or other equity interests in the Company (except for the issuance of the Purchased Securities and the Warrant Shares and the issuance of Ordinary Shares in the Placing and Ordinary Shares issuable upon exercise of the Warrants).

4.3. Subsidiaries. All the outstanding share capital or other equity interests of each subsidiary owned, directly or indirectly, by the Company have been duly authorized and validly issued, are fully paid and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.

4.4. Authorization.

(a) The Company has the requisite corporate power and authority to execute and deliver this Agreement and (subject to the satisfaction of the conditions to Closing) to perform its obligations hereunder; and all action required to be taken (including unanimous approval of the Company’s Board of Directors) for the due and proper authorization, execution and delivery by it of this Agreement and (subject to the satisfaction of the conditions to Closing) the consummation by it of the transactions contemplated hereby has been duly and validly taken. Upon execution and delivery of the Warrant Instrument, the Company will have the requisite corporate power and authority to execute and deliver such agreement and to perform its obligations thereunder; and all action required to be taken (including unanimous approval of the Company’s Board of Directors) for the due and proper authorization, execution and delivery by it of such agreement and the consummation by it of the transactions contemplated thereby will have been duly and validly taken.

(b) This Agreement has been, and upon the execution and delivery of the Warrant Instrument, each such agreement will be, duly executed and delivered by the Company, and this Agreement constitutes, and upon execution and delivery of the Warrant Instrument, each such agreement will constitute, a valid and legally binding obligation of the Company, enforceable against the Company in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”).

(c) No stop order or suspension of trading of the Company’s equity securities has been imposed by AIM, Nasdaq, the SEC or any other Governmental Authority and remains in effect.

4.5. No Defaults. The Company is not (i) in violation of articles of association or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage or loan agreement to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject; (iii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in

 

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any deed of trust or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject (except for any agreements referred to in clause (ii) above); or (iv) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority having jurisdiction over the Company or any of its subsidiaries, except, in the case of clauses (iii) and (iv) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.

4.6. No Conflicts. The execution, delivery and (subject to the satisfaction of the conditions to Closing) performance of this Agreement and the Warrant Instrument, the issuance and sale of the Purchased Securities and the Warrant Shares and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, any indenture, mortgage or loan agreement to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, (ii) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, any deed of trust or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject (except for any agreements referred to in clause (i) above), (iii) result in any violation of the provisions of the articles of association or similar organizational documents of the Company or (iv) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority having jurisdiction over the Company or any of its subsidiaries, except, in the case of clauses (ii) and (iv) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect.

4.7. No Governmental Authority or Consents. No consent, approval, authorization, order, license, registration or qualification of or with any court or arbitrator, governmental or regulatory authority is required for the execution, delivery and (subject to the satisfaction of the conditions to Closing) performance by the Company of this Agreement, or the Warrant Instrument, or (subject to the satisfaction of the conditions to Closing) the issuance and sale of the Purchased Securities and the Warrant Shares, except such filings as may be required to be made with the SEC or under any state securities laws, foreign securities laws, blue sky laws, the United Kingdom Companies Act 2006, or the rules and regulations of Nasdaq, the London Stock Exchange plc or AIM, which filings shall be made in a timely manner in accordance with all applicable Laws.

4.8. Valid Issuance of Purchased Securities and Warrant Shares. When issued, sold and delivered at the Closing in accordance with the terms hereof for the Aggregate Purchase Price and subject to the satisfaction of the conditions to Closing, the Purchased Ordinary Shares shall be duly authorized, validly issued and fully paid, free from any liens, encumbrances or restrictions on transfer, including preemptive rights, rights of first refusal or other similar rights, and shall rank pari passu with all Ordinary Shares outstanding as of the date of this Agreement, other than as arising pursuant to this Agreement, as a result of any action by the Investor or under U.K. securities Laws or U.S. federal or state securities Laws. When issued, sold and delivered at the Closing in accordance with the terms hereof for the Aggregate Purchase Price and subject to the satisfaction of the conditions to Closing, the

 

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Purchased Warrants shall be duly authorized, validly issued and fully paid, and the Warrant Shares shall be reserved for issuance. Upon exercise of the Purchased Warrants in accordance with their terms, including the payment of any exercise price therefor, the Warrant Shares shall be duly authorized, validly issued and fully paid, free from any liens, encumbrances or restrictions on transfer, including preemptive rights, rights of first refusal or other similar rights, and shall rank pari passu with all Ordinary Shares outstanding as of the date of this Agreement, other than as arising pursuant to this Agreement, as a result of any action by the Investor or under U.K. securities Laws or U.S. federal or state securities Laws.

4.9. Litigation. There are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Company or any of its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; and no such investigations, actions, suits or proceedings are threatened or, to the knowledge of the Company, contemplated by any governmental or regulatory authority or threatened by others.

4.10. Licenses and Other Rights; Compliance with Laws. The Company and its subsidiaries possess or are in the process of obtaining all licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Company SEC Documents, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course. For the avoidance of doubt and notwithstanding the foregoing, neither the Company nor any subsidiary has applied for or holds any product licenses or marketing authorizations for any pharmaceutical products.

4.11. United Kingdom FSMA and MAR. The Company has complied in all material respects with the U.K. Financial Services and Markets Act 2000, as amended, and Regulation (EU) No 596/2014, in each case to the extent that they apply in relation to the subscription of Ordinary Shares and/or Warrants pursuant to this Agreement.

4.12. Company SEC Documents; AIM Documents; Financial Statements; Nasdaq Stock Market.

(a) Since February 1, 2019, the Company has timely filed all required reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated therein), and any required amendments to any of the foregoing, with the SEC (the “Company SEC Documents”). As of their respective filing dates, each of the Company SEC Documents complied in all material respects with the requirements of the 1933 Act and the 1934 Act, and the rules and regulations of the SEC promulgated thereunder applicable to such Company SEC Documents, and no Company SEC Documents when filed, declared effective or mailed, as applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

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(b) Since February 1, 2019, the Company has published documents required to be published by it under the AIM Rules. Each of the AIM Documents was published within the applicable timeframe prescribed by the AIM Rules. As of their respective dates, each of the AIM Documents complied in all material respects with the applicable requirements of the AIM Rules.

(c) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC or its staff.

(d) The financial statements of the Company included in its Annual Report on Form 20-F for the fiscal year ended January 31, 2019 present fairly the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with International Financial Reporting Standards as adopted by the European Union and the International Accounting Standards Board (“IFRS”) applied on a consistent basis throughout the periods covered thereby, except as otherwise disclosed therein and, in the case of unaudited, interim financial statements, subject to normal year-end audit adjustments and the exclusion of certain footnotes, and any supporting schedules included in the Company SEC Documents present fairly the information required to be stated therein.

(e) The issued Ordinary Shares of the Company as of the date hereof are admitted to trading on AIM, a market operated by London Stock Exchange plc (“AIM”). The Company intends to include a resolution (numbered four on the notice of general meeting that is appended to the Shareholder Circular) in the Shareholder Circular to approve the cancellation of trading of the Ordinary Shares on AIM. The ADSs of the Company, representing Ordinary Shares, are listed on the Nasdaq, and the Company has taken no action designed to, or which is likely to have the effect of, terminating the registration of the Ordinary Shares under the 1934 Act or delisting the ADSs from the Nasdaq. The Company has not received any notification that the SEC or the Nasdaq, as applicable, is contemplating terminating such registration or listing.

(f) The Company and its subsidiaries have established systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the 1934 Act) that have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

(g) There is and has been no material failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply with any applicable provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.

 

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4.13. Interim Financials. The published interim results of the Company and its consolidated subsidiaries for the three months ended on April 30, 2019 and the three and six months ended July 31, 2019 have been prepared with all due care and attention (having regard to the fact that the results were made publicly available) and on accounting bases and assumptions consistent with those adopted in the preparation of the audited financial statements of the Company and its consolidated subsidiaries for the financial year ended January 31, 2019 and the corresponding interim results of the Company and its consolidated subsidiaries published in the immediately preceding financial year, except as otherwise disclosed therein.

4.14. Absence of Certain Changes. Since the interim results of the Company and its consolidated subsidiaries for the three and six months ended on July 31, 2019 were prepared: the businesses of the Company and its consolidated subsidiaries have been carried on in the ordinary and usual course; there has been no significant adverse change in the financial or trading position of the Company taken as a whole or, to the best of the Company’s knowledge, information and belief, prospects of the Company; the Company has not acquired or disposed of or agreed to acquire or dispose of any of its assets or businesses other than in the ordinary course of trading; the Company has not entered into any contract or commitment of an unusual, long-term and/or onerous nature or assumed any material liabilities (including contingent liabilities) (other than as contemplated by the Transaction Documents); the Company has not paid or made any payment or transfer to shareholders of any dividend, bonus, loan or distribution other than to the directors of the Company in their capacity as such directors in a manner consistent with the compensation of such directors as disclosed in the Company SEC Documents; and the Company has notified a Regulatory Information Service of all information required to be notified by it in accordance with the AIM Rules and has complied in all respects with all the requirements of the AIM Rules applicable to the Company (including the disclosure and notification requirements) and any requests for disclosure made by the London Stock Exchange.

4.15. Tax. All returns of each member of the Group for taxation purposes have been made for all periods up to and including January 31, 2019, and all such returns are correct, and are not the subject of any dispute with or claim by HM Revenue & Customs or other relevant taxation authority (other than routine audits) which would be material to the Company are not likely to result in any such dispute or claim.

4.16. Environmental. So far as the Company is aware, none of the Company nor any member of the Group has any material obligation or liability with respect to pollution, hazardous substances or environmental matters and there are no circumstances which the Company considers are likely to give rise to the same.

4.17. Insurance. The Company and each member of the Group maintain such insurance coverage against fire and other risks upon all their assets and such public and employers’ liability as the directors of each such company consider appropriate, taking into account the nature and scale of their activities, the provisions of agreements binding upon it, such insurance is now in force. The Company is not aware of any fact or matter which would lead to any such insurance being vitiated or repudiated, there is no material claim pending or outstanding and all premiums in respect of such insurances are duly paid.

 

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4.18. Intellectual Property.

(a) Each member of the Group has (i) acted reasonably in seeking professional advice with regard to filing patent applications in respect of material new inventions; (ii) adopted commercially reasonable and prudent practices with regard to the protection, prosecution and maintenance of its portfolio of patents, patent applications and trademarks and other material intellectual property and the payment of renewal fees in respect thereof; (ii) adopted commercially reasonable and prudent practices to capture intellectual property rights in respect of material new inventions; and (iv) used commercially reasonable practices to protect the confidentiality of all material non-patented know how. None of the intellectual property relating to the business of any member of the Group is the subject of any claim, opposition, assertion, infringement, attack, right, action or other restriction or arrangement of whatsoever nature which does or may impinge upon the validity, enforceability or ownership of the same or the utilization thereof by any member of the Group to an extent which is material in the context of the Group. So far as the Company is aware, and not having obtained freedom to operate opinions in respect of all of its intellectual property rights, none of the activities of any member of the Group infringes in any material respect any right of any other person relating to intellectual property or gives rise to a material liability for any royalty or similar payment.

(b) The intellectual property used or enjoyed by each member of the Group in connection with its business at the date of this Agreement, and which is material to such business, is either legally and beneficially owned by that member of the Group, or licensed to, or used under the authority of the owner by, that member of the Group and are not subject to any mortgage, charge, lien or other security interest in favor of any third party save as registered with the Registrar of Companies.

4.19. Offering. Subject to the accuracy of the Investor’s representations set forth in Section 5, the offer, sale and issuance of the Purchased Securities (including the Warrant Shares) to be issued in conformity with the terms of this Agreement constitute transactions which are exempt from the registration requirements of the 1933 Act and from all applicable state registration or qualification requirements.

4.20. No Integration. The Company has not, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the 1933 Act), that is or will be integrated with the sale of the Purchased Securities or the Warrant Shares in a manner that would require registration of such securities under the 1933 Act.

4.21. Brokers’ or Finders’ Fees. Except as arising pursuant to the Placing, neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person that would give rise to a valid claim against the Company or any of its subsidiaries for a brokerage commission, finder’s fee or like payment in connection with the transactions contemplated by the Transaction Documents.

4.22. No General Solicitation. Neither the Company nor any person acting on behalf of the Company has offered or sold any of the Purchased Securities by any form of general solicitation or general advertising. The Company has offered the Purchased Securities for sale only to the Investor.

 

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4.23. Foreign Corrupt Practices. None of the Company, any of its subsidiaries, nor to the knowledge of the Company, any agent or other person acting on behalf of the Company or any of its subsidiaries, has: (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any of its subsidiaries (or made by any person acting on its or their behalf of which the Company is aware) which is in violation of law or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable non-U.S. anti-bribery Law.

4.24. Regulation M Compliance. The Company has not taken, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in stabilization or manipulation of any of its securities to facilitate the sale or resale of the Purchased Securities.

4.25. Investment Company. The Company is not required to be registered as, and is not an Affiliate of, and immediately following the Closing will not be required to register as, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

4.26. Shareholder Circular The Shareholder Circular has been prepared in accordance with all applicable laws and regulations, including, but not limited to, the City Code. The Shareholder Circular is true and accurate in all material respects and contains all applicable information relevant to the matters referred to therein, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Shareholder Circular based upon information relating to the Director Nominees furnished to the Company by such Director Nominees for use therein.

4.27. Disclosures. The Company SEC Documents, when considered together, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading, other than with respect to the transactions contemplated by the Transaction Documents and except as will be disclosed pursuant to Section 10.7.

5. Representations and Warranties of the Investor. The Investor hereby represents and warrants to the Company that:

5.1. Authority. The Investor is an individual with power and authority to enter into and consummate the transactions contemplated by the Transaction Documents and to carry out its obligations thereunder, and to invest in the Purchased Securities pursuant to this Agreement.

5.2. Authorization. This Agreement has been, and upon the execution and delivery of the Warrant Instrument, each such agreement will be, duly executed and delivered by the Investor, and this Agreement constitutes, and upon execution and delivery of the Warrant Instrument, each such agreement will constitute, a valid and legally binding obligation of the Investor, enforceable against the Investor in accordance with their respective terms, except as enforceability may be limited by the Enforceability Exceptions.

 

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5.3. No Conflicts. The execution, delivery and performance of this Agreement and the Warrant Instrument and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Investor pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Investor is a party or by which the Investor is bound or to which any of the property or assets of the Investor is subject, or (ii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority having jurisdiction over the Investor except, in the case of clauses (i) and (ii) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, have a material adverse effect on the Investor’s ability to perform its obligations or consummate the transactions contemplated by the Transaction Documents.

5.4. Purchase Entirely for Own Account. The Purchased Securities to be received by the Investor hereunder will be acquired for the Investor’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the 1933 Act, and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the 1933 Act, without prejudice, however, to such Investor’s right at all times to sell or otherwise dispose of all or any part of such Purchased Securities (including the Warrant Shares) in compliance with applicable federal and state securities laws. The Investor is not a broker-dealer registered with the SEC under the 1934 Act or an entity engaged in a business that would require it to be so registered.

5.5. Investment Experience. The Investor acknowledges that it can bear the economic risk and complete loss of its investment in the Purchased Securities and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby.

5.6. Disclosure of Information. The Investor has had an opportunity to receive, review and understand all information related to the Company requested by it and to ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the offering of the Purchased Securities, and has conducted and completed its own independent due diligence. The Investor acknowledges that copies of the Company SEC Documents are available on the SEC’s EDGAR system. Based on the information the Investor has deemed appropriate and the representations and warranties of the Company contained in Section 4 of this Agreement, and without reliance upon any other party, it has independently made its own analysis and decision to enter into this Agreement. The Investor has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Purchased Securities.

5.7. Restricted Securities. The Investor understands that the Purchased Securities are, and upon exercise of the Purchased Warrants in accordance with their terms the Warrant Shares will be, characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being or will be acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the 1933 Act only in certain limited circumstances. The Investor acknowledges that the Company has no obligation to register or qualify the Purchased Securities or the Warrant Shares for resale. The Investor further acknowledges that if an exemption from registration or qualification is

 

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available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Purchased Securities and the Warrant Shares (which, for the avoidance of doubt, will not begin with respect to the Warrant Shares until exercise of the Purchased Warrants in accordance with the terms of the Warrant Instrument, including the payment of any exercise price therefor), and on requirements relating to the Company which are outside of the Investor’s control, and which the Company is under no obligation and may not be able to satisfy.

5.8. Legends. It is understood that, except as provided below, certificates evidencing the Purchased Securities and the Warrant Shares may bear the following or any similar legend:

(a) “The securities represented hereby have not been registered with the Securities and Exchange Commission or the securities commission of any state in reliance upon an exemption from registration under the Securities Act of 1933, as amended, and, accordingly, may not be transferred unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities may be sold pursuant to Rule 144 or similar rule, or (iii) the Company has received an opinion of counsel reasonably satisfactory to it that such transfer may lawfully be made without registration under the Securities Act of 1933, as amended.”

(b) If required by the authorities of any state in connection with the issuance or sale of the Purchased Securities and the Warrant Shares, the legend required by such state authority.

5.9. Accredited Investor. The Investor is (a) an “accredited investor” within the meaning of Rule 501 under the 1933 Act and has executed and delivered to the Company a questionnaire in substantially the form attached hereto as Exhibit C (the “Investor Questionnaire”), which such Investor represents and warrants is true, correct and complete. The Investor is (b) a sophisticated investor with sufficient knowledge and experience in investing in private equity transactions to properly evaluate the risks and merits of its purchase of the Purchased Securities. Such Investor has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Purchased Securities and participation in the transactions contemplated by the Transaction Documents (i) are fully consistent with its financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to such Investor, (iii) have been duly authorized and approved by all necessary action, (iv) do not and will not violate or constitute a default under any law, rule, regulation, agreement or other obligation by which such Investor is bound and (v) are a fit, proper and suitable investment for such Investor, notwithstanding the substantial risks inherent in investing in or holding the Purchased Securities.

5.10. No General Solicitation. The Investor did not learn of the investment in the Purchased Securities as a result of any general solicitation or general advertising.

5.11. Brokers and Finders. Except as arising pursuant to the Placing, no Person will have, as a result of the transactions contemplated by the Transaction Documents, any valid right, interest or claim against or upon the Company or the Investor for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Investor.

 

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5.12. Short Sales and Confidentiality Prior to the Date Hereof. Other than consummating the transactions contemplated hereunder, the Investor has not, nor has any Person acting on behalf of or pursuant to any understanding with the Investor, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company or directly or indirectly engaged in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the price of the securities of the Company during the period commencing as of the time that such Investor was first contacted by the Company or any other Person regarding the transactions contemplated hereby and ending immediately prior to the date hereof. The Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available securities to borrow in order to effect Short Sales or similar transactions in the future.

