|
England and Wales
|
|
7371
|
|
Not Applicable
|
(State or other Jurisdiction of
Incorporation or Organization)
|
|
(Primary Standard Industrial
Classification Code Number)
|
|
(I.R.S. Employer
Identification Number)
|
Nicole Brookshire
Darren DeStefano
Richard Segal
Cooley LLP
500 Boylston Street, 14
th
Floor
Boston, MA 02116
(617) 937-2300
|
|
Ed Lukins
Ed Dyson
Cooley (UK) LLP
Dashwood
69 Old Broad Street
London EC2M 1QS
United Kingdom
+44 20 7785 9355
|
|
Alan Denenberg
Reuven Young
Davis Polk & Wardwell LLP
1600 El Camino Real
Menlo Park, CA 94025
(650) 757-2000
|
*
|
The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
|
TITLE OF EACH CLASS OF SECURITIES
TO BE REGISTERED
|
|
PROPOSED
MAXIMUM
AGGREGATE
OFFERING
PRICE(1)(2)
|
|
AMOUNT OF
REGISTRATION
FEE(3)
|
Class A ordinary shares, nominal value £0.10 per ordinary share(4)
|
|
$75,000,000
|
|
$9,338
|
(1)
|
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(o) of the Securities Act of 1933, as amended.
|
(2)
|
Includes the aggregate offering price of additional Class A ordinary shares represented by American Depositary Shares, or ADSs, which the underwriters have the option to purchase, if any.
|
(3)
|
Calculated pursuant to Rule 457(o) based on an estimate of the proposed maximum aggregate offering price.
|
(4)
|
These Class A ordinary shares are represented by ADSs, each of which represents one Class A ordinary share of the registrant. ADSs issuable upon deposit of the Class A ordinary shares registered hereby are being registered pursuant to a separate registration statement on Form F-6 (File No. 333- ).
|
(1)
|
We intend to alter the legal status of our company under English law from a private limited company by re-registering as a public limited company and changing our name from Endava Limited to Endava plc prior to the completion of this offering
.
|
|
|
Price to Public
|
|
Underwriting Discounts
and Commissions (1) |
|
Proceeds to Endava
|
|
Proceeds to the Selling Shareholders
|
Per ADS
|
$
|
|
$
|
|
$
|
|
$
|
Total
|
$
|
|
$
|
|
$
|
|
$
|
(1)
|
See “Underwriters” for a description of the compensation payable to the underwriters.
|
MORGAN STANLEY
|
|
CITIGROUP
|
|
CREDIT SUISSE
|
|
DEUTSCHE BANK SECURITIES
|
COWEN
|
|
|
|
|
|
WILLIAM BLAIR
|
|
Page
|
|
Page
|
•
|
Ideation through Production
.
We help our clients become digital, experience-driven businesses by assisting them in their journey from idea generation to development and deployment of products, platforms and solutions.
|
•
|
Proprietary Framework for Distributed Enterprise Agile at Scale
.
To allow us to deliver Distributed Enterprise Agile at scale, we have developed a proprietary Agile scaling framework, TEAS. TEAS utilizes common Agile scaling frameworks, but enhances them by balancing the requirements of delivering both quality and speed-to-market.
|
•
|
Expertise in Next-Generation Technologies
.
We have deep expertise in next-generation technologies that drives our ability to provide solutions for Digital Evolution, Agile Transformation and Automation. Our expertise ranges from technologies developed over the last decade including mobile connectivity, social media, automation, big data analytics and cloud delivery to next-generation technologies such as IoT, artificial intelligence, machine learning, augmented reality, virtual reality and blockchain.
|
•
|
Strong Domain Expertise
.
We have deep expertise in industry verticals that are being disrupted by technological change, particularly Payments and Financial Services and Technology, Media and Telecommunications.
|
•
|
Employer of Choice in Regions with Deep Pools of Talent
.
We strive to be one of the leading employers of IT professionals in the regions in which we operate. We locate our nearshore delivery centers in countries that not only have abundant IT talent pools, but also offer us an opportunity to be a preferred employer. For example, a majority of our employees are located in Romania, where we have been identified as a top employer for each of the last five years.
|
•
|
Distinctive Culture and Values
.
We believe that our people are our most important asset. We provide Endavans with training to develop their technical and soft skills, in an environment where they are continually challenged and given opportunities to grow as professionals. We believe that we have built an organization deeply committed to helping people succeed and that our culture fosters our core values of openness, thoughtfulness and adaptability.
|
•
|
Founder Led, Experienced and Motivated Management Team
. Our management team, led by John Cotterell, our founder and chief executive officer, has significant experience in the global technology and services industries. Our most senior 38 employees have an average tenure at Endava of 11 years.
|
•
|
Expand Relationships with Existing Clients
.
We are focused on continuing to expand our relationships with existing clients by helping them solve new problems and become more engaging, responsive and efficient.
|
•
|
Establish New Client Relationships
.
We believe that we have a significant opportunity to add new clients in our existing core industry verticals and geographies, and to expand our client base to new industry verticals and geographies.
|
•
|
Lead Adoption of Next-Generation Technologies
.
We seek to apply our creative skills and deep digital technical engineering capabilities to enhance our clients’ value to their end customers and users. As a result, we are highly focused on remaining at the forefront of emerging technology trends.
|
•
|
Expand Scale in Nearshore Delivery
. As we continue to expand our relationships with existing clients and attract new clients, we plan to expand our teams at existing delivery centers and open new delivery centers in nearshore locations with an abundance of technical talent.
|
•
|
Selectively Pursue “Tuck-In” Acquisitions
. We have a demonstrated track record of successfully identifying, acquiring and integrating complementary business and plan to leverage this experience as we pursue our “tuck-in” acquisition strategy.
|
•
|
We may not be able to sustain our revenue growth rate in the future.
|
•
|
We are dependent on our largest clients.
|
•
|
We must attract and retain highly-skilled IT professionals.
|
•
|
Our revenue is dependent on a limited number of industry verticals.
|
•
|
Our profitability could suffer if we are not able to maintain favorable pricing.
|
•
|
Recent acquisitions and potential future acquisitions could prove difficult to integrate, disrupt our business, dilute shareholder value and strain our resources.
|
•
|
We are focused on growing our client base in North America and may not be successful.
|
•
|
We face intense competition.
|
•
|
We are dependent on our senior management team and key employees.
|
•
|
If we are unable to comply with our security obligations or our computer systems are or become vulnerable to security breaches, we may face reputational damage and lose clients and revenue.
|
•
|
The United Kingdom’s withdrawal from the European Union may have a negative effect on global economic conditions, financial markets and our business.
|
•
|
Fluctuations in currency exchange rates and increased inflation could materially adversely affect our financial condition and results of operations.
|
•
|
Our international operations involve risks that could increase our expenses, adversely affect our results of operations and require increased time and attention from our management.
|
•
|
The three class structure of our ordinary shares has the effect of concentrating voting control for the foreseeable future, which will limit your ability to influence corporate matters. Following the completion of this offering, holders of our Class B ordinary shares will collectively beneficially hold shares representing approximately % of the voting rights of our outstanding share capital and John Cotterell, our Chief Executive Officer, will beneficially hold Class B ordinary shares representing approximately % of the voting rights of our outstanding share capital. Notwithstanding this concentration of control, we do not expect that we will qualify as a “controlled company” under New York Stock Exchange listing rules.
|
•
|
the option to present only two years of audited financial statements and related discussion in the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in this prospectus;
|
•
|
not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002; and
|
•
|
not being required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements (i.e., an auditor discussion and analysis).
|
•
|
the sections of the Exchange Act regulating the solicitation of proxies, consents or authorizations in respect of a security registered under the Exchange Act;
|
•
|
the sections of the Exchange Act requiring insiders to file public reports of their stock ownership and trading activities and liability for insiders who profit from trades made in a short period of time; and
|
•
|
the rules under the Exchange Act requiring the filing with the SEC of quarterly reports on Form 10-Q containing unaudited financial and other specific information, and current reports on Form 8-K upon the occurrence of specified significant events.
|
ADSs offered by us
|
|
ADSs, each ADS representing one Class A ordinary share
|
|
|
|
ADSs offered by the selling shareholders
|
|
ADSs, each ADS representing one Class A ordinary share
|
|
|
|
Class A ordinary shares to be outstanding after
this offering
|
|
shares
|
|
|
|
Class B ordinary shares to be outstanding after
this offering
|
|
5,764,525 shares
|
|
|
|
Class C ordinary shares to be outstanding after this offering
|
|
3,255,508 shares
|
|
|
|
Total Class A ordinary shares, Class B ordinary
shares and Class C ordinary shares to be outstanding after this offering
|
|
shares
|
|
|
|
American Depositary Shares
|
|
Each ADS represents one Class A ordinary share, with a nominal value of £0.10 per share. The ADSs may be evidenced by American Depositary Receipts, or ADRs. The depositary will hold the Class A ordinary shares underlying the ADSs, and you will have the rights of an ADS holder or beneficial owner (as applicable) as provided in the deposit agreement among us, the depositary and holders and beneficial owners of ADSs from time to time. To better understand the terms of our ADSs, see “Description of American Depositary Shares.” We also encourage you to read the deposit agreement, the form of which is filed as an exhibit to the registration statement of which this prospectus forms a part.
|
|
|
|
Depositary
|
|
Citibank, N.A.
|
|
|
|
Over-allotment option
|
|
Certain of the selling shareholders have granted the underwriters an option for a period of 30 days from the date of this prospectus to purchase up to an additional ADSs.
|
|
|
|
Voting rights
|
|
Following this offering we will have three classes of authorized ordinary shares: Class A ordinary shares, Class B ordinary shares and Class C ordinary shares. The rights of the holders of Class A ordinary shares, Class B ordinary and Class C ordinary shares are identical, except with respect to voting, conversion and transfer. The holders of Class A ordinary shares are entitled to one vote per share, the holders of Class B ordinary shares are entitled to ten votes per share and the holders of Class C ordinary shares are entitled to one vote per share on all matters that are subject to shareholder vote. Each Class B ordinary share and Class C ordinary share may be converted into one Class A ordinary share at the option of its holder, subject to certain restrictions, and will be automatically converted into one Class A ordinary share upon transfer thereof, subject to certain exceptions. In addition, (i) on the date that the outstanding Class B ordinary shares represent less than 10% of the aggregate voting power of our share capital, all outstanding Class B ordinary shares will convert automatically into Class A ordinary shares and (ii) on the date that is two years from the date of this prospectus, all Class C ordinary shares will convert automatically into Class A ordinary shares. See “Description of Share Capital and Articles of Association.”
|
|
|
|
Restriction on transfer
|
|
We, our executive officers, directors and holders of substantially all of our outstanding ordinary shares (including all of the selling shareholders) have agreed that, subject to certain exceptions, for a period of 180 days from the date of this prospectus, we and they will not, without the prior written consent of Morgan Stanley & Co. LLC, dispose of or hedge any ADSs or shares or any securities convertible into or exchangeable for shares of our company. Morgan Stanley & Co. LLC may, at its discretion, release or waive any of the securities subject to these lock-up agreements at any time.
|
|
|
|
|
|
In addition, our articles of association provide that (i) each holder of Class B ordinary shares may not dispose of (a) any Class B ordinary shares during the period ending 180 days from the date of this prospectus, (b) more than 25% of the Class B ordinary shares held by such holder as of the date of this prospectus in the 18-month period following the date of this prospectus (including by conversion to Class A ordinary shares), (c) more than 40% of the Class B ordinary shares held by such holder as of the date of this prospectus in the three-year period following the date of this prospectus (including by conversion to Class A ordinary shares) and (d) more than 60% of the Class B ordinary shares held by such holder as of the date of this prospectus in the five-year period following the date of this prospectus (including by conversion to Class A ordinary shares) and (ii) each holder of Class C ordinary shares may not dispose of (a) any Class C ordinary shares during the period ending 180 days from the date of this prospectus or (b) more than 25% of the Class C ordinary shares held by such holder as of the date of this prospectus in the 18-month period following the date of this prospectus (including by conversion to Class A ordinary shares).
|
|
|
All of our directors and officers and certain of our other employees have agreed to receive Class B ordinary shares in exchange for all ordinary shares currently held by them. See “Description of Share Capital and Articles of Association.”
|
|
|
|
Use of proceeds
|
|
We estimate that the net proceeds from our sale of ADSs in this offering will be approximately $ million (£ million), assuming an initial public offering price of $ per ADS, the midpoint of the price range set forth on the cover page of this prospectus, and after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.
The principal purposes of this offering are to increase our capitalization and financial flexibility and create a public market for our ADSs. We intend to use the net proceeds we receive from this offering to repay in full amounts outstanding under our revolving credit facility with HSBC Bank PLC and for general corporate purposes, including working capital, selling, general and administrative expenses and capital expenditures.
See “Use of Proceeds” for additional information.
We will not receive any of the proceeds from the sale of ADSs by the selling shareholders.
|
|
|
|
Risk factors
|
|
See “Risk Factors” and the other information included in this prospectus for a discussion of factors you should carefully consider before deciding to invest in our ADSs.
|
|
|
|
Proposed New York Stock Exchange symbol
|
|
“DAVA”
|
•
|
33,846 Class A ordinary shares issuable upon the exercise of share options outstanding as of March 31, 2018, at a weighted average exercise price of £4.33 per share, with the balance of the total number of 974,642 Class A ordinary shares subject to share options outstanding as of March 31, 2018 being currently issued and outstanding and held by the Endava Limited Guernsey Employee Benefit Trust;
|
•
|
Class A ordinary shares that will be issued, following the completion of this offering, in connection with our acquisition of Velocity Partners LLC, or Velocity Partners, assuming a public offering price of $ per ADS, the midpoint of the price range set forth on the cover of this prospectus;
|
•
|
Class A ordinary shares reserved for future issuance pursuant to our 2018 Equity Incentive Plan, which will become effective prior to the completion of this offering and includes provisions that automatically increase the number of Class A ordinary shares reserved for issuance thereunder each year, and which number of reserved shares includes Class A ordinary shares that we will be required to issue to certain continuing employees of Velocity Partners over a period of three years following the completion of this offering; and
|
•
|
Class A ordinary shares reserved for future issuance pursuant to the Endava plc 2018 Sharesave Plan, which will become effective prior to the completion of this offering and includes provisions that automatically increase the number of Class A ordinary shares reserved for issuance thereunder each year.
|
•
|
the redesignation of an aggregate of 940,796 of our outstanding ordinary shares into an aggregate of 940,796 Class A ordinary shares prior to the completion of this offering;
|
•
|
the redesignation of an aggregate of 5,764,525 of our outstanding ordinary shares into an aggregate of 5,764,525 Class B ordinary shares prior to the completion of this offering;
|
•
|
the redesignation of an aggregate of 3,255,508 of our outstanding ordinary shares into an aggregate of 3,255,508 Class C ordinary shares prior to the completion of this offering;
|
•
|
the modification of all outstanding options to acquire ordinary shares into options to acquire an equal number of redesignated Class A ordinary shares prior to the completion of this offering;
|
•
|
the completion of the transactions described in the section of this prospectus titled “Corporate Reorganization”;
|
•
|
a -for-one share split of each class of our ordinary shares effected on , 2018;
|
•
|
no exercise of outstanding share options after March 31, 2018; and
|
•
|
no exercise of the underwriters’ over-allotment option.
|
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||||||||||||||||||
|
2015 (£)
|
|
2016 (£)
|
|
2017 (£)
|
|
2017 ($)
(1)
|
|
2017 (£)
|
|
2018 (£)
|
|
2018 ($)
(1)
|
||||||||||||||
|
(in thousands, except for share and per share amounts)
|
||||||||||||||||||||||||||
Consolidated Statements of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Revenue
|
£
|
84,107
|
|
|
£
|
115,432
|
|
|
£
|
159,368
|
|
|
$
|
223,625
|
|
|
£
|
116,322
|
|
|
£
|
156,140
|
|
|
$
|
219,096
|
|
Cost of sales:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Direct cost of sales
(2)
|
(49,717
|
)
|
|
(68,517
|
)
|
|
(98,853
|
)
|
|
(138,711
|
)
|
|
(72,692
|
)
|
|
(96,104
|
)
|
|
(134,853
|
)
|
|||||||
Allocated cost of sales
|
(3,674
|
)
|
|
(6,529
|
)
|
|
(9,907
|
)
|
|
(13,902
|
)
|
|
(6,943
|
)
|
|
(9,281
|
)
|
|
(13,023
|
)
|
|||||||
Total cost of sales
|
(53,391
|
)
|
|
(75,046
|
)
|
|
(108,760
|
)
|
|
(152,613
|
)
|
|
(79,635
|
)
|
|
(105,385
|
)
|
|
(147,876
|
)
|
|||||||
Gross profit
|
30,716
|
|
|
40,386
|
|
|
50,608
|
|
|
71,012
|
|
|
36,687
|
|
|
50,755
|
|
|
71,220
|
|
|||||||
Selling, general and administrative expenses
(2)
|
(13,729
|
)
|
|
(20,453
|
)
|
|
(27,551
|
)
|
|
(38,660
|
)
|
|
(19,993
|
)
|
|
(31,755
|
)
|
|
(44,559
|
)
|
|||||||
Operating profit
|
16,987
|
|
|
19,933
|
|
|
23,057
|
|
|
32,352
|
|
|
16,694
|
|
|
19,000
|
|
|
26,661
|
|
|||||||
Net finance (costs)/income
|
(1,781
|
)
|
|
898
|
|
|
(1,357
|
)
|
|
(1,904
|
)
|
|
(515
|
)
|
|
(1,030
|
)
|
|
(1,445
|
)
|
|||||||
Profit before tax
|
15,206
|
|
|
20,831
|
|
|
21,700
|
|
|
30,448
|
|
|
16,179
|
|
|
17,970
|
|
|
25,216
|
|
|||||||
Tax on profit on ordinary activities
|
(1,659
|
)
|
|
(4,125
|
)
|
|
(4,868
|
)
|
|
(6,831
|
)
|
|
(3,629
|
)
|
|
(3,893
|
)
|
|
(5,463
|
)
|
|||||||
Net profit
|
£
|
13,547
|
|
|
£
|
16,706
|
|
|
£
|
16,832
|
|
|
$
|
23,617
|
|
|
£
|
12,550
|
|
|
£
|
14,077
|
|
|
$
|
19,753
|
|
Earnings per share, basic
|
£
|
1.76
|
|
|
£
|
1.84
|
|
|
£
|
1.86
|
|
|
$
|
2.61
|
|
|
£
|
1.39
|
|
|
£
|
1.56
|
|
|
$
|
2.19
|
|
Earnings per share, diluted
|
£
|
1.47
|
|
|
£
|
1.69
|
|
|
£
|
1.71
|
|
|
$
|
2.40
|
|
|
£
|
1.27
|
|
|
£
|
1.42
|
|
|
$
|
1.99
|
|
Weighted average number of shares outstanding, basic
|
7,696,492
|
|
|
9,077,842
|
|
|
9,051,750
|
|
|
9,051,750
|
|
|
9,060,100
|
|
|
9,020,033
|
|
|
9,020,033
|
|
|||||||
Weighted average number of shares outstanding, diluted
|
9,230,051
|
|
|
9,863,609
|
|
|
9,858,504
|
|
|
9,858,504
|
|
|
9,874,961
|
|
|
9,911,426
|
|
|
9,911,426
|
|
|||||||
Other Financial Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Revenue period-over-period growth rate
|
31.6
|
%
|
|
37.2
|
%
|
|
38.1
|
%
|
|
|
|
39.4
|
%
|
|
34.2
|
%
|
|
|
|||||||||
Profit before tax margin
|
18.1%
|
|
|
18.0%
|
|
|
13.6%
|
|
|
|
|
13.9%
|
|
|
11.5%
|
|
|
|
|||||||||
Net cash provided by (used in) operating activities
|
£11,107
|
|
£10,897
|
|
£14,740
|
|
|
|
£3,788
|
|
£20,374
|
|
|
(1)
|
Translated solely for convenience into dollars at the rate of £1.00 = $1.4032.
|
(2)
|
Includes share-based compensation expenses as follows:
|
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2017
|
|
2018
|
||||||||||
|
(in thousands)
|
||||||||||||||||||
Direct cost of sales
|
£
|
115
|
|
|
£
|
587
|
|
|
£
|
560
|
|
|
£
|
448
|
|
|
£
|
686
|
|
Selling, general and administrative expenses
|
65
|
|
|
181
|
|
|
294
|
|
|
228
|
|
|
340
|
|
|||||
Total
|
£
|
180
|
|
|
£
|
768
|
|
|
£
|
854
|
|
|
£
|
676
|
|
|
£
|
1,026
|
|
|
As of March 31, 2018
|
||||
|
Actual
|
|
As Adjusted
(1)(2)
|
||
|
|
|
|
||
Consolidated Balance Sheet Data:
|
|
|
|
||
Cash and cash equivalents
|
£
|
9,462
|
|
|
£
|
Working capital
(3)
|
(5,197
|
)
|
|
|
|
Total assets
|
138,303
|
|
|
|
|
Total liabilities
|
75,808
|
|
|
|
|
Total shareholders’ equity
|
62,495
|
|
|
|
(1)
|
As adjusted consolidated balance sheet data reflects the sale of ADSs in this offering at an assumed initial public offering price of $ per ADS, the midpoint of the price range set forth on the cover of this prospectus, after deducting the estimated underwriting discounts and commissions and estimated offering expenses payable by us.