5.13. No Government Recommendation or Approval. The Investor understands that no United States federal or state agency, or similar agency of any other country, has reviewed, approved, passed upon, or made any recommendation or endorsement of the Company or the purchase of the Purchased Securities.

5.14. Shareholder Circular The Shareholder Circular is true and accurate in all material respects and contains all applicable information relevant to the matters referred to therein, except that the representations and warranties set forth in this paragraph only apply to statements or omissions in the Shareholder Circular based upon information relating to the Director Nominees furnished to the Company by such Director Nominees for use therein.

5.15. No Rule 506 Disqualifying Activities. The Investor has not taken any of the actions set forth in, and is not subject to, the disqualification provisions of Rule 506(d)(1) of the 1933 Act.

5.16. Offshore Resales. The Investor understands and is aware that Rule 904 of Regulation S under the 1933 Act regarding “Offshore Resales” is not applicable to “affiliates” (as defined in Rule 405 under the 1933 Act) of the Company.

5.17. Acquiring Person. As of the date of this Agreement and immediately prior to the Closing, neither the Investor nor any of its Affiliates beneficially owns, or will beneficially own (as determined pursuant to Rule 13d-3 under the 1934 Act without regard for the number of days in which a Person has the right to acquire such beneficial ownership, and without regard to Investor’s rights under this Agreement), any securities of the Company, except (a) for securities that may be owned by employee benefit plans of the Investor or any of its Affiliates and (b) for 15,657,641 ADSs (representing 78,288,205 Ordinary Shares) which are owned by the Investor and its Affiliates as of the date hereof.

5.18. Residency. The Investor is a resident of the jurisdiction set forth on Exhibit A hereto.

5.19. Financial Assurances. As of the date of this Agreement and as of the Closing Date, the Investor has and will have access to cash in an amount sufficient to pay to the Company the Aggregate Purchase Price.

 

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5.20. City Code. The Investor understands, is aware of and will comply with the obligations of the City Code in connection with the transactions contemplated by the Transaction Documents. Without prejudice to the foregoing, the Investor shall not, and shall procure that any other person who is not an Independent Shareholder (as such term is defined in the Shareholder Circular) shall not, vote on the resolution (numbered three on the notice of general meeting that is appended to the Shareholder Circular) to approve the waiver granted by the Panel on Takeovers and Mergers of the obligations that would otherwise arise on the Investor to make a general offer to the shareholders of the Company pursuant to Rule 9 of the City Code.

6. Conditions to Closing.

6.1. Conditions to the Investor’s Obligations. The obligation of the Investor to purchase the Purchased Securities at the Closing is subject to the fulfillment to the Investor’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which (save for the attainment of Shareholder Approval and the attainment of Admission) may be waived by the Investor with the agreement of the Company:

(a) The representations and warranties made by the Company in Section 4 hereof shall be true and correct in all material respects as of the date hereof and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and covenants herein required to be performed by it on or prior to the Closing Date.

(b) The Company shall have obtained any and all consents, permits, approvals (including the Shareholder Approval), registrations and waivers necessary for consummation of the purchase and sale of the Purchased Securities and the consummation of the other transactions contemplated by the Transaction Documents, all of which shall be in full force and effect.

(c) The Company shall have executed and delivered the Warrant Instrument.

(d) The Company shall have executed and delivered the Deed of Termination.

(e) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any Governmental Authority, shall have been issued, and no action or proceeding shall have been instituted by any Governmental Authority, enjoining or preventing the consummation of the transactions contemplated by the Transaction Documents.

(f) The Company shall have delivered a Certificate, executed on behalf of the Company by its Chief Executive Officer or its Vice President, Finance, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in subsections (a), (b), (d), (h) and (i) of this Section 6.1.

 

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(g) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by the Transaction Documents and the issuance of the Purchased Securities (including the Warrant Shares), certifying the current versions of the articles of association of the Company and certifying as to the signatures and authority of persons signing this Agreement, the Warrant Instrument and related documents on behalf of the Company.

(h) The Investor shall have received (i) an opinion from Wilmer Cutler Pickering Hale and Dorr LLP, the Company’s U.S. counsel, dated as of the Closing Date, substantially to the effect set forth in Exhibit D hereto and (ii) an opinion from CMS Cameron McKenna Nabarro Olswang LLP, the Company’s U.K. counsel, dated as of the Closing Date, substantially to the effect set forth in Exhibit E hereto.

(i) No stop order or suspension of trading shall have been imposed by AIM or any governmental or regulatory body with respect to public trading in the Ordinary Shares.

(j) Admission shall have been attained, and it shall have been attained no later than December 31, 2019, or such later date as the parties shall mutually agree in writing.

(k) The Purchased Securities shall be delivered to the Investor.

(l) The Resigning Directors shall have delivered to the Company executed resignation letters effective upon Admission.

(m) The Company shall have delivered to the Director Nominees executed appointment letters effective upon Admission.

6.2. Conditions to Obligations of the Company. The Company’s obligation to sell and issue the Purchased Securities at the Closing is subject to the fulfillment to the satisfaction of the Company on or prior to the Closing Date of the following conditions, any of which (save for the attainment of Shareholder Approval and the attainment of Admission) may be waived by the Company with the agreement of the Investor:

(a) The attainment of the Shareholder Approval.

(b) The representations and warranties made by the Investor in Section 5 hereof shall be true and correct in all material respects as of the date hereof, and shall be true and correct in all material respects on the Closing Date with the same force and effect as if they had been made on and as of said date. The Investor shall have performed in all material respects all obligations and covenants herein required to be performed by it on or prior to the Closing Date.

(c) The Investor shall have executed and delivered the Investor Questionnaire.

(d) The Investor shall have executed and delivered the Deed of Termination.

(e) The Investor shall have paid in full the Aggregate Purchase Price to the Company.

 

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(f) Admission shall have been attained, and it shall have been attained no later than December 31, 2019, or such later date as the parties shall mutually agree in writing.

6.3. Termination of Obligations to Effect Closing; Effects.

(a) The obligations of the Company, on the one hand, and the Investor, on the other hand, to effect the Closing shall terminate as follows:

(i) Upon the mutual written consent of the Company and the Investor;

(ii) By the Company if any of the conditions set forth in Section 6.2 shall have become incapable of fulfillment, and shall not have been (where capable of waiver) waived;

(iii) By the Investor if any of the conditions set forth in Section 6.1 shall have become incapable of fulfillment, and shall not have been (where capable of waiver) waived; or

(iv) By either the Company or the Investor if the Closing has not occurred on or prior to the day that is sixty (60) days following the date of this Agreement;

provided, however, that, except in the case of clause (i) above, the party seeking to terminate its obligation to effect the Closing shall not then be in breach of any of its representations, warranties, covenants or agreements contained in this Agreement and the Warrant Instrument if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect the Closing.

(b) Nothing in this Section 6.3 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or the Warrant Instrument or to impair the right of any party to compel specific performance by any other party of its obligations under such agreements.

7. Covenants and Agreements of the Company.

7.1. No Conflicting Agreements. The Company will not take any action, enter into any agreement or make any commitment that would conflict or interfere in any material respect with the Company’s obligations to the Investor under this Agreement and, to the extent that the Investor continues to hold the Purchased Warrants, the Warrant Instrument.

7.2. AIM Admission. The Company shall make or cause to be made an application to AIM for Admission. The Company shall use commercially reasonable efforts to obtain Admission on or before the close of business on the third Business Day after receipt of the Shareholder Approval and will, at its own expense, use commercially reasonable efforts to supply or cause to be supplied all such information, give all such undertakings, execute all such documents and take or cause to be taken all such action as may be required by AIM, in accordance with such application.

 

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7.3. Shareholders’ Meeting. The Company shall use commercially reasonable efforts to, within thirty (30) days of the date hereof, convene and hold a meeting of shareholders for the purpose of obtaining the Shareholder Approval (the “Shareholders’ Meeting”).

7.4. Shareholder Circular. The Investor consents to the use of its name in the Shareholder Circular in the form and context in which it appears. The Company shall post the Shareholder Circular to its shareholders as soon as reasonably practicable after the date hereof, and the Company shall not delay or adjourn the Shareholders’ Meeting, except as required, in the reasonable opinion of the Company, to obtain the Shareholder Approval. Any delay or adjournment of the Shareholders’ Meeting shall be undertaken in accordance with the articles of association of the Company.

7.5. Removal of Legends.

(a) In connection with any sale, assignment, transfer or other disposition of the Purchased Ordinary Shares or Warrant Shares by the Investor pursuant to Rule 144 or pursuant to any other exemption under the 1933 Act such that the purchaser acquires freely tradable shares and upon compliance by the Investor with the requirements of this Agreement, if requested by the Investor, the Company shall use commercially reasonable efforts to cause the Registrar to remove any restrictive legends that appear on the certificate that relates to the Purchased Ordinary Shares or Warrant Shares and to issue a new, unlegended certificate for the Purchased Ordinary Shares or Warrant Shares sold or disposed of without restrictive legends, provided that the Company has received from the Investor customary representations and other documentation reasonably acceptable to the Company in connection therewith and, if necessary, otherwise sufficient to support any required legal opinion with respect thereto.

(b) Subject to receipt from the Investor by the Company and the Registrar of customary representations and other documentation reasonably acceptable to the Company and the Registrar in connection therewith and, if necessary, otherwise sufficient to support any required legal opinion with respect thereto, upon the earliest of such time as the Purchased Ordinary Shares or Warrant Shares (i) have been sold or transferred pursuant to an effective registration statement, (ii) have been sold pursuant to Rule 144, or (iii) are eligible for resale under Rule 144(b)(1) or any successor provision (such earliest date, the “Effective Date”), the Company shall (A) deliver to the Registrar irrevocable instructions that the Registrar shall issue a new, unlegended certificate for such Ordinary Shares, and (B) cause its counsel to deliver to the Registrar one or more opinions to the effect that the removal of such legends in such circumstances may be effected under the 1933 Act if required by the Registrar to effect the removal of the legend in accordance with the provisions of this Agreement. The Company agrees that following the Effective Date or at such time as such legend is no longer required under this Section 7.5, it will, following the delivery by the Investor to the Company or the Registrar of a certificate representing Ordinary Shares issued with a restrictive legend, use commercially reasonable efforts to deliver or cause to be delivered to such Investor a certificate representing such Ordinary Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Registrar that enlarge the restrictions on transfer set forth in this Section 7.5.

(c) Subject to the restrictions on dispositions pursuant to Section 8.1 of this agreement, the Investor agrees with the Company that the Investor will sell Purchased Ordinary Shares or Warrant Shares only in compliance with an exemption from the registration requirements of the 1933 Act.

 

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7.6. Subsequent Equity Sales. The Company shall not, and shall use its commercially reasonable efforts to ensure that no Affiliate of the Company shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the 1933 Act) that will be integrated with the offer or sale of the Purchased Securities in a manner that would require the registration under the 1933 Act of the sale of the Purchased Securities to the Investor, or that will be integrated with the offer or sale of the Purchased Securities for purposes of the rules and regulations of any trading market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.

7.7. Short Sales and Confidentiality After the Date Hereof. The Investor covenants that neither it nor any Affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales during the period from the date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced or (ii) this Agreement is terminated in full. The Investor covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company, the Investor will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). The Investor understands and acknowledges that the SEC currently takes the position that coverage of Short Sales of securities “against the box” prior to effectiveness of a resale registration statement with securities included in such registration statement would be a violation of Section 5 of the 1933 Act, as set forth in Item 239.10 of the Securities Act Rules Compliance and Disclosure Interpretations compiled by the Office of Chief Counsel, Division of Corporation Finance.

8. Insider Trading. In addition to the restrictions in this Agreement on the Disposition of ADSs, Ordinary Shares and Ordinary Share Equivalents of the Company, the Investor hereby acknowledges that it is aware that the United States, the United Kingdom and other applicable securities laws prohibit any person who has material, non-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to any other person, including under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

9. Survival. The representations, warranties, covenants and agreements contained in this Agreement shall survive the Closing of the transactions contemplated by this Agreement for the applicable statute of limitations.

10. Miscellaneous.

10.1. Successors and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of the Company or the Investor, as applicable. The provisions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties.

10.2. Counterparts; Faxes; E-mail. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may also be executed via facsimile or electronic mail, which shall be deemed an original.

 

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10.3. Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

10.4. Notices. Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be deemed effectively given as hereinafter described (i) if given by personal delivery, then such notice shall be deemed given upon such delivery, (ii) if given by facsimile or electronic mail, then such notice shall be deemed given upon receipt of confirmation of complete transmittal, (iii) if given by mail, then such notice shall be deemed given upon the earlier of (A) receipt of such notice by the recipient or (B) three Business Days after such notice is deposited in first class mail, postage prepaid, and (iv) if given by an internationally recognized overnight air courier, then such notice shall be deemed given one Business Day after delivery to such carrier. All notices shall be addressed to the party to be notified at the address as follows, or at such other address as such party may designate by ten days’ advance written notice to the other party:

If to the Company:

Summit Therapeutics plc

136a Eastern Avenue

Milton Park, Abingdon, Oxfordshire

OX14 4SB

Attention: Chief Executive Officer

Fax: +44 (0)1235 443 999

With a copy to:

Wilmer Cutler Pickering Hale and Dorr LLP

7 World Trade Center

250 Greenwich Street

New York, New York 10007

Attention: Brian A. Johnson

Fax: (212) 230-8888

With a copy to:

CMS Cameron McKenna Nabarro Olswang LLP

Cannon Place

78 Cannon Street, London

EC4N 6AF, United Kingdom

Attention: Gary Green and James Parkes

Fax: +44 (0)20 7367 2000

If to the Investor:

to the address set forth on Exhibit A hereto.

10.5. Expenses. The parties hereto shall pay their own costs and expenses in connection herewith regardless of whether the transactions contemplated hereby are consummated; it being understood that each of the Company and the Investor has relied on the advice of its own respective counsel.

 

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10.6. Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Investor.

10.7. Publicity. Except as set forth below, no public release or announcement concerning the transactions contemplated hereby shall be issued by the Investor without the prior consent of the Company (which consent shall not be unreasonably withheld), except as such release or announcement may be required by law or the applicable rules or regulations of any securities exchange or securities market, in which case the Investor shall allow the Company, to the extent reasonably practicable in the circumstances, reasonable time to comment on such release or announcement in advance of such issuance. The Company shall not include the name of the Investor in any press release or public announcement (which, for the avoidance of doubt, shall not include any filing with the SEC) without the prior written consent of the Investor, except as otherwise required by law or the applicable rules or regulations of any securities exchange or securities market, in which case the Company shall allow the Investor, to the extent reasonably practicable in the circumstances, reasonable time to comment on such release or announcement in advance of such issuance. By 8:30 a.m. (New York City time) on the Business Day immediately following the date this Agreement is executed, the Company shall issue a press release disclosing all material terms of transactions contemplated by this Agreement (the “Press Release”) and make an announcement thereof (including the name of the Investor) to a Regulatory Investment Service. No later than 5:30 p.m. (New York City time) on the fourth Business Day following the date this Agreement is executed, the Company will file a Report on Form 6-K (the “6-K Filing”) attaching the press release described in the foregoing sentence as well as copies of the Transaction Documents. In addition, the Company will make such other filings and notices in the manner and time required by the SEC, Nasdaq or AIM. The parties acknowledge that from and after the issuance of the Press Release, the Investor shall not be in possession of any material, nonpublic information received from the Company or any of its respective officers, directors, employees or agents, with respect to the transactions contemplated hereby that is not disclosed in the Press Release.

10.8. 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 but shall be interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.

10.9. Entire Agreement. This Agreement, including the signature pages and Exhibits hereto, constitutes the entire agreement among the parties hereof with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter hereof and thereof, other than with respect to the Securities Purchase Agreement, dated as of December 14, 2018, by and among the Company and the Investor, and the Nondisclosure Agreement, dated as of November 6, 2018, by and between the Company and the Investor, each of which shall remain in full force and effect with respect to the subject matters thereof.

 

23

10.10. Further Assurances. The parties shall execute and deliver all such further instruments and documents and take all such other actions as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained.

10.11. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the choice of law principles thereof. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.

[remainder of page intentionally left blank]

 

24

IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.

 

COMPANY:				SUMMIT THERAPEUTICS PLC
				By:		/s/ Glyn Edwards
						Name: Glyn Edwards
						Title: Chief Executive Officer

INVESTOR:
				By:		/s/ Robert W. Duggan
						Name: Robert W. Duggan

EXHIBIT A

Investor

 

Investor Information
Name:		Robert W. Duggan
Contact Person:
Address:
City:
State:
Zip Code:
Telephone:
Facsimile:
Email:
Tax ID # or Social Security #:
Name in which Purchased Ordinary Shares, Purchased Warrants and Warrant Shares should be issued:

 

27

EXHIBIT B

Form of Warrant Instrument

 

28

EXHIBIT C

Investor Questionnaire

 

29

EXHIBIT D

Form of Opinion of Wilmer Cutler Pickering Hale and Dorr LLP

 

30

EXHIBIT E

Form of Opinion of CMS Cameron McKenna Nabarro Olswang LLP

 

31

EXHIBIT F

Shareholder Circular

 

32

Exhibit 4.2

 

 

DATED 6 DECEMBER 2019

(1) SUMMIT THERAPEUTICS PLC

(2) NPLUS 1 SINGER ADVISORY LLP

PLACING AGREEMENT

RELATING TO A PLACING OF UP TO

9,221,400 ORDINARY SHARES AND 1,383,210 WARRANTS

TO SUBSCRIBE FOR ORDINARY SHARES

IN

SUMMIT THERAPEUTICS PLC

 

 

CONTENTS

 

1.		Definitions and Interpretation			3
2.		Conditions			9
3.		Applications for Admission and to CREST			11
4.		Placing			12
5.		Placees			14
6.		Allotment			14
7.		Settlement			15
8.		Fees, commissions and expenses			15
9.		Announcements and undertakings			17
10.		Warranties			21
11.		Indemnity			23
12.		Termination			26
13.		Time of the essence			28
14.		Notices			29
15.		Miscellaneous provisions			30
16.		Product Governance			31
17.		Applicable law and jurisdiction			32
Schedule 1					33
Schedule 2					42
Schedule 3					43

Documents in the approved terms

Allocation Schedule

Board minutes

Circular

Press Release

Results of Placing Announcement

Verification Notes

Warrant instrument

Warrant Certificate

Working Capital Memorandum

 

 

 

2

THIS AGREEMENT is made on 6 December 2019

BETWEEN:

 

(1)	SUMMIT THERAPEUTICS PLC registered in England and Wales under number 05197494 whose registered office is at 136a Eastern Avenue, Milton Park, Abingdon, Oxfordshire OX14 4SB (the “Company”); and

 

(2)	NPLUS 1 SINGER ADVISORY LLP registered in England and Wales under number OC364131 whose registered office is at One Bartholomew Lane, London EC2N 2AX (together with its affiliates, “N+1 Singer”).