|
(2)
|
As adjusted consolidated balance sheet data is illustrative only and will change based on the actual initial public offering price and other terms of this offering determined at pricing. Each $1.00 increase or decrease in the assumed initial public offering price of $ per ADS, the midpoint of the price range set forth on the cover of this prospectus, would increase or decrease each of as adjusted cash and cash equivalents, working capital, total assets and total shareholders’ equity by approximately £ ($ ) million, assuming that the number of ADSs offered by us, as set forth on the cover of this prospectus, remains the same, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. We may also increase or decrease the number of ADS we are offering. Each 1,000,000 share increase or decrease in the number of ADSs offered by us would increase or decrease each of as adjusted cash and cash equivalents, working capital, total assets and total shareholders’ equity by approximately £ ($ ) million.
|
(3)
|
Working capital is defined as total current assets minus total current liabilities.
|
(1)
|
We monitor our revenue growth rate at constant currency. As the impact of foreign currency exchange rates is highly variable and difficult to predict, we believe revenue growth rate at constant currency allows us to better understand the underlying business trends and performance of our ongoing operations on a period-over-period basis. We calculate revenue growth rate at constant currency by translating revenue from entities reporting in foreign currencies into British Pounds using the comparable foreign currency exchange rates from the prior period. For example, the average rates in effect for the fiscal year ended June 30, 2016 were used to convert revenue for the fiscal year ended June 30, 2017 and the revenue for the comparable prior period ended June 30, 2016, rather than the actual exchange rates in effect during the respective period. Revenue growth rate at constant currency is not a measure calculated in accordance with IFRS. While we believe that revenue growth rate at constant currency provides useful information to investors in understanding and evaluating our results of operations in the same manner as our management, our use of revenue growth rate at constant currency has limitations as an analytical tool, and you should not consider it in isolation or as a substitute for analysis of our financial results as reported under IFRS. Further, other companies, including companies in our industry, may report the impact of fluctuations in foreign currency exchange rates differently, which
|
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2017
|
|
2018
|
||||||||||
|
(pounds in thousands)
|
||||||||||||||||||
Revenue
|
£
|
84,107
|
|
|
£
|
115,432
|
|
|
£
|
159,368
|
|
|
£
|
116,322
|
|
|
£
|
156,140
|
|
Revenue period-over-period growth rate
|
31.6
|
%
|
|
37.2
|
%
|
|
38.1
|
%
|
|
39.4
|
%
|
|
34.2
|
%
|
|||||
Estimated impact of foreign currency exchange rate fluctuations
|
1.0
|
%
|
|
(0.6
|
)%
|
|
(9.6
|
)%
|
|
(10.6
|
)%
|
|
0.4
|
%
|
|||||
Revenue growth rate at constant currency
|
32.6
|
%
|
|
36.6
|
%
|
|
28.5
|
%
|
|
28.8
|
%
|
|
34.6
|
%
|
(2)
|
We monitor our average number of employees involved in delivery of our services because we believe it gives us visibility to the size of both our revenue-producing base and our most significant cost base, which in turn allows us better understand changes in our utilization rates and gross margins on a period-over-period basis. We calculate average number of employees involved in delivery of our services as the average of our number of full-time employees involved in delivery of our services on the last day of each month in the relevant period.
|
(3)
|
We monitor our revenue concentration to better understand our dependence on large clients on a period-over-period basis and to monitor our success in diversifying our revenue basis. We define revenue concentration as the percent of our total revenue derived from our 10 largest clients by revenue in each period presented.
|
(4)
|
We monitor our number of large clients to better understand our progress in winning large contracts on a period-over-period basis. We define number of large clients as the number of clients from whom we generated more than £1.0 million of revenue in the prior 12-month period.
|
(5)
|
We monitor our adjusted profit before taxes margin, or Adjusted PBT Margin, to better understand our ability to manage operational costs, to evaluate our core operating performance and trends and to develop future operating plans. In particular, we believe that the exclusion of certain expenses in calculating Adjusted PBT Margin facilitates comparisons of our operating performance on a period-over-period basis. Our Adjusted PBT Margin is our Adjusted PBT, which is our profit before taxes adjusted to exclude the impact of share-based compensation expense, amortization of acquired intangible assets, realized and unrealized foreign currency exchange gains and losses and initial public offering expenses incurred (all of which are non-cash other than realized foreign currency exchange gains and losses and initial public offering expenses), as a percentage of our total revenue. We do not consider these excluded items to be indicative of our core operating performance. Adjusted PBT Margin is not a measure calculated in accordance with IFRS. While we believe that Adjusted PBT Margin provides useful information to investors in understanding and evaluating our results of operations in the same manner as our management, our use of Adjusted PBT Margin has limitations as an analytical tool, and you should not consider it in isolation or as a substitute for analysis of our financial results as reported under IFRS. For example, Adjusted PBT Margin does not reflect the potentially dilutive impact of share-based compensation nor does it reflect the potentially significant impact of foreign currency exchange rate fluctuations on our working capital. Further, other companies, including companies in our industry, may adjust their profit differently to capture their operating performance, which may reduce the value of Adjusted PBT Margin as a comparative measure. The following table presents a reconciliation of Adjusted PBT to profit before taxes, the most directly comparable financial measure calculated and presented in accordance with IFRS, for each of the periods indicated:
|
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2017
|
|
2018
|
||||||||||
|
(in thousands)
|
||||||||||||||||||
Profit before taxes
|
£
|
15,206
|
|
|
£
|
20,831
|
|
|
£
|
21,700
|
|
|
£
|
16,179
|
|
|
£
|
17,970
|
|
Share-based compensation expense
|
180
|
|
|
768
|
|
|
854
|
|
|
676
|
|
|
1,026
|
|
|||||
Amortization of acquired intangible assets
|
—
|
|
|
1,165
|
|
|
1,715
|
|
|
1,256
|
|
|
1,804
|
|
|||||
Foreign currency exchange (gains) losses, net
|
754
|
|
|
(4
|
)
|
|
967
|
|
|
213
|
|
|
545
|
|
|||||
Initial public offering expenses incurred
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,472
|
|
|||||
Adjusted PBT
|
£
|
16,140
|
|
|
£
|
22,760
|
|
|
£
|
25,236
|
|
|
£
|
18,324
|
|
|
£
|
23,817
|
|
(6)
|
We monitor our free cash flow to better understand and evaluate our liquidity position and to develop future operating plans. Our free cash flow is our net cash provided by (used in) operating activities, plus grant received, less purchases of non-current tangible and intangible assets and plus initial public offering expenses paid. For a discussion of grant received, see
|
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2017
|
|
2018
|
||||||||||
|
(in thousands)
|
||||||||||||||||||
Net cash provided by (used in) operating activities
|
£
|
11,107
|
|
|
£
|
10,897
|
|
|
£
|
14,740
|
|
|
£
|
3,788
|
|
|
£
|
20,374
|
|
Grant received
|
468
|
|
|
1,948
|
|
|
2,924
|
|
|
—
|
|
|
147
|
|
|||||
Purchases of non-current assets (tangible and intangible)
|
(2,083
|
)
|
|
(2,730
|
)
|
|
(6,478
|
)
|
|
(3,418
|
)
|
|
(3,678
|
)
|
|||||
Initial public offering expenses paid
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
657
|
|
|||||
Free cash flow
|
£
|
9,492
|
|
|
£
|
10,115
|
|
|
£
|
11,186
|
|
|
£
|
370
|
|
|
£
|
17,500
|
|
•
|
the business or financial condition of that client or the economy generally;
|
•
|
a change in strategic priorities by that client, resulting in a reduced level of spending on technology services;
|
•
|
changes in the personnel at our clients who are responsible for procurement of information technology, or IT, services or with whom we primarily interact;
|
•
|
a demand for price reductions by that client;
|
•
|
mergers, acquisitions or significant corporate restructurings involving that client; and
|
•
|
a decision by that client to move work in-house or to one or several of our competitors.
|
•
|
our clients’ perception of our ability to add value through our services;
|
•
|
our competitors’ pricing policies;
|
•
|
bid practices of clients and their use of third-party advisors;
|
•
|
the ability of large clients to exert pricing pressure;
|
•
|
employee wage levels and increases in compensation costs;
|
•
|
employee utilization levels;
|
•
|
our ability to charge premium prices when justified by market demand or the type of service; and
|
•
|
general economic conditions.
|
•
|
our ability to promptly transition our employees from completed projects to new assignments and to hire and integrate new employees;
|
•
|
our ability to forecast demand for our services and thereby maintain an appropriate number of employees in each of our delivery locations;
|
•
|
our ability to deploy employees with appropriate skills and seniority to projects;
|
•
|
our ability to manage the attrition of our employees; and
|
•
|
our need to devote time and resources to training, professional development and other activities that cannot be billed to our clients.
|
•
|
our inability to achieve the operating synergies anticipated in the acquisitions;
|
•
|
diversion of management attention from ongoing business concerns to integration matters;
|
•
|
consolidating and rationalizing information technology platforms and administrative infrastructures;
|
•
|
complexities associated with managing the geographic separation of the combined businesses and consolidating multiple physical locations;
|
•
|
retaining IT professionals and other key employees and achieving minimal unplanned attrition;
|
•
|
integrating personnel from different corporate cultures while maintaining focus on providing consistent, high quality service;
|
•
|
demonstrating to our clients and to clients of acquired businesses that the acquisition will not result in adverse changes in client service standards or business focus;
|
•
|
possible cash flow interruption or loss of revenue as a result of transitional matters; and
|
•
|
inability to generate sufficient revenue to offset acquisition costs.
|
•
|
maintaining high-quality control and process execution standards;
|
•
|
maintaining planned resource utilization rates on a consistent basis;
|
•
|
maintaining employee productivity and implementing necessary process improvements;
|
•
|
controlling costs;
|
•
|
maintaining close client contact and high levels of client satisfaction;
|
•
|
maintaining physical and data security standards required by our clients;
|
•
|
recruiting and retaining sufficient numbers of skilled IT professionals; and
|
•
|
maintaining effective client relationships.
|
•
|
the number, timing, scope and contractual terms of projects in which we are engaged;
|
•
|
delays in project commencement or staffing delays due to difficulty in assigning appropriately skilled or experienced professionals;
|
•
|
the accuracy of estimates on the resources, time and fees required to complete projects and costs incurred in the performance of each project;
|
•
|
inability to retain employees or maintain employee utilization levels;
|
•
|
changes in pricing in response to client demand and competitive pressures;
|
•
|
the business decisions of our clients regarding the use of our services or spending on technology;
|
•
|
the ability to further grow sales of services from existing clients;
|
•
|
seasonal trends and the budget and work cycles of our clients;
|
•
|
delays or difficulties in expanding our operational facilities or infrastructure;
|
•
|
our ability to estimate costs under fixed price or managed service contracts;
|
•
|
employee wage levels and increases in compensation costs;
|
•
|
unanticipated contract or project terminations;
|
•
|
the timing of collection of accounts receivable;
|
•
|
our ability to manage risk through our contracts;
|
•
|
the continuing financial stability of our clients;
|
•
|
changes in our effective tax rate;
|
•
|
fluctuations in currency exchange rates; and
|
•
|
general economic conditions.
|
•
|
dispose of assets;
|
•
|
complete mergers or acquisitions;
|
•
|
incur or guarantee indebtedness;
|
•
|
sell or encumber certain assets;
|
•
|
pay dividends or make other distributions to holders of our shares;
|
•
|
make specified investments;
|
•
|
engage in different lines of business; and
|
•
|
engage in certain transactions with affiliates.
|
•
|
actual or anticipated fluctuations in our financial condition and operating results;
|
•
|
variance in our financial performance from expectations of securities analysts;
|
•
|
changes in the prices of our services;
|
•
|
changes in our projected operating and actual financial results;
|
•
|
changes in laws or regulations applicable to our business;
|
•
|
announcements by us or our competitors of significant business developments, acquisitions or new offerings;
|
•
|
our involvement in any litigation;
|
•
|
our sale of our ADSs or other securities in the future;
|
•
|
changes in senior management or key personnel;
|
•
|
the trading volume of our ADSs;
|
•
|
changes in the anticipated future size and growth rate of our market; and
|
•
|
general economic, regulatory and market conditions.
|
•
|
When any person acquires, whether by a series of transactions over a period of time or not, an interest in shares which (taken together with shares already held by that person and an interest in shares held or acquired by persons acting in concert with him or her) carry 30% or more of the voting rights of a company that is subject to the Takeover Code, that person is generally required to make a mandatory offer to all the holders of any class of equity share capital or other class of transferable securities carrying voting rights in that company to acquire the balance of their interests in the company.
|
•
|
When any person who, together with persons acting in concert with him or her, hold an interest in shares representing not less than 30% and not more than 50% of the voting rights of a company that is subject to the Takeover Code, and such person, or any person acting in concert with him or her, acquires an additional interest in shares which increases the percentage of shares carrying voting rights in which he or she is interested, then such person is generally required to make a mandatory offer to all the holders of any class of equity share capital or other class of transferable securities carrying voting rights of that company to acquire the balance of their interests in the company.
|
•
|
A mandatory offer under the Takeover Code must be in cash (or be accompanied by a cash alternative) and at not less than the highest price paid within the preceding 12 months to acquire any interest in shares in the company by the person required to make the offer or any person acting in concert with him or her.
|
•
|
When interests in shares representing 10% or more of the shares of a class have been acquired for cash by an offeror (i.e., a bidder) and any person acting in concert with it in the offer period and the previous 12 months, the offer must be in cash or include a cash alternative for all shareholders of that class at the highest price paid for any interest in shares of that class by the offeror and by any person acting in concert with it in that period. Further, if an offeror acquires for cash any interest in shares during the offer period, a cash alternative must be made available at a price at least equal to the highest price paid for any interest in the shares of that class.
|
•
|
If the offeror or any person acting in concert with it acquires an interest in shares in an offeree company (i.e., a target) at a price higher than the value of the offer, the offer must be increased to not less than the highest price paid for the interest in shares so acquired.
|
•
|
The offeree company must obtain competent advice as to whether the terms of any offer are fair and reaosnable and the substance of such advice must be made known to all the shareholders, together with the opinion of the board of directors of the offeree company.
|
•
|
Favorable deals for selected shareholders are banned.
|
•
|
All shareholders must be given the same information.
|
•
|
Those issuing takeover circulars must include statements by the relevant directors taking responsibility for the contents thereof.
|
•
|
Profit forecasts, quantified financial benefits statements and asset valuations must be made to specified standards and must be reported on by professional advisers.
|
•
|
Misleading, inaccurate or unsubstantiated statements made in documents or to the media must be publicly corrected immediately.
|
•
|
Actions during the course of an offer by the offeree company, which might frustrate the offer, are generally prohibited unless shareholders approve these plans.
|
•
|
Stringent requirements are laid down for the disclosure of dealings in relevant securities during an offer.
|
•
|
our ability to sustain our revenue growth rate in the future;
|
•
|
our ability to retain existing clients and attract new clients, including our ability to increase revenue from existing clients and diversify our revenue concentration;
|
•
|
our ability to attract and retain highly-skilled IT professionals at cost-effective rates;
|
•
|
our ability to penetrate new industry verticals and geographies and grow our revenue in current industry verticals and geographies;
|
•
|
our ability to maintain favorable pricing and utilization rates;
|
•
|
our ability to successfully identify acquisition targets, consummate acquisitions and successfully integrate acquired businesses and personnel;
|
•
|
the effects of increased competition as well as innovations by new and existing competitors in our market;
|
•
|
the size of our addressable market and market trends;
|
•
|
our ability to adapt to technological change and innovate solutions for our clients;
|
•
|
our plans for growth and future operations, including our ability to manage our growth;
|
•
|
our expectations of future operating results or financial performance;
|
•
|
our ability to effectively manage our international operations, including our exposure to foreign currency exchange rate fluctuations; and
|
•
|
our future financial performance, including trends in revenue, cost of sales, gross profit, selling, general and administrative expenses, finance income and expense and taxes.
|
|
Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||
|
2013
|
|
2014
|
|
2015
|
|
2016
|
|
2017
|
|
2018
|
High
|
1.6275
|
|
1.7105
|
|
1.7165
|
|
1.5731
|
|
1.3429
|
|
1.4264
|
Low
|
1.4877
|
|
1.4837
|
|
1.4648
|
|
1.3217
|
|
1.2118
|
|
1.2787
|
Rate at end of period
|
1.5210
|
|
1.7105
|
|
1.5727
|
|
1.3242
|
|
1.2995
|
|
1.4027
|
Average rate per period
|
1.5688
|
|
1.6372
|
|
1.5714
|
|
1.4686
|
|
1.2736
|
|
1.3535
|
|
December
2017
|
|
January
2018
|
|
February
2018
|
|
March
2018
|
|
April
2018
|
|
May
2018
|
High
|
1.3529
|
|
1.4264
|
|
1.4247
|
|
1.4236
|
|
1.4332
|
|
1.3611
|
Low
|
1.3316
|
|
1.3513
|
|
1.3794
|
|
1.3755
|
|
1.3751
|
|
1.3258
|
Rate at end of period
|
1.3529
|
|
1.4190
|
|
1.3794
|
|
1.4027
|
|
1.3751
|
|
1.3289
|
•
|
on an actual basis; and
|
•
|
on an as adjusted basis to give further effect to the issuance and sale of ADSs in this offering at an assumed initial public offering price of $ per ADS, the midpoint of the price range set forth on the cover of this prospectus, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.
|
(1)
|
The as adjusted information set forth above is illustrative only and will change based on the actual initial public offering price and other terms of this offering determined at pricing. Each $1.00 increase or decrease in the assumed initial public offering price of $ per ADS, the midpoint of the price range set forth on the cover of this prospectus, would increase or decrease each of as adjusted cash and cash equivalents, share premium, total shareholders’ equity and total capitalization by approximately £ ($ ) million, assuming that the number of ADSs offered by us, as set forth on the cover of this prospectus, remains the same, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. We may also increase or decrease the number of ADSs we are offering. Each 1,000,000 ADS increase or decrease in the number of ADSs offered by us would increase or decrease each of as adjusted cash and cash equivalents, share premium, total shareholders’ equity and total capitalization by approximately £ ($ ) million.
|
•
|
33,846 Class A ordinary shares issuable upon the exercise of share options outstanding as of March 31, 2018, at a weighted average exercise price of £4.33 per share, with the balance of the total number of 974,642 Class A ordinary shares subject to share options outstanding as of March 31, 2018 being currently issued and outstanding and held by the Endava Limited Guernsey Employee Benefit Trust;
|
•
|
Class A ordinary shares that will be issued, following the completion of this offering, in connection with our acquisition of Velocity Partners LLC, or Velocity Partners, assuming a public offering price of $ per ADS, the midpoint of the price range set forth on the cover of this prospectus;
|
•
|
Class A ordinary shares reserved for future issuance pursuant to our 2018 Equity Incentive Plan, which will become effective prior to the completion of this offering and includes provisions that automatically increase the number of Class A ordinary shares reserved for issuance thereunder each year, and which number of reserved shares includes Class A ordinary shares that we will be required to issue to certain continuing employees of Velocity Partners over a period of three years following the completion of this offering; and
|
•
|
Class A ordinary shares reserved for future issuance pursuant to the Endava plc 2018 Sharesave Plan, which will become effective prior to the completion of this offering and includes provisions that automatically increase the number of Class A ordinary shares reserved for issuance thereunder each year.
|
Assumed initial public offering price per ADS
|
|
|
$
|
Historical net tangible book value per ordinary share as of March 31, 2018
|
$
|
|
|
Increase in net tangible book value per ordinary share/ADS attributable to new investors in this offering
|
|
|
|
As adjusted net tangible book value per ordinary share after this offering
|
|
|
|
Dilution per ADS to new investors in this offering
|
|
|
$
|
|
Ordinary Shares Purchased
(1)
|
|
Total Consideration
|
|
Average
Price
Per Share
|
||||||
|
Number
|
|
Percent
|
|
Amount
|
|
Percent
|
|
|||
Existing Investors
|
£
|
|
%
|
|
|
£
|
|
%
|
|
|
£
|
New Investors
|
|
|
|
|
|
|
|
|
£
|
||
Total
|
|
|
100
|
%
|
|
|
|
100
|
%
|
|
|
(1)
|
Including Class A ordinary shares in the form of ADSs.
|
•
|
33,846 Class A ordinary shares issuable upon the exercise of share options outstanding as of March 31, 2018, at a weighted average exercise price of £4.33 per share, with the balance of the total number of 974,642 Class A ordinary shares subject to share options outstanding as of March 31, 2018 being currently issued and outstanding and held by the Endava Limited Guernsey Employee Benefit Trust;
|
•
|
Class A ordinary shares that will be issued, following the completion of this offering, in connection with our acquisition of Velocity Partners LLC, or Velocity Partners, assuming a public offering price of $ per ADS, the midpoint of the price range set forth on the cover of this prospectus;
|
•
|
Class A ordinary shares reserved for future issuance pursuant to our 2018 Equity Incentive Plan, which will become effective prior to the completion of this offering and includes provisions that automatically increase the number of Class A ordinary shares reserved for issuance thereunder each year, and which number of reserved shares includes Class A ordinary shares that we will be required to issue to certain continuing employees of Velocity Partners over a period of three years following the completion of this offering; and
|
•
|
Class A ordinary shares reserved for future issuance pursuant to the Endava plc 2018 Sharesave Plan, which will become effective prior to the completion of this offering and includes provisions that automatically increase the number of Class A ordinary shares reserved for issuance thereunder each year.