WHEREAS:

 

(A)	The Company proposes to raise approximately $50 million (before expenses) by means of the issue of up to, in aggregate, 175,378,450 Fundraising Shares at the Placing Price pursuant to the Fundraising.

 

(B)	This Agreement sets out the terms and conditions upon which N+1 Singer is willing to act as agent of the Company to place the Placing Shares with Placees at the Placing Price, together with the Warrants, pursuant to the Fundraising.

 

(C)	The completion of the Placing is subject to, amongst other conditions, the completion of the Subscription and the passing of the Resolutions at the General Meeting.

IT IS AGREED as follows:

 

1.	DEFINITIONS AND INTERPRETATION

 

1.1	Throughout this Agreement, including the Schedules, the following words and expressions have the meanings given to them below:

Admission admission of the Fundraising Shares to trading on AIM becoming effective in accordance with the AIM Rules.

Accredited Investor has the meaning assigned to it under Regulation D.

Affiliate means a person controlling, controlled by or under common control with that person from time to time, including their respective directors, officers, employees and consultants and Affiliates shall be construed accordingly

AIM AIM, a market operated by the London Stock Exchange.

AIM Rules the AIM Rules for Companies published by the London Stock Exchange.

Allocation Schedule the final allocation schedule in respect of the Placing supplied by N+1 Singer to the Company in the approved terms.

Articles the articles of association of the Company as amended from time to time.

 

 

 

3

Bookbuild the bookbuild process to be conducted by N+1 Singer to arrange participation by Placees in the Placing.

Business Day a day on which the London Stock Exchange is open for business.

Circular the circular in the approved terms to be sent to Shareholders in relation to the Fundraising.

Commitment Period the period commencing on (and including) the date of this Agreement and ending on (and including) the earliest of (i) the date on which Admission occurs; (ii) the date on which the obligations of N+1 Singer cease and determine pursuant to clause 2.4; and (iii) the date on which notice is given by N+1 Singer to the Company under clause 12.1 or 12.2 terminating the obligations of N+1 Singer under this Agreement.

Companies Act the Companies Act 2006.

Conditions the conditions set out in clause 2.1.

CREST the relevant system (as defined in the Regulations) in respect of which Euroclear UK & Ireland is the Operator (as defined in the Regulations).

CREST member a person who has been admitted by Euroclear UK & Ireland as a system-member (as defined in the Regulations).

CREST participant a person who is, in relation to CREST, a system-participant (as defined in the Regulations).

Directors the directors of the Company as at the date of this Agreement.

Engagement Letter the letter from N+1 Singer to the Company dated 29 November 2019 confirming the terms and conditions of N+1 Singer’s engagement with the Company in relation to the Bookbuild and the Placing.

Euroclear UK & Ireland Euroclear UK & Ireland Limited.

Exchange Act Exchange Act the US Securities Exchange Act of 1934, as amended.

FCA the Financial Conduct Authority.

Form of Confirmation the form of confirmation or contract note made between N+1 Singer and a Placee which incorporates by reference the terms and conditions of the Placing contained in the Placing Letters.

FSMA the Financial Services and Markets Act 2000 (as amended).

Fundraising each of the Placing and the Subscription.

Fundraising Documents the Press Release, the Form of Confirmation, the Circular, the Placing Letters, the Subscription Agreement and any other document issued by or on behalf of the Company in connection with the Placing with the authority of the Company.

 

 

 

4

Fundraising Shares the Placing Shares and the Subscription Shares.

General Meeting the general meeting of the Company to be held at the offices of CMS Cameron McKenna Nabarro Olswang LLP at Cannon Place, 78 Cannon Street, London EC4N 6AF at 10.30 a.m. on 23 December 2019.

Group the Company and its subsidiary undertakings (and “Group Company” shall be construed accordingly).

Interim Results the unaudited interim consolidated financial statements of the Group for the six month period ended 31 July 2019 published on 11 October 2019.

London Stock Exchange London Stock Exchange plc.

LSE Application the application to be made by or on behalf of the Company to the London Stock Exchange for Admission.

MAR the Market Abuse Regulation (Regulation 596/2014)

Member Account ID the identification code or number attached to any member account in CREST.

N+1 Singer Group means N+1 Singer and any of its parent and/or subsidiary undertakings (or subsidiary or parent undertakings of such undertakings) from time to time, all of them and each of them as the context admits.

N+1 Singer Indemnified Persons N+1 Singer, its affiliates, its subsidiary and parent undertakings, the subsidiary undertakings of its parent undertakings and their respective directors, officers, agents and employees.

NOMAD the Nominated Adviser of the Company for the purposes of the AIM Rules from time to time.

NOMAD Rules the AIM Rules for Nominated Advisers published by the London Stock Exchange.

Ordinary Shares ordinary shares of 1p each in the capital of the Company.

Participant ID the identification code or membership number used in CREST to identify a particular CREST member or other CREST participant.

Placees persons who agree to subscribe for Placing Shares at the Placing Price pursuant to clause 5.1.

Placing the placing of the Placing Shares and granting of 1,383,210 Warrants on the terms and subject to the conditions of this Agreement and the Fundraising Documents.

Placing Letters the letters to be sent by N+1 Singer on behalf of the Company to Placees in relation to the Placing;

 

 

 

5

Placing Price 22.1 pence per Ordinary Share.

Placing Proceeds the sum of the aggregate number of the Placing Shares multiplied by the Placing Price.

Placing Shares up to 9,221,400 new Ordinary Shares which may, pursuant to the Placing, be allotted and issued fully paid up and admitted to trading on AIM with the actual number of such shares as are to be so allotted and issued pursuant to the Placing, if any, to be agreed by the Company and N+1 Singer in accordance with the terms of this Agreement following the Bookbuild and to be specified in the Allocation Schedule.

Press Release the press release in the approved terms relating to the proposed Fundraising.

Prod Rules the latest edition of the rules and guidance contained in the Product Intervention and Product Governance Sourcebook issued by the FCA or any successor provisions which may replace such rules and guidance from time to time.

Registrars Link Asset Services Limited.

Regulations the Uncertificated Securities Regulations 2001 (SI 2001 No. 3755).

Regulation D Regulation D under the US Securities Act.

Regulation S Regulation S under the US Securities Act.

Regulatory Information Service shall have the same meaning as in the AIM Rules.

Relevant Accounting Standards means generally accepted United Kingdom accounting policies, practices, principles and conventions using all relevant International Financial Reporting Standards as adopted by the EU, including all IFRS (International Financial Reporting Standards), IAS (International Accounting Standards), Interpretations issued by the International Financial Reporting Interpretations Committee (IFRIC) and the Standing Interpretations Committee (SIC) and all relevant statements and recommendations from professional accountancy bodies.

Resolutions the ordinary and special resolutions proposed at the General Meeting and set out in the notice of General Meeting appended to the Circular.

Restricted period means the 40 day period commencing on the date of this Agreement.

Result of Placing Announcement the press announcement in the approved terms (subject to the insertion of the precise number of Placing Shares and Warrants to be subscribed for by the Placees at the Placing Price) giving the results of the Fundraising.

Rules the Conduct of Business Rules of the FCA.

 

 

 

6

SEC Affiliate means affiliate as defined in Rule 501(b) of Regulation D or defined in Rule 405 of the U.S. Securities Act, as applicable.

Shareholders holders of Ordinary Shares.

Stock Account an account within a member account in CREST to which a holding of a particular share or other security in CREST is credited.

Subscription the proposed subscription by Robert W. Duggan for the Subscription Shares and 24,923,555 Warrants pursuant to the Subscription Agreement.

Subscription Agreement the agreement to be entered into between the Company and Robert W. Duggan relating to the Subscription.

Subscription Shares 166,157,050 new Ordinary Shares to be issued by the Company by way of direct subscription, at the Placing Price pursuant to the Subscription.

US person shall have the same meaning as in Regulation S.

US Securities Act the United States Securities Act of 1933, as amended.

VAT United Kingdom value added tax.

Verification Notes the questions and answers contained in the document in the approved terms entitled “Verification Notes” prepared by the Company with the assistance of the Company’s solicitors and dated the date of this Agreement for the purposes of substantiating the accuracy and completeness of the material information contained in the Circular and the Press Release.

Warranties the warranties set out in Schedule 1.

Warrants the warrants to subscribe for a total of 26,306,765 Ordinary Shares to be granted to Placees and Robert W.Duggan pursuant to a warrant instrument in the approved terms.

Warrant Certificates the warrant instrument certificates from the Company to Placees and Robert W. Duggan pursuant to the warrant instrument in the approved terms.

Working Capital Board Memorandum the board memorandum dated 4 December 2019, a copy of which has been provided to N+1 Singer prepared by the Directors for the purposes of considering and evaluating the working capital position of the Group.

 

1.2	Where used in this Agreement:

 

1.2.1

“subsidiary”, “subsidiary undertaking”, “parent undertaking” and “financial year” shall have the meanings respectively attributed to them by the Companies Act at the date of this Agreement;

 

 

 

7

1.2.2

“affiliate” shall mean any group undertaking (as defined in section 1161 of the Companies Act at the date of this Agreement) or any associated company (as defined in section 416 of the Income and Corporation Taxes Act 1988 at the date of this Agreement) of any such group undertaking.

 

1.3	A reference to any statute or statutory provision in this Agreement:

 

1.3.1

includes any order, instrument, regulation, permission and direction made or issued under such statute or statutory provision or deriving validity from it;

 

1.3.2

shall be construed as a reference to such statute or statutory provision as in force at the date of this Agreement (including, for the avoidance of doubt, any amendments, modifications, consolidation, re-enactment or replacement made to such statute or statutory provision that are in force at the date of this Agreement except to the extent that any amendment or modification made after the date of this Agreement would increase any liability or impose any additional obligation under this Agreement); and

 

1.3.3

shall also be construed as a reference to any statute or statutory provision of which such statute or statutory provision is a re-enactment or consolidation.

 

1.4	The headings in this Agreement are for convenience only and shall not affect its meaning.

 

1.5	References to a clause, Schedule or paragraph are (unless otherwise stated) to a clause of or Schedule to this Agreement or to a paragraph of the relevant Schedule.

 

1.6

A document expressed to be “in the approved terms” means a document, the terms, conditions and form of which have been agreed by the Company and N+1 Singer and a copy of which has been identified as such and initialled by or on behalf of N+1 Singer, and the Company (subject to any further amendments as N+1 Singer and the Company may subsequently agree).

 

1.7	Words importing one gender shall (where appropriate) include any other gender and words importing the singular shall (where appropriate) include the plural and vice versa.

 

1.8

References to “uncertificated” or “in uncertificated form” in relation to a share or other security are references to a share or other security title to which is recorded on the relevant register of the share or other security as being held in uncertificated form, and title to which, by virtue of the Regulations, may be transferred by means of CREST. References to “certificated” or “in certificated form” in relation to a share or other security are references to a share or other security title to which is not in uncertificated form.

 

1.9

Any obligations arising from, or representations, warranties, indemnities and undertakings made or given under the provisions of this Agreement which are incurred, made or given by two or more persons shall, unless expressly provided, be several and not joint and several. Breach of this Agreement by one party shall not constitute a breach of this Agreement by any other party.

 

 

 

8

1.10

In construing this Agreement, general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things and general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words.

 

1.11	References to time of day are to London time.

 

1.12	References to a person include an individual, a body corporate, a corporation, firm, association, partnership, joint venture, organisation, institute, trust or agency, whether or not having a separate legal personality.

 

1.13

All commissions, fees and other expenses payable under or pursuant to this Agreement are expressed exclusive of VAT. If any VAT is chargeable on such commissions, fees and other expenses, that VAT shall be payable (on presentation of a valid VAT invoice) in addition to the amount which would otherwise be payable under or pursuant to this Agreement. Any undertaking to indemnify a person against any liability, cost, charge or expense includes an undertaking to pay any VAT which the indemnified person has incurred in respect of that liability, cost, charge or expense and which that person certifies is not recoverable by it or him by repayment or credit (such certificate to be conclusive in the absence of manifest error).

 

1.14

References in this Agreement to a representation, warranty or undertaking being (or not being) true and accurate or being (or not being) misleading in a material respect shall mean material in the context of the Company and Group (taken as a whole) or the Fundraising. In that connection and otherwise in this Agreement in relation to references to a matter which would or might be material in the context of the Fundraising, a matter shall, without limitation, be deemed to be so material if, in the reasonable opinion of N+1 Singer, it would have been material for disclosure to potential Placees or other subscribers for the Placing Shares had such matter existed when Placees or other subscribers were sought for the Placing Shares or would or would be reasonably likely to make the Form of Confirmation unenforceable.

 

2.	CONDITIONS

 

2.1	The obligations of N+1 Singer under clauses 6.3 and 7.3 are subject to fulfilment (or waiver, where applicable) of the following conditions:

 

2.1.1

the posting by no later than 6 December 2019 (by first class pre-paid mail) of the Circular to Shareholders and such other persons (if any) entitled to receive the Circular in accordance with the Articles;

 

2.1.2

the Shareholders passing the Resolutions at the General Meeting;

 

 

 

9

2.1.3

the publication of the Press Release through a Regulatory Information Service by no later than 8.00 a.m. on the date following the date of this Agreement;

 

2.1.4

the LSE Application signed on behalf of the Company being submitted to the London Stock Exchange by the NOMAD by not later than 5.00 p.m. on the date which is three clear Business Days prior to Admission as required by Rule 29 of the AIM Rules;

 

2.1.5

the London Stock Exchange agreeing to admit the Fundraising Shares to trading on AIM (subject only to allotment);

 

2.1.6

publication of the Result of Placing Announcement through a Regulatory Information Service by no later than 8.00 a.m. on the Business Day following the date of release of the Press Release;

 

2.1.7

the performance by the Company of its obligations under this Agreement so far as the same fall to be performed prior to Admission;

 

2.1.8

the Subscription Agreement not having lapsed or been terminated and having been completed in accordance with its terms, subject only to Admission;

 

2.1.9

none of the Warranties being untrue, inaccurate or misleading when made and/or none of the Warranties becoming untrue, inaccurate or misleading if it were to be repeated at any time prior to Admission by reference to the facts, matters and circumstances then subsisting, in either case to a material extent;

 

2.1.10

there being no material adverse change in the financial position or prospects or business of the Group (taken as a whole) prior to Admission the effect of such change, in the opinion of N+1 Singer, is such that the Placees should not be required to subscribe for Placing Shares at the Placing Price;

 

2.1.11

the delivery by the Company to N+1 Singer of a certificate (in the form set out in Schedule 3) signed by a Director for and on behalf of the Company not later than 5.00 p.m. on the Business Day immediately prior to the date on which Admission is expected to occur (and dated as of such date) which shall be held in escrow until Admission;

 

2.1.12

the Placing Shares being allotted in accordance with clause 6.1 and the granting of the Warrants by the Company; and

 

2.1.13

Admission occurring not later than 8.00 a.m. on 30 December 2019 (or such later date as N+1 Singer and the Company shall agree, but not later than 31 December 2019).

 

2.2

The Conditions set out in clauses 2.1.7 and 2.1.11 may be waived in whole or in part by N+1 Singer in its absolute discretion by notice in writing to the Company. The Company and N+1 Singer may agree in writing to extend the time for satisfaction of any Condition provided that the time for satisfaction of the Condition set out in clause 2.1.13 shall not be extended beyond 8.00 a.m. on 31 December 2019.

 

 

 

10

2.3	The Company undertakes to N+1 Singer to use all reasonable endeavours to fulfil or, at the Company’s own expense, procure the fulfilment of the Conditions by the times and dates specified in clause 2.1.

 

2.4

Subject to the provisions of clause 12.3, if any Condition becomes incapable of being fulfilled (and is not waived) or if all the Conditions are not fulfilled (or waived) in accordance with clause 2.1 or 2.2, this Agreement (other than this clause 2.4 and clauses 1, 8.1, 8.2, 8.6, 9, 10, 11, 13, 14, and 15 which shall remain in full force and effect) shall have no further effect and, in such event (except in relation to any breaches prior to the relevant date), no party to this Agreement shall have any claim against any other party to this Agreement for costs, damages, compensation or otherwise except that the Company shall forthwith pay to N+1 Singer all fees pursuant to clause 8.1 (to the extent payable and not already paid), all expenses and disbursements of the nature referred to in clause 8.2 and any sums payable under clause 8.6.

 

2.5	If the Agreement ceases to have further effect in accordance with clause 2.4, the Company shall forthwith procure that the NOMAD does not proceed with the LSE Application and Admission.

 

3.	APPLICATIONS FOR ADMISSION AND TO CREST

 

3.1

The Company shall immediately following the execution of this Agreement deliver, or procure that there are delivered to N+1 Singer (or as otherwise specified in Schedule 2), the documents specified in Schedule 2. For the avoidance of doubt, the LSE Application shall be made by and submitted by the NOMAD.

 

3.2

N+1 Singer may), in its absolute discretion, waive the requirement that the Company deliver to it any of the documents required to be so delivered pursuant to clause 3.1 and Schedule 2 or may extend the time and date for delivery of any such documents. Any waiver or extension may be granted by N+1 Singer subject to such conditions as N+1 Singer may in its absolute discretion consider appropriate.

 

3.3

The Company undertakes to N+1 Singer that it shall promptly make the LSE Application (or procure the same via the NOMAD) and that it shall comply with all reasonable requirements which the London Stock Exchange shall make of it including the giving of indemnities, execution of documents and payments of fees so as to enable the LSE Application to be granted.

 

3.4	The Company hereby agrees that it shall supply all information, give all such undertakings, execute all such documents, pay all such fees and do or procure to be done all such things as may be reasonably required to comply with:

 

3.4.1

the requirements of the London Stock Exchange in relation to the LSE Application and Admission;

 

 

 

11

3.4.2

the AIM Rules; and

 

3.4.3

the FSMA,

and otherwise provide N+1 Singer with all such information known to it relating to the Group or otherwise and documents which N+1 Singer may reasonably require to enable N+1 Singer to discharge its obligations under this Agreement, in connection with the LSE Application, Bookbuild, Admission or the Fundraising or any associated transactions and documents and/or to comply with its obligations to the London Stock Exchange and in accordance with the AIM Rules and NOMAD Rules.