|
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||||||||||||||||||
|
2015 (£)
|
|
2016 (£)
|
|
2017 (£)
|
|
2017 ($)
(1)
|
|
2017 (£)
|
|
2018 (£)
|
|
2018 ($)
(1)
|
||||||||||||||
|
(in thousands, except for share and per share amounts)
|
||||||||||||||||||||||||||
Consolidated Statements of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Revenue
|
£
|
84,107
|
|
|
£
|
115,432
|
|
|
£
|
159,368
|
|
|
$
|
223,625
|
|
|
£
|
116,322
|
|
|
£
|
156,140
|
|
|
$
|
219,096
|
|
Cost of sales:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Direct cost of sales
(2)
|
(49,717
|
)
|
|
(68,517
|
)
|
|
(98,853
|
)
|
|
(138,711
|
)
|
|
(72,692
|
)
|
|
(96,104
|
)
|
|
(134,853
|
)
|
|||||||
Allocated cost of sales
|
(3,674
|
)
|
|
(6,529
|
)
|
|
(9,907
|
)
|
|
(13,902
|
)
|
|
(6,943
|
)
|
|
(9,281
|
)
|
|
(13,023
|
)
|
|||||||
Total cost of sales
|
(53,391
|
)
|
|
(75,046
|
)
|
|
(108,760
|
)
|
|
(152,613
|
)
|
|
(79,635
|
)
|
|
(105,385
|
)
|
|
(147,876
|
)
|
|||||||
Gross profit
|
30,716
|
|
|
40,386
|
|
|
50,608
|
|
|
71,012
|
|
|
36,687
|
|
|
50,755
|
|
|
71,220
|
|
|||||||
Selling, general and administrative expenses
(2)
|
(13,729
|
)
|
|
(20,453
|
)
|
|
(27,551
|
)
|
|
(38,660
|
)
|
|
(19,993
|
)
|
|
(31,755
|
)
|
|
(44,559
|
)
|
|||||||
Operating profit
|
16,987
|
|
|
19,933
|
|
|
23,057
|
|
|
32,352
|
|
|
16,694
|
|
|
19,000
|
|
|
26,661
|
|
|||||||
Net finance (costs)/income
|
(1,781
|
)
|
|
898
|
|
|
(1,357
|
)
|
|
(1,904
|
)
|
|
(515
|
)
|
|
(1,030
|
)
|
|
(1,445
|
)
|
|||||||
Profit before tax
|
15,206
|
|
|
20,831
|
|
|
21,700
|
|
|
30,448
|
|
|
16,179
|
|
|
17,970
|
|
|
25,216
|
|
|||||||
Tax on profit on ordinary activities
|
(1,659
|
)
|
|
(4,125
|
)
|
|
(4,868
|
)
|
|
(6,831
|
)
|
|
(3,629
|
)
|
|
(3,893
|
)
|
|
(5,463
|
)
|
|||||||
Net profit
|
£
|
13,547
|
|
|
£
|
16,706
|
|
|
£
|
16,832
|
|
|
$
|
23,617
|
|
|
£
|
12,550
|
|
|
£
|
14,077
|
|
|
$
|
19,753
|
|
Earnings per share, basic
|
£
|
1.76
|
|
|
£
|
1.84
|
|
|
£
|
1.86
|
|
|
$
|
2.61
|
|
|
£
|
1.39
|
|
|
£
|
1.56
|
|
|
$
|
2.19
|
|
Earnings per share, diluted
|
£
|
1.47
|
|
|
£
|
1.69
|
|
|
£
|
1.71
|
|
|
$
|
2.40
|
|
|
£
|
1.27
|
|
|
£
|
1.42
|
|
|
$
|
1.99
|
|
Weighted average number of shares outstanding, basic
|
7,696,492
|
|
|
9,077,842
|
|
|
9,051,750
|
|
|
9,051,750
|
|
|
9,060,100
|
|
|
9,020,033
|
|
|
9,020,033
|
|
|||||||
Weighted average number of shares outstanding, diluted
|
9,230,051
|
|
|
9,863,609
|
|
|
9,858,504
|
|
|
9,858,504
|
|
|
9,874,961
|
|
|
9,911,426
|
|
|
9,911,426
|
|
|||||||
Other Financial Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Revenue period-over-period growth rate
|
31.6
|
%
|
|
37.2
|
%
|
|
38.1
|
%
|
|
|
|
39.4
|
%
|
|
34.2
|
%
|
|
|
|||||||||
Profit before tax margin
|
18.1%
|
|
|
18.0%
|
|
|
13.6%
|
|
|
|
|
13.9%
|
|
|
11.5%
|
|
|
|
|||||||||
Net cash provided by (used in) operating activities
|
£11,107
|
|
£10,897
|
|
£14,740
|
|
|
|
£3,788
|
|
£20,374
|
|
|
(1)
|
Translated solely for convenience into dollars at the rate of £1.00 = $1.4032.
|
(2)
|
Includes share-based compensation expenses as follows:
|
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2017
|
|
2018
|
||||||||||
|
(in thousands)
|
||||||||||||||||||
Direct cost of sales
|
£
|
115
|
|
|
£
|
587
|
|
|
£
|
560
|
|
|
£
|
448
|
|
|
£
|
686
|
|
Selling, general and administrative expenses
|
65
|
|
|
181
|
|
|
294
|
|
|
228
|
|
|
340
|
|
|||||
Total
|
£
|
180
|
|
|
£
|
768
|
|
|
£
|
854
|
|
|
£
|
676
|
|
|
£
|
1,026
|
|
|
As of June 30,
|
|
As of March 31,
|
||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2018
|
||||||||
|
(in thousands)
|
||||||||||||||
Consolidated Balance Sheet Data:
|
|
|
|
|
|
|
|
||||||||
Cash and cash equivalents
|
£
|
13,362
|
|
|
£
|
12,947
|
|
|
£
|
23,571
|
|
|
£
|
9,462
|
|
Working capital
(1)
|
12,038
|
|
|
3,180
|
|
|
11,028
|
|
|
(5,197
|
)
|
||||
Total assets
|
57,000
|
|
|
72,897
|
|
|
106,382
|
|
|
138,303
|
|
||||
Total liabilities
|
31,014
|
|
|
43,104
|
|
|
57,662
|
|
|
75,808
|
|
||||
Total shareholders’ equity
|
25,986
|
|
|
29,793
|
|
|
48,720
|
|
|
62,495
|
|
(1)
|
Working capital is defined as total current assets minus total current liabilities.
|
(1)
|
The increase from the nine months ended March 31, 2017 to the nine months ended March 31, 2018 in Latin America headcount includes 544 employees acquired in connection with our acquisition of Velocity Partners, LLC, or Velocity Partners, in December 2017.
|
Revenue by geography
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||||||||||
2015
|
|
2016
|
|
2017
|
|
2017
|
|
2018
|
|||||||||||
|
(in thousands)
|
||||||||||||||||||
North America
|
£
|
8,573
|
|
|
£
|
20,906
|
|
|
£
|
25,944
|
|
|
£
|
19,738
|
|
|
£
|
29,512
|
|
Europe
|
10,114
|
|
|
20,211
|
|
|
53,486
|
|
|
38,683
|
|
|
54,588
|
|
|||||
United Kingdom
|
65,420
|
|
|
74,315
|
|
|
79,938
|
|
|
57,901
|
|
|
72,040
|
|
|||||
Total
|
£
|
84,107
|
|
|
£
|
115,432
|
|
|
£
|
159,368
|
|
|
£
|
116,322
|
|
|
£
|
156,140
|
|
Revenue by industry vertical
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||||||||||
2015
|
|
2016
|
|
2017
|
|
2017
|
|
2018
|
|||||||||||
|
(in thousands)
|
||||||||||||||||||
Payments and Financial Services
|
£
|
47,427
|
|
|
£
|
63,652
|
|
|
£
|
91,056
|
|
|
£
|
65,211
|
|
|
£
|
91,074
|
|
TMT
|
27,774
|
|
|
42,434
|
|
|
48,534
|
|
|
36,621
|
|
|
43,670
|
|
|||||
Other
|
8,906
|
|
|
9,346
|
|
|
19,778
|
|
|
14,490
|
|
|
21,396
|
|
|||||
Total
|
£
|
84,107
|
|
|
£
|
115,432
|
|
|
£
|
159,368
|
|
|
£
|
116,322
|
|
|
£
|
156,140
|
|
Revenue
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
|||||||||||
2015
|
|
2016
|
|
2017
|
|
2017
|
|
2018
|
||||||
Over £5 Million
|
3
|
|
|
5
|
|
|
5
|
|
|
6
|
|
|
6
|
|
£2 - £5 Million
|
8
|
|
|
11
|
|
|
17
|
|
|
13
|
|
|
21
|
|
£1 - £2 Million
|
7
|
|
|
10
|
|
|
12
|
|
|
17
|
|
|
15
|
|
Less than £1 Million
|
94
|
|
|
128
|
|
|
154
|
|
|
147
|
|
|
207
|
|
Total
|
112
|
|
|
154
|
|
|
188
|
|
|
183
|
|
|
249
|
|
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||||||||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2017
(1)
|
|
2017
|
|
2018
|
|
2018
(1)
|
||||||||||||||
|
(in thousands)
|
||||||||||||||||||||||||||
Consolidated Statements of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Revenue
|
£
|
84,107
|
|
|
£
|
115,432
|
|
|
£
|
159,368
|
|
|
$
|
223,625
|
|
|
£
|
116,322
|
|
|
£
|
156,140
|
|
|
$
|
219,096
|
|
Cost of sales:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Direct cost of sales
(2)
|
(49,717
|
)
|
|
(68,517
|
)
|
|
(98,853
|
)
|
|
(138,711
|
)
|
|
(72,692
|
)
|
|
(96,104
|
)
|
|
(134,853
|
)
|
|||||||
Allocated cost of sales
|
(3,674
|
)
|
|
(6,529
|
)
|
|
(9,907
|
)
|
|
(13,902
|
)
|
|
(6,943
|
)
|
|
(9,281
|
)
|
|
(13,023
|
)
|
|||||||
Total Cost of sales
|
(53,391
|
)
|
|
(75,046
|
)
|
|
(108,760
|
)
|
|
(152,613
|
)
|
|
(79,635
|
)
|
|
(105,385
|
)
|
|
(147,876
|
)
|
|||||||
Gross profit
|
30,716
|
|
|
40,386
|
|
|
50,608
|
|
|
71,012
|
|
|
36,687
|
|
|
50,755
|
|
|
71,220
|
|
|||||||
Selling, general and administrative expenses
(2)
|
(13,729
|
)
|
|
(20,453
|
)
|
|
(27,551
|
)
|
|
(38,660
|
)
|
|
(19,993
|
)
|
|
(31,755
|
)
|
|
(44,559
|
)
|
|||||||
Operating profit
|
16,987
|
|
|
19,933
|
|
|
23,057
|
|
|
32,352
|
|
|
16,694
|
|
|
19,000
|
|
|
26,661
|
|
|||||||
Net finance (costs)/income
|
(1,781
|
)
|
|
898
|
|
|
(1,357
|
)
|
|
(1,904
|
)
|
|
(515
|
)
|
|
(1,030
|
)
|
|
(1,445
|
)
|
|||||||
Profit before tax
|
15,206
|
|
|
20,831
|
|
|
21,700
|
|
|
30,448
|
|
|
16,179
|
|
|
17,970
|
|
|
25,216
|
|
|||||||
Tax on profit on ordinary activities
|
(1,659
|
)
|
|
(4,125
|
)
|
|
(4,868
|
)
|
|
(6,831
|
)
|
|
(3,629
|
)
|
|
(3,893
|
)
|
|
(5,463
|
)
|
|||||||
Net profit
|
£
|
13,547
|
|
|
£
|
16,706
|
|
|
£
|
16,832
|
|
|
$
|
23,617
|
|
|
£
|
12,550
|
|
|
£
|
14,077
|
|
|
$
|
19,753
|
|
(1)
|
Translated solely for convenience into dollars at the rate of £1.00 = $1.4032.
|
(2)
|
Includes share-based compensation expense as follows:
|
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2017
|
|
2018
|
||||||||||
|
(in thousands)
|
||||||||||||||||||
Direct cost of sales
|
£
|
115
|
|
|
£
|
587
|
|
|
£
|
560
|
|
|
£
|
448
|
|
|
£
|
686
|
|
Selling, general and administrative expenses
|
65
|
|
|
181
|
|
|
294
|
|
|
228
|
|
|
340
|
|
|||||
Total
|
£
|
180
|
|
|
£
|
768
|
|
|
£
|
854
|
|
|
£
|
676
|
|
|
£
|
1,026
|
|
|
Fiscal Year Ended June 30,
|
|
Nine Months Ended March 31,
|
|||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2017
|
|
2018
|
|||||
Consolidated Statements of Operations Data:
|
|
|
|
|
|
|
|
|
|
|||||
Revenue
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
|
100
|
%
|
Cost of sales:
|
|
|
|
|
|
|
|
|
|
|||||
Direct cost of sales
|
(59.1
|
)%
|
|
(59.4
|
)%
|
|
(62.0
|
)%
|
|
(62.5
|
)%
|
|
(61.5
|
)%
|
Allocated cost of sales
|
(4.4
|
)%
|
|
(5.7
|
)%
|
|
(6.2
|
)%
|
|
(6.0
|
)%
|
|
(5.9
|
)%
|
Total Cost of sales
|
(63.5
|
)%
|
|
(65.0
|
)%
|
|
(68.2
|
)%
|
|
(68.5
|
)%
|
|
(67.5
|
)%
|
Gross profit
|
36.5
|
%
|
|
35.0
|
%
|
|
31.8
|
%
|
|
31.5
|
%
|
|
32.5
|
%
|
Selling, general and administrative expenses
|
(16.3
|
)%
|
|
(17.7
|
)%
|
|
(17.3
|
)%
|
|
(17.2
|
)%
|
|
(20.3
|
)%
|
Operating profit
|
20.2
|
%
|
|
17.3
|
%
|
|
14.5
|
%
|
|
14.4
|
%
|
|
12.2
|
%
|
Net finance (costs)/income
|
(2.1
|
)%
|
|
0.8
|
%
|
|
(0.9
|
)%
|
|
(0.4
|
)%
|
|
(0.7
|
)%
|
Profit before tax
|
18.1
|
%
|
|
18.0
|
%
|
|
13.6
|
%
|
|
13.9
|
%
|
|
11.5
|
%
|
Provision for income tax
|
(2.0
|
)%
|
|
(3.6
|
)%
|
|
(3.1
|
)%
|
|
(3.1
|
)%
|
|
(2.5
|
)%
|
Net profit
|
16.1
|
%
|
|
14.5
|
%
|
|
10.6
|
%
|
|
10.8
|
%
|
|
9.0
|
%
|
|
Nine Months Ended March 31,
|
|
% Change
|
|||||||
|
2017
|
|
2018
|
|
2018 vs.
2017
|
|||||
Revenue
|
£
|
116,322
|
|
|
£
|
156,140
|
|
|
34.2
|
%
|
|
Nine Months Ended March 31,
|
|
% Change
|
|||||||
|
2017
|
|
2018
|
|
2018 vs.
2017
|
|||||
Cost of sales
|
|
|
|
|
|
|||||
Direct cost of sales
|
£
|
72,692
|
|
|
£
|
96,104
|
|
|
32.2
|
%
|
Allocated cost of sales
|
6,943
|
|
|
9,281
|
|
|
33.7
|
%
|
||
Total Cost of sales
|
£
|
79,635
|
|
|
£
|
105,385
|
|
|
32.3
|
%
|
Gross margin
|
31.5
|
%
|
|
32.5
|
%
|
|
|
|
Nine Months Ended March 31,
|
|
% Change
|
|||||||
|
2017
|
|
2018
|
|
2018 vs.
2017
|
|||||
Selling, general and administrative expenses
|
£
|
19,993
|
|
|
£
|
31,755
|
|
|
58.8
|
%
|
% of revenue
|
(17.2
|
)%
|
|
(20.3
|
)%
|
|
|
|
Nine Months Ended March 31,
|
|
% Change
|
|||||||
|
2017
|
|
2018
|
|
2018 vs.
2017
|
|||||
Net finance (cost)/income
|
£
|
(515
|
)
|
|
£
|
(1,030
|
)
|
|
100.0
|
%
|
% of revenue
|
(0.4
|
)%
|
|
(0.7
|
)%
|
|
|
|
Year Ended June 30,
|
|
% Change
|
||||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2016 vs.
2015
|
|
2017 vs.
2016
|
||||||||
|
(pounds in thousands)
|
|
|
|
|
||||||||||||
Revenue
|
£
|
84,107
|
|
|
£
|
115,432
|
|
|
£
|
159,368
|
|
|
37.2
|
%
|
|
38.1
|
%
|
|
Year Ended June 30,
|
|
% Change
|
||||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2016 vs.
2015
|
|
2017 vs.
2016
|
||||||||
|
(pounds in thousands)
|
|
|
|
|
||||||||||||
Cost of sales
|
|
|
|
|
|
|
|
|
|
||||||||
Direct cost of sales
|
£
|
49,717
|
|
|
£
|
68,517
|
|
|
£
|
98,853
|
|
|
37.8
|
%
|
|
44.3
|
%
|
Allocated cost of sales
|
3,674
|
|
|
6,529
|
|
|
9,907
|
|
|
77.7
|
%
|
|
51.7
|
%
|
|||
Total Cost of sales
|
53,391
|
|
|
75,046
|
|
|
108,760
|
|
|
40.6
|
%
|
|
44.9
|
%
|
|||
Gross margin
|
36.5
|
%
|
|
35.0
|
%
|
|
31.8
|
%
|
|
|
|
|
|
Year Ended June 30,
|
|
% Change
|
||||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2016 vs.
2015
|
|
2017 vs.
2016
|
||||||||
|
(pounds in thousands)
|
|
|
|
|
||||||||||||
Selling, general and administrative expenses
|
£
|
13,729
|
|
|
£
|
20,453
|
|
|
£
|
27,551
|
|
|
49.0
|
%
|
|
34.7
|
%
|
% of revenue
|
16.3
|
%
|
|
17.7
|
%
|
|
17.3
|
%
|
|
|
|
|
|
Year Ended June 30,
|
|
% Change
|
||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2016 vs.
2015
|
|
2017 vs.
2016
|
||||||
|
(pounds in thousands)
|
|
|
|
|
||||||||||
Net finance (cost)/income
|
£
|
(1,781
|
)
|
|
£
|
898
|
|
|
£
|
(1,357
|
)
|
|
n/a
|
|
n/a
|
% of revenue
|
(2.1
|
)%
|
|
0.8
|
%
|
|
(0.9
|
)%
|
|
|
|
|
|
Year Ended June 30,
|
|
% Change
|
||||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2016 vs.
2015
|
|
2017 vs.
2016
|
||||||||
|
(pounds in thousands)
|
|
|
|
|
||||||||||||
Provision for income taxes
|
£
|
(1,659
|
)
|
|
£
|
(4,125
|
)
|
|
£
|
(4,868
|
)
|
|
148.6
|
%
|
|
18.0
|
%
|
|
Three Months Ended
|
||||||||||||||||||||||||||
|
September 30,
|
|
December 31,
|
|
March 31,
|
|
June 30,
|
|
September 30,
|
|
December 31,
|
|
March 31,
|
||||||||||||||
|
2016
|
|
2016
|
|
2017
|
|
2017
|
|
2017
|
|
2017
|
|
2018
|
||||||||||||||
|
(pounds in thousands)
|
||||||||||||||||||||||||||
Consolidated Statement of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Revenue
|
£
|
34,479
|
|
|
£
|
38,934
|
|
|
£
|
42,909
|
|
|
£
|
43,046
|
|
|
£
|
47,531
|
|
|
£
|
50,011
|
|
|
£
|
58,598
|
|
Cost of sales:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Direct cost of sales
|
(21,621
|
)
|
|
(24,351
|
)
|
|
(26,720
|
)
|
|
(26,161
|
)
|
|
(29,417
|
)
|
|
(30,904
|
)
|
|
(35,783
|
)
|
|||||||
Allocated cost of sales
|
(1,911
|
)
|
|
(2,372
|
)
|
|
(2,660
|
)
|
|
(2,964
|
)
|
|
(2,947
|
)
|
|
(3,099
|
)
|
|
(3,235
|
)
|
|||||||
Total cost of sales
|
(23,532
|
)
|
|
(26,723
|
)
|
|
(29,380
|
)
|
|
(29,125
|
)
|
|
(32,364
|
)
|
|
(34,003
|
)
|
|
(39,018
|
)
|
|||||||
Gross profit
|
10,947
|
|
|
12,211
|
|
|
13,529
|
|
|
13,921
|
|
|
15,167
|
|
|
16,008
|
|
|
19,580
|
|
|||||||
Selling, general and administrative expenses
|
(5,939
|
)
|
|
(7,159
|
)
|
|
(6,895
|
)
|
|
(7,558
|
)
|
|
(8,218
|
)
|
|
(9,832
|
)
|
|
(13,705
|
)
|
|||||||
Operating profit
|
5,008
|
|
|
5,052
|
|
|
6,634
|
|
|
6,363
|
|
|
6,949
|
|
|
6,176
|
|
|
5,875
|
|
|||||||
Net finance (costs) / income
|
(469
|
)
|
|
380
|
|
|
(426
|
)
|
|
(842
|
)
|
|
(507
|
)
|
|
(153
|
)
|
|
(370
|
)
|
|||||||
Profit before tax
|
4,539
|
|
|
5,432
|
|
|
6,208
|
|
|
5,521
|
|
|
6,442
|
|
|
6,023
|
|
|
5,505
|
|
|||||||
Tax on profit on ordinary activities
|
(1,018
|
)
|
|
(1,219
|
)
|
|
(1,392
|
)
|
|
(1,239
|
)
|
|
(1,357
|
)
|
|
(1,250
|
)
|
|
(1,286
|
)
|
|||||||
Net profit
|
£
|
3,521
|
|
|
£
|
4,213
|
|
|
£
|
4,816
|
|
|
£
|
4,282
|
|
|
£
|
5,085
|
|
|
£
|
4,773
|
|
|
£
|
4,219
|
|
Other Financial Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Profit before tax margin
|
13.2%
|
|
|
14.0%
|
|
|
14.5%
|
|
|
12.8%
|
|
|
13.6%
|
|
|
12.0%
|
|
|
9.4%
|
|
|||||||
Non-IFRS Measures:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
Adjusted profit before taxes margin
(1)
|
16.1
|
%
|
|
14.4
|
%
|
|
16.7
|
%
|
|
16.1
|
%
|
|
16.4
|
%
|
|
15.0
|
%
|
|
14.5
|
%
|
(1)
|
Adjusted profit before taxes margin, or Adjusted PBT Margin, is our Adjusted PBT, which is our profit before taxes adjusted to exclude the impact of share-based compensation expense, amortization of acquired intangible assets, realized and unrealized foreign currency exchange gains and losses and initial public offering expenses (all of which are non-cash other than realized foreign currency exchange gains and losses and initial public offering expenses), as a percentage of our total revenue. We do not consider these excluded items to be indicative of our core operating performance. Adjusted PBT Margin is not a measure calculated in accordance with IFRS. The following table presents a reconciliation of Adjusted PBT to profit before taxes, the most directly comparable financial measure calculated and presented in accordance with IFRS for each of the periods indicated. See note 5 in the section of this prospectus titled “Summary Consolidated Financial and Other Data—Non-IFRS Measures and Other Management Metrics” for a discussion of the limitations of Adjusted PBT Margin.
|
|
Three Months Ended
|
||||||||||||||||||||||||||
|
September 30,
|
|
December 31,
|
|
March 31,
|
|
June 30,
|
|
September 30,
|
|
December 31,
|
|
March 31,
|
||||||||||||||
|
2016
|
|
2016
|
|
2017
|
|
2017
|
|
2017
|
|
2017
|
|
2018
|
||||||||||||||
|
(in thousands)
|
||||||||||||||||||||||||||
Profit before tax
|
£
|
4,539
|
|
|
£
|
5,432
|
|
|
£
|
6,208
|
|
|
£
|
5,521
|
|
|
£
|
6,442
|
|
|
£
|
6,023
|
|
|
£
|
5,505
|
|
Share-based compensation expense
|
248
|
|
|
231
|
|
|
197
|
|
|
178
|
|
|
366
|
|
|
354
|
|
|
306
|
|
|||||||
Amortization of acquired intangible assets
|
341
|
|
|
459
|
|
|
456
|
|
|
459
|
|
|
481
|
|
|
479
|
|
|
844
|
|
|||||||
Foreign current exchange (gains) losses, net
|
415
|
|
|
(500
|
)
|
|
298
|
|
|
755
|
|
|
437
|
|
|
44
|
|
|
64
|
|
|||||||
Initial public offering expenses
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
81
|
|
|
604
|
|
|
1,787
|
|
|||||||
Adjusted PBT
|
£
|
5,543
|
|
|
£
|
5,622
|
|
|
£
|
7,159
|
|
|
£
|
6,913
|
|
|
£
|
7,807
|
|
|
£
|
7,504
|
|
|
£
|
8,506
|
|
|
Year Ended June 30,
|
|
Nine Months Ended March 31,
|
||||||||||||||||
|
2015
|
|
2016
|
|
2017
|
|
2017
|
|
2018
|
||||||||||
|
(in thousands)
|
||||||||||||||||||
Cash and cash equivalents at beginning of period
|
£
|
15,338
|
|
|
£
|
13,362
|
|
|
£
|
12,947
|
|
|
£
|
12,947
|
|
|
£
|
23,571
|
|
Net cash provided by operating activities
|
11,107
|
|
|
10,897
|
|
|
14,740
|
|
|
3,788
|
|
|
20,374
|
|
|||||
Net cash used in investing activities
|
(8,506
|
)
|
|
(7,260
|
)
|
|
(19,499
|
)
|
|
(15,633
|
)
|
|
(29,071
|
)
|
|||||
Net cash (used in) provided by financing activities
|
(3,327
|
)
|
|
(4,618
|
)
|
|
14,838
|
|
|
12,277
|
|
|
(5,381
|
)
|
|||||
Effects of exchange rates on cash and cash equivalents
|
(1,250
|
)
|
|
566
|
|
|
545
|
|
|
644
|
|
|
(31
|
)
|
|||||
Cash and cash equivalents at end of period
|
£
|
13,362
|
|
|
£
|
12,947
|
|
|
£
|
23,571
|
|
|
£
|
14,023
|
|
|
£
|
9,462
|
|
|
Less than 1 Year
|
|
1 to 3
Years
|
|
3 to 5
Years
|
|
More than 5 Years
|
|
Total
|
||||||||||
|
(in thousands)
|
||||||||||||||||||
Revolving credit facility
|
£
|
29,288
|
|
|
£
|
—
|
|
|
£
|
—
|
|
|
£
|
—
|
|
|
£
|
29,288
|
|
Finance leases
|
88
|
|
|
63
|
|
|
—
|
|
|
—
|
|
|
151
|
|
|||||
Operating leases
|
7,638
|
|
|
13,374
|
|
|
9,700
|
|
|
6,576
|
|
|
37,288
|
|
|||||
Other long-term liabilities and provisions
|
—
|
|
|
253
|
|
|
—
|
|
|
—
|
|
|
253
|
|
|||||
Total
|
£
|
37,014
|
|
|
£
|
13,690
|
|
|
£
|
9,700
|
|
|
£
|
6,576
|
|
|
£
|
66,980
|
|
•
|
the prices at which our ordinary shares were transferred in contemporaneous arm’s length transactions;
|
•
|
the lack of an active public market for our ordinary shares;
|
•
|
the material risks related to our business and industry;
|
•
|
our business strategy;
|
•
|
the market performance of publicly traded companies in the technology services sectors; and
|
•
|
the likelihood of achieving a liquidity event for the holders of our ordinary shares, such as an initial public offering, given prevailing market conditions.
|
•
|
Deliver outcome driven programs to our clients, with faster time-to-market and favorable return on investment;
|
•
|
Tailor our approach to the needs of our clients and respond flexibly to changing client objectives and market conditions;
|
•
|
Improve our clients visibility into budgets, status and progress of technology projects; and
|
•
|
Provide better solutions.
|
•
|
Client since: 2011
|
•
|
Vertical: Payments and Financial Services
|
•
|
Solutions: Digital Evolution, Agile Transformation, Automation
|
•
|
Services: Strategy, Creative and UX, Architecture, Mobile & IoT, Software Engineering, Test Automation and Engineering, Continuous Delivery
|
•
|
Customer since: 2011
|
•
|
Vertical: Payments and Financial Services
|
•
|
Solutions: Digital Evolution, Agile Transformation, Automation
|
•
|
Services: Insights through Data, Mobile & IoT, Software Engineering, Test Automation, Continuous Delivery
|
•
|
Client since: 2014
|
•
|
Vertical: Other - retail
|
•
|
Solutions: Digital, Agile, Automation
|
•
|
Services: Digital Strategy, Creative Services, Mobile & IoT, Software Engineering, Smart Automation, Applications Management
|
•
|
Client since: 2015
|
•
|
Vertical: Other - shipping & logistics
|
•
|
Solutions: Agile Transformation
|
•
|
Services: Architecture, Distributed Agile, Software Engineering, Continuous Delivery
|
•
|
Customer since: 2015
|
•
|
Vertical: Payments and Financial Services
|
•
|
Solutions: Digital Evolution, Agile Transformation, Automation
|
•
|
Services: Insights through Data, Mobile & IoT, Software Engineering, Test Automation, Continuous Delivery
|
•
|
Client since: 2016
|
•
|
Vertical: Other - travel
|
•
|
Solutions: Digital Evolution
|
•
|
Services: Mobile, Software Engineering, Test Automation, Continuous Delivery
|
•
|
ranked as one of the top 3 UK technical agencies in 2017, according to Econsultancy;
|
•
|
ranked as one of the top 13 UK agencies in digital income in each of 2015, 2016 and 2017, according Econsultancy;
|
•
|
featured in the International Association of Outsourcing Professionals (IAOP) Global Outsourcing 100 lists in 2015 (Best Leaders in Employee Growth and Best Leaders in Revenue Growth), 2016 (Leaders Category for Top Company for Revenue and Employee Growth and for Programs for Innovation) and 2017 (Leaders Category for Top Company for Programs for Innovation);
|
•
|
recognized as employer of the year for outsourcing in Romania at the Romanian Outsourcing Awards for Excellence Gala in 2016;
|
•
|
ranked as one of the top 20 IT companies to work for in Romania by Biz Magazine in 2013, 2014 and 2015; and
|
•
|
the winner, together with Worldpay Group PLC, of Software Outsourcing Project of the Year at the 2017 ANIS gala in Romania.
|
•
|
next-generation IT service providers, such as Globant S.A and EPAM Systems;
|
•
|
digital agencies and consulting companies, such as Ideo, McKinsey & Company, The Omnicom Group, Sapient Corporation and WPP plc;
|
•
|
global consulting and traditional IT service companies, such as Accenture PLC, Capgemini SE, Cognizant Technology Solutions Corporation and Tata Consultancy Services Limited; and
|
•
|
in-house development departments of our clients.
|
|
As of June 30,
|
|||||||
|
2015
|
|
2016
|
|
2017
|
|||
Function:
|
|
|
|
|
|
|||
Employees Involved in Delivery of Our Services
|
2,050
|
|
|
2,578
|
|
|
3,433
|
|
Selling, General and Administrative
|
155
|
|
|
217
|
|
|
311
|
|
Total
|
2,205
|
|
|
2,795
|
|
|
3,744
|
|
Geography:
|
|
|
|
|
|
|||
Western Europe
|
240
|
|
|
237
|
|
|
233
|
|
Central Europe - EU Countries
|
1,282
|
|
|
1,572
|
|
|
2,318
|
|
Sub-total: EU Countries (Western & Central Europe)
|
1,522
|
|
|
1,809
|
|
|
2,551
|
|
Central Europe - Non-EU Countries
|
678
|
|
|
928
|
|
|
1,073
|
|
Latin America
|
—
|
|
|
—
|
|
|
68
|
|
North America
|
5
|
|
|
58
|
|
|
56
|
|
Total
|
2,205
|
|
|
2,795
|
|
|
3,744
|
|
•
|
Openness
: We are confident in our abilities, our approach and our people, so we are transparent.
|
•
|
Thoughtfulness
: We care deeply about the success of our people, our clients and the countries in which we operate.
|
•
|
Adaptability
: We embrace change and value differences, enabling us to be successful in complex environments.
|
*
|
To be re-registered as a public limited company prior to the completion of this offering.
|
Name
|
|
Age
|
|
Position(s)
|
Executive Officers
|
|
|
|
|
John Cotterell
|
|
57
|
|
Chief Executive Officer, Director
|
Mark Thurston
|
|
54
|
|
Chief Financial Officer, Director
|
Rob Machin
|
|
45
|
|
Chief Operating Officer
|
Julian Bull
|
|
48
|
|
Chief Commercial Officer
|
|
|
|
|
|
Non-Employee Directors
|
|
|
|
|
Trevor Smith
|
|
63
|
|
Chairman of the Board of Directors
|
Andrew Allan
|
|
62
|
|
Director
|
Ben Druskin
|
|
49
|
|
Director
|
Mike Kinton
|
|
71
|
|
Director
|
David Pattillo
|
|
58
|
|
Director
|
•
|
Exemption from quorum requirements applicable to meetings of shareholders. Such quorum requirements are not required under English law. In accordance with generally accepted business practice, our amended and restated articles of association to be in effect immediately prior to the completion of this offering will provide alternative quorum requirements that are generally applicable to meetings of shareholders;
|
•
|
Exemption from the New York Stock Exchange corporate governance listing standards applicable to domestic issuers requiring disclosure within four business days of any determination to grant a waiver of the code of business conduct and ethics to directors and officers. Although we will require board approval of any such
|
•
|
Exemption from the requirement to obtain shareholder approval for certain issuances of securities, including shareholder approval of share option plans
.
|
•
|
evaluating and making recommendations to the board of directors regarding the appointment, compensation, retention and oversight of any accounting firm engaged for the purpose of preparing or issuing an audit report or performing other audit services;
|
•
|
approving the audit services and non-audit services to be provided by our independent auditor;
|
•
|
evaluating the independent auditor’s qualifications, performance and independence, and presenting its conclusions to the full board of directors on at least an annual basis;
|
•
|
reviewing and discussing with the executive officers, the board of directors and the independent auditor our financial statements and our financial reporting process; and
|
•
|
approving or ratifying any related person transaction (as defined by applicable rules and regulations) in accordance with our applicable policies.
|
•
|
approving, modifying and overseeing our overall compensation strategy and policies;
|
•
|
reviewing and recommending to the board of directors for approval the type and amount of compensation to be paid or awarded to the members of our board of directors;
|
•
|
sole responsibility for the appointment, selection, retention, termination and oversight of any compensation consultants and other advisors retained by the remuneration committee;
|
•
|
reviewing, evaluating and approving all compensatory agreements and arrangements, elements of compensation, and performance goals and objectives related to compensation of our senior management, including our chief executive officer;
|
•
|
reviewing and approving the goals and objectives of our senior management, including our chief executive officer, and evaluating their performance in light of relevant performance goals and objectives;
|
•
|
having the full power and authority of our board of directors to adopt, amend, terminate and administer our equity awards, pension, and profit sharing plans, bonus plans, benefit plans and similar programs;
|
•
|
periodically reviewing with our chief executive officer the succession plans for our executive officers and making recommendations to our board of directors with respect to the selection of appropriate individuals to succeed to these positions; and
|
•
|
reviewing and assessing risks arising from our compensation policies and practices.
|
•
|
identifying and evaluating candidates to serve on our board of directors, including nomination of incumbent directors for reelection;
|
•
|
reviewing and evaluating the size and composition of our board of directors;
|
•
|
recommending nominees for election to our board of directors and its corresponding committees;
|
•
|
overseeing the evaluation and periodically reviewing the performance of the board of directors and management, including committees of the board of directors, and reporting the results of such assessment to the board of directors; and
|
•
|
assisting the board of directors in overseeing our corporate governance functions, including developing, updating and recommending to the board of directors corporate governance principles.
|
Date
|
|
Level of vesting
|
|
Date of Exit Event
|
|
Banked award x 50%
|
(A)
|
1
st
anniversary of Exit Event
|
|
(Cumulative banked awards x 100%) – A
|
(B)
|
Participant
|
|
Date
|
|
Number of Class A Ordinary Shares
|
|
Per Share Purchase Price
|
|
Aggregate Purchase Price
|
||||
Michael James Kinton
|
|
June 5, 2017
|
|
10,000
|
|
£
|
17.69
|
|
|
£
|
176,900
|
|
Michael James Kinton
|
|
September 18, 2016
|
|
30,000
|
|
£
|
17.69
|
|
|
£
|
530,700
|
|
Michael James Kinton
|
|
June 24, 2015
|
|
20,000
|
|
£
|
8.21
|
|
|
£
|
164,200
|
|
Alex Day
|
|
June 24, 2015
|
|
1,400
|
|
£
|
8.21
|
|
|
£
|
11,494
|
|
•
|
each person, or group of affiliated persons, who is known by us to beneficially own 5% or more of our Class A ordinary shares;
|
•
|
each person, or group of affiliated persons, who is known by us to beneficially own 5% or more of our Class B ordinary shares;
|
•
|
each person, or group of affiliated persons, who is known by us to beneficially own 5% or more of our Class C ordinary shares;
|
•
|
each person, or group of affiliated persons, who is known by us to beneficially own 5% or more of our Class A ordinary shares, Class B ordinary shares and Class C ordinary shares in the aggregate;
|
•
|
each of our executive officers;
|
•
|
each of our directors;
|
•
|
each selling shareholder; and
|
•
|
all of our executive officers and directors as a group.
|
|
Class A Ordinary Shares Beneficially Owned Before the Offering
|
|
Class B Ordinary Shares Beneficially Owned
Before the Offering
|
|
Class C Ordinary Shares Beneficially Owned
Before the Offering
|
|
Class A Ordinary Shares Being Sold in This Offering if Underwriters’ Option is not Exercised
|
|
Class A Ordinary Shares Beneficially Owned Following the Offering if Underwriters’ Option is not Exercised
|
|
Class A Ordinary Shares Being Sold in This Offering if Underwriters’ Option is Exercised in Full
|
|
Class A Ordinary Shares Beneficially Owned Following the Offering if Underwriters’ Option is Exercised in Full
|
|
Class B Ordinary Shares Beneficially Owned
Following the Offering
|
|
Class C Ordinary Shares Beneficially Owned
Following the Offering
|
|
Total Voting Power Following this Offering if the Underwriters’ Option is not Exercised †
|
|
Total Voting Power Following this Offering if the Underwriters’ Option is Exercised in Full †
|
||||||||||||||||||
|
Shares
|
|
%
|
|
Shares
|
|
%
|
|
Shares
|
|
%
|
|
Shares
|
|
%
|
|
Shares
|
|
%
|
|
Shares
|
|
%
|
|
Shares
|
|
%
|
|
Shares
|
|
%
|
|
Shares
|
|
%
|
|
%
|
|
%
|
Name of Beneficial Owner
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5% and Selling Shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employee Benefit Trust
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alex Day
(2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David Heron
(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Executive Officers and Directors:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John Cotterell
(4)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mark Thurston
(5)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rob Machin
(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Julian Bull
(7)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andrew Allan
(8)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ben Druskin
(9)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael Kinton
(10)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David Pattillo
(11)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trevor Smith
(12)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All current executive officers and directors as a group (9 persons)
(13)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
Represents beneficial ownership of less than 1%.
|
†
|
Represents the voting power with respect to all of our Class A ordinary shares, Class B ordinary shares and Class C ordinary shares, voting as a single class. Each Class A ordinary share and each Class C ordinary share is entitled to one vote per share and each Class B ordinary share is entitled to ten votes per share. The Class A ordinary shares, Class B ordinary shares and Class C ordinary share will vote together on all matters (including the election of directors) submitted to a vote of shareholders.
|
(1)
|
Consists of Class A ordinary shares held in trust on behalf of participants in the JSOP and ordinary shares held in trust on behalf of participants in our 2015 Plan. The Employee Benefit Trust has joint ownership interest and certain voting rights with respect to these shares. The principal business address of the Employee Benefit Trust is Equiom (Guernsey) Limited, PO Box 175, Frances House, Sir William Place, St Peter Port, Guernsey, GY1 4HQ. As of March 31, 2015, the Employee Benefit Trust held % of our ordinary shares.
|
(2)
|
Consists of (1) Class B ordinary shares held directly by Mr. Day and (2) Class A ordinary shares held in trust by the Employee Benefit Trust pursuant to the JSOP.
|
(3)
|
Consists of Class B ordinary shares held directly by Mr. Heron.
|
(4)
|
Consists of (1) Class B ordinary shares held directly by Mr. Cotterell, (2) Class A ordinary shares held in trust by the Employee Benefit Trust pursuant to the JSOP and (3) Class B ordinary shares held in a trust of which Mr. Cotterell is a trustee.
|
(5)
|
Consists of (1) Class B ordinary shares held directly by Mr. Thurston and (2) Class A ordinary shares held in trust by the Employee Benefit Trust pursuant to the 2015 Plan.
|
(6)
|
Consists of (1) Class B ordinary shares held directly by Mr. Machin and (2) Class A ordinary shares held in trust by the Employee Benefit Trust pursuant to the JSOP.
|
(7)
|
Consists of (1) Class B ordinary shares held directly by Mr. Bull and (2) Class A ordinary shares held in trust by the Employee Benefit Trust pursuant to the JSOP.
|
(8)
|
Consists of (1) Class B ordinary shares held directly by Mr. Allen, (2) Class A ordinary shares held in trust by the Employee Benefit Trust and (3) Class A ordinary shares issuable under the 2015 Plan.
|
(9)
|
Consists of (1) Class B ordinary shares held directly by Mr. Druskin and (2) Class A ordinary shares issuable under the 2015 Plan.