 

4.

PLACING

 

4.1

The Company agrees to offer the Placing Shares and the Warrants on the terms and subject to the conditions set out in the Fundraising Documents and this Agreement and irrevocably appoints N+1 Singer to act as its agent as bookrunner for the purpose of carrying out the Bookbuild and arranging subscribers for the Placing Shares and Warrants, in the manner set out in the Fundraising Documents and this Agreement. The Company confirms that the foregoing authority confers on N+1 Singer all powers, authorities and discretions which are necessary for, or reasonably incidental to, the Bookbuild, the Placing (including, without limitation, the giving of such instructions to the Registrars as may, in the reasonable opinion of N+1 Singer, be necessary or desirable in connection with the Placing and/or the LSE Application and/or Admission) and the Company agrees to ratify and confirm everything which N+1 Singer shall do in carrying out or exercising such appointment, powers, authorities and discretions. The Company undertakes to N+1 Singer not to give or, so far as is within its powers, permit to be given, any direction and not to take any other action which is inconsistent with its obligations or any of the powers or authorities conferred by it under this Agreement. Without prejudice to any liability of N+1 Singer under this Agreement, the parties acknowledge that N+1 Singer shall be entitled to authorise any member of the N+1 Singer Group to perform any of such party’s obligations under this agreement as if such member were a party to this agreement and such performance shall be as valid and effectual as if it were carried out by N+1 Singer.

 

4.2	The Company hereby agrees to release the Press Release through a Regulatory Information Service by no later than 8.00 a.m. on the date following the date of this Agreement (or such other time and/or date as may be agreed between N+1 Singer and the Company).

 

4.3

As soon as reasonably practicable following completion of the Bookbuild, and by not later than 5.00 p.m. on the date of the Press Release (or such other time and/or date as may be agreed between N+1 Singer and the Company), N+1 Singer shall, following consultation with the Company, notify the Company of the number of Placing Shares at the Placing Price together with the number of Warrants resulting from the Bookbuild and details of the Placees procured by each of them for the Placing Shares and the Warrants by providing the Allocation Schedule. Following such notification, the Company and N+1 Singer shall, if N+1 Singer and the Company each wish to proceed with the Placing, as soon as practicable thereafter agree the Allocation Schedule following which N+1 Singer shall each despatch the Forms of Confirmation to their respective placees identified in the Allocation Schedule.

 

 

 

12

4.4

Subject to the Allocation Schedule having been agreed between the Company and N+1 Singer, as contemplated by clause 4.3, the Company shall procure the release of, or will authorise and direct N+1 Singer to arrange for the release of, the Result of Placing Announcement to a Regulatory Information Service without delay and in any event by no later than 8.00 a.m. on the Business Day following the date of release of the Press Release (or such other time and/or date as may be agreed between N+1 Singer and the Company).

 

4.5	The Company shall procure that the announcements required by the AIM Rules in connection with the Fundraising are lodged with a Regulatory Information Service at or by the requisite times.

 

4.6

The Company undertakes to provide all such information which shall be known to it relating to the Group or otherwise, as may reasonably be required by N+1 Singer for the purpose of complying with any requirement of law or any reasonable requirement of the London Stock Exchange in relation to the LSE Application, or the Fundraising.

 

4.7	The Company shall procure that the Registrars are instructed to comply with the lawful directions to be given by N+1 Singer to the Registrars in relation to the Fundraising.

 

4.8

The Fundraising Shares will, as from the date when they are issued and are fully paid up, rank in full for all dividends and distributions declared, made or paid on the Ordinary Shares after such date and otherwise pari passu in all respects with, and be identical to, the existing issued Ordinary Shares.

 

4.9

N+1 Singer confirm that it has not knowingly procured, and undertake to the Company that it will not knowingly procure, Placees for the Placing Shares outside the European Economic Area (the “EEA”) in circumstances where that procurement, or the allotment and issue of Placing Shares which would result from that procurement, constitutes a breach of applicable securities laws outside the United Kingdom or any other applicable jurisdiction of the EEA.

 

4.10

Each of the Company and N+1 Singer understands and agrees that the Fundraising Shares have not been and will not be registered under the US Securities Act or any other applicable securities laws of any state or other jurisdiction in the United States, and severally warrants and agrees in respect of its own actions that neither it nor any of its SEC Affiliates, nor any persons acting on its or their behalf, has offered or sold, and shall not offer or sell any of the Fundraising Shares except: (a) within the United States, the Subscription Shares to Robert W. Duggan, who constitutes an Accredited Investor in a transaction that is exempt from registration under the US Securities Act and applicable state securities laws, or (b) outside of the United States, the Placing Shares to persons who are not US persons in “offshore transactions” (within the meaning of Regulation S) and otherwise in compliance with Regulation S. The Company agrees to refuse to register any transfer of Placing Shares not made in accordance with the provisions of Regulation S, pursuant to registration under the US Securities Act or pursuant to any available exemption from registration under the US Securities Act.

 

 

 

13

5.

PLACEES

 

5.1

N+1 Singer undertakes, on behalf of and as agent for the Company, to use its respective reasonable endeavours to procure Placees who will (subject to satisfaction of the Conditions) subscribe for the Placing Shares at the Placing Price and the Warrants upon the terms of this Agreement, the Placing Letters and the Form of Confirmation.

 

5.2

The Company acknowledges that the Fundraising will not be underwritten by N+1 Singer and that accordingly, N+1 Singer shall not, in any circumstances, have any obligation to subscribe for Placing Shares and/or Warrants in the event that N+1 Singer fails to procure subscribers for the Placing Shares or the Warrants or subscribers so procured fail to make payment.

 

5.3	N+1 Singer shall by no later than 3.00 p.m. on the Business Day prior to Admission notify the Company and/or the Registrars (as appropriate) of:

 

5.3.1

the names, addresses and entitlements to Placing Shares of the Placees procured by N+1 Singer to subscribe for the Placing Shares specifying which of such shares are to be held in certificated form and which are to be held in uncertificated form; and

 

5.3.2

the Participant ID and Member Account ID of the CREST Stock Account into which all Placing Shares referred to in clauses 5.3.1 to be held initially in uncertificated form are to be deposited, being the CREST Stock Account of N+1 Singer.

 

6.

ALLOTMENT

 

6.1

By no later than 5.00 p.m. on the Business Day prior to the date on which Admission is expected to occur, the Company will allot, subject to the Articles, conditional only on Admission, the Placing Shares at the Placing Price to Placees procured pursuant to clause 5.1 and grant the Warrants pursuant to the Placing. Such Placing Shares shall be allotted in certificated or uncertificated form as directed by N+1 Singer, subject always to the Regulations and the rules and requirements of Euroclear UK & Ireland.

 

6.2	The allotment of the Placing Shares and granting of the Warrants shall become wholly unconditional and shall occur automatically immediately upon the satisfaction of the Condition set out in clause 2.1.5.

 

6.3

Subject to the provisions of clause 7.3, and subject to having received such amounts, N+1 Singer shall procure payment of the Placing Proceeds actually received by N+1 Singer as soon as practicable following Admission and in any event not later than 5.00 p.m. on the third Business Day immediately following the date on which Admission occurs, subject to deduction of the commissions, fees and expenses plus VAT (if any) payable to N+1 Singer

 

 

 

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as referred to in clause 8 by transferring the net amount by telegraphic transfer, in accordance with instructions provided by the Company in writing to N+1 Singer not less than two Business Days prior to Admission (which the Company undertakes so to provide), and such transfer shall be a full discharge to N+1 Singer of its obligations under this clause 6.3.

 

7.	SETTLEMENT

 

7.1

The Company shall procure that the Registrars register as holders of the Placing Shares, with effect from Admission, the persons to whom Placing Shares are allotted pursuant to clause 6.1. The Company shall also procure that as soon as practicable following Admission, and in any event no later than 10 Business Days from Admission, Warrant Certificates in the names of the Placees in respect of the relevant number of Warrants are issued and delivered to the Placees in accordance with the Allocation Schedule.

 

7.2	The Company hereby agrees with N+1 Singer with respect to Placees procured by it that it will procure that the Registrars will (free of any expenses of registration):

 

7.2.1

despatch definitive certificates to those Placees (or as N+1 Singer directs) in respect of those Placing Shares referred to in clause 5.3 (in the same denominations that N+1 Singer shall direct) that are to be allotted in certificated form as soon as reasonably practicable and in any event within two weeks of Admission; and

 

7.2.2

upon Admission, cause such number of Placing Shares to be credited by Euroclear UK & Ireland to the Stock Accounts of those Placees who wish to hold their shares in uncertificated form and as directed by N+1 Singer and ensure that the same are enabled for settlement as soon as practicable after Admission.

 

7.3

Subject to the Company procuring upon Admission that the Registrars take such steps as are referred to in clauses 7.1 and 7.2.2, and instructing the Registrars to comply with clause 7.2.1, N+1 Singer will pay or cause to be paid to the Company in accordance with clause 6.3 the payment referred to therein (to the extent the same has been received from Placees by N+1 Singer).

 

8.	FEES, COMMISSIONS AND EXPENSES

 

8.1	In consideration of N+1 Singer’s covenants and obligations under this Agreement and N+1 Singer’s services in connection with the Bookbuild and the Placing, the Company shall pay:

 

8.1.1

a corporate finance advisory fee of £25,000 (plus any applicable VAT) to N+1 Singer; and

 

8.1.2

subject to Admission, to N+1 Singer a broking commission of 5% of the aggregate value at the Placing Price of such Placing Shares that are placed to any Placee that is not a Director (and in respect of which there has been no payment default by the relevant Placee) by N+1 Singer.

 

 

 

15

8.2

Save as expressly provided by this clause 8, the Company shall bear all fees, costs, charges and expenses of or incidental to the satisfaction of the Conditions, the Bookbuild, the Fundraising, the issue of the Fundraising Shares and the Warrants and the arrangements referred to in, or contemplated by, this Agreement (together with any VAT chargeable thereon) including (without limitation), all broking fees and expenses, all fees and expenses payable in connection with Admission, all expenses of the Registrars and the Company’s registrars, printing and advertising expenses, postage and all legal, accountancy, actuarial and other professional fees and expenses, (including fees and disbursements of their legal and other advisers, not exceeding £20,000 in aggregate (plus VAT and disbursements) without the Company’s prior written consent) travelling expenses, background check costs, roadshow expenses and other out of pocket expenses of N+1 Singer. Any such costs, charges and expenses which N+1 Singer may have paid will be deducted from the Placing Proceeds.

 

8.3	N+1 Singer will invoice the Company as soon as practicable following Admission for all sums due to N+1 Singer pursuant to clause 8.1 and 8.2.

 

8.4

All sums due to N+1 Singer pursuant to clause 8.1 and 8.2 (together with any applicable VAT chargeable thereon) shall be deducted by N+1 Singer from the Placing Proceeds N+1 Singer has actually received and which are payable to the Company pursuant to clause 6.3 of this Agreement. For the avoidance of doubt, no broking commission shall be payable by the Company in respect of any Placing Shares where the subscribers thereof have failed to make payment for those Placing Shares in accordance with the terms and conditions of the Placing.

 

8.5

In the event this Agreement ceases to have effect pursuant to clause 2.4 or is terminated in accordance with clause 12, in each case the corporate finance advisory fee referred to in clause 8.1.1 shall not be payable by the Company save for where the Agreement ceases to have effect pursuant to clause 2.4 or is terminated in accordance with clause 12 in each case as a result of a breach by the Company of its obligations under this Agreement (and for this purpose such a breach shall include a breach of the Warranties).

 

8.6	Notwithstanding termination of this Agreement, N+1 Singer is hereby authorised to deduct such sums and any amount payable to them pursuant to this Agreement from any amount payable by them to the Company under this Agreement or any amount otherwise held by N+1 Singer for the account of the client.

 

8.7	Where, pursuant to clause 2, this clause 8, clause 11 or clause 12, a sum is payable to N+1 Singer, the Company shall in addition pay to N+1 Singer in respect of VAT:

 

8.7.1

where the payment (or any part of it) constitutes the consideration (or any part of the consideration) for any supply by N+1 Singer, or for anything which is treated for VAT purposes as a supply by N+1 Singer to the Company, such amount as equals any VAT properly payable thereon and on such VAT, if any, as is referred to in clause 8.6.2;

 

 

 

16

8.7.2

(except where the payment falls within clause 8.6.3) where the payment is in respect of costs, charges or expenses incurred by N+1 Singer, such amount as equals any VAT charged to or incurred by such party in respect of that cost, charge or expense and which such party certifies is not recoverable by it by repayment or credit (such certificate to be conclusive in the absence of manifest error); and

 

8.7.3

(except where the payment falls within clause 8.6.1) where the payment is in respect of costs, charges or expenses incurred by N+1 Singer as agent for the Company, such amount as equals the amount included in the costs, charges or expenses in respect of VAT.

Where a sum in respect of VAT is paid pursuant to clause 8.6.1, N+1 Singer shall as soon as reasonably practicable provide the Company with an appropriate and valid tax invoice in respect of the supply to which the payment relates, naming the Company as the recipient of the supply.

 

9.	ANNOUNCEMENTS AND UNDERTAKINGS

 

9.1

Save as expressly required or contemplated under this Agreement, the Company undertakes to N+1 Singer that (unless required by law or by the FCA, the London Stock Exchange, the rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”), the NASDAQ Stock Market or any other regulatory authority to do so) it will not, and will procure that no other member of the Group or the officers, directors, employees or agents of the Company or any other member of the Group will, make any public announcement or communication or publish any document (other than the Fundraising Documents) or publish any registration statement under the US Securities Act, whether to Shareholders or otherwise, concerning the Company or any other member of the Group which is or may be material in relation to the issue of the Fundraising Shares and/or the Warrants or the Fundraising during the Commitment Period and for the period of 90 days thereafter without the prior consent of N+1 Singer. The Company will forward to N+1 Singer for comment proofs of all such documents and the Company will take into account all reasonable requirements of N+1 Singer in relation thereto. The Company undertakes to N+1 Singer that, from the date of this Agreement until the date that is 40 days after Admission, it will not issue or release into the United States (or post on a website that is accessible to residents of the United States) any press releases (other than those in the ordinary course of business) or announcements made in connection with the Fundraising except as otherwise provided herein with respect to the Press Release and the furnishing of such Press Release with the SEC.

 

 

 

17

9.2

The Company will not, and will procure that no other member of the Group will, at any time during the Restricted Period, enter into any commitment or agreement, or put itself in a position where it is obliged to announce that any commitment or agreement may be entered into, which is or may be material in relation to the issue of the Fundraising Shares and/or the Warrants or of the Fundraising, or issue any shares or options over shares or securities convertible or exchangeable into shares or enter into any agreement or undertaking to do the same without the prior written consent of N+1 Singer provided that nothing in this sub-clause shall restrict the ability of the Company or any other member of the Group during the Restricted Period to (a) issue shares where any person (whether employee, director or neither of the foregoing) exercises rights granted to him prior to the date of this Agreement or (b) grant options over shares provided that the number of options outstanding at any given point in time cannot exceed 15% of the number of shares then in issue where such options are granted either under an Employee Share Scheme as such expression is defined in section 1166 of the Companies Act or by way of Restricted Stock Units in accordance with the Company’s remuneration policy approved by its shareholders at its 2019 annual general meeting.

 

9.3	The Company undertakes to N+1 Singer that, during the Restricted Period, it will:

 

9.3.1

discuss with N+1 Singer in advance any public statement or document which relates to the Group’s financial or trading position or prospects or to any acquisition, disposal, reorganisation, takeover, management change, development or any other significant matter (whether similar or not to the foregoing) and which any member of the Group proposes to make or publish before the end of the Restricted Period;

 

9.3.2

discuss with N+1 Singer in advance any other information which may be required to be notified to a Regulatory Information Service; and

 

9.3.3

forward to N+1 Singer for its comments (to which the Company shall have due regard) drafts in final form of any accounts or any public statement or document or information which any member of the Group proposes to make or publish before the end of the Restricted Period and which relates to any matter falling within clause 9.3.1 or 9.3.2.

 

9.4	N+1 Singer hereby warrants and undertakes to the Company and to each of the Directors on behalf of itself and all its representatives and affiliates (within the meaning of Rule 405 of the US Securities Act) and any person acting on their behalf that N+1 Singer (and any such persons):

 

9.4.1

has not offered or sold or solicited any offers or sales of, and will not offer or sell or solicit any offers or sales of, any Fundraising Shares within the United States or to, or for the account or benefit of, US persons except in accordance with Regulation S under the US Securities Act;

 

9.4.2

has offered and sold and will offer and sell the Fundraising Shares, (i) at any time as part of its distribution of such Fundraising Shares and (ii) otherwise until 40 days after the later of the commencement of the Fundraising or Admission (the “Compliance Period”), only in accordance with Rule 903 of Regulation S under the US Securities Act;

 

 

 

18

9.4.3

has not engaged and will not engage in any “directed selling efforts”, as defined in Regulation S, with respect to the Fundraising Shares, and has and will comply with the offering restrictions requirement of Regulation S under the US Securities Act;

 

9.4.4

at or prior to the confirmation of sale of the Placing Shares, will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Placing Shares from it during the Compliance Period a confirmation or notice to substantially the following effect:

“The securities covered hereby have not been registered under the US Securities Act of 1933, as amended (the “US Securities Act”), and may not be offered or sold within the United States or to, or for the account or benefit of, US persons (i) as part of their distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering or the closing date, except, in either case, in accordance with Regulation S under the US Securities Act. Terms used above have the meanings given to them by Regulation S under the US Securities Act.”;

 

9.4.5

has not taken and will not take any action which will result in the Fundraising not being an exempt offer to the public (within the meaning of the section 86 of the FSMA) or which will result in the Fundraising not being exempt from registration under the registration requirements of the US Securities Act, US state laws or “blue sky” laws;

 

9.4.6

it has all corporate power and authority to enter into this agreement, is authorised by the FCA to conduct investment business of the type represented by its activities hereunder and such authorisation is in good standing; and

 

9.4.7

will not offer the Placing Shares in any country or jurisdiction outside the EEA (which includes a prohibition on distributing any of the Issue Documents outside the EEA) other than The Republic of Ireland and Switzerland and in particular not to offer the Placing Shares (or distribute the Issue Documents) in Australia, Canada, Japan, The Republic of South Africa or their respective territories and possessions or to any national, resident or citizen thereof.

 

9.5	Terms used in clause 9.6 have the meanings given to them by Regulation S under the US Securities Act.

 

9.6	The Company undertakes and agrees that:

 

9.6.1

neither the Placing Shares nor the Subscription Shares have been registered under the US Securities Act and will only be offered or sold (a) in the case of the Placing Shares, outside the United States to non US persons in accordance with Regulation S and (b) in the case of the Subscription Shares, to an Accredited Investor in accordance with Regulation D;

 

 

 

19

9.6.2

neither it nor any person acting on its or their behalf (except N+1 Singer, as to whom no representation is made) will directly or indirectly, make offers or sales of, or solicit offers to buy, or otherwise negotiate in respect of, any security under circumstances that would require the registration of the Fundraising Shares under the US Securities Act;

 

9.6.3

neither it nor any person acting on its behalf (except N+1 Singer, as to whom no representation is made) will engage in any directed selling efforts (as defined in Regulation S) with respect to the offer and sale of the Fundraising Shares during the Compliance Period;

 

9.6.4

neither it nor any person acting on its behalf (except N+1 Singer, as to whom no representation is made) will enter into any contractual arrangement with a distributor (as defined in Regulation S) with respect to the distribution of any Placing Shares, except with N+1 Singer pursuant to this Agreement;

 

9.6.5

neither the Company nor any of its affiliates nor any person acting on the Company’s behalf has, directly or indirectly, at any time within the past six months, made any offer or sale of any security or solicitation of any offer to buy any security under circumstances that would (i) give rise to a requirement to register the Fundraising Shares under the US Securities Act; or (ii) cause the offering of the Placing Shares pursuant to this Agreement or the Subscription Shares to be integrated with prior offerings by the Company for purposes of any applicable law, regulation or stockholder approval provisions, including as a result of the doctrine of “integration” referred to in Rule 502 under the US Securities Act;

 

9.6.6

the Company has taken no action that would give rise to any claim by any person (other than N+1 Singer pursuant to this Agreement) for brokerage commissions, transaction fees or similar payments relating to the Fundraising;

 

9.6.7

any Subscription Shares sold in the Fundraising in the United States, if in certificated form, shall bear a legend substantially as follows:

“The securities represented hereby have not been registered with the Securities and Exchange Commission or the securities commission of any state in reliance upon an exemption from registration under the Securities Act of 1933, as amended, and, accordingly, may not be transferred unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities may be sold pursuant to Rule 144, or (iii) the Company has received an opinion of counsel reasonably satisfactory to it that such transfer may lawfully be made without registration under the Securities Act of 1933, as amended.”; and

 

 

 

20

9.6.8

the offer, issuance, sale and delivery of the Subscription Shares will only be made to Robert W. Duggan who constitutes an Accredited Investor in the United States pursuant to the exemption from the registration requirements of the US Securities Act provided pursuant to Regulation D or another exemption from the registration requirements of the US Securities Act.

 

10.	WARRANTIES

 

10.1	The Company warrants to N+1 Singer that each Warranty is true, accurate and not misleading at the date of this Agreement.

 

10.2

On Admission the Company shall be deemed to warrant again to N+1 Singer in the terms of the Warranties by reference to the facts and circumstances then subsisting (save that a reference to any fact, matter, event or circumstance existing, occurring or having occurred on or before the date of this Agreement shall also be construed as a reference to its existing, occurring or having occurred on or before Admission).

 

10.3

The Company undertakes not to do, or knowingly omit to do, anything which would or might cause any Warranty given by it to become untrue, inaccurate, misleading or breached at any time (by reference to the facts and circumstances existing at that time) on or before Admission and to notify N+1 Singer in writing, immediately upon it becoming aware of the same at any time up to Admission:

 

10.3.1

that any of the Warranties was untrue, inaccurate or misleading at the date of this Agreement; or

 

10.3.2

that any of the Warranties would be untrue, inaccurate or misleading if it were to be repeated at any time before Admission by reference to the facts and circumstances then subsisting.

 

10.4	Where any statement in the Warranties is qualified by the expression “so far as the Company is aware” or any similar expression, the Company shall be deemed to have knowledge of:

 

10.4.1

anything of which the Directors have knowledge or are deemed by clause 10.4.2 or 10.4.3 to have knowledge;

 

10.4.2

anything of which a Director ought reasonably to have knowledge given his particular position in and responsibilities to the Group; and

 

10.4.3

anything of which the Directors would have had knowledge had they made due and careful enquiry of employees of the Group immediately before giving the Warranties.

 

 

 

21

10.5	The Warranties shall continue in full force and effect notwithstanding the completion of all matters and arrangements referred to or contemplated in or by this Agreement.

 

10.6	Each of the Warranties shall be construed separately and shall not be limited or restricted by reference to or inference from the terms of any other of them or any term of this Agreement.

 

10.7

The Company acknowledges that N+1 Singer is entering into this Agreement in reliance upon each of the Warranties, which have also been given with the intention of inducing N+1 Singer to enter into this Agreement. N+1 Singer acknowledges that it is entering into this Agreement in reliance only upon the terms of this Agreement and the Engagement Letter and it is not relying on any other warranties or representations made by any party in so doing.

 

10.8

If N+1 Singer and/or any Placee acquires any of the Placing Shares pursuant to this Agreement, it shall have, in addition to any other rights and remedies it may have, the rights and remedies of a person (not being N+1 Singer or a Placee) acquiring Placing Shares on the basis of the Fundraising Documents pursuant to the Fundraising.

 

10.9

The Company agrees with and acknowledges to N+1 Singer that N+1 Singer nor any other N+1 Singer Indemnified Person or their respective advisers are or shall be responsible to the Company for verifying the accuracy and/or fairness of any information in any of the Fundraising Documents or any other documents otherwise published or caused to be published in connection with the Fundraising.

 

10.10

If at any time prior to Admission N+1 Singer:

 

10.10.1

receives notification pursuant to clause 10.3 or shall otherwise become aware that any of the Warranties is or has become or is likely to become untrue, inaccurate or misleading either when given or if it were repeated at any time before Admission by reference to the facts or circumstances existing at the time of repetition; or

 

10.10.2

becomes aware that any announcement made by the Company in relation to the Fundraising has become, or is likely to become untrue, inaccurate or misleading in whole or in part,

N+1 Singer may (without prejudice to its right to terminate its obligations under this Agreement pursuant to clause 12) (i) require the Company at the Company’s sole expense to make or cause to be made such announcement and/or despatch such communication as N+1 Singer (acting reasonably and in good faith) may determine; or (ii) make for itself or on behalf of any N+1 Singer Indemnified Person any announcement concerning the Fundraising and Admission as it, in its reasonable opinion, deems necessary.

 

 

 

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11.

INDEMNITY

 

11.1

The Company hereby irrevocably and unconditionally agrees, as a continuing obligation, to indemnify each N+1 Singer Indemnified Person (for themselves and as trustee for each of their other N+1 Singer Indemnified Persons) against and to pay on demand all liabilities, demands, losses, claims, actions, costs, charges, taxes and expenses (including legal fees and expenses) whatsoever together with any VAT thereon which the N+1 Singer Indemnified Persons may suffer or incur directly or indirectly as a result of or arising out of or in connection with the Bookbuild, and the Fundraising including (without limitation) any of the following:

 

11.1.1

the issue or despatch or the approval by N+1 Singer of the Fundraising Documents (or any of them), or any other documents or materials approved by the Company in connection therewith whether prior to or after the date of this Agreement;

 

11.1.2

the allotment and issue of the Fundraising Shares and the granting of the Warrants;

 

11.1.3

any breach or alleged breach by the Company of any of the Warranties or of any of the other provisions of this Agreement (including, without limitation, such Warranties being untrue, inaccurate or misleading at the date of this Agreement or having become untrue, inaccurate or misleading at any time up to Admission by reference to the facts and circumstances from time to time subsisting);

 

11.1.4

the Fundraising Documents not containing, or being alleged not to contain, all information required to be stated therein or any statement therein (whether of fact, opinion, expectation or intention and including any forecast, projection or estimate) being or being alleged to be untrue, inaccurate, incomplete or misleading or as having being made negligently or otherwise without the required standard of skill and care or reasonableness;

 

11.1.5

any breach or alleged breach of the laws or regulations of any part of the United Kingdom, the US or elsewhere resulting from the issue or distribution of the Fundraising Documents or the entering into or completion of this Agreement;

 

11.1.6

the approval or communication by N+1 Singer of any invitation or inducement to engage in investment activity (as defined in section 21 of the FSMA) relating to the Fundraising;

 

11.1.7

the performance by N+1 Singer (or any person on its behalf) of its obligations and services to the Company under this Agreement or in connection with the Bookbuild, Fundraising, the LSE Application or the content, preparation, publication and distribution of any of the Fundraising Documents;

 

 

 

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11.1.8

any failure or alleged failure by the Company or any of its Directors, agents, employees, officers or professional advisers (other than the N+1 Singer Indemnified Persons) to comply with the FSMA, the AIM Rules, the Rules or the rules or requirements of Euroclear UK & Ireland in relation to CREST, US securities laws (including, but not limited to, pursuant to the US Securities Act, the Exchange Act and the US Investment Company Act of 1940 and relevant blue sky state laws, MAR, the City Code on Takeovers and Mergers, the Disclosure Guidance and Transparency Rules (the “DTR”) or any other requirements of statute, statutory regulations, laws or regulations of any jurisdiction in relation to the Fundraising, the LSE Application or Admission in relation to the Fundraising;

 

11.1.9

any letter or report required by the AIM Rules and/or the NOMAD Rules to be given or made by N+1 Singer in connection with the Fundraising, the LSE Application or Admission being, or being alleged to be, untrue, incorrect or misleading; or

 

11.1.10

any of the transactions contemplated by this Agreement.

 

11.2	The indemnity contained in clause 11.1:

 

11.2.1

shall not extend to any actions, liabilities, demands, losses, claims, costs, charges and expenses except only to the extent that they are agreed by N+1 Singer or finally determined by a court of competent jurisdiction to arise out of the gross negligence, wilful default, or fraud of any N+1 Singer Indemnified Person or as a result of a breach (as agreed by N+1 Singer or finally determined by the appropriate regulatory authority) by any N+1 Singer Indemnified Person of any duties and obligations owed by that N+1 Singer Indemnified Person under the rules of the FCA or under the regulatory system established pursuant to the FSMA;

 

11.2.2

shall not apply to the extent prohibited by Rule COBS 2.1.2R of the Rules;

 

11.2.3

shall not apply to the extent prohibited by law; and

 

11.2.4

shall be in addition to any rights that any N+1 Singer Indemnified Person may have at common law or otherwise (including any right of contribution) and any other liability which the Company may have to any N+1 Singer Indemnified Person.

 

11.3	The indemnity set out in clause 11.1 shall remain in full force and effect notwithstanding the completion of all matters and arrangements referred to in or contemplated by this Agreement.

 

11.4

No claim shall be made against any N+1 Singer Indemnified Person by the Company to recover any damage, cost, charge or expense which the Company, any member of the Group or any subscriber for Fundraising Shares and Warrants pursuant to the Bookbuild and the Fundraising or any subsequent purchaser or transferee of such shares may suffer or incur by reason of or arising out of the placing by N+1 Singer of the Placing Shares and

 

 

 

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Warrants, the performance of N+1 Singer’s other obligations under this Agreement, the allotment and issue of the Fundraising Shares, granting of the Warrants or the publication or despatch of the Fundraising Documents, unless and except only to the extent that such damage, cost, charge or expense shall have been determined by final judgment of a court of competent jurisdiction to have arisen as a result of the gross negligence, wilful default or fraud of the N+1 Singer Indemnified Person against whom it is proposed to claim or as a result of a breach by that N+1 Singer Indemnified Person of its duties and obligations under the Rules or under the regulatory system (as defined by such Rules) or of its obligations under this Agreement, in which event the claim shall only be brought against the relevant N+1 Singer Indemnified Person or any other N+1 Singer Indemnified Person who is vicariously liable for such N+1 Singer Indemnified Person’s actions. No N+1 Singer Indemnified Person shall have any liability whatsoever for loss of profit, loss of business opportunity or any other form of indirect or consequential loss suffered by the Company, the Directors or any other person. If any person seeks to bring a claim against any N+1 Singer Indemnified Person in breach of this clause 11.4, such N+1 Singer Indemnified Person shall be entitled to obtain an injunction to prevent such a claim being pursued and the indemnity in clause 11.1 shall include any and all costs, liabilities, charges and expenses which may be suffered or incurred in connection therewith (including any costs, charges and expenses (including legal fees) incurred in investigating, preparing for and obtaining such injunction.

 

11.5

For the avoidance of doubt, should any amount paid or payable under this Agreement to N+1 Singer or any other N+1 Singer Indemnified Person (excluding the fees and commissions payable to N+1 Singer under this Agreement) be itself subject to tax in the hands of the recipient or be required by law to be paid under any deduction or withholding, the Company shall pay such sum as will, after any such tax, deduction or withholding, leave the recipient with the same amount as it or he would have had if no such tax had been payable and no deduction or withholding had been made, and such payments and adjustments shall be made as may be necessary to give effect to this clause 11.5.

 

11.6

The indemnity set out in clause 11.1 shall extend to all costs, charges and expenses (including, without limitation, all legal fees and expenses) which any N+1 Singer Indemnified Person may incur or bear in disputing any claim made against it or him in establishing any claim on its or his part under the provisions of this clause 11 or in seeking advice as to any claim in respect of which it or he is entitled to be indemnified pursuant to this clause 11.

 

11.7	The Company confirms to N+1 Singer that no member of the Company has entered into any agreement or arrangement concerning the liability of the Company for any breach of the Warranties or in relation to any other covenant, term or condition set out in this Agreement.

 

 

 

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11.8

Any liability which an N+1 Singer Indemnified Person may have to the Company (but for this clause 11.8) for loss suffered in connection with the Bookbuild and the Fundraising shall be reduced if such loss would have been recoverable by the Company from another person jointly and/or severally liable with the N+1 Singer Indemnified Person but for an agreement or arrangement which the Company has made or may make with that person which limits its liability to the Company. Such reduction shall be to the extent that such agreement or arrangement has the effect of reducing the ability of that N+1 Singer Indemnified Person to recover under rights of contribution against that party under the Civil Liability (Contribution) Act 1978 or otherwise against that person and the Company shall indemnify the N+1 Singer Indemnified Person in respect of the amount by which the N+1 Singer Indemnified Person’s liability to such person is increased as a result of such agreement or arrangement. If any N+1 Singer Indemnified Person has paid to the Company an amount for which it is not liable in accordance with this clause, such amount shall be repaid to the N+1 Singer Indemnified Person by the Company on demand by the N+1 Singer Indemnified Person.

 

11.9

Without prejudice to any claim the Company may have against N+1 Singer or any of its affiliates, subsidiary undertakings, parent undertakings or subsidiary undertakings of such parent undertakings, no proceedings shall be taken by the Company under this Agreement against any director, officer, employee, shareholder, controlling person or agent of N+1 Singer.

 

11.10

For the avoidance of doubt, no N+1 Singer Indemnified Person is responsible for advising the Company in respect of any applicable laws or regulations in any jurisdiction in relation to the Bookbuild and the Fundraising or other matters contemplated in connection with the Bookbuild and the Fundraising and the Company acknowledges that no N+1 Singer Indemnified Person shall incur any liability to the Company in respect of any breach of such applicable laws or regulations where the relevant N+1 Singer Indemnified Person has acted in good faith in the absence of, or in accordance with, any advice the Company has received and communicated to it.

 

11.11

If N+1 Singer reasonably believes that there may be circumstances giving rise to a claim under clause 11.1, the Company undertakes to co-operate with any reasonable request of N+1 Singer in relation to such circumstances and in particular shall promptly provide copies of, or access to, all documents so requested. A N+1 Singer Indemnified Person shall have the right to separate legal counsel of its own choosing.

 

12.	TERMINATION

 

12.1	If at any time prior to Admission there shall have occurred, happened or come into effect:

 

12.1.1

any government regulation or other occurrence of any nature whatsoever which, in the reasonable opinion of N+1 Singer, seriously and adversely affects or will or is reasonably likely to seriously and adversely affect the business of the Group (taken as a whole); or

 

 

 

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12.1.2

a suspension or material limitation in trading in securities generally on AIM a general moratorium on commercial banking activities in London or New York or a material disruption in commercial banking or securities settlement or clearance services in the United Kingdom or United States of America, an incident of terrorism or the outbreak or escalation of hostilities involving the UK, any other EU Member State or the USA or the declaration by the UK, any other EU Member State or the USA of a national emergency or war or the occurrence of any other calamity or crisis resulting in a change in financial, political, market or economic conditions or currency exchange rates in the UK or US which, in the reasonable opinion of N+1 Singer after discussion where practicable with the Company makes it impractical or inadvisable to continue with the Fundraising; or

 

12.1.3

any material adverse change in the financial position or prospects or business of the Group (taken as a whole) and, in the opinion of N+1 Singer, the effect of such change is such that the Placees should not be required to subscribe for Placing Shares at the Placing Price,

then N+1 Singer shall be entitled to terminate its obligations under this Agreement by notice to the Company at any time prior to Admission.

 

12.2	If at any time prior to Admission:

 

12.2.1

it shall come to the notice of N+1 Singer (whether by way of receipt of a notification pursuant to clause 10.3 or otherwise) that any statement in the Fundraising Documents is incorrect or has become untrue, incorrect or misleading to a material extent as a result of a new matter or change or that a new matter has arisen or a change has taken place which would, if the Fundraising Documents were published at that time, constitute a material omission from such documents; or

 

12.2.2

it comes to the knowledge of N+1 Singer (whether by way of receipt of a notification pursuant to clause 10.3 or otherwise) that any of the Warranties was untrue, inaccurate or misleading when made and/or that any of the Warranties would be untrue, inaccurate or misleading if it were to be repeated at any time prior to Admission by reference to the facts, matters and circumstances then subsisting, in either case to a material extent; or

 

12.2.3

the Company shall fail to comply with any of its obligations under this Agreement to a material extent,

then N+1 Singer shall be entitled to terminate its obligations under this Agreement by giving notice to the Company at any time prior to Admission.

 

12.3	If the obligations of N+1 Singer under this Agreement are terminated under clause 12.1 or 12.2, this Agreement shall cease and determine and no party to this Agreement shall have any claim against any other party to this Agreement for costs, damages, compensation or otherwise except that:

 

 

 

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12.3.1

such termination shall be without prejudice to any accrued rights or obligations of any party under this Agreement;

 

12.3.2

the Company shall pay forthwith to N+1 Singer all expenses, disbursements and costs of the nature referred to in clause 8.2 and any sums payable under clause 8.6;

 

12.3.3

the provisions of this clause 12.3 and clauses 1, 2.4, 8.6, 9, 10, 11, 13, 14 and 15 shall remain in full force and effect.