|
(10)
|
Consists of (1) Class B ordinary shares held directly by Mr. Kinton, (2) Class A ordinary shares held in trust by the Employee Benefit Trust pursuant to the JSOP and (3) Class A ordinary shares issuable under the 2015 Plan.
|
(11)
|
Consists of (1) Class B ordinary shares held directly by Mr. Pattillo and (2) Class A ordinary shares issuable under the 2015 Plan.
|
(12)
|
Consists of (1) Class B ordinary shares held directly by Mr. Smith, (2) Class A ordinary shares held in trust by the Employee Benefit Trust pursuant to the JSOP and (3) Class A ordinary shares issuable under the 2015 Plan.
|
(13)
|
Includes (1) Class A ordinary shares held in trust by Equiom pursuant to the JSOP, (2) Class A ordinary shares held in trust by the Employee Benefit Trust pursuant to the LTIP and (3) Class A ordinary shares issuable under the 2015 Plan.
|
•
|
The issuance of Class A ordinary shares in connection with this offering, on a non-preemptive basis.
|
•
|
The adoption of amended and restated articles of association that will become effective upon completion of this offering. See “— Key Provisions in our Articles of Association.”
|
•
|
The general authorization of our directors for purposes of Section 551 of the Companies Act to issue shares and grant rights to subscribe for or convert any securities into shares up to a maximum aggregate nominal amount of $ for a period of five years.
|
•
|
The empowering of our directors pursuant to Section 570 of the Companies Act to issue equity securities for cash pursuant to the Section 551 authority referred to above as if the statutory preemption rights under Section 561(1) Companies Act did not apply to such allotments.
|
•
|
in respect of at least two consecutive dividends payable on that share the check, warrant or order has been returned undelivered or remains uncashed; or
|
•
|
in respect of one dividend payable on that share the check, warrant or order has been returned undelivered or remains uncashed and reasonable inquiries have failed to establish any new address.
|
•
|
transfer any of their Class B ordinary shares during the period of 180 days following the date of this prospectus;
|
•
|
transfer in excess of 25% of their Class B ordinary shares during the 18-month period following the date of this prospectus;
|
•
|
transfer in excess of 40% of their Class B ordinary shares during the three-year period following the date of this prospectus; and
|
•
|
transfer in excess of 60% of their Class B ordinary shares during the five-year period following the date of this prospectus.
|
(1)
|
be a party to, or otherwise interested in, any transaction or arrangement with us or in which we are otherwise interested
|
(2)
|
may be a director or other officer of, or be employed by, or hold any position with, or be a party to any transaction or arrangement with, or otherwise interested in, any entity in which we are interested;
|
(3)
|
act by himself or through his firm in a professional capacity for us (except as an auditor) and will be entitled to remuneration for professional services as if he were not a director; and
|
(4)
|
hold any office or place of profit with us (except as an auditor) in conjunction with his office as director for such period, and on such terms, including as to remuneration as our board of directors may decide.
|
|
England and Wales
|
|
Delaware
|
Number of Directors
|
Under the Companies Act, a public limited company must have at least two directors and the number of directors may be fixed by or in the manner provided in a company’s articles of association.
|
|
Under Delaware law, a corporation must have at least one director and the number of directors shall be fixed by or in the manner provided in the bylaws.
|
|
|
|
|
|
England and Wales
|
|
Delaware
|
Removal of Directors
|
Under the Companies Act, shareholders may remove a director without cause by an ordinary resolution (which is passed by a simple majority of those voting in person or by proxy at a general meeting) irrespective of any provisions of any service contract the director has with the company, provided 28 clear days’ notice of the resolution has been given to the company and its shareholders. On receipt of notice of an intended resolution to remove a director, the company must forthwith send a copy of the notice to the director concerned. Certain other procedural requirements under the Companies Act must also be followed, such as allowing the director to make representations against his or her removal either at the meeting or in writing.
|
|
Under Delaware law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except (1) unless the certificate of incorporation provides otherwise, in the case of a corporation whose board of directors is classified, stockholders may effect such removal only for cause, or (2) in the case of a corporation having cumulative voting, if less than the entire board of directors is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there are classes of directors, at an election of the class of directors of which he is a part.
|
|
|
|
|
Vacancies on the Board of Directors
|
Under English law, the procedure by which directors, other than a company’s initial directors, are appointed is generally set out in a company’s articles of association, provided that where two or more persons are appointed as directors of a public limited company by resolution of the shareholders, resolutions appointing each director must be voted on individually.
|
|
Under Delaware law, vacancies and newly created directorships may be filled by a majority of the directors then in office (even though less than a quorum) or by a sole remaining director unless (1) otherwise provided in the certificate of incorporation or bylaws of the corporation or (2) the certificate of incorporation directs that a particular class of stock is to elect such director, in which case a majority of the other directors elected by such class, or a sole remaining director elected by such class, will fill such vacancy.
|
|
|
|
|
Annual General Meeting
|
Under the Companies Act, a public limited company must hold an annual general meeting in each six-month period following the company’s annual accounting reference date.
|
|
Under Delaware law, the annual meeting of stockholders shall be held at such place, on such date and at such time as may be designated from time to time by the board of directors or as provided in the certificate of incorporation or by the bylaws.
|
|
|
|
|
General Meeting
|
Under the Companies Act, a general meeting of the shareholders of a public limited company may be called by the directors.
Shareholders holding at least 5% of the paid-up capital of the company carrying voting rights at general meetings (excluding any paid up capital held as treasury shares) can require the directors to call a general meeting and, if the directors fail to do so within a certain period, may themselves convene a general meeting.
|
|
Under Delaware law, special meetings of the stockholders may be called by the board of directors or by such person or persons as may be authorized by the certificate of incorporation or by the bylaws.
|
|
|
|
|
|
England and Wales
|
|
Delaware
|
Notice of General Meetings
|
Under the Companies Act, at least 21 days’ notice must be given for an annual general meeting and any resolutions to be proposed at the meeting. Subject to a company’s articles of association providing for a longer period, at least 14 days’ notice is required for any other general meeting of a public limited company. In addition, certain matters, such as the removal of directors or auditors, require special notice, which is 28 days’ notice. The shareholders of a company may in all cases consent to a shorter notice period, the proportion of shareholders’ consent required being 100% of those entitled to attend and vote in the case of an annual general meeting and, in the case of any other general meeting, a majority in number of the members having a right to attend and vote at the meeting, being a majority who together hold not less than 95% in nominal value of the shares giving a right to attend and vote at the meeting.
|
|
Under Delaware law, unless otherwise provided in the certificate of incorporation or bylaws, written notice of any meeting of the stockholders must be given to each stockholder entitled to vote at the meeting not less than ten nor more than 60 days before the date of the meeting and shall specify the place, date, hour and purpose or purposes of the meeting.
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Quorum
|
Subject to the provisions of a company’s articles of association, the Companies Act provides that two shareholders present at a meeting (in person or by proxy) shall constitute a quorum.
|
|
The certificate of incorporation or bylaws may specify the number of shares, the holders of which shall be present or represented by proxy at any meeting in order to constitute a quorum, but in no event shall a quorum consist of less than one third of the shares entitled to vote at the meeting. In the absence of such specification in the certificate of incorporation or bylaws, a majority of the shares entitled to vote, present in person or represented by proxy, shall constitute a quorum at a meeting of stockholders.
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|
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Proxy
|
Under the Companies Act, at any meeting of shareholders, a shareholder may designate another person to attend, speak and vote at the meeting on their behalf by proxy.
|
|
Under Delaware law, at any meeting of stockholders, a stockholder may designate another person to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A director of a Delaware corporation may not issue a proxy representing the director’s voting rights as a director.
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|
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England and Wales
|
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Delaware
|
Issue of New Shares
|
Under the Companies Act, the directors of a company must not exercise any power to allot shares or grant rights to subscribe for, or to convert any security into, shares unless they are authorized to do so by the company’s articles of association or by an ordinary resolution of the shareholders. Any authorization given must state the maximum amount of shares that may be allotted under it and specify the date on which it will expire, which must be not more than five years from the date the authorization was given. The authority can be renewed by a further resolution of the shareholders.
|
|
Under Delaware law, if the company’s certificate of incorporation so provides, the directors have the power to authorize additional stock. The directors may authorize capital stock to be issued for consideration consisting of cash, any tangible or intangible property or any benefit to the company or any combination thereof.
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Preemptive Rights
|
Under the Companies Act, “equity securities,” being (1) shares in the company other than shares that, with respect to dividends and capital, carry a right to participate only up to a specified amount in a distribution, referred to as “ordinary shares,” or (2) rights to subscribe for, or to convert securities into, ordinary shares, proposed to be allotted for cash must be offered first to the existing equity shareholders in the company in proportion to the respective nominal value of their holdings, unless an exception applies or a special resolution to the contrary has been passed by shareholders in a general meeting or the articles of association provide otherwise in each case in accordance with the provisions of the Companies Act.
|
|
Under Delaware law, shareholders have no preemptive rights to subscribe to additional issues of stock or to any security convertible into such stock unless, and except to the extent that, such rights are expressly provided for in the certificate of incorporation.
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|
|
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|
Authority to Allot
|
Under the Companies Act, the directors of a company must not allot shares or grant rights to subscribe for or convert any security into shares unless an exception applies or an ordinary resolution to the contrary has been passed by shareholders in a general meeting or the articles of association provide otherwise, in each case in accordance with the provisions of the Companies Act.
|
|
Under Delaware law, if the corporation’s charter or certificate of incorporation so provides, the board of directors has the power to authorize the issuance of stock. The board of directors may authorize capital stock to be issued for consideration consisting of cash, any tangible or intangible property or any benefit to the corporation or any combination thereof. It may determine the amount of such consideration by approving a formula. In the absence of actual fraud in the transaction, the judgment of the directors as to the value of such consideration is conclusive.
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England and Wales
|
|
Delaware
|
Liability of Directors and Officers
|
Under the Companies Act, any provision, whether contained in a company’s articles of association or any contract or otherwise, that purports to exempt a director of a company, to any extent, from any liability that would otherwise attach to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company, is void. Any provision by which a company directly or indirectly provides an indemnity, to any extent, for a director of the company or of an associated company against any liability attaching to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company of which he is a director is also void except as permitted by the Companies Act, which provides exceptions for the company to: (1) purchase and maintain insurance against such liability; (2) provide a “qualifying third party indemnity,” or an indemnity against liability incurred by the director to a person other than the company or an associated company or criminal proceedings in which he is convicted; and (3) provide a “qualifying pension scheme indemnity,” or an indemnity against liability incurred in connection with the company’s activities as trustee of an occupational pension plan.
|
|
Under Delaware law, a corporation’s certificate of incorporation may include a provision eliminating or limiting the personal liability of a director to the corporation and its stockholders for damages arising from a breach of fiduciary duty as a director. However, no provision can limit the liability of a director for:
• any breach of the director’s duty of loyalty to the corporation or its stockholders;
• acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
• intentional or negligent payment of unlawful dividends or stock purchases or redemptions; or
• any transaction from which the director derives an improper personal benefit.
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England and Wales
|
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Delaware
|
Voting Rights
|
Under English law, unless a poll is demanded by the shareholders of a company or is required by the chairman of the meeting or the company’s articles of association, shareholders shall vote on all resolutions on a show of hands. Under the Companies Act, a poll may be demanded by: (1) not fewer than five shareholders having the right to vote on the resolution; (2) any shareholder(s) representing not less than 10% of the total voting rights of all the shareholders having the right to vote on the resolution (excluding any voting rights attaching to treasury shares); or (3) any shareholder(s) holding shares in the company conferring a right to vote on the resolution (excluding any voting rights attaching to treasury shares) being shares on which an aggregate sum has been paid up equal to not less than 10% of the total sum paid up on all the shares conferring that right. A company’s articles of association may provide more extensive rights for shareholders to call a poll.
Under English law, an ordinary resolution is passed on a show of hands if it is approved by a simple majority (more than 50%) of the votes cast by shareholders present (in person or by proxy) and entitled to vote. If a poll is demanded, an ordinary resolution is passed if it is approved by holders representing a simple majority of the total voting rights of shareholders present, in person or by proxy, who, being entitled to vote, vote on the resolution. Special resolutions require the affirmative vote of not less than 75% of the votes cast by shareholders present, in person or by proxy, at the meeting.
|
|
Delaware law provides that, unless otherwise provided in the certificate of incorporation, each stockholder is entitled to one vote for each share of capital stock held by such stockholder.
|
|
|
|
|
Shareholder Vote on Certain Transactions
|
The Companies Act provides for schemes of arrangement, which are arrangements or compromises between a company and any class of shareholders or creditors and used in certain types of reconstructions, amalgamations, capital reorganizations or takeovers. These arrangements require:
• the approval at a shareholders’ or creditors’ meeting convened by order of the court, of a majority in number of shareholders or creditors representing 75% in value of the capital held by, or debt owed to, the class of shareholders or creditors, or class thereof present and voting, either in person or by proxy; and
• the approval of the court.
|
|
Generally, under Delaware law, unless the certificate of incorporation provides for the vote of a larger portion of the stock, completion of a merger, consolidation, sale, lease or exchange of all or substantially all of a corporation’s assets or dissolution requires:
• the approval of the board of directors; and
• the approval by the vote of the holders of a majority of the outstanding stock or, if the certificate of incorporation provides for more or less than one vote per share, a majority of the votes of the outstanding stock of the corporation entitled to vote on the matter.
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|
|
|
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|
England and Wales
|
|
Delaware
|
Standard of Conduct for Directors
|
Under English law, a director owes various statutory and fiduciary duties to the company, including:
• to act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole;
• to avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly conflicts, with the interests of the company;
• to act in accordance with the company’s constitution and only exercise his powers for the purposes for which they are conferred;
• to exercise independent judgment;
• to exercise reasonable care, skill and diligence;
• not to accept benefits from a third party conferred by reason of his being a director or doing, or not doing, anything as a director; and
• to declare any interest that he has, whether directly or indirectly, in a proposed or existing transaction or arrangement with the company.
|
|
Delaware law does not contain specific provisions setting forth the standard of conduct of a director. The scope of the fiduciary duties of directors is generally determined by the courts of the State of Delaware. In general, directors have a duty to act without self-interest, on a well-informed basis and in a manner they reasonably believe to be in the best interest of the stockholders.
Directors of a Delaware corporation owe fiduciary duties of care and loyalty to the corporation and to its shareholders. The duty of care generally requires that a director act in good faith, with the care that an ordinarily prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of all material information reasonably available regarding a significant transaction. The duty of loyalty requires that a director act in a manner he reasonably believes to be in the best interests of the corporation. He must not use his corporate position for personal gain or advantage. In general, but subject to certain exceptions, actions of a director are presumed to have been made on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation. However, this presumption may be rebutted by evidence of a breach of one of the fiduciary duties. Delaware courts have also imposed a heightened standard of conduct upon directors of a Delaware corporation who take any action designed to defeat a threatened change in control of the corporation.
In addition, under Delaware law, when the board of directors of a Delaware corporation approves the sale or break-up of a corporation, the board of directors may, in certain circumstances, have a duty to obtain the highest value reasonably available to the shareholders.
|
|
|
|
|
|
England and Wales
|
|
Delaware
|
Shareholder Suits
|
Under English law, generally, the company, rather than its shareholders, is the proper claimant in an action in respect of a wrong done to the company or where there is an irregularity in the company’s internal management. Notwithstanding this general position, the Companies Act provides that (1) a court may allow a shareholder to bring a derivative claim (that is, an action in respect of and on behalf of the company) in respect of a cause of action arising from a director’s negligence, default, breach of duty or breach of trust and (2) a shareholder may bring a claim for a court order where the company’s affairs have been or are being conducted in a manner that is unfairly prejudicial to some of its shareholders.
|
|
Under Delaware law, a stockholder may initiate a derivative action to enforce a right of a corporation if the corporation fails to enforce the right itself. The complaint must:
• state that the plaintiff was a stockholder at the time of the transaction of which the plaintiff complains or that the plaintiff’s shares thereafter devolved on the plaintiff by operation of law; and
• allege with particularity the efforts made by the plaintiff to obtain the action the plaintiff desires from the directors and the reasons for the plaintiff’s failure to obtain the action; or
• state the reasons for not making the effort.
Additionally, the plaintiff must remain a stockholder through the duration of the derivative suit. The action will not be dismissed or compromised without the approval of the Delaware Court of Chancery.
|
(1)
|
not less than 90% in value of the shares to which the takeover offer relates, or the “Takeover Offer Shares;” and
|
(2)
|
where those shares are voting shares, not less than 90% of the voting rights attached to the Takeover Offer Shares,
|
•
|
the name of any person, without sufficient cause, is wrongly entered in or omitted from our register of members; or
|
•
|
there is a default or unnecessary delay in entering on the register the fact of any person having ceased to be a member or on which we have a lien, provided that such delay does not prevent dealings in the shares taking place on an open and proper basis.
|
•
|
if, at the time that the distribution is made, the amount of its net assets (that is, the total excess of assets over liabilities) is not less than the total of its called up share capital and undistributable reserves; and
|
•
|
if, and to the extent that, the distribution itself, at the time that it is made, does not reduce the amount of its net assets to less than that total.
|
(1)
|
any dividend or other money payable in respect of the Default Shares shall be retained by the company without any liability to pay interest on it when such dividend or other money is finally paid to the shareholder; and/or
|
(2)
|
no transfer by the relevant shareholder of shares (other than a transfer approved in accordance with the provisions of the company’s articles of association) may be registered (unless such shareholder is not in default and the transfer does not relate to Default Shares).
|
•
|
we do not timely request that the rights be distributed to you or we request that the rights not be distributed to you;
|
•
|
we fail to deliver satisfactory documents to the depositary; or
|
•
|
it is not reasonably practicable to distribute the rights.
|
•
|
we do not request that the property be distributed to you or if we ask that the property not be distributed to you;
|
•
|
we do not deliver satisfactory documents to the depositary; or
|
•
|
the depositary determines that all or a portion of the distribution to you is not reasonably practicable.
|
•
|
the
Class A
ordinary shares are duly authorized, validly issued, fully paid, non-assessable, and legally obtained;
|
•
|
all preemptive (and similar) rights, if any, with respect to such
Class A
ordinary shares have been validly waived or exercised;
|
•
|
you are duly authorized to deposit the
Class A
ordinary shares;
|
•
|
the
Class A
ordinary shares presented for deposit are free and clear of any lien, encumbrance, security interest, charge, mortgage, or adverse claim, and are not, and the ADSs issuable upon such deposit will not be, “restricted securities” (as defined in the deposit agreement);
|
•
|
the
Class A
ordinary shares presented for deposit have not been stripped of any rights or entitlements; and
|
•
|
the deposit of shares does not violate any applicable provision of English law.
|
•
|
ensure that the surrendered ADR is properly endorsed or otherwise in proper form for transfer;
|
•
|
provide such proof of identity and genuineness of signatures as the depositary deems appropriate;
|
•
|
provide any transfer stamps required by the State of New York or the United States; and
|
•
|
pay all applicable fees, charges, expenses, taxes, and other government charges payable by ADR holders pursuant to the terms of the deposit agreement, upon the transfer of ADRs.
|
•
|
temporary delays that may arise because (i) the transfer books for the
Class A
ordinary shares or ADSs are closed, or (ii)
Class A
ordinary shares are immobilized on account of a shareholders’ meeting or a payment of dividends;
|
•
|
obligations to pay fees, taxes and similar charges;
|
•
|
restrictions imposed because of laws or regulations applicable to ADSs or the withdrawal of securities on deposit;
|
•
|
other circumstances specifically contemplated by Section I.A.(I) of the General Instructions to Form F-6 (as such General Instructions may be amended from time to time).
|
•
|
If voting at the shareholders’ meeting by show of hands: The depositary will vote (or cause the custodian to vote) all the securities represented by ADSs in accordance with the voting instructions received from a majority of the ADS holders who provided voting instructions.
|
•
|
If voting at the shareholders’ meeting by poll: The depositary will vote (or cause the custodian to vote) the securities represented by ADSs in accordance with the voting instructions received from the holders of ADSs.
|
Service
|
|
Fees
|
Issuance of ADSs (e.g., an issuance of ADS upon a deposit of Class A ordinary shares or upon a change in the ADS(s)-to-Class A ordinary shares ratio), excluding ADS issuances as a result of distributions of Class A ordinary shares
|
|
Up to $0.05 per ADS issued
|
Cancellation of ADSs (e.g., a cancellation of ADSs for delivery of deposited property or upon a change in the ADS(s)-to-Class A ordinary shares ratio, or for any other reason)
|
|
Up to $0.05 per ADS cancelled
|
Distribution of cash dividends or other cash distributions (e.g., upon a sale of rights and other entitlements)
|
|
Up to $0.05 per ADS held
|
Distribution of ADSs pursuant to (i) share dividends or other free share distributions, or (ii) exercise of rights to purchase additional ADSs
|
|
Up to $0.05 per ADS held
|
Distribution of securities other than ADSs or rights to purchase additional ADSs (e.g., upon a spin-off)
|
|
Up to $0.05 per ADS held
|
ADS Services
|
|
Up to $0.05 per ADS held on the applicable record date(s) established by the depositary
|
•
|
taxes (including applicable interest and penalties) and other governmental charges;
|
•
|
the registration fees as may from time to time be in effect for the registration of
Class A
ordinary shares on the share register and applicable to transfers of
Class A
ordinary shares to or from the name of the custodian, the depositary, or any nominees upon the making of deposits and withdrawals, respectively;
|
•
|
certain cable, telex, and facsimile transmission and delivery expenses;
|
•
|
the expenses and charges incurred by the depositary in the conversion of foreign currency;
|
•
|
the fees and expenses incurred by the depositary in connection with compliance with exchange control regulations and other regulatory requirements applicable to
Class A
ordinary shares, ADSs, and ADRs; andthe fees and expenses incurred by the depositary, the custodian, or any nominee in connection with the servicing or delivery of deposited property.