 

12.4	For the avoidance of doubt N+1 Singer shall not be entitled to terminate its obligations under this Agreement following Admission.

 

12.5	If this Agreement terminates prior to Admission, on receipt of the termination notice, the Company shall forthwith procure that the NOMAD does not proceed with the LSE Application and Admission.

 

12.6

A termination notice may be served by one of the methods prescribed by clause 14. Alternatively, at the option of N+1 Singer, service may be effected by a director of N+1 Singer reading the full text of the termination notice to the Chief Executive of the Company over the telephone, in a single uninterrupted call, whether or not he is then on any premises of the Company and the Company accepts that a notice served in accordance with this clause 12.6 constitutes a valid termination of the obligations of N+1 Singer and this Agreement provided that N+1 Singer, as soon as reasonably practicable and, in any event, within 12 hours, delivers or sends to the Company by one of the methods prescribed by clause 14 a notice which:

 

12.6.1

states that service of a termination notice has been effected by telephone at a certain time on a certain date;

 

12.6.2

specifies the names of the director of N+1 Singer; and

 

12.6.3

sets out the full text which was read over the telephone.

 

12.7	For the purposes of clause 12, references to the word “material” shall be deemed to be references to “material in the context of the Placing”. For the avoidance of doubt, clause 1.14 shall apply.

 

13.	TIME OF THE ESSENCE

Time shall be of the essence in this Agreement, both as regards dates, times and periods and as to any dates, times or periods that may, by agreement in writing between the parties, be substituted for any of them.

 

 

 

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14.

NOTICES

 

14.1	Any notice, consent, request, demand, approval or other communication to be given or made under or in connection with this Agreement (each a “Notice” for the purposes of this clause) shall be in English, in writing and signed by or on behalf of the person giving it.

 

14.2	Service of a Notice must be effected by one of the following methods:

 

14.2.1

by hand to the relevant address set out in clause 14.4 and shall be deemed served upon delivery if delivered during a Business Day, or at the start of the next Business Day if delivered at any other time; or

 

14.2.2

by prepaid first-class post to the relevant address set out in clause 14.4 and shall be deemed served at the start of the second Business Day after the date of posting; or

 

14.2.3

by prepaid international airmail to the relevant address set out in clause 14.4 and shall be deemed served at the start of the fourth Business Day after the date of posting.

 

14.3	In clause 14.2 “during a Business Day” means any time between 9.30 a.m. and 5.30 p.m. on a Business Day based on the local time where the recipient of the Notice is located. References to “the start of [a] Business Day” and “the end of [a] Business Day” shall be construed accordingly.

 

14.4	If to the Company:

 

		Address:		136a Eastern Avenue Milton Park Abingdon Oxfordshire OX14 4SB
		For the attention of:		Chief Executive
		If to N+1 Singer
		Address:		One Bartholomew Lane London EC2N 2AX
		For the attention of:		Aubrey Powell

 

14.5

A party may change its address for service provided that the new address is within the United Kingdom and that it gives the other parties not less than 10 days’ prior notice in accordance with this clause 14. Until the end of such notice period, service on the address set out in clause 14.4 shall remain effective.

 

 

 

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15.	MISCELLANEOUS PROVISIONS

 

15.1

The Company shall give all such assistance and provide all such information as N+1 Singer shall reasonably require for the purposes of this Agreement and shall execute all such documents and do all such acts and things as N+1 Singer may reasonably require in order to give effect to the terms of this Agreement.

 

15.2

This Agreement and the Engagement Letter constitute the entire and only legally binding agreements between the parties relating to the Bookbuild, the Fundraising, the Warrants and the Fundraising Shares and no variation of this Agreement shall be effective unless made in writing signed by or on behalf of the parties and expressed to be such a variation. For the avoidance of doubt, in the event of any conflict between the terms of this Agreement and the Engagement Letter, the terms of this Agreement shall prevail.

 

15.3	This Agreement may be executed as two or more counterparts in the same form, and execution by each of the parties of at least one of such counterparts shall constitute due execution of this Agreement.

 

15.4

The provisions of this Agreement shall not be construed so as to limit, affect or prejudice any other remedy otherwise available to N+1 Singer and, in particular, shall not affect or limit the court’s discretion to order contribution from either party to this Agreement in favour of the other party on a just and equitable basis. No failure or delay by any party to this Agreement in exercising any remedy, right, power or privilege under or in relation to this Agreement shall operate as a waiver of the same nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or exercise of any other remedy, right, power or privilege.

 

15.5	N+1 Singer shall not be liable to the other for any failure or default on its part in relation to any of its obligations under this Agreement or in connection with the Bookbuild, the Fundraising, the LSE Application and Admission.

 

15.6

No waiver by any of the parties of any of the requirements of this Agreement or of any of their rights or remedies under this Agreement shall have effect unless given in writing and signed by such party. No waiver of any particular breach of the provisions of this Agreement shall operate as a waiver of any repetition of such breach.

 

15.7	If at any time any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.

 

15.8

No party shall be entitled to assign, transfer or create any trust in respect of the benefit or burden of any provision of this Agreement (or any of the documents referred to herein) without the prior consent of the other parties save that it is hereby agreed that N+1 Singer shall be entitled to assign their rights and obligations to any member of the N+1 Singer Group.

 

15.9	This Agreement shall be binding on each of the parties and their successors and personal representatives, as the case may be.

 

 

 

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15.10

All the provisions of this Agreement shall (except for any obligation fully performed prior to or on the date of this Agreement) continue in full force and effect after the date of this Agreement.

 

15.11

Each N+1 Singer Indemnified Person shall have the right under the Contracts (Rights of Third Parties) Act 1999 to enforce its rights against an indemnifying person under clause 11 of this Agreement provided that a N+1 Singer Indemnified Person must obtain the written consent of N+1 Singer before it may bring proceedings to enforce the terms of clause 11 and, save to the extent notified in writing by N+1 Singer to the relevant N+1 Singer Indemnified Person, N+1 Singer (without obligation) shall have the sole conduct of any such action on behalf of any N+1 Singer Indemnified Person.

 

15.12

Save as provided in clause 15.11 a person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

 

15.13

Notwithstanding the provisions of clauses 15.11 and 15.12, any rights arising by virtue of the Contracts (Rights of Third Parties) Act 1999 may be rescinded or varied in any way or at any time by the parties to this Agreement without the consent of any N+1 Singer Indemnified Person.

 

16.	PRODUCT GOVERNANCE

 

16.1	The Company and N+1 Singer each acknowledge that for the purposes of the PROD Rules, N+1 Singer considers itself to be acting as a manufacturer of the Placing Shares in connection with the Placing.

 

16.2

Solely for the purposes of Article 9(8) of Commission Delegated Directive 2017/593 (the “Delegated Directive”) regarding the responsibilities of manufacturers under the product governance requirements contained within: (a) Directive 2014/65/EU on markets in financial instruments, as amended (“MiFID II”); (b) Articles 9 and 10 of the Delegated Directive; and (c) local implementing measures (the “MiFID II Product Governance Requirements”), N+1 Singer acknowledges that it understands the responsibilities conferred upon it under the MiFID II Product Governance Requirements relating to: (i) the target market for the Placing; (ii) the eligible distribution channels for dissemination of the Ordinary Shares, each as set out in the Press Release; and (iii) the requirement to carry out a product approval process.

 

16.3

The Company shall, upon request, within a reasonable period provide to N+1 Singer all such information within the Company’s possession as might reasonably be required by N+1 Singer for the performance of its obligations under the PROD Rules, taking into account the proportionate application of the PROD Rules in the context of the Placing.

 

 

 

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16.4

If N+1 Singer enters into arrangements with any third party (a “Third Party Distributor”) in connection with the Placing which results in the Third Party Distributor becoming subject to any of the obligations applicable to distributors under the PROD rules (or any equivalent rules in any EEA jurisdiction other than the UK) whether by way of operation of law, regulation or direction of a relevant regulator or as a result of contractual obligations (or any combination thereof) the Company agrees that it shall, upon request, provide all such information in the Company’s possession to the Third Party Distributor (or, where applicable, to N+1 Singer to provide to the Third Party Distributor) as may reasonably be necessary for the performance by the Third Party Distributor of the Third Party Distributor’s obligations under the PROD rules (or any equivalent rules of another EEA jurisdiction).

 

16.5	When providing any information for the purposes of this clause 16, the Company shall expressly identify to N+1 Singer any information that is not intended to be provided to prospective Placees.

 

16.6

N+1 Singer is authorised and regulated in the United Kingdom by the FCA, and are accordingly required to make certain disclosures in relation to its placing activities. The attention of the Company is drawn to this information, which the Company acknowledges has been provided to it separately in writing prior to the date of this Agreement.

 

17.	APPLICABLE LAW AND JURISDICTION

 

17.1	This Agreement and the rights and obligations of the parties including all non-contractual obligations arising under or in connection with this Agreement shall be governed by and construed in accordance with the laws of England and Wales.

 

17.2

The parties irrevocably submit to the non-exclusive jurisdiction of the courts of England and Wales in respect of any claim, dispute or difference arising out of or in connection with this Agreement and/or any non-contractual obligation arising in connection with this Agreement, provided that nothing contained in this clause shall be taken to have limited the rights of N+1 Singer to proceed in the courts of any other competent jurisdiction.

This Agreement has been duly executed by the parties on the date stated above.

 

 

 

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SCHEDULE 1

WARRANTIES

Compliance with laws

 

1.

The creation, allotment and issue of the Fundraising Shares, the grant of the Warrants, the making and implementation of the Fundraising and the publication and despatch of the Fundraising Documents will comply with the Companies Acts, the FSMA, the DTRs, MAR, the rules and regulations of the London Stock Exchange, the AIM Rules, the NOMAD Rules, the Regulations, the rules of Euroclear UK & Ireland in relation to CREST and all other relevant laws and regulations of the United Kingdom and elsewhere and will comply with and will not infringe or exceed any limits, powers or restrictions or the terms of any agreement, obligation or commitment to which the Company or any of its subsidiary undertakings is a party or by which the Company or any of its subsidiary undertakings is bound.

 

2.

Neither the Company nor any of the Directors nor any Group Company has, directly or indirectly, in relation to the Fundraising or otherwise, done any act or engaged in any course of conduct in breach of Part 7 of the Financial Services Act 2012 or MAR (including any regulations, standards and guidelines made pursuant thereto), or the equivalent provisions under the securities laws applicable in any other relevant jurisdiction nor, so far as each Company is aware, having made due and careful enquiries, has any person acting on its behalf or on behalf of any Group Company (which for this purpose excludes N+1 Singer and its Affiliates) engaged in any act or any course of conduct as described above.

Fundraising Documents

 

3.

All statements of fact contained in the Fundraising Documents and/or supplied to N+1 Singer are and will, when the Fundraising Documents are despatched, be true and accurate and not misleading. All statements, forecasts, estimates and expressions of opinion, intention or expectation contained in the Fundraising Documents are or will when published be honestly held by the Directors and are or will be fairly based and have been or will be made on reasonable grounds after due and proper consideration and enquiry.

 

4.

There are no facts, matters or circumstances known, or which could after due and proper consideration and enquiry of employees of the Group have been known, to the Company or any of the Directors which are not disclosed in the Fundraising Documents, the omission of which would, or might reasonably be expected to, make any statement contained in the Fundraising Documents misleading or which would, or might reasonably be expected to, affect the import of any information contained in the Fundraising Documents in any material respect.

 

5.

As far as the Company is, or any of the Directors are aware, at the date of the publication of the Fundraising Documents there is no fact or circumstance which is not disclosed in the Fundraising Documents, the audited consolidated financial statements of the Group for the financial year ended 31 January 2019 (the “2019 Accounts”), the Interim Results or announced through a Regulatory Information Service since the publication of the Interim Results which, if disclosed, might reasonably be expected to affect the decision of N+1 Singer to enter into this Agreement or of any person to acquire any of the Fundraising Shares.

 

 

 

33

6.	The Company has not distributed nor has any person acting on its behalf distributed any offering material in connection with the Fundraising save those documents the distribution of which is contemplated by this Agreement.

 

7.	None of the Directors of the Company are aware of any non-public fact or circumstance that, if made public, could be expected to have a significant effect upon the market price of the Fundraising Shares, the Ordinary Shares or upon the Group as a whole.

Accounting information

 

8.

The 2019 Accounts were prepared in accordance with the Companies Act 2006 and all Relevant Accounting Standards (except as disclosed or stated in the relevant accounts) and gave a true and fair view of the state of affairs of the Group at the end of each of the relevant financial periods, subject to any qualifications contained in the report of the auditors on such accounts, and of the profits and cashflows of the Group for each such period.

 

9.

The Interim Results have been prepared with all due care and attention (having regard to the fact that the results were made publicly available) and on accounting bases and assumptions consistent with those adopted in the preparation of the audited financial statements of the Group for the financial year ended 31 January 2019 and the corresponding interim results of the Group published in the immediately preceding financial year.

Position since the Interim Accounts Date

 

10.	Since the Interim Results were prepared or as subsequently disclosed in an announcement made by the Company through a Regulatory Information Service:

 

10.1	the businesses of the Company and the Group have been carried on in the ordinary and usual course;

 

10.2	there has been no significant adverse change in the financial or trading position of the Group taken as a whole or, to the best of the Company’s knowledge, information and belief, prospects of the Group;

 

10.3	no member of the Group has acquired or disposed of or agreed to acquire or dispose of any of its assets or businesses other than in the ordinary course of trading;

 

10.4	no member of the Group has entered into any contract or commitment of an unusual, long-term and/or onerous nature or assumed any material liabilities (including contingent liabilities);

 

 

 

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10.5	no member of the Group has paid or made any payment or transfer to shareholders of any dividend, bonus, loan or distribution other than to the Directors in their capacity as such directors; and

 

10.6

the Company has notified a Regulatory Information Service of all information required to be notified by it in accordance with the AIM Rules and MAR and has complied in all respects with all the requirements of the AIM Rules and MAR applicable to the Company (including the disclosure and notification requirements) and any requests for disclosure made by the London Stock Exchange.

Working capital

 

11.	The Company is satisfied that, having regard to available bank facilities and the proceeds of the Fundraising, the Group will have sufficient working capital for its present and reasonably foreseeable future requirements, that is until 31 January 2021.

 

12.

The Working Capital Board Memorandum has been prepared by the Company on a prudent basis after due and careful enquiry and takes into account all matters and sensitivities of which the Company is aware concerning the Company and each member of the Group and has been approved by the Directors after due and careful enquiry. All statements of fact in the Working Capital Board Memorandum are true and accurate in all material respects and not misleading in any material respect, all forecasts, estimates and expressions of opinion, intention or expectation contained in the Working Capital Board Memorandum are made on reasonable grounds and assumptions after due and proper consideration, are truly and honestly held by the Directors and there are no other facts known (or which could on due and careful enquiry have been known) to the Company or the Directors the omission of which would or might reasonably be expected to make any such statement or expression in the Working Capital Board Memorandum misleading in any material respect, and, so far as the Company is aware, there are no other assumptions on which that Working Capital Board Memorandum ought to have been based which have not been made.

Tax

 

13.

All returns of each member of the Group for taxation purposes have been made for all periods up to and including 31 January 2019, all such returns are correct, are not the subject of any dispute with or claim by HM Revenue & Customs or other relevant taxation authority which would be material in the context of the Placing and are not likely to result in any such dispute or claim.

Corporate matters

 

14.	Save as disclosed in the Fundraising Documents, there are and will be (following Admission) no restrictions upon the voting or transfer of the Ordinary Shares or upon the declaration or payment of any dividend or distribution.

 

 

 

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15.	Assuming that the Fundraising is fully subscribed, the issued capital of the Company immediately following Admission will be 335,873,208 Ordinary Shares.

 

16.	All sums due in respect of the issued capital of the Company have been paid to and received by the Company.

 

17.

Save as disclosed in the 2019 Accounts, the Interim Results or as subsequently publicly notified or to be publicly notified in connection with the Fundraising, there are in force no options or other agreements or arrangements which call for the issue to any person or accord to any person the right to call for the issue of any shares in the capital of the Group or any other securities of any member of the Group.

 

18.	None of the owners or holders of shares in the Company will, following Admission, have any rights, in their capacity as such, in relation to the Company other than as set out in the Articles.

Capacity

 

19.

Subject to the Resolutions being passed, the Directors will have all necessary power under the Articles and all authorisations, approvals, consents, orders, registrations and licences from any court, government agency or body having jurisdiction over the Company or any member of the Group or any of their properties or other regulatory body which are required by the Company or any member of the Group have been unconditionally obtained and are in full force and effect to permit the Company to allot and issue the Fundraising Shares, grant the Warrants and to enter into this Agreement and to perform its obligations under this Agreement.

 

20.

Subject to the Resolutions being passed, the creation, allotment and issue of the Fundraising Shares and the granting of the Warrants will not infringe or exceed any limits, powers or restrictions or the terms of any contract, obligation or commitment or other arrangement binding on any member of the Group.

Default

 

21.

No event or circumstance has occurred or arisen or, so far as the Directors are aware (having made all reasonable enquiries), is about to occur or arise by reason of which any person is, or would be, or could with the giving of notice and/or lapse of time and/or a relevant determination become, entitled to require repayment prior to its stated maturity of, or to take any step to enforce security for, any borrowings or indebtedness in the nature of borrowing of any member of the Group, and no member of the Group has received notice from any person to whom any indebtedness which is repayable on demand is owed demanding repayment of the same and neither the Company nor any of the Directors is otherwise aware that any such person has demanded repayment of, or taken any step to enforce any security for, the same.

 

 

 

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22.

No event has occurred and is subsisting or, so far as the Company is aware, is about to occur which constitutes or would constitute a default under, or result in the acceleration by reason of default of, any obligations under any agreement, instrument or arrangement to which any member of the Group is a party or by which it or any of its properties, revenues or assets are bound and which would in any such case have a material adverse effect on the businesses, assets, prospects or condition of the Group taken as a whole.

Litigation

 

23.

No member of the Group nor any Director nor any other person for whom the Company or any member of the Group is or may be vicariously liable is engaged in any legal or arbitration proceedings or is the subject of any disciplinary proceedings or enquiries by any governmental or regulatory bodies which individually or collectively may have, or have had during the 12 months preceding the date of this Agreement, a significant effect on the financial position of the Group and no such legal or arbitration proceedings are threatened or pending nor are there any circumstances of which the Company is aware which may give rise to any such legal or arbitration proceedings being threatened or commenced.

Insolvency

 

24.