|
•
|
We and the depositary are obligated only to take the actions specifically stated in the deposit agreement without negligence or bad faith.
|
•
|
The depositary disclaims any liability for any failure to carry out voting instructions, for any manner in which a vote is cast or for the effect of any vote, provided it acts in good faith and in accordance with the terms of the deposit agreement.
|
•
|
The depositary disclaims any liability for any failure to determine the lawfulness or practicality of any action, for the content of any document forwarded to you on our behalf or for the accuracy of any translation of such a document, for the investment risks associated with investing in
Class A
ordinary shares, for the validity or worth of the
Class A
ordinary shares, for any tax consequences that result from the ownership of ADSs, for the credit-worthiness of any third party, for allowing any rights to lapse under the terms of the deposit agreement, for the timeliness of any of our notices, or for our failure to give notice.
|
•
|
We and the depositary will not be obligated to perform any act that is inconsistent with the terms of the deposit agreement.
|
•
|
We and the depositary disclaim any liability if we or the depositary are prevented or forbidden from or subject to any civil or criminal penalty or restraint on account of, or delayed in, doing or performing any act or thing required by the terms of the deposit agreement, by reason of any provision, present or future of any law or regulation, or by reason of present or future provision of any provision of our Articles of Association, or any provision of or governing the securities on deposit, or by reason of any act of God or war or other circumstances beyond our control.
|
•
|
We and the depositary disclaim any liability by reason of any exercise of, or failure to exercise, any discretion provided for in the deposit agreement or in our Articles of Association or in any provisions of or governing the securities on deposit.
|
•
|
We and the depositary further disclaim any liability for any action or inaction in reliance on the advice or information received from legal counsel, accountants, any person presenting
Class A
ordinary shares for deposit, any holder of ADSs or authorized representatives thereof, or any other person believed by either of us in good faith to be competent to give such advice or information.
|
•
|
We and the depositary also disclaim liability for the inability by a holder to benefit from any distribution, offering, right or other benefit that is made available to holders of
Class A
ordinary shares but is not, under the terms of the deposit agreement, made available to you.
|
•
|
We and the depositary may rely without any liability upon any written notice, request or other document believed to be genuine and to have been signed or presented by the proper parties.
|
•
|
We and the depositary also disclaim liability for any consequential or punitive damages for any breach of the terms of the deposit agreement.
|
•
|
No disclaimer of any Securities Act liability is intended by any provision of the deposit agreement.
|
•
|
Convert the foreign currency to the extent practical and lawful and distribute the U.S. dollars to the holders for whom the conversion and distribution is lawful and practical.
|
•
|
Distribute the foreign currency to holders for whom the distribution is lawful and practical.
|
•
|
Hold the foreign currency (without liability for interest) for the applicable holders.
|
•
|
1% of the number of Class A ordinary shares then outstanding, which will equal approximately shares immediately after this offering; or
|
•
|
the average weekly trading volume of our ADSs during the four calendar weeks preceding the filing of a notice on Form 144 with respect to such sale.
|
•
|
persons who are connected with the company;
|
•
|
financial institutions;
|
•
|
insurance companies;
|
•
|
charities or tax-exempt organizations;
|
•
|
collective investment schemes;
|
•
|
pension schemes;
|
•
|
market makers, intermediaries, brokers or dealers in securities;
|
•
|
persons who have (or are deemed to have) acquired their ADSs by virtue of an office or employment or who are or have been officers or employees of the company or any of its affiliates; and
|
•
|
individuals who are subject to U.K. taxation on a remittance basis.
|
Name
|
|
Number of ADSs
|
Morgan Stanley & Co. LLC
|
|
|
Citigroup Global Markets Inc.
|
|
|
Credit Suisse Securities (USA) LLC
|
|
|
Deutsche Bank Securities Inc.
|
|
|
Cowen and Company, LLC
|
|
|
William Blair & Company, L.L.C.
|
|
|
Total:
|
|
|
|
|
|
Total
|
||
|
Per
ADS
|
|
No
Exercise
|
|
Full
Exercise
|
Public offering price
|
$
|
|
$
|
|
$
|
Underwriting discounts and commissions to be paid by:
|
|
|
|
|
|
Us
|
|
|
|
|
|
The selling shareholders
|
|
|
|
|
|
Proceeds, before expenses, to us
|
|
|
|
|
|
Proceeds, before expenses, to the selling shareholders
|
|
|
|
|
|
•
|
offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any ordinary shares or ADSs or any securities convertible into or exercisable or exchangeable for ordinary shares or ADSs;
|
•
|
file any registration statement with the Securities and Exchange Commission relating to the offering of any ordinary shares or ADSs or any securities convertible into or exercisable or exchangeable for ordinary shares or ADSs; or
|
•
|
enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the ordinary shares or ADSs.
|
•
|
the sale of ordinary shares or ADSs to the underwriters;
|
•
|
the issuance by the Company of ordinary shares upon the exercise of an option or a warrant or the conversion of a security outstanding on the date of this prospectus of which the underwriters have been advised in writing;
|
•
|
transactions by any person other than us relating to ordinary shares or ADSs or other securities acquired in open market transactions after the completion of the offering of the ADSs; provided that no filing under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), is required or voluntarily made in connection with subsequent sales of the ordinary shares or ADSs or other securities acquired in such open market transactions;
|
•
|
the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of ordinary shares or ADSs, provided that (1) such plan does not provide for the transfer of ordinary shares or ADSs during the restricted period and (2) to the extent a public announcement or filing under the Exchange Act, if any, is required or voluntarily made regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of ordinary shares or ADSs may be made under such plan during the restricted period; or
|
•
|
the transfer of ordinary shares or ADSs or any securities convertible into or exercisable or exchangeable for ordinary shares or ADSs pursuant to a bona fide third-party tender offer, merger, consolidation or other similar
|
(a)
|
to any legal entity which is a qualified investor as defined in the Prospectus Directive;
|
(b)
|
to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
|
(c)
|
in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of our ADSs shall result in a requirement for the publication by us or any underwriter of a prospectus pursuant to Article 3 of the Prospectus Directive.
|
•
|
released, issued, distributed or caused to be released, issued or distributed to the public in France; or
|
•
|
used in connection with any offer for subscription or sale of the ADSs to the public in France.
|
•
|
to qualified investors (
investisseurs 137 estraint
) and/or to a restricted circle of investors (
cercle 137 estraint d’investisseurs
), in each case investing for their own account, all as defined in, and in accordance with, articles L.411-2, D.411-1, D.411-2, D.734-1, D.744-1, D.754-1 and D.764-1 of the French
Code monétaire et financier
;
|
•
|
to investment services providers authorized to engage in portfolio management on behalf of third parties; or
|
•
|
in a transaction that, in accordance with article L.411-2-II-1°-or-2°-or 3° of the French
Code monétaire et financier
and article 211-2 of the General Regulations (
Règlement Général
) of the
Autorité des Marchés Financiers
, does not constitute a public offer (
appel public à l’épargne
).
|
•
|
to persons whose principal business is the investment of money or who, in the course of and for the purposes of their business, habitually invest money;
|
•
|
to persons who in all the circumstances can properly be regarded as having been selected otherwise than as members of the public;
|
•
|
to persons who are each required to pay a minimum subscription price of at least NZ$500,000 for the ADSs before the allotment of those ADSs (disregarding any amounts payable, or paid, out of money lent by the issuer or any associated person of the issuer); or
|
•
|
in other circumstances where there is no contravention of the Securities Act 1978 of New Zealand (or any statutory modification or re-enactment of, or statutory substitution for, the Securities Act 1978 of New Zealand).
|
(a)
|
a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or
|
(b)
|
a trust (where the trustee is not an accredited investor) the sole purpose of which is to hold investments and each beneficiary of the trust is an individual who is an accredited investor
|
(a)
|
to an institutional investor or to a relevant person defined in Section 275(2) of the SFA, or to any person arising from an offer referred to in Section 275(1A) or Section 276(4)(i)(B) of the SFA;
|
(b)
|
where no consideration is or will be given for the transfer;
|
(c)
|
where the transfer is by operation of law;
|
(d)
|
as specified in Section 276(7) of the SFA; or
|
(e)
|
as specified in Regulation of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore.
|
(a)
|
it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000, or FSMA, received by it in connection with the issue or sale of our ADSs in circumstances in which Section 21(1) of the FSMA does not apply to us; and
|
(b)
|
it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to our ADSs in, from or otherwise involving the United Kingdom.
|
|
Amount
|
|
Securities and Exchange Commission registration fee
|
$
|
*
|
FINRA filing fee
|
|
*
|
New York Stock Exchange listing fee
|
|
*
|
Printing and engraving expenses
|
|
*
|
Legal fees and expenses
|
|
*
|
Transfer agent and registrar fees and expenses
|
|
*
|
Accounting fees and expenses
|
|
*
|
Miscellaneous costs
|
|
*
|
Total
|
$
|
*
|
*
|
To be filed by amendment
|
•
|
Recognize or enforce judgments of United States courts obtained against us or our directors or officers predicated upon the civil liabilities provisions of the securities laws of the United States or any state in the United States; or
|
•
|
entertain original actions brought in England and Wales against us or our directors or officers predicated upon the securities laws of the United States or any state in the United States.
|
•
|
the relevant U.S. court had jurisdiction over the original proceedings according to English conflicts of laws principles at the time when proceedings were initiated;
|
•
|
England and Wales courts had jurisdiction over the matter on enforcement and we either submitted to such jurisdiction or were resident or carrying on business within such jurisdiction and were duly served with process;
|
•
|
the U.S. judgment was final and conclusive on the merits in the sense of being final and unalterable in the court that pronounced it and being for a definite sum of money;
|
•
|
the judgment given by the courts was not in respect of penalties, taxes, fines or similar fiscal or revenue obligations (or otherwise based on a U.S. law that an English court considers to relate to a penal, revenue or other public law);
|
•
|
the judgment was not procured by fraud;
|
•
|
recognition or enforcement of the judgment in England and Wales would not be contrary to public policy or the Human Rights Act 1998;
|
•
|
the proceedings pursuant to which judgment was obtained were not contrary to natural justice;
|
•
|
the U.S. judgment was not arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damages sustained and not being otherwise in breach of Section 5 of the U.K. Protection of Trading Interests Act 1980, or is a judgment based on measures designated by the Secretary of State under Section 1 of that Act;
|
•
|
there is not a prior decision of an English court or the court of another jurisdiction on the issues in question between the same parties; and
|
•
|
the English enforcement proceedings were commenced within the limitation period.
|
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
|
|
|
Page
|
ENDAVA LIMITED
|
|
|
|
For the Years Ended June 30, 2016 and 2017
|
|
|
|
For the Nine Months Ended March 31, 2017 and 2018
|
|
|
|
VELOCITY PARTNERS LLC
|
|
|
|
For the Years Ended December 31, 2016 and 2015
|
|
|
|
For the Nine Month Periods Ended September 30, 2017 and 2016
|
|
|
|
ENDAVA LIMITED
Pro forma Condensed Combined Financial Statements (unaudited)
|
|
|
|
/s/ KPMG LLP
|
London, United Kingdom
|
18 June 2018
|
|
Note
|
|
2016
£’000
|
|
2017
£’000
|
|||||
Revenue
|
5
|
|
|
115,432
|
|
|
159,368
|
|
||
Cost of sales
|
|
|
|
|
|
|||||
Direct cost of sales
|
|
|
(68,517
|
)
|
|
(98,853
|
)
|
|||
Allocated cost of sales
|
|
|
(6,529
|
)
|
|
(9,907
|
)
|
|||
Total cost of sales
|
|
|
(75,046
|
)
|
|
(108,760
|
)
|
|||
Gross Profit
|
|
|
40,386
|
|
|
50,608
|
|
|||
Selling, general and administrative expenses
|
6
|
|
|
(20,453
|
)
|
|
(27,551
|
)
|
||
Operating profit
|
|
|
19,933
|
|
|
23,057
|
|
|||
Finance costs
|
9
|
|
|
(170
|
)
|
|
(1,375
|
)
|
||
Finance income
|
10
|
|
|
1,068
|
|
|
18
|
|
||
Net Finance (expense) / income
|
|
|
898
|
|
|
(1,357
|
)
|
|||
Profit before tax
|
|
|
20,831
|
|
|
21,700
|
|
|||
Tax on profit on ordinary activities
|
11
|
|
|
(4,125
|
)
|
|
(4,868
|
)
|
||
Profit for the year and profit attributable to owners of the parent
|
|
|
16,706
|
|
|
16,832
|
|
|||
Earnings per share:
|
13
|
|
|
|
|
|
||||
Basic EPS
|
|
|
£
|
1.84
|
|
|
£
|
1.86
|
|
|
Diluted EPS
|
|
|
£
|
1.69
|
|
|
£
|
1.71
|
|
|
Weighted average number of shares outstanding - basic
|
|
|
9,077,842
|
|
|
9,051,750
|
|
|||
Weighted average number of shares outstanding - diluted
|
|
|
9,863,609
|
|
|
9,858,504
|
|
|||
Other comprehensive income
|
|
|
|
|
|
|||||
Items that may be reclassified subsequently to profit or loss:
|
|
|
|
|
|
|||||
Exchange differences on translating foreign operations
|
|
|
4,184
|
|
|
2,520
|
|
|||
Total comprehensive income for the year attributable to the owners of the parent
|
|
|
20,890
|
|
|
19,352
|
|
|
Note
|
|
2016
£’000 |
|
2017
£’000 |
|||
Assets - Non current
|
|
|
|
|
|
|||
Goodwill
|
14
|
|
|
11,321
|
|
|
16,198
|
|
Intangible assets
|
17
|
|
|
11,231
|
|
|
16,029
|
|
Property, plant and equipment
|
18
|
|
|
4,735
|
|
|
7,486
|
|
Deferred tax asset
|
12
|
|
|
1,108
|
|
|
867
|
|
Non-current financial assets
|
|
|
27
|
|
|
14
|
|
|
Total
|
|
|
28,422
|
|
|
40,594
|
|
|
Assets - Current
|
|
|
|
|
|
|||
Inventory
|
|
|
134
|
|
|
62
|
|
|
Trade and other receivables
|
21
|
|
|
31,054
|
|
|
41,494
|
|
Corporation tax receivable
|
|
|
340
|
|
|
661
|
|
|
Cash and cash equivalents
|
20
|
|
|
12,947
|
|
|
23,571
|
|
Total
|
|
|
44,475
|
|
|
65,788
|
|
|
Total assets
|
|
|
72,897
|
|
|
106,382
|
|
|
Liabilities - Current
|
|
|
|
|
|
|||
Borrowings
|
25
|
|
|
15,405
|
|
|
29,402
|
|
Trade and other payables
|
22
|
|
|
18,586
|
|
|
24,186
|
|
Corporation tax payable
|
|
|
1,468
|
|
|
1,000
|
|
|
Contingent consideration
|
17
|
|
|
3,788
|
|
|
—
|
|
Deferred consideration
|
|
|
751
|
|
|
—
|
|
|
Provisions
|
23
|
|
|
1,297
|
|
|
172
|
|
Total
|
|
|
41,295
|
|
|
54,760
|
|
|
Liabilities - Non-current
|
|
|
|
|
|
|||
Borrowings
|
25
|
|
|
38
|
|
|
63
|
|
Deferred tax liability
|
12
|
|
|
1,532
|
|
|
2,586
|
|
Other liabilities
|
|
|
219
|
|
|
219
|
|
|
Provisions
|
23
|
|
|
20
|
|
|
34
|
|
Total
|
|
|
1,809
|
|
|
2,902
|
|
|
Equity
|
|
|
|
|
|
|||
Share capital
|
28
|
|
|
996
|
|
|
996
|
|
Share premium
|
|
|
2,678
|
|
|
2,678
|
|
|
Merger relief reserve
|
|
|
4,430
|
|
|
4,430
|
|
|
Retained earnings
|
|
|
20,425
|
|
|
38,072
|
|
|
Other reserves
|
|
|
2,299
|
|
|
4,819
|
|
|
Investment in own shares
|
|
|
(1,035
|
)
|
|
(2,275
|
)
|
|
Total
|
|
|
29,793
|
|
|
48,720
|
|
|
Total liabilities and equity
|
|
|
72,897
|
|
|
106,382
|
|
|
Share capital
£’000 |
|
Share premium
£’000 |
|
Merger relief reserve
£’000 |
|
Investment in own shares
£’000 |
|
Retained earnings
£’000 |
|
Capital redemption reserve
£’000 |
|
Foreign exchange translation reserve
£’000 |
|
Total
£’000 |
||||||||
Balance at 30 June 2015
|
990
|
|
|
2,353
|
|
|
4,430
|
|
|
(972
|
)
|
|
21,070
|
|
|
161
|
|
|
(2,046
|
)
|
|
25,986
|
|
Equity-settled share-based payment transactions
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
829
|
|
|
—
|
|
|
—
|
|
|
829
|
|
Dividends
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(18,180
|
)
|
|
—
|
|
|
—
|
|
|
(18,180
|
)
|
Issue of shares
|
6
|
|
|
325
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
331
|
|
Shares purchased by the employee benefits trust
|
—
|
|
|
—
|
|
|
—
|
|
|
(63
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(63
|
)
|
Transaction with owners
|
6
|
|
|
325
|
|
|
—
|
|
|
(63
|
)
|
|
(17,351
|
)
|
|
—
|
|
|
—
|
|
|
(17,083
|
)
|
Profit for the year
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
16,706
|
|
|
—
|
|
|
—
|
|
|
16,706
|
|
Other comprehensive income
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
4,184
|
|
|
4,184
|
|
Total comprehensive income for the year
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
16,706
|
|
|
—
|
|
|
4,184
|
|
|
20,890
|
|
Balance at 30 June 2016
|
996
|
|
|
2,678
|
|
|
4,430
|
|
|
(1,035
|
)
|
|
20,425
|
|
|
161
|
|
|
2,138
|
|
|
29,793
|
|
Equity-settled share-based payment transactions
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
815
|
|
|
—
|
|
|
—
|
|
|
815
|
|
Issue of shares
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Shares purchased by the employee benefits trust
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,240
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,240
|
)
|
Transaction with owners
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,240
|
)
|
|
815
|
|
|
—
|
|
|
—
|
|
|
(425
|
)
|
Profit for the year
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
16,832
|
|
|
—
|
|
|
—
|
|
|
16,832
|
|
Other comprehensive income
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,520
|
|
|
2,520
|
|
Total comprehensive income for the year
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
16,832
|
|
|
—
|
|
|
2,520
|
|
|
19,352
|
|
Balance at 30 June 2017
|
996
|
|
|
2,678
|
|
|
4,430
|
|
|
(2,275
|
)
|
|
38,072
|
|
|
161
|
|
|
4,658
|
|
|
48,720
|
|
|
2016
£’000 |
|
2017
£’000 |
||||
Operating activities
|
|
|
|
||||
Profit for the year
|
£
|
16,706
|
|
|
£
|
16,832
|
|
Income tax charge
|
4,125
|
|
|
4,868
|
|
||
Adjustments (note 31)
|
436
|
|
|
3,519
|
|
||
Tax paid
|
(3,798
|
)
|
|
(5,471
|
)
|
||
UK research & development credit received
|
1,081
|
|
|
—
|
|
||
Net changes in working capital (note 31)
|
(7,653
|
)
|
|
(5,008
|
)
|
||
Net cash from operating activities
|
10,897
|
|
|
14,740
|
|
||
|
|
|
|
||||
Investing activities
|
|
|
|
||||
Purchase of non-current assets (tangibles and intangibles)
|
(2,745
|
)
|
|
(6,372
|
)
|
||
Proceeds / (loss) from disposal of non-current assets
|
15
|
|
|
(106
|
)
|
||
Acquisition of business / subsidiaries, consideration in cash
|
(4,551
|
)
|
|
(13,807
|
)
|
||
Cash and cash equivalents acquired with subsidiaries
|
—
|
|
|
768
|
|
||
Interest received
|
21
|
|
|
18
|
|
||
Net cash used in investing activities
|
(7,260
|
)
|
|
(19,499
|
)
|
||
|
|
|
|
||||
Financing activities
|
|
|
|
||||
Proceeds from borrowings
|
15,093
|
|
|
17,007
|
|
||
Repayment of borrowings
|
(3,364
|
)
|
|
(3,462
|
)
|
||
Grant received
|
1,948
|
|
|
2,924
|
|
||
Interest paid
|
(114
|
)
|
|
(391
|
)
|
||
Dividends paid
|
(18,181
|
)
|
|
—
|
|
||
Purchase of own shares
|
—
|
|
|
(1,240
|
)
|
||
Net cash used in financing activities
|
(4,618
|
)
|
|
14,838
|
|
||
|
|
|
|
||||
Net change in cash and cash equivalents
|
(981
|
)
|
|
10,079
|
|
||
|
|
|
|
||||
Cash and cash equivalents at the beginning of the year
|
13,362
|
|
|
12,947
|
|
||
Net Foreign Exchange Differences
|
566
|
|
|
545
|
|
||
Cash and cash equivalents at the end of the year
|
£
|
12,947
|
|
|
£
|
23,571
|
|
1.