No member of the Group has taken any action nor have any other steps been taken or legal proceedings started or been threatened against any member of the Group for its winding-up, striking-off or dissolution or for it to enter into any arrangement with or composition for the benefit of creditors (including any moratorium prior to a voluntary arrangement), or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of such member of the Group or any of its properties, revenues or other assets, including the filing of any administration application, notice of intention to appoint an administrator or notice of appointment of an administrator or for the occurrence of any event in a jurisdiction outside England and Wales of any form of insolvency proceeding or event similar or analogous to any of those referred to in this paragraph.

Information provided

 

25.

All written information supplied directly or indirectly by the Directors and/or the Company and the Company’s employees, auditors, solicitors and other agents and advisers to N+1 Singer (or any persons acting on its behalf) for the purposes of or in connection with the Fundraising (including, for the avoidance of doubt, the Working Capital Board Memorandum) was when supplied and is now true and accurate in all respects, and where such information was expressed as an opinion such opinion was and continues to be honestly and reasonably held by the person giving it by reference to the facts and circumstances now subsisting.

Verification notes

 

26.

The answers recorded in the Verification Notes have been prepared or approved by persons having appropriate knowledge and responsibility to enable them properly to provide such replies and are, subject to any express limitation included in such answers, neither untrue nor inaccurate nor incomplete nor misleading.

 

 

 

37

Directors’ responsibilities

 

27.	The Directors have had explained to them the nature of their responsibilities and obligations as directors of a listed company under the AIM Rules.

 

28.

The Company has established and operates sufficient systems, procedures and controls to enable it to comply with its obligations under the AIM Rules including, without limitation, in respect of financial reporting systems and controls, the release of unpublished price sensitive information, notification obligations and the regulation of close periods.

The London Stock Exchange

 

29.	The Company has informed N+1 Singer in writing of all discussions which it or its agents (apart from N+1 Singer) have had with the London Stock Exchange in relation to the Application or the interpretation of and application of AIM Rules to the Company.

Environmental matters

 

30.	So far as the Company is aware, none of the Company nor any member of the Group has any material obligation or liability with respect to pollution, hazardous substances or environmental matters and there are no circumstances which the Company considers are likely to give rise to the same.

Insurances

 

31.

The Company and each member of the Group maintain such insurance cover against fire and other risks upon all their assets and such public and employers’ liability as is considered appropriate, taking into account the nature and scale of their activities, the provisions of agreements binding upon it, such insurance is now in force, the Company is not aware of any fact or matter which would lead to any such insurance being vitiated or repudiated, there is no material claim pending or outstanding and all premiums in respect of such insurances are duly paid.

Licences

 

32.

Each member of the Group has been duly incorporated and has full corporate power and authority to carry on its business as at the date of this Agreement and has carried on such business in compliance with all legal requirements applicable to such business and each member of the Group holds all licences, permissions, authorisations and consents necessary to enable it to carry on the same business as currently carried on (including, without limitation, all necessary planning and other consents or permissions in relation to the properties owned or occupied by it and all consents, authorisations and licences required under environmental and health and safety legislation) and, so far as the Company is aware, such licences, permissions, authorisations and consents are in full force and effect and, so far as the Company is aware, there are no circumstances which indicate that any of them may be revoked, rescinded, avoided or repudiated or not renewed in whole or in part in the ordinary course of events. Notwithstanding the foregoing, and for the avoidance of doubt, the Company does not hold any product licences or marketing authorisations for any pharmaceutical products.

 

 

 

38

Intellectual property

 

33.

Each member of the Group has (a) acted reasonably in seeking professional advice with regard to filing patent applications in respect of material new inventions; and (b) adopted commercially reasonable and prudent practices with regard to the protection, prosecution and maintenance of its portfolio of patents, patent applications and trade marks and other material intellectual property and the payment of renewal fees in respect thereof; and (c) adopted commercially reasonable and prudent practices to capture intellectual property rights in respect of material new inventions; and (d) used commercially reasonable practices to protect the confidentiality of all material non-patented know how. None of the intellectual property relating to the business of any member of the Group is the subject of any claim, opposition, assertion, infringement, attack, right, action or other restriction or arrangement of whatsoever nature which does or may impinge upon the validity, enforceability or ownership of the same or the utilisation thereof by any member of the Group to an extent which is material in the context of the Group. So far as the Company is aware, and not having obtained freedom to operate opinions in respect of all of its intellectual property rights, none of the activities of any member of the Group infringes any right of any other person relating to intellectual property or, save as provided for in the audited accounts of the Company for the year ended 31 January 2019, gives rise to a liability for any royalty or similar payment.

 

34.

The intellectual property used or enjoyed by each member of the Group in or in connection with its business at the date of this Agreement, and which is material to such business, is either legally and beneficially owned by that member of the Group, or licensed to, or used under the authority of the owner by, that member of the Group and are not subject to any mortgage, charge, lien or other security interest in favour of any third party save as registered with the Registrar of Companies.

US selling restrictions

 

35.	The Fundraising Shares have not been registered under the US Securities Act and may not be offered or sold within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the US Securities Act.

 

36.	The Company is a “foreign issuer” as defined in Regulation S of the US Securities Act.

 

37.

None of the Company nor any of its subsidiary undertakings or associated companies nor any person acting on behalf of the Company or any of its subsidiary undertakings or associated companies (which, for the avoidance of doubt, shall not include N+1 Singer) has engaged or will engage in any directed selling efforts, as defined in Regulation S of the US Securities Act with respect to the Placing Shares during the Compliance Period.

 

 

 

39

38.	The Company, its affiliates and any person acting on its or their behalf have and will comply with the offering restrictions requirement of Regulation S under the US Securities Act in connection with the Placement of the Placing Shares.

 

39.

Neither the Company nor any of its subsidiary undertakings or associated companies nor any person acting on behalf of the Company or any of its subsidiary undertakings or associated companies has, directly or indirectly, (a) made or will make offers or sales of any security, (b) has solicited or will solicit offers to buy any security, or (c) otherwise negotiated or will negotiate in respect of any security, in any case, under circumstances that would require the registration of the Fundraising Shares under the US Securities Act.

 

40.

Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has engaged in or will engage in any “general solicitation” or “general advertising” (within the meaning of Regulation D) in connection with any offer or sale of the Subscription Shares in the United States.

 

41.

The Company is not, and immediately after (i) giving effect to the offering and sale of the Fundraising Shares as contemplated by the Fundraising Documents, and (ii) the application of the net proceeds thereof as described in the Fundraising Documents will not be, required to register as an “investment company” as such term is defined in the US Investment Company Act of 1940.

Absence of employment disputes

 

42.

There are no current (and for the 12 months prior to the date of this Agreement have there been) any material claims, disputes, enquiries or investigations by or relation to the employees or former employees of the Company and/or any trade union or other representatives and the Company does not have any grounds to believe that any such claims, disputes, enquiries or investigations may arise.

Directors and management

 

43.	Save as disclosed in the Circular, no Director or member of senior management of the Company has given notice to, or received notice from, the Company terminating their employment and no such person has threatened or, so far as the Company is aware, is expected to give such notice.

Clinical Development of Ezutromid

 

44.

No member of the Group nor any Director nor any other person for whom the Company or any member of the Group is or may be vicariously liable is engaged in any legal or arbitration proceedings in respect of the closure of the clinical development of ezutromid (Development Closure) and there are currently no outstanding material liabilities owed by the Group in respect of the Development Closure.

 

 

 

40

Discuva acquisition

 

45.

There are no outstanding material liabilities owed by the Group in respect of the acquisition of the entire issued share capital of Discuva Limited on 27 December 2017, including but not limited to, any milestone and royalty payments pursuant to the collaboration agreement with F. Hoffmann-La Roche Limited dated 28 February 2014.

 

 

 

41

SCHEDULE 2

DOCUMENTS TO BE DELIVERED TO N+1 SINGER

 

1.	On signing of this Agreement:

 

1.1	A certified copy of the minutes of a meeting of the Directors authorising inter alia:

 

1.1.1

the Placing and Subscription (conditional on shareholder approval at the General Meeting);

 

1.1.2

entry into this Agreement;

 

1.1.3

the release of the Press Release and the Circular;

 

1.1.4

the issue of the Fundraising Documents.

 

1.2	The LSE Application signed and dated on behalf of the Company.

 

1.3	A copy of the Press Release signed for identification by a Director.

 

1.4	A copy of the Circular signed for identification by a Director.

 

1.5	An original of the Working Capital Memorandum in the approved terms.

 

1.6	A copy of the duly executed Subscription Agreement.

 

1.7	A copy of the duly executed instrument in the approved terms constituting the Warrants.

 

1.8	A copy of the Verification Notes signed on behalf of the Company.

 

2.	By 1.00 p.m. on the third Business Day prior to Admission

A copy of all documents necessary to enable the Fundraising Shares to participate in CREST signed by the Company, if required by N+1 Singer.

 

3.	By 5.00 p.m. on the Business Day prior to Admission:

 

3.1	A certificate (in the form set out in Schedule 3) signed by a Director for and on behalf of the Company dated with the expected date of Admission.

 

3.2

A certified copy of the minutes of a meeting of the Directors (or a duly authorised committee) in terms previously agreed with N+1 Singer authorising the allotment of the Fundraising Shares in accordance with the provisions of clause 6.1 subject only to Admission; the constitution of the Warrants and the grant and delivery of the Warrant Certificates pursuant to the Allocation Schedule; and the release of the Result of Placing Announcement.

 

3.3	A copy of the duly executed Warrant Certificates in respect of the Warrants.

 

3.4	A copy of the Result of Placing Announcement signed for identification by a Director.

 

 

 

42

SCHEDULE 3

FORM OF CERTIFICATE TO BE DELIVERED TO N+1 SINGER

[Letterhead of Summit Therapeutics plc]

The Directors

Nplus1 Singer Advisory LLP

[•] 2019

Dear Sirs

Placing of up to 9,221,400 New Ordinary Shares

We refer to the placing agreement between us dated                              2019 relating to the above-mentioned Placing (the “Placing Agreement”). Words and expressions defined in the Placing Agreement have the same meanings in this letter.

We confirm to you that:

 

(a)

each of the Conditions referred to in clause 2.1 (other than the Condition set out in clause 2.1.13) of the Placing Agreement has been fulfilled in accordance with its terms (or waived);

 

(b)

save as disclosed in writing to N+1 Singer prior to the date hereof pursuant to clause 10.3, none of the warranties contained in the Placing Agreement was untrue, inaccurate or misleading at the date of the Placing Agreement or would cease to be true or accurate or would become misleading if such Warranties were repeated at any time before Admission by reference to the facts and circumstances then subsisting; and

 

(c)

save as disclosed in writing to N+1 Singer prior to the date hereof, the Company has complied with or performed its obligations under the Placing Agreement to the extent that the same fall to be performed prior to Admission.

Yours faithfully

Director, duly authorised

for and on behalf of

Summit Therapeutics plc

 

 

 

43

EXECUTION PAGE

 

SIGNED by Aubrey Powell		)
for and on behalf of		)		/s/ Aubrey Powell
Nplus1 SINGER ADVISORY LLP		)
SIGNED by Glyn Edwards		)
for and on behalf of		)		/s/ Glyn Edwards
SUMMIT THERAPEUTICS PLC		)

 

 

 

44

Exhibit 4.3

DATE: 6 DECEMBER 2019

 

 

DEED OF TERMINATION OF A RELATIONSHIP AGREEMENT

DATED 14 DECEMBER 2018

 

 

Between

SUMMIT THERAPEUTICS PLC

ROBERT W. DUGGAN

and

CAIRN FINANCIAL ADVISERS LLP

 

 

CMS Cameron McKenna Nabarro Olswang LLP

Cannon Place

78 Cannon Street

London EC4N 6AF

T +44 20 7367 3000

F +44 20 7367 2000

cms.law

TABLE OF CONTENTS

 

1.		Definitions and Interpretation			1
2.		Condition			1
3.		Mutual release and waiver of rights			2
4.		Miscellaneous			2

THIS DEED is made on 6 December 2019

BETWEEN:

 

(1)	SUMMIT THERAPEUTICS PLC (incorporated and registered in England and Wales under registration number 05197494), the registered office of which is at 136a Eastern Avenue, Milton Park, Abingdon, Oxfordshire OX14 4SB, United Kingdom (the “Company”);

 

(2)	ROBERT W. DUGGAN, of 611 South Fort Harrison Avenue, Suite 306, Clearwater, Florida 33756, United States (the “Investor”); and

 

(3)	CAIRN FINANCIAL ADVISERS LLP (incorporated and registered in England and Wales under registration number OC351689), the registered office of which is at Cheyne House, Crown Court, 62-63 Cheapside, London EC2V 6AX, United Kingdom (the “Nomad”).

RECITALS

 

(A)	The Company, the Investor and the Nomad entered into a relationship agreement dated 14 December 2018, relating to the Investor’s shareholding in the Company (the “Relationship Agreement”).

 

(B)	Each of the parties has agreed to enter into this deed in order, subject to satisfaction of the Condition (as defined below), to terminate the continuing provisions of the Relationship Agreement and waive any past breaches of it.

Operative Provisions

 

1.	DEFINITIONS AND INTERPRETATION

 

1.1	In this deed:

 

1.1.1

“AIM Delisting” means the proposed cancellation of the Company’s ordinary shares of £0.01 each from admission to trading on the AIM market of the LSE.

 

1.1.2

“LSE” means the London Stock Exchange Plc.

 

1.1.3

The headings and sub-headings are for convenience only and shall not affect the construction of this deed.

 

1.1.4

References to “the parties” or to a “party” are to parties (or a party) to this deed and include the parties’ successors.

 

1.1.5

Unless the context otherwise requires, words denoting the singular shall include the plural and vice versa and references to any gender shall include all other genders.

 

2.

CONDITION

 

2.1	The provisions of this deed shall be conditional on, and shall take effect upon, the AIM Delisting becoming effective by way of the issue by the LSE of a dealing notice (as such term is defined in the AIM Rules for Companies) (the “Condition”).

 

2.2	If satisfaction of the Condition has not taken place on or before 30 April 2020 this deed shall lapse and the Relationship Agreement shall continue to have full force and effect.

 

1

3.	MUTUAL RELEASE AND WAIVER OF RIGHTS

 

3.1	With effect from the satisfaction of the Condition, each of the parties:

 

3.1.1

agrees that each of the other parties shall be released from all of its continuing obligations (if any) under the Relationship Agreement, to the intent that with effect from that time the Relationship Agreement shall be terminated and be of no further force or effect; and

 

3.1.2

except in the case of fraud, irrevocably waives and releases all rights it presently has or which, in the absence of this deed, it might otherwise have had to bring a claim against any one or more of the other parties pursuant to, or in respect of the subject matter of, the Relationship Agreement, whether in relation to past, present or future circumstances, and regardless of whether it presently knows or could know of the grounds or legal basis for any such claim.

 

4.	MISCELLANEOUS

 

4.1	This deed may be executed in counterparts and by the parties on different counterparts. Each counterpart shall constitute an original of this deed but all the counterparts shall together constitute one and the same deed.

 

4.2	Nothing in this deed is intended to confer on any person any right to enforce any term of this deed which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999.

 

4.3	Each party shall bear its own costs and expenses in relation to the negotiation, preparation, execution and carrying into effect of this deed.

 

4.4

This deed, and any non-contractual rights or obligations arising out of or in connection with it or its subject matter, shall be governed by and construed in accordance with English law and each of the parties agrees that the courts of England shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this deed or its subject matter

IN WITNESS of which the parties have signed this instrument as a deed and have delivered it upon dating it.

 

Executed as a deed by		)
SUMMIT THEREPEUTICS PLC		)
on being signed by		)		/s/ Glyn Edwards
/s/ Glyn Edwards		)		Director
in the presence of:		)

 

Signature of witness:		/s/ Melissa Strange
Name:		Melissa Strange
Address:
Occupation:		Accountant

 

2

Signed as a deed by		)
ROBERT W. DUGGAN		)		/s/ Robert W. Duggan
in the presence of:		)

 

Name of witness:		Catherine Zwan
Signature of witness:		/s/ Catherine Zwan
Address:
Occupation:		Executive Assistant

 

Executed as a deed by		)
CAIRN FINANCIAL ADVISERS LLP		)		/s/ Anthony Rawlinson
acting by		)		Member
Anthony Rawlinson		)
and		)
Liam Murray		)		/s/ Liam Murray
each a member, in the presence of:		)		Member

 

Signature of witness:		/s/ Ludovico Christopher Lazzaretti
Name:		Ludovico Christopher Lazzaretti
Address:
Occupation:		Executive

 

3

Exhibit 4.4

CONSULTING AGREEMENT

This Consulting Agreement (the “Agreement”) dated December 6, 2019 is entered into by and between Summit Therapeutics plc, a public limited company incorporated in England and Wales with the Registrar of Companies of England and Wales (the “Company”), having a principal place of business at 136a Eastern Avenue, Milton Park, Abingdon, Oxfordshire, OX14 4SB, United Kingdom, and Maky Zanganeh & Associates, Inc., a California corporation (“Consultant”), having a business address at 2882 Sand Hill Rd., Suite 106, Menlo Park, California 94025, United States of America. The Company and Consultant are each a “Party” hereunder and collectively “the Parties.” The Agreement will be effective upon the date of Admission (as such term is defined in the Company’s circular to shareholders dated on or around the date of this Agreement in connection with a proposed equity investment in the Company by Robert Duggan) (the “Effective Date”).

1. Consulting Relationship. During the Consultation Period (as defined below), Consultant shall provide consulting services to the Company as described on Exhibit A to this Agreement (the “Services”), including through Consultant’s Assistant(s) (as defined below). Assistants are direct employees of Consultant. Assistant(s) shall have qualifications, experience and ability to properly perform the Services on behalf of Consultant. Consultant will use commercially reasonable efforts to perform the Services. The Company shall provide access to its information and property as may be reasonably required in order to permit Consultant to perform its obligations hereunder. Consultant shall cooperate with the Company’s personnel and shall not interfere with the conduct of the Company’s business. In performing the Services, Consultant will comply with all business conduct, regulatory and health and safety laws or regulations established by any governmental authority and all such guidelines established by the Company of which Consultant has been advised of in writing with respect to the business of the Company and shall indemnify, defend and hold harmless the Company and its successors and assigns from any claims, suits, judgments or causes of action initiated by any third party against the Company where such actions result directly from the Services performed by the Consultant or its Assistants in violation of or conflict with any such laws, guidelines or regulations. Notwithstanding the foregoing, Consultant will not indemnify for any claims brought by or on behalf of patients participating in the Phase 3 clinical trials of Ridinilazole. The Parties hereby agree that the selection of the Assistants will be by Consultant. The Services will be performed at Consultant’s facilities unless the Company has a specific need for Consultant to travel for a business meeting and Consultant is available to travel at such time. Company will provide adequate notification if such travel is required.