|
General Information
|
2.
|
Application Of New and Revised International Financial Reporting Standards (“IFRS”)
|
3.
|
Significant Accounting Policies
|
A.
|
Group Financial Statements
|
1.
|
Statement of Compliance
|
2.
|
Basis of Preparation
|
3.
|
Functional and Presentation Currency
|
4.
|
Reclassification
|
5.
|
Use of Estimates and Judgments
|
6.
|
Going concern
|
7.
|
Basis of consolidation
|
8.
|
Foreign Currency
|
9.
|
Financial instruments
|
10.
|
Property, plant and equipment
|
Computers and equipment
|
3 years
|
Fixtures and fittings
|
5 years
|
Motor vehicles
|
5 years
|
11.
|
Intangible assets and goodwill
|
•
|
the development costs can be measured reliably;
|
•
|
the project is technically and commercially feasible;
|
•
|
the Group intends to and has sufficient resources to complete the project;
|
•
|
the Group has the ability to deliver the software to clients; and
|
•
|
the software will generate probable future economic benefits.
|
Client relationship
|
5 - 10 years
|
Non-compete agreement
|
3 years
|
Computer software
|
3 - 10 years
|
Licences
|
Shorter of licence period and up to 3 years
|
12.
|
Lease agreements
|
•
|
The fulfilment of the arrangement is dependent on the use of a specific asset or assets; and
|
•
|
The arrangement contains the right to use the asset(s).
|
13.
|
Impairment
|
14.
|
Employee benefits
|
15.
|
Provisions, Contingent Liabilities and Contingent Assets
|
16.
|
Revenue
|
17.
|
Government grants
|
18.
|
Finance income and finance costs
|
19.
|
Income taxes
|
20.
|
Cash and cash equivalents
|
21.
|
Equity, reserves and dividend payments
|
•
|
Translation reserve comprises foreign currency translation differences arising from the translation of financial statements of the group’s foreign entities into Sterling;
|
•
|
Capital redemption reserve is created to maintain the statutory capital maintenance requirements of the Companies Act 2006;
|
•
|
Share option reserve reflects the charge taken to profit and loss in respect of share based payments in each financial year;
|
•
|
Merger relief reserve balance represents the fair value of the consideration given in excess of the nominal value of the ordinary shares issued in a business combination; and
|
•
|
Retained earnings include all current and prior period retained profits.
|
4.
|
Operating Segment Analysis
|
5.
|
Revenue
|
|
2016
£’000 |
|
2017
£’000 |
||||
UK
|
£
|
74,315
|
|
|
£
|
79,938
|
|
North America
|
20,906
|
|
|
25,944
|
|
||
Europe
|
20,211
|
|
|
53,486
|
|
||
Total
|
£
|
115,432
|
|
|
£
|
159,368
|
|
6.
|
Operating Profit
|
|
2016
£’000 |
|
2017
£’000 |
||
Operating profit is stated after charging/(crediting):
|
|
|
|
||
Depreciation and impairment of owned property, plant & equipment
|
1,637
|
|
|
2,470
|
|
Depreciation of assets held under finance leases
|
83
|
|
|
62
|
|
Impairment of property, plant & equipment
|
(80
|
)
|
|
—
|
|
Amortisation of intangible assets
|
1,242
|
|
|
1,814
|
|
Gain on disposal of property, plant & equipment
|
(15
|
)
|
|
(16
|
)
|
Loss on disposal of property, plant & equipment
|
—
|
|
|
122
|
|
Research & development expenditure credit
|
(1,117
|
)
|
|
(1,322
|
)
|
Government grants
|
(1,048
|
)
|
|
(1,691
|
)
|
Share option charge
|
768
|
|
|
854
|
|
Net (gain) / loss on foreign currency translation
|
(4
|
)
|
|
967
|
|
Operating lease costs:
|
|
|
|
||
Land and buildings
|
4,437
|
|
|
6,443
|
|
|
2016
£’000 |
|
2017
£’000 |
||||
Audit of the financial statements
|
£
|
80
|
|
|
£
|
126
|
|
Subsidiary local statutory audits
|
59
|
|
|
89
|
|
||
Total audit fees
|
139
|
|
|
215
|
|
||
Taxation compliance services
|
—
|
|
|
—
|
|
||
Taxation advisory fees
|
—
|
|
|
—
|
|
||
Total non-audit fees
|
£
|
—
|
|
|
£
|
—
|
|
7.
|
Particulars of Employees
|
|
2016
£’000 |
|
2017
£’000 |
||||
The average number of staff employed by the group during the financial year amounted to:
|
|
|
|
||||
Number of operational staff
|
2,336
|
|
|
3,181
|
|
||
Number of administrative staff
|
190
|
|
|
283
|
|
||
Number of management staff
|
7
|
|
|
7
|
|
||
Total
|
2,533
|
|
|
3,471
|
|
||
The aggregate payroll costs of the above were:
|
|
|
|
||||
Wages and salaries
|
£
|
58,714
|
|
|
£
|
82,894
|
|
Social security and pension costs
|
8,643
|
|
|
14,850
|
|
||
Share option charge
|
768
|
|
|
854
|
|
||
Total
|
£
|
68,125
|
|
|
£
|
98,598
|
|
8.
|
Key Management Remuneration
|
|
2016
£’000 |
|
2017
£’000 |
||||
Remuneration in respect of key management was as follows:
|
|
|
|
||||
Short-term employee benefits
|
£
|
1,275
|
|
|
£
|
865
|
|
Post-employment benefits
|
59
|
|
|
41
|
|
||
Total
|
£
|
1,334
|
|
|
£
|
906
|
|
|
|
|
|
||||
Emoluments of highest paid director:
|
|
|
|
||||
Total emoluments
|
£
|
417
|
|
|
£
|
431
|
|
9.
|
Finance Costs
|
|
2016
£’000 |
|
2017
£’000 |
||||
Interest payable on bank borrowings
|
£
|
79
|
|
|
£
|
286
|
|
Interest payable on leases
|
35
|
|
|
22
|
|
||
Foreign exchange loss
|
—
|
|
|
967
|
|
||
Other interest expense
|
56
|
|
|
100
|
|
||
Total
|
£
|
170
|
|
|
£
|
1,375
|
|
10.
|
Finance Income
|
|
2016
£’000 |
|
2017
£’000 |
||||
Interest receivable on bank deposits
|
£
|
17
|
|
|
£
|
15
|
|
Other interest income
|
4
|
|
|
3
|
|
||
Foreign exchange gain
|
4
|
|
|
—
|
|
||
Fair value gain on forward foreign exchange contracts held for trading
|
1,043
|
|
|
—
|
|
||
Total
|
£
|
1,068
|
|
|
£
|
18
|
|
11.
|
Tax On Profit On Ordinary Activities
|
|
2016
£’000 |
|
2017
£’000 |
||
UK corporation tax based on the results for the year ended 30 June 2017 at 19.75% (2016: 20%)
|
2,275
|
|
|
1,664
|
|
Overseas tax
|
2,188
|
|
|
3,066
|
|
Current Tax
|
4,463
|
|
|
4,730
|
|
Deferred Tax
|
(338
|
)
|
|
138
|
|
Total tax
|
4,125
|
|
|
4,868
|
|
|
2016
|
|
2017
|
||||||||||
|
£’000
|
|
%
|
|
£’000
|
|
%
|
||||||
Profit on ordinary activities before taxation
|
£
|
20,831
|
|
|
—
|
%
|
|
£
|
21,700
|
|
|
—
|
%
|
Profit on ordinary activities at UK statutory rate
|
4,167
|
|
|
20.0
|
|
|
4,286
|
|
|
19.8
|
|
||
Differences in overseas tax rates
|
(372
|
)
|
|
(1.8
|
)
|
|
(219
|
)
|
|
(1.0
|
)
|
||
Impact of share based payments
|
100
|
|
|
0.5
|
|
|
56
|
|
|
0.2
|
|
||
Utilisation of previously unrecognised tax losses
|
(31
|
)
|
|
(0.1
|
)
|
|
(2
|
)
|
|
—
|
|
||
Other permanent differences
|
239
|
|
|
1.1
|
|
|
258
|
|
|
1.2
|
|
||
Adjustments related to prior periods
|
7
|
|
|
—
|
|
|
292
|
|
|
1.3
|
|
||
Withholding tax on dividends
|
—
|
|
|
—
|
|
|
197
|
|
|
0.9
|
|
||
Impact of rate change on deferred tax
|
15
|
|
|
0.1
|
|
|
—
|
|
|
—
|
|
||
Total
|
£
|
4,125
|
|
|
19.8
|
%
|
|
£
|
4,868
|
|
|
22.4
|
%
|
|
2016
£’000 |
|
2017
£’000 |
||
Share based payments
|
(63
|
)
|
|
(42
|
)
|
Total (credit) to equity and statement of comprehensive income
|
(63
|
)
|
|
(42
|
)
|
12.
|
Deferred Tax Assets and Liabilities
|
Deferred tax 2017
|
At 1 July 2016
£’000 |
|
Exchange Adjustments
£’000 |
|
Credit / (Charge) to Profit and Loss
£’000 |
|
Credit to Equity
£’000 |
|
Acquisition
£’000 |
|
At 30 June 2017
£’000 |
||||||||||||
Accelerated capital allowances
|
£
|
(34
|
)
|
|
£
|
—
|
|
|
£
|
(42
|
)
|
|
£
|
—
|
|
|
£
|
—
|
|
|
£
|
(76
|
)
|
Tax losses
|
312
|
|
|
15
|
|
|
(100
|
)
|
|
—
|
|
|
—
|
|
|
227
|
|
||||||
Share based payments
|
117
|
|
|
(1
|
)
|
|
113
|
|
|
42
|
|
|
—
|
|
|
271
|
|
||||||
Intangibles
|
(1,543
|
)
|
|
(141
|
)
|
|
269
|
|
|
—
|
|
|
(1,075
|
)
|
|
(2,490
|
)
|
||||||
Other temporary differences
|
724
|
|
|
3
|
|
|
(378
|
)
|
|
—
|
|
|
—
|
|
|
349
|
|
||||||
Total
|
£
|
(424
|
)
|
|
£
|
(124
|
)
|
|
£
|
(138
|
)
|
|
£
|
42
|
|
|
£
|
(1,075
|
)
|
|
£
|
(1,719
|
)
|
|
2016
£’000 |
|
2017
£’000 |
||
Deferred tax assets
|
1,108
|
|
|
867
|
|
Deferred tax liabilities
|
(1,532
|
)
|
|
(2,586
|
)
|
Deferred tax position
|
(424
|
)
|
|
(1,719
|
)
|
13.
|
Earnings Per Share
|
|
2016
£’000
|
|
2017
£’000 |
||
Profit for the period attributable to equity holders of the Company
|
16,706
|
|
|
16,832
|
|
|
2016
|
|
2017
|
||
Weighted average number of shares outstanding
|
9,077,842
|
|
|
9,051,750
|
|
|
2016
|
|
2017
|
||
Earnings per share - basic (£)
|
1.84
|
|
|
1.86
|
|
|
2016
£’000 |
|
2017
£’000 |
||
Profit for the period attributable to equity holders of the Company
|
16,706
|
|
|
16,832
|
|
|
2016
|
|
2017
|
||
Weighted average number of shares outstanding
|
9,077,842
|
|
|
9,051,750
|
|
Diluted by: options in issue
|
785,767
|
|
|
806,754
|
|
Weighted average number of shares outstanding (diluted)
|
9,863,609
|
|
|
9,858,504
|
|
|
2016
|
|
2017
|
||
Earnings per share - diluted (£)
|
1.69
|
|
|
1.71
|
|
14.
|
Goodwill
|
2016
|
£’000
|
|
Cost
|
|
|
At 1 July 2015
|
5,098
|
|
Acquired through business combinations
|
4,756
|
|
Additions in respect of PS Tech d.o.o. acquisition - measurement period adjustment
|
166
|
|
Effect of foreign exchange translations
|
1,301
|
|
At 30 June 2016
|
11,321
|
|
|
|
|
2017
|
|
|
Cost
|
|
|
At 1 July 2016
|
11,321
|
|
Acquired through business combinations
|
4,200
|
|
Effect of foreign exchange translations
|
677
|
|
At 30 June 2017
|
16,198
|
|
Net book value
|
|
|
At 30 June 2016
|
11,321
|
|
At 30 June 2017
|
16,198
|
|
|
2016
|
|
2017
|
||
Growth rate
|
20
|
%
|
|
25
|
%
|
Discount rate
|
19.5
|
%
|
|
19.5
|
%
|
Terminal growth rate
|
1.5
|
%
|
|
1.5
|
%
|
15.
|
Acquisition Of Subsidiaries
|
|
£’000
|
|
Cash
|
8,862
|
|
Total consideration transferred
|
8,862
|
|
|
Fair Value
£’000 |
|
Client relationships
|
4,301
|
|
Property, plant and equipment
|
323
|
|
Trade and other receivables
|
1,739
|
|
Cash and cash equivalents
|
768
|
|
Trade and other payables
|
(648
|
)
|
Other taxation and social security
|
(430
|
)
|
Corporation tax payable
|
(17
|
)
|
Borrowings
|
(196
|
)
|
Other liabilities
|
(103
|
)
|
Deferred tax liability
|
(1,075
|
)
|
Total net assets acquired
|
4,662
|
|
|
Fair Value
£’000 |
|
Consideration transferred
|
8,862
|
|
Fair value of identifiable net assets
|
(4,662
|
)
|
Goodwill
|
4,200
|
|
|
£’000
|
|
Revenue
|
10,338
|
|
Profit
|
1,398
|
|
|
£’000
|
|
Revenue
|
12,262
|
|
Profit
|
1,589
|
|
|
£’000
|
|
Legal and professional fees
|
550
|
|
16.
|
Acquisition Of Business
|
|
£’000
|
||
Cash
|
£
|
4,170
|
|
Equity instruments
|
329
|
|
|
Hold-back amount
|
653
|
|
|
Total consideration transferred
|
£
|
5,152
|
|
|
£’000
|
|
Legal and Professional fees
|
350
|
|
|
£’000
|
|
Intangible assets
|
744
|
|
Client relationships
|
629
|
|
Non-compete agreement
|
115
|
|
Property, plant and equipment
|
38
|
|
Trade and other payables
|
(386
|
)
|
Deferred income
|
(386
|
)
|
Total net assets acquired
|
396
|
|
|
£’000
|
||
Consideration transferred
|
£
|
5,152
|
|
Fair value of identifiable net assets
|
(396
|
)
|
|
Goodwill
|
£
|
4,756
|
|
17.
|
Intangible Assets
|
2016
|
Client relationship
£’000 |
|
Software and licences
£’000 |
|
Non-Compete Agreement
£’000 |
|
Total
£’000 |
||||||||
Cost
|
|
|
|
|
|
|
|
||||||||
At 1 July 2015
|
£
|
9,992
|
|
|
£
|
33
|
|
|
£
|
—
|
|
|
£
|
10,025
|
|
Additions
|
—
|
|
|
136
|
|
|
—
|
|
|
136
|
|
||||
On acquisition of subsidiary / business
|
629
|
|
|
—
|
|
|
115
|
|
|
744
|
|
||||
Reclassification
|
—
|
|
|
174
|
|
|
—
|
|
|
174
|
|
||||
Effect of foreign exchange translations
|
1,579
|
|
|
48
|
|
|
18
|
|
|
1,645
|
|
||||
At 30 June 2016
|
£
|
12,200
|
|
|
£
|
391
|
|
|
£
|
133
|
|
|
£
|
12,724
|
|
|
|
|
|
|
|
|
|
||||||||
Amortisation
|
|
|
|
|
|
|
|
||||||||
At 1 July 2015
|
£
|
—
|
|
|
£
|
26
|
|
|
£
|
—
|
|
|
£
|
26
|
|
Charge for the year
|
1,138
|
|
|
77
|
|
|
27
|
|
|
1,242
|
|
||||
Reclassification
|
—
|
|
|
91
|
|
|
—
|
|
|
91
|
|
||||
Effect of foreign exchange translations
|
106
|
|
|
26
|
|
|
2
|
|
|
134
|
|
||||
At 30 June 2016
|
£
|
1,244
|
|
|
£
|
220
|
|
|
£
|
29
|
|
|
£
|
1,493
|
|
Net book value
|
|
|
|
|
|
|
|
||||||||
At 30 June 2016
|
£
|
10,956
|
|
|
£
|
171
|
|
|
£
|
104
|
|
|
£
|
11,231
|
|
2017
|
Client relationship
£’000 |
|
Software and licences
£’000 |
|
Non-Compete Agreement
£’000 |
|
Total
£’000 |
||||||||
Cost
|
|
|
|
|
|
|
|
||||||||
At 1 July 2016
|
£
|
12,200
|
|
|
£
|
391
|
|
|
£
|
133
|
|
|
£
|
12,724
|
|
Additions
|
—
|
|
|
1,364
|
|
|
—
|
|
|
1,364
|
|
||||
On acquisition of subsidiary / business
|
4,301
|
|
|
33
|
|
|
—
|
|
|
4,334
|
|
||||
Reclassification
|
—
|
|
|
61
|
|
|
—
|
|
|
61
|
|
||||
Disposals
|
—
|
|
|
(22
|
)
|
|
—
|
|
|
(22
|
)
|
||||
Effect of foreign exchange translations
|
1,102
|
|
|
25
|
|
|
4
|
|
|
1,131
|
|
||||
At 30 June 2017
|
£
|
17,603
|
|
|
£
|
1,852
|
|
|
£
|
137
|
|
|
£
|
19,592
|
|
|
|
|
|
|
|
|
|
||||||||
Amortisation
|
|
|
|
|
|
|
|
||||||||
At 1 July 2016
|
£
|
1,244
|
|
|
£
|
220
|
|
|
£
|
29
|
|
|
£
|
1,493
|
|
Charge for the year
|
1,668
|
|
|
99
|
|
|
47
|
|
|
1,814
|
|
||||
On acquisition of subsidiary / business
|
—
|
|
|
33
|
|
|
—
|
|
|
33
|
|
||||
Reclassification
|
—
|
|
|
58
|
|
|
—
|
|
|
58
|
|
||||
Disposals
|
—
|
|
|
(3
|
)
|
|
—
|
|
|
(3
|
)
|
||||
Effect of foreign exchange translations
|
146
|
|
|
23
|
|
|
(1
|
)
|
|
168
|
|
||||
At 30 June 2017
|
£
|
3,058
|
|
|
£
|
430
|
|
|
£
|
75
|
|
|
£
|
3,563
|
|
Net book value
|
|
|
|
|
|
|
|
||||||||
At 30 June 2017
|
£
|
14,545
|
|
|
£
|
1,421
|
|
|
£
|
63
|
|
|
£
|
16,029
|
|
18.