2. Fees. As consideration for the Services to be provided by Consultant, the Company shall pay or cause to be paid to Consultant the compensation as specified in Exhibit B attached to this Agreement at the times specified therein. It will be Consultant’s sole obligation to report all compensation for Services received by Consultant from Company to the appropriate federal, state and local tax authorities as applicable. For the avoidance of doubt, the Parties agree that on and as of the Effective Date, no additional fees shall be payable to Consultant pursuant to that certain Consulting Agreement, dated as of October 16, 2019, by and between the Parties (the “Consulting Agreement”) other than fees earned prior to the Effective Date of this Agreement.

3. Expenses. Consultant and its Assistants and Subcontractors (as defined below) shall not be authorized to incur any expenses on behalf of the Company. Notwithstanding the foregoing, the Company shall reimburse Consultant for all reasonable, documented and authorized travel and out-of-pocket expenses, incurred or paid by Consultant and its Subcontractors in connection with, or related to, the performance of Services under this Agreement with the prior written approval of the Company. Consultant and any Assistant or Subcontractor agrees to comply with the Company’s expense reimbursement policy regarding travel, lodging and meals attached as Exhibit C. Any requests for approval shall be responded to within twenty-four (24) hours of the request to minimize the cost of last minute bookings and allow for appropriate planning. As a condition to receipt of reimbursement, Consultant shall be required to submit to the Company reasonable evidence that the amount involved was expended and related to Services provided under this Agreement. Consultant shall bill the Company for expenses within fifteen (15) days of the last day of the calendar month, and the Company shall reimburse Consultant directly within 30 days of submission of such invoice.

4. Term and Termination. Consultant shall serve as a consultant to the Company for a period commencing on the Effective Date and terminating on the three (3) year anniversary of the Effective Date (the “Consultation Period”).

Consultant may terminate this Agreement upon fifteen (15) days prior notice.

5. Intellectual Property and Return of Company Information

5.1 Intellectual Property

5.1.1 All inventions, ideas, creations, discoveries, computer programs, works of authorship, data, developments, technology, designs, innovations and improvements (whether or not patentable and whether or not copyrightable) which are made, conceived, reduced to practice, created, written, designed or developed by Consultant, solely or jointly with others or under its direction and whether during normal business hours or otherwise, (i) during the Consultation Period if directly related to the business of the Company as to clostridium difficile antibiotics and the Services or (ii) after the Consultation Period if resulting or directly derived from Proprietary Information (as defined below) (collectively under clauses (i) and (ii), “Inventions”), shall be the sole property of the Company. Consultant hereby assigns to the Company all Inventions and any and all related patents, copyrights, trademarks, trade names, and other industrial and intellectual property rights and applications therefor, in the United States and elsewhere to the maximum extent permitted by Section 2870 of the California Labor Code or any like statute of any other state. Consultant understands that the provisions of this Agreement requiring assignment of Inventions to the Company do not apply to any Invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto as Exhibit D). Consultant also appoints any officer of the Company as its duly authorized attorney to execute, file, prosecute and protect the same before any government agency, court or authority.

5.1.2 Upon the request of the Company and at the Company’s expense, Consultant shall execute such further assignments, documents and other instruments as may be necessary or desirable to fully and completely assign all Inventions to the Company and to assist the Company in applying for, obtaining and enforcing patents or copyrights or other rights in the United States and in any

 

2

foreign country with respect to any Invention. Consultant also hereby waives all claims to moral rights in any Inventions. Without limiting the generality of the foregoing, the Company will have the unrestricted right to use, reproduce, modify, distribute, display and make derivative works of all writings, documents and results generated under or otherwise resulting from this Agreement, whether in written, graphic, electronic or other media.

5.1.3 Consultant shall promptly disclose to the Company all Inventions and will maintain adequate and current written records (in the form of notes, sketches, drawings and as may be specified by the Company) to document the conception and/or first actual reduction to practice of any Invention. Such written records shall be available to and remain the sole property of the Company at all times.

5.1.4 For clarity purposes, the Parties agree that Inventions will not include, and the provisions of this Agreement requiring assignment of Inventions to the Company do not apply to any inventions that are developed outside of the Services and are not directly derived from Proprietary Information of the Company.

5.2 Infringing Actions. Consultant will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former client, employer or third party in the performance of the Services required by this Agreement.

5.3 Return of Company Information. Upon termination of this Agreement or at any other time upon request by the Company, Consultant shall promptly deliver to the Company or destroy all records, files, memoranda, notes, designs, data, reports, price lists, customer lists, drawings, plans, computer programs, software, software documentation, sketches, laboratory and research notebooks and other documents (and all copies or reproductions of such materials) containing Proprietary Information, whether created by Consultant or others, which shall come into its custody or possession at the expense of the Company. If documents are to be destroyed, Consultant agrees to certify that all such documents have been destroyed. Consultant may retain copies of Proprietary Information that are stored on Consultant’s IT backup and disaster recovery systems until the ordinary course deletion thereof. Consultant shall continue to be bound by the terms and conditions of this Agreement with respect to such retained Proprietary Information.

6. Independent Contractor. Consultant represents and warrants to the Company that it is an “independent contractor” as defined under U.S. Treasury Regulation Section 1.409A-1(f)(2). Consultant and its Assistants shall perform all Services under this Agreement as an independent contractor acting in the ordinary course of its business. Consultant and its Assistants are not Company employees. Consultant and its Assistants are not authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the Company or to bind the Company in any manner.

(a) Method of Provision of Services: Except as otherwise expressly provided in this Agreement, Consultant shall be solely responsible for determining the method, details and means of performing the Services. Subject to Section 1, Consultant may select such employees of Consultant as Consultant deems necessary to perform the Services required by this Agreement (the “Assistants”). Consultant shall be wholly responsible for the professional performance of the Services by its Assistants.

 

3

Consultant shall expressly advise the Assistants of the terms of this Agreement and shall require each Assistant to abide by the confidentiality requirements of this Agreement. Consultant may recommend that the Company engage with third party contractors, subcontractors and/or consultants (hereinafter referred to as “Subcontractors”). The use of such Subcontractors shall be approved in advance and in writing by the Company, such approval not to be unreasonably withheld. Consultant shall pay for the fees of the Subcontractors. However, Company agrees to reimburse all such fees for the Subcontractors, within thirty (30) days of receipt of an invoice for such fees. Consultant and/or its Assistants will review and oversee work done by Subcontractors. In the event that the Company permits Consultant to use the services of one or more Subcontractors, Consultant shall be liable for any breach of the provisions of this Agreement by its Subcontractors. In no event shall Consultant, or any Assistant, Subcontractor, partner, agent, employee of Consultant, perform any portion of the Services outside the United States of America, except upon the request or with the prior approval of the Company.

(b) No Authority to Bind Company. Neither Consultant, nor any Assistant, Subcontractor, partner, agent, employee of Consultant shall have or purport to have authority to enter into contracts that bind the Company, or create obligations on the part of the Company without the prior written authorization of the Company’s Chief Executive Officer (“CEO”), Chief Operating Officer (“COO”) or CEO/COO designee.

(c) No Benefits. Consultant acknowledges and agrees that Consultant and its Assistant(s) will not be eligible for any Company employee benefits, including, without limitation, social security, unemployment, medical or pension payments made available to employees of the Company, and, to the extent Consultant or its Assistant(s) otherwise would be eligible for any Company employee benefits but for the express terms of this Agreement, Consultant (on behalf of itself and its employees) hereby expressly declines to participate in such Company employee benefits.

(d) Taxes; Indemnification. Consultant shall have full responsibility for any amount of taxes, duties and social security contributions (including interest and penalties) with regard to all compensation paid to Consultant (including for any of its Assistants) under this Agreement, in each case imposed (i) by the United States or any subdivision thereof or (ii) to the extent such amount becomes due other than by reason of an action taken by Consultant pursuant to this Agreement that was previously requested or approved by the Company, any other taxing jurisdiction. For purposes of clarity, the Services described in Exhibit A have been requested and approved by the Company. Consultant will comply with all applicable labor and employment requirements with respect to Services hereunder. Consultant shall be responsible for its form of business organization and operations, including state worker’s compensation insurance coverage requirements and any US immigration visa requirements. Consultant agrees to indemnify, defend and hold the Company harmless from any liability for, or assessment of, any claims or penalties from third parties (including governmental authorities) with respect to any U.S. tax, labor or employment requirements relating to Services or payments hereunder.

(e) Tax Information. As a condition to payment under this Agreement, upon its execution hereof Consultant shall provide a complete and accurate IRS Form W-9 to the Company.

 

4

7. Supervision of Consultant’s Services. All of the Services to be performed by Consultant, will be as agreed between Consultant and the Company’s CEO, COO or CEO/COO designee and attached hereto as Exhibit A. From time to time, the Parties may agree to amend Exhibit A; such amendment shall be in writing and signed by a duly authorized designee of each Parties. Upon execution of both Parties, the revised or amended Exhibit A shall be part of this Agreement.

8. Consulting or Other Services for Competitors. Consultant represents and warrants that Consultant and its Assistant(s) do not presently perform nor intend to perform, during the Consultation Period, consulting services for companies whose businesses are to develop antibiotics or other therapeutics for clostridium difficile infection. Nothing in this Agreement is intended to preclude Consultant or its Assistants from investing financially in competitors of the Company, even if such competitor’s products or services directly compete with the Company’s products or services, or from consulting for companies that are not direct competitors of the Company.

9. Confidentiality. Consultant agrees that all information, whether or not in writing, concerning the Company’s business, technology, business relationships or financial affairs which the Company has not released to the general public (collectively, “Proprietary Information”) is and will be the exclusive property of the Company. By way of illustration, but not limitation, Proprietary Information may include information or material which has not been made generally available to the public, such as: (a) corporate information, including plans, strategies, methods, policies, resolutions, negotiations or litigation; (b) marketing information, including strategies, methods, customer identities or other information about customers, prospect identities or other information about prospects, or market analyses or projections; (c) financial information, including cost and performance data, debt arrangements, equity structure, investors and holdings, purchasing and sales data and price lists; (d) operational and technological information, including plans, specifications, manuals, forms, templates, pre-clinical and clinical testing data and strategies, software, designs, methods, procedures, formulas, discoveries, inventions, improvements, concepts and ideas; and (e) personnel information, including personnel lists, reporting or organizational structure, resumes, personnel data, compensation structure, performance evaluations and termination arrangements or documents. Proprietary Information also includes information received in confidence by the Company from its customers, clients, or suppliers or other third parties. Consultant will not, at any time, without the Company’s prior written permission, either during or after the Consultation Period, disclose any Proprietary Information to anyone outside of the Company, or use or permit to be used any Proprietary Information for any purpose other than the performance of its duties as a Consultant of the Company. Consultant will cooperate with the Company and use its best efforts to prevent the unauthorized disclosure of all Proprietary Information. Consultant will deliver to the Company all copies of Proprietary Information in its possession or control upon the earlier of a request by the Company or termination of this Agreement. Consultant understands that the Company is now and may hereafter be subject to non-disclosure or confidentiality agreements with third parties, which require the Company to protect or refrain from use of proprietary or the confidential information of the third party. Consultant agrees to be bound by the terms of such agreements in the event Consultant has access to such proprietary or confidential information. Consultant’s obligations under this Section 9 shall not apply to any information that (i) is or becomes known to the general public under circumstances involving no breach by Consultant or others of the terms of this Section 9, (ii) is generally disclosed to third parties by the Company without restriction on such third parties, or (iii) is approved for release by written authorization of an officer of the Company. Consultant warrants that each of the individuals in Consultant’s employ or participating in the rendering of the Services under its supervision, including its Assistant(s) and any Subcontractors, is bound by a confidentiality agreement with terms at least as stringent as the terms of this Section 9 that Consultant has signed with the Company. Notwithstanding the foregoing, Consultant shall remain liable for any breach by its Assistants or any Subcontractors of any confidentiality obligation herein.

 

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10. Conflicts with this Agreement. Consultant represents and warrants that neither Consultant nor its Assistant(s) currently have any agreement with, nor any other obligation to, any third party that would conflict with the terms of this Agreement, nor shall Consultant enter into any such agreement nor incur such an obligation, without the prior written consent of the Company. Consultant further represents that the performance of the Services will not breach any agreement or obligation with any third party, including without limitation any obligation to refrain from engaging in activities that may compete with such party.

11. U.S. Securities Laws. Consultant hereby acknowledges that Consultant is aware, and further agrees that Consultant will advise those of its directors, officers, employees, agents, Assistants and Subcontractors who may have access to confidential information about the Company, that United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities of such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

12. Solicitation of Employees, Consultants and Other Parties. The Company and Consultant agree that during the Consultation Period, and for a period of twenty-four (24) months immediately following the termination of the Agreement for any reason, whether with or without cause, neither Party shall either directly or indirectly solicit, induce, recruit or encourage any of the other Parties’ employees or consultants to terminate their relationship with the other Party, or attempt to solicit, induce, recruit, encourage or take away employees or consultants of the other Party, either for itself or for any other person or entity. Further, during the Consultation Period and at any time following the termination of the Agreement for any reason, whether with or without cause, Consultant shall not use any Proprietary Information of the Company to negatively influence any of the Company’s clients or customers from purchasing Company products or services or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct any purchase of products and/or services to any person, firm, corporation, institution or other entity in direct competition with the Company as defined herein.

13. Force Majeure. Neither Party shall lose any rights hereunder or be liable to the other Party for damages or losses on account of failure of performance by the defaulting Party, other than a failure to make payment, if the failure is occasioned by government action, war, terrorism, fire, explosion, flood, strike, lockout, embargo, shortage of materials or utilities, vendor failure to supply, act of God, or any other cause beyond the control and without the fault or negligence of the defaulting Party, provided that the Party claiming force majeure has exerted all reasonable efforts to avoid or remedy such force majeure; provided, however, that in no event shall a Party be required to settle any labor dispute or disturbance. Such excuse shall continue as long as the condition preventing the performance continues. Upon cessation of such condition, the affected Party shall promptly resume performance hereunder. Each Party agrees to give the other Party prompt written notice of the occurrence of any such condition, the nature thereof, and the extent to which the affected Party will be unable to perform its obligations hereunder. Each Party further agrees to use all reasonable efforts to correct the condition as quickly as possible and to give the other Party prompt written notice when it is again fully able to perform its obligations hereunder.

 

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14. Assignment. Neither Party may assign this Agreement without prior written consent from the other Party. This Agreement will be binding upon and inure to the successors and permitted assignees of the Parties and the name of a Party appearing herein will be deemed to include the names of such Party’s successor’s and permitted assigns to the extent necessary to carry out the intent of this Agreement. Any assignment not in accordance with this Section 14 will be null and void.

15. Miscellaneous.

(a) Amendments and Waivers. This Agreement may be amended or modified only by a written instrument executed by both the Company and Consultant.

(b) Entire Agreement. This Agreement, including the Exhibits hereto, constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this Agreement, including the Consulting Agreement.

(c) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, 48 hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the Party to be notified at such Party’s address or facsimile number as set forth above, or as subsequently modified by written notice.

(d) Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California, without giving effect to the principles of conflict of laws.

(e) Severability. If any term, provision, covenant or condition set forth herein (including, without limitation, the exhibits hereto) or the application thereof to any circumstance shall, in any jurisdiction and to any extent, be invalid, void or unenforceable, such term or provision shall be ineffective as to such jurisdiction to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining terms, provisions, covenants or conditions hereof or the application of such terms, provisions, covenants or conditions to circumstances other than those as to which it is held invalid or unenforceable, and a suitable and equitable term or provision shall be substituted therefor to carry out, insofar as may be valid and enforceable, the intent and purpose of the invalid or unenforceable term, provision, covenant or condition.

(f) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument. Each Party agrees that the delivery of the signed Agreement by facsimile or in electronically readable format shall have the same force and effect as delivery of original signature and that each Party may use such signatures as evidence of the execution and delivery of the Agreement by all Parties to the same extent that an original signature could be used.

 

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(g) Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.

[Signature Page Follows]

 

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The Parties have executed this Agreement on the respective dates set forth below.

 

SUMMIT THERAPEUTICS PLC
By:		/s/ Glyn Edwards
		Glyn Edwards, Chief Executive Officer
Date:		December 6, 2019
MAKY ZANGANEH & ASSOCIATES, INC.
By:		/s/ Mahkam Zanganeh
Name:		Mahkam Zanganeh
Title:		CEO
Address:		2882 Sand Hill Road, Suite 106
		Menlo Park, CA 94025

 

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EXHIBIT A

DESCRIPTION OF CONSULTING SERVICES

Description of Services

Services will include the following:

 

1.

Evaluation of and assistance in managing the contract research organization responsible for the Phase 3 clinical trials of Ridinilazole in clostridium difficile infection.

 

2.

Assistance with site management and support for the Phase 3 clinical trials of Ridinilazole in clostridium difficile infection.

 

3.

Assistance with acceleration of patient enrollment for the Phase 3 clinical trials of Ridinilazole in clostridium difficile infection.

 

4.

Assistance with FDA filing of the NDA for Ridinilazole (including organization, drafting, editing & review of documents).

 

5.

Provide detailed development strategy plan for the clinical and regulatory programs for Ridinilazole in clostridium difficile infection.

 

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EXHIBIT B

COMPENSATION

Consultant shall be granted a warrant to acquire 16,793,660 ordinary shares of the Company (the “Warrant”). The Warrant shall have an exercise price per share equivalent to £0.221. The Warrant shall vest in equal quarterly installments over three years, subject to the provision of on-going Services to the Company by Consultant during the Consultation Period. Consultant shall have five (5) years from the termination or expiration date of this Agreement or ten (10) years from the date of grant of the Warrant, whichever is earlier, to exercise the vested portion of the Warrant. In the event of an early termination of this Agreement by Consultant, any portion of the Warrant that is unvested as of the time of such termination shall be forfeited immediately and automatically to the Company, without the payment of any consideration to Consultant.

The Company will pay Consultant a fee of seventy-five thousand U.S. dollars ($75,000) per month during the Consultation Period, which shall be payable on the first business day of each month. The Parties may agree to increase this fee if the Company requests that Consultant use more Assistants to support the Services than the Parties contemplated upon the date of the Agreement.

 

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EXHIBIT C

EXPENSE REIMBURSEMENT POLICY

 

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EXHIBIT D

CALIFORNIA LABOR CODE SECTION 2870

INVENTION ON OWN TIME – EXEMPTION FROM AGREEMENT

 

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