|
Propert
y
, Plant and Equipment
|
2016
|
Computers & Equipment
£’000 |
|
Fixtures & Fittings
£’000 |
|
Vehicles
£’000 |
|
Fixed Assets in Progress
£’000 |
|
Total
£’000 |
||||||||||
Cost
|
|
|
|
|
|
|
|
|
|
||||||||||
At 1 July 2015
|
£
|
6,540
|
|
|
£
|
3,031
|
|
|
£
|
16
|
|
|
£
|
—
|
|
|
£
|
9,587
|
|
Additions
|
1,591
|
|
|
394
|
|
|
—
|
|
|
624
|
|
|
2,609
|
|
|||||
On acquisition of subsidiary / business
|
2
|
|
|
37
|
|
|
—
|
|
|
—
|
|
|
39
|
|
|||||
Reclassification
|
470
|
|
|
(587
|
)
|
|
—
|
|
|
—
|
|
|
(117
|
)
|
|||||
Disposals
|
(91
|
)
|
|
(6
|
)
|
|
—
|
|
|
—
|
|
|
(97
|
)
|
|||||
Transfers
|
243
|
|
|
—
|
|
|
—
|
|
|
(243
|
)
|
|
—
|
|
|||||
Effect of foreign exchange translations
|
595
|
|
|
380
|
|
|
3
|
|
|
—
|
|
|
978
|
|
|||||
At 30 June 2016
|
£
|
9,350
|
|
|
£
|
3,249
|
|
|
£
|
19
|
|
|
£
|
381
|
|
|
£
|
12,999
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Depreciation
|
|
|
|
|
|
|
|
|
|
||||||||||
At 1 July 2015
|
£
|
4,649
|
|
|
£
|
1,551
|
|
|
£
|
16
|
|
|
£
|
—
|
|
|
£
|
6,216
|
|
Charge for the year
|
1,247
|
|
|
473
|
|
|
—
|
|
|
—
|
|
|
1,720
|
|
|||||
Impairment
|
(80
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(80
|
)
|
|||||
Reclassification
|
314
|
|
|
(348
|
)
|
|
—
|
|
|
—
|
|
|
(34
|
)
|
|||||
On disposals
|
(89
|
)
|
|
(3
|
)
|
|
—
|
|
|
—
|
|
|
(92
|
)
|
|||||
Effect of foreign exchange translations
|
347
|
|
|
184
|
|
|
3
|
|
|
—
|
|
|
534
|
|
|||||
At 30 June 2016
|
£
|
6,388
|
|
|
£
|
1,857
|
|
|
£
|
19
|
|
|
£
|
—
|
|
|
£
|
8,264
|
|
Net book value
|
|
|
|
|
|
|
|
|
|
||||||||||
At 30 June 2016
|
2,962
|
|
|
1,392
|
|
|
—
|
|
|
381
|
|
|
4,735
|
|
2017
|
Computers & Equipment
£’000 |
|
Fixtures & Fittings
£’000 |
|
Vehicles
£’000 |
|
Fixed Assets in Progress
£’000 |
|
Total
£’000 |
||||||||||
Cost
|
|
|
|
|
|
|
|
|
|
||||||||||
At 1 July 2016
|
£
|
9,350
|
|
|
£
|
3,249
|
|
|
£
|
19
|
|
|
£
|
381
|
|
|
£
|
12,999
|
|
Additions
|
2,423
|
|
|
2,585
|
|
|
—
|
|
|
—
|
|
|
5,008
|
|
|||||
On acquisition of subsidiary / business
|
793
|
|
|
246
|
|
|
7
|
|
|
—
|
|
|
1,046
|
|
|||||
Reclassification
|
(1,333
|
)
|
|
1,272
|
|
|
—
|
|
|
—
|
|
|
(61
|
)
|
|||||
Disposals
|
(334
|
)
|
|
(816
|
)
|
|
—
|
|
|
—
|
|
|
(1,150
|
)
|
|||||
Transfers
|
—
|
|
|
381
|
|
|
—
|
|
|
(381
|
)
|
|
—
|
|
|||||
Effect of foreign exchange translations
|
360
|
|
|
140
|
|
|
1
|
|
|
—
|
|
|
501
|
|
|||||
At 30 June 2017
|
£
|
11,259
|
|
|
£
|
7,057
|
|
|
£
|
27
|
|
|
£
|
—
|
|
|
£
|
18,343
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Depreciation
|
|
|
|
|
|
|
|
|
|
||||||||||
At 1 July 2016
|
£
|
6,388
|
|
|
£
|
1,857
|
|
|
£
|
19
|
|
|
£
|
—
|
|
|
£
|
8,264
|
|
Charge for the year
|
1,653
|
|
|
879
|
|
|
—
|
|
|
—
|
|
|
2,532
|
|
|||||
On acquisition of subsidiary / business
|
561
|
|
|
156
|
|
|
6
|
|
|
—
|
|
|
723
|
|
|||||
Reclassification
|
(866
|
)
|
|
808
|
|
|
—
|
|
|
—
|
|
|
(58
|
)
|
|||||
On disposals
|
(233
|
)
|
|
(683
|
)
|
|
—
|
|
|
—
|
|
|
(916
|
)
|
|||||
Effect of foreign exchange translations
|
209
|
|
|
102
|
|
|
1
|
|
|
—
|
|
|
312
|
|
|||||
At 30 June 2017
|
£
|
7,712
|
|
|
£
|
3,119
|
|
|
£
|
26
|
|
|
£
|
—
|
|
|
£
|
10,857
|
|
Net book value
|
|
|
|
|
|
|
|
|
|
||||||||||
At 30 June 2017
|
3,547
|
|
|
3,938
|
|
|
1
|
|
|
—
|
|
|
7,486
|
|
19.
|
Related Party Transactions
|
Subsidiary
|
|
Country of
Incorporation
|
|
Class of
Shares Held
|
|
Percentage of
Shares Held
|
|
Principal Activity
|
|
Endava Limited
|
|
UK
|
|
Ordinary
|
|
100
|
%
|
|
Holding company
|
Endava (UK) Limited
|
|
UK
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT services
|
Endava (Managed Services) Limited*
|
|
UK
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT services
|
ICS Endava SRL
|
|
Moldova
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT services
|
Endava Romania SRL
|
|
Romania
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT services
|
Endava (US) LLC**
|
|
US
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT services
|
Endava (Ireland) Limited
|
|
Ireland
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT services
|
Endava GmbH
|
|
Germany
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT services
|
Endava DOOEL Skopje
|
|
Macedonia
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT services
|
Endava Inc.
|
|
US
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT services
|
Endava d.o.o. Beograd
|
|
Serbia
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT Services
|
Endava Technology SRL
|
|
Romania
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT Services
|
Endava Holding B.V.
|
|
The Netherlands
|
|
Ordinary
|
|
100
|
%
|
|
Holding Company
|
Endava B.V.
|
|
The Netherlands
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT services
|
Endava EOOD
|
|
Bulgaria
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT services
|
ISDC Romania SRL
|
|
Romania
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT services
|
Endava S.A.S.
|
|
Colombia
|
|
Ordinary
|
|
100
|
%
|
|
Provision of IT Services
|
*
|
Held by Endava (UK) Limited
|
**
|
Held by Endava (Managed Services) Limited
|
Endava (Romania) Limited
|
UK
|
|
Ordinary
|
|
100
|
%
|
Green Mango Software Services Ltd
|
UK
|
|
Ordinary
|
|
100
|
%
|
Testing 4 Finance Ltd
|
UK
|
|
Ordinary
|
|
100
|
%
|
Alpheus Limited
|
UK
|
|
Ordinary
|
|
100
|
%
|
20.
|
Cash and Cash Equivalents
|
|
2016
£’000 |
|
2017
£’000 |
||||
GBP
|
£
|
620
|
|
|
£
|
4,298
|
|
EUR
|
10,526
|
|
|
11,421
|
|
||
RON
|
22
|
|
|
3,408
|
|
||
MDL
|
61
|
|
|
30
|
|
||
USD
|
1,421
|
|
|
4,218
|
|
||
MKD
|
15
|
|
|
7
|
|
||
RSD
|
24
|
|
|
112
|
|
||
BGN
|
—
|
|
|
1
|
|
||
COP
|
258
|
|
|
76
|
|
||
Total
|
£
|
12,947
|
|
|
£
|
23,571
|
|
21.
|
Trade and Other Receivables
|
Trade and Other Receivables
|
2016
£’000 |
|
2017
£’000 |
||||
Trade receivables
|
£
|
22,376
|
|
|
£
|
30,236
|
|
Prepayments
|
2,290
|
|
|
2,095
|
|
||
Accrued income
|
3,775
|
|
|
5,367
|
|
||
R&D tax credit
|
1,611
|
|
|
2,933
|
|
||
Other debtors
|
1,002
|
|
|
863
|
|
||
Total trade and other receivables
|
£
|
31,054
|
|
|
£
|
41,494
|
|
Trade and Other Receivables
|
2016
£’000 |
|
2017
£’000 |
||||
Trade receivables - gross
|
£
|
22,983
|
|
|
£
|
30,401
|
|
Provision for impairment
|
(607
|
)
|
|
(165
|
)
|
||
Trade receivables - net
|
£
|
22,376
|
|
|
£
|
30,236
|
|
22.
|
Trade and Other Payables
|
|
2016
£’000 |
|
2017
£’000 |
||||
Trade payables
|
£
|
1,524
|
|
|
£
|
3,722
|
|
Other taxation and social security
|
3,161
|
|
|
4,336
|
|
||
Other liabilities
|
2,684
|
|
|
3,869
|
|
||
Accruals
|
7,619
|
|
|
10,655
|
|
||
Deferred income
|
3,598
|
|
|
1,604
|
|
||
Total trade and other payables
|
£
|
18,586
|
|
|
£
|
24,186
|
|
23.
|
Provisions
|
Movement in provisions
|
|
2016
£’000
|
|
Arising During the Year
£’000
|
|
Utilised
£’000
|
|
Released During the Year
£’000
|
|
2017
£’000
|
|||||
Redundancy
|
|
534
|
|
|
—
|
|
|
(500
|
)
|
|
—
|
|
|
34
|
|
Other
|
|
783
|
|
|
14
|
|
|
(532
|
)
|
|
(93
|
)
|
|
172
|
|
Total provisions
|
|
1,317
|
|
|
14
|
|
|
(1,032
|
)
|
|
(93
|
)
|
|
206
|
|
Current
|
|
1,297
|
|
|
|
|
|
|
|
|
172
|
|
|||
Non-Current
|
|
20
|
|
|
|
|
|
|
|
|
34
|
|
24.
|
Financial Assets and Liabilities
|
•
|
Level 1 – quoted prices (unadjusted) in active markets for identical assets or liabilities
|
•
|
Level 2 – inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly (i.e. as prices) or indirectly (i.e. derived from prices)
|
•
|
Level 3 – inputs for the asset or liability that are not based on observable market data (unobservable inputs).
|
Financial Assets
|
2016
£’000 |
|
2017
£’000 |
||||
Trade and other receivables
|
£
|
31,054
|
|
|
£
|
41,494
|
|
Cash and cash equivalents
|
12,947
|
|
|
23,571
|
|
||
Total financial assets
|
£
|
44,001
|
|
|
£
|
65,065
|
|
Financial liabilities
|
2016
£’000 |
|
2017
£’000 |
||||
Non-current borrowings
|
£
|
38
|
|
|
£
|
63
|
|
Current borrowings
|
15,405
|
|
|
29,402
|
|
||
Trade and other payables
|
18,586
|
|
|
24,186
|
|
||
Contingent consideration
|
3,788
|
|
|
—
|
|
||
Deferred consideration
|
751
|
|
|
—
|
|
||
Other liabilities
|
219
|
|
|
219
|
|
||
Total financial liabilities
|
£
|
38,787
|
|
|
£
|
53,870
|
|
25.
|
Loa
ns a
nd Borrowings
|
Type
|
|
Bank/ Financial Institution
|
|
Currency
|
|
Nominal Interest p.a.
|
|
Year of Maturity
|
|
Carrying Amount 2016 £’000
|
|
Carrying Amount 2017 £’000
|
|
Security
|
|||||
Revolving credit facility
|
|
HSBC
|
|
Multicurrency
|
|
LIBOR/ EURIBOR + variable margin (0.9% or 1.15% or 1.65%)
|
|
|
2018
|
|
£
|
15,011
|
|
|
£
|
29,288
|
|
|
Debenture in favour of the bank comprising fixed and floating charge over the undertaking and all property and assets present and future, including goodwill, book debts, uncalled capital, buildings, fixtures, fixed plant and machinery.
|
Technology loan
|
|
Lombard
|
|
GBP
|
|
8
|
%
|
|
2017
|
|
325
|
|
|
26
|
|
|
Unsecured loan.
|
||
Finance lease liabilities
|
|
Lombard
|
|
GBP
|
|
3.5% - 10%
|
|
|
2015-2020
|
|
107
|
|
|
151
|
|
|
Unsecured lease.
|
||
Total loans and Borrowings
|
|
|
|
|
|
|
|
|
|
£
|
15,443
|
|
|
£
|
29,465
|
|
|
|
|
Carrying amounts 2017
£'000
|
|
Carrying amounts 2016
£'000
|
||||||||||||||||||||
|
Current
|
|
Non-Current
|
|
Total
|
|
Current
|
|
Non-Current
|
|
Total
|
||||||||||||
Revolving credit facility
|
£
|
29,288
|
|
|
£
|
—
|
|
|
£
|
29,288
|
|
|
£
|
15,011
|
|
|
£
|
—
|
|
|
£
|
15,011
|
|
Technology loan
|
26
|
|
|
—
|
|
|
26
|
|
|
299
|
|
|
26
|
|
|
325
|
|
||||||
Finance lease liabilities
|
88
|
|
|
63
|
|
|
151
|
|
|
95
|
|
|
12
|
|
|
107
|
|
||||||
Total
|
£
|
29,402
|
|
|
£
|
63
|
|
|
£
|
29,465
|
|
|
£
|
15,405
|
|
|
£
|
38
|
|
|
£
|
15,443
|
|
26.
|
Commitments Under Finance Leases
|
|
2016
£’000 |
|
2017
£’000 |
||||
Amounts payable within 1 year
|
£
|
95
|
|
|
£
|
88
|
|
Amounts payable 1 to 5 years
|
12
|
|
|
63
|
|
||
Total
|
£
|
107
|
|
|
£
|
151
|
|
27.
|
Commitments Under Operating Leases
|
|
2016
£’000 |
|
2017
£’000 |
||||
Amounts payable within 1 year
|
£
|
5,513
|
|
|
£
|
7,638
|
|
Amounts payable 2 to 5 years
|
15,741
|
|
|
23,074
|
|
||
Amounts payable in more than 5 years
|
4,464
|
|
|
6,576
|
|
||
Total
|
£
|
25,718
|
|
|
£
|
37,288
|
|
28.
|
Share Capital
|
Authorized share capital:
|
2016
£’000 |
|
2017
£’000 |
||
12,000,000 ordinary shares of £0.10 each
|
1,200
|
|
|
1,200
|
|
Allotted, called up and fully paid:
|
2016
No. |
|
£’000
|
|
2017
No. |
|
£’000
|
||||
Ordinary shares of £0.10 each
|
9,960,829
|
|
|
996
|
|
|
9,960,829
|
|
|
996
|
|
Number of Shares
|
|
Share Price
£ |
|
Nominal Value
£ |
|
Share Premium
£’000 |
||||
40,000
|
|
|
8.21
|
|
|
0.1
|
|
|
325
|
|
Number of Shares
|
|
Share Price
£ |
|
Nominal Value
£ |
|
Share Based Compensation Reserve
£’000 |
||||
19,834
|
|
|
8.21
|
|
|
0.1
|
|
|
77
|
|
4,786
|
|
|
8.21
|
|
|
0.1
|
|
|
39
|
|
29.
|
Distributions Made
|
30.
|
Share Options
|
•
|
On 14 July 2016, 75,800 share options were granted.
|
•
|
On 7 September 2016, 12,200 share options were granted.
|
•
|
On 11 October 2016, 2,400 share options were granted.
|
31.
|
Cash Flow Adjustments and Changes in Working Capital
|
Adjustments
|
|
2016
£’000 |
|
2017
£’000 |
||||
Depreciation, amortisation and impairment of non-financial assets
|
|
£
|
2,882
|
|
|
£
|
4,346
|
|
Foreign exchange (gain)/loss
|
|
(140
|
)
|
|
1,015
|
|
||
Interest income
|
|
(21
|
)
|
|
(18
|
)
|
||
Fair value (gain)/loss on financial assets recognised in profit and loss
|
|
(1,043
|
)
|
|
—
|
|
||
Interest expense
|
|
170
|
|
|
408
|
|
||
Loss on disposal of non-current assets
|
|
(15
|
)
|
|
107
|
|
||
Share based payment expense
|
|
768
|
|
|
854
|
|
||
Share buy-back settlement against share option receivable
|
|
(63
|
)
|
|
—
|
|
||
Income on contingent consideration
|
|
—
|
|
|
(180
|
)
|
||
Deferred tax to equity related to share options
|
|
63
|
|
|
—
|
|
||
Research and Development tax credit
|
|
(1,117
|
)
|
|
(1,322
|
)
|
||
Grant income
|
|
(1,048
|
)
|
|
(1,691
|
)
|
||
Total adjustments
|
|
£
|
436
|
|
|
£
|
3,519
|
|
Net changes in working capital
|
|
2016
£’000 |
|
2017
£’000 |
||||
(Increase) / decrease in trade and other receivables
|
|
£
|
(6,765
|
)
|
|
£
|
(7,598
|
)
|
Increase / (decrease) in trade and other payables
|
|
(888
|
)
|
|
2,590
|
|
||
Total changes in working capital
|
|
£
|
(7,653
|
)
|
|
£
|
(5,008
|
)
|
32.
|
Capital Commitments
|
33.
|
Contingent Liabilities
|
34.
|
Financial Instrument Risk
|
June 30, 2017
|
Long Term GBP
£‘000 |
|
Long Term EUR
£‘000 |
|
Short Term GBP
£‘000 |
|
Short Term EUR
£‘000 |
|
Short Term USD
£‘000 |
|
Short Term RON
£‘000 |
|
Short Term MDL
£‘000 |
|
Short Term RSD
£‘000 |
|
Short Term MKD
£‘000 |
|
Short Term COP
£‘000 |
|
TOTAL
£‘000 |
|||||||||||
Financial assets
|
—
|
|
|
—
|
|
|
43,391
|
|
|
6,537
|
|
|
3,636
|
|
|
7,194
|
|
|
82
|
|
|
3,766
|
|
|
71
|
|
|
388
|
|
|
65,065
|
|
Financial liabilities
|
(219
|
)
|
|
(63
|
)
|
|
(39,355
|
)
|
|
(2,267
|
)
|
|
(952
|
)
|
|
(8,175
|
)
|
|
(390
|
)
|
|
(1,606
|
)
|
|
(248
|
)
|
|
(595
|
)
|
|
(53,870
|
)
|
Total
|
(219
|
)
|
|
(63
|
)
|
|
4,036
|
|
|
4,270
|
|
|
2,684
|
|
|
(981
|
)
|
|
(308
|
)
|
|
2,160
|
|
|
(177
|
)
|
|
(207
|
)
|
|
11,195
|
|
|
GBP/RON: -5%
Profit impact
£’000
|
|
June 30, 2017
|
483
|
|
|
GBP/RON: +4%
Total equity
£’000
|
|
June 30, 2017
|
(672
|
)
|
|
GBP/RON: -9%
Profit impact
£’000
|
|
June 30, 2016
|
526
|
|
|
GBP/RON: +6%
total equity £’000 |
|
June 30, 2016
|
(340
|
)
|
Classes of financial assets
–
carrying amounts
|
2016
£’000 |
|
2017
£’000 |
||||
Cash and cash equivalents
|
£
|
12,947
|
|
|
£
|
23,571
|
|
Trade and other receivables
|
31,054
|
|
|
41,494
|
|
||
Total
|
£
|
44,001
|
|
|
£
|
65,065
|
|
|
2016
£’000 |
|
2017
£’000 |
||||
Not more than 3 months
|
£
|
5,954
|
|
|
£
|
2,735
|
|
More than 3 months but not more than 6 months
|
346
|
|
|
61
|
|
||
More than 6 months but not more than 1 year
|
—
|
|
|
—
|
|
||
More than 1 year
|
—
|
|
|
—
|
|
||
Total
|
£
|
6,300
|
|
|
£
|
2,796
|
|
|
Current
0 - 6 months £’000 |
|
Current
6 - 12 months £’000 |
|
Non-Current
1 - 5 years £’000 |
|
Non-Current
+5 years £’000 |
||||||||
Sterling bank loans
|
£
|
29,314
|
|
|
£
|
—
|
|
|
£
|
—
|
|
|
£
|
—
|
|
Finance lease obligations
|
63
|
|
|
25
|
|
|
63
|
|
|
—
|
|
||||
Trade and other payables
|
24,186
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Other liabilities
|
—
|
|
|
—
|
|
|
219
|
|
|
—
|
|
||||
Total
|
£
|
53,563
|
|
|
£
|
25
|
|
|
£
|
282
|
|
|
£
|
—
|
|
|
Current
0 - 6 months £’000 |
|
Current
6 - 12 months £’000 |
|
Non-Current
1 - 5 years £’000 |
|
Non-Current
+5 years £’000 |
||||||||
Sterling bank loans
|
£
|
15,011
|
|
|
£
|
325
|
|
|
£
|
—
|
|
|
£
|
—
|
|
Finance lease obligations
|
47
|
|
|
48
|
|
|
12
|
|
|
—
|
|
||||
Trade and other payables
|
18,586
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||
Deferred consideration
|
—
|
|
|
751
|
|
|
—
|
|
|
—
|
|
||||
Contingent consideration
|
—
|
|
|
3,788
|
|
|
—
|
|
|
—
|
|
||||
Other liabilities
|
—
|
|
|
—
|
|
|
219
|
|
|
—
|
|
||||
Total
|
£
|
33,644
|
|
|
£
|
4,912
|
|
|
£
|
231
|
|
|
£
|
—
|
|
35.
|
Capital Management Policies and Procedures
|
•
|
to ensure the Group's ability to continue as a going concern; and
|
•
|
to provide an adequate return to shareholders by pricing products and services commensurately with the level of risk.
|
36.
|
Subsequent Events
|
|
Note
|
|
2017
£’000
|
|
2018
£’000
|
|||||
Revenue
|
5
|
|
|
116,322
|
|
|
156,140
|
|
||
Cost of sales
|
|
|
|
|
|
|||||
Direct cost of sales
|
|
|
(72,692
|
)
|
|
(96,104
|
)
|
|||
Allocated cost of sales
|
|
|
(6,943
|
)
|
|
(9,281
|
)
|
|||
Total cost of sales
|
|
|
(79,635
|
)
|
|
(105,385
|
)
|
|||
Gross profit
|
|
|
36,687
|
|
|
50,755
|
|
|||
Selling, general and administrative expenses
|
|
|
(19,993
|
)
|
|
(31,755
|
)
|
|||
Operating profit
|
|
|
16,694
|
|
|
19,000
|
|
|||
Net Finance (expense) / income
|
|
|
(515
|
)
|
|
(1,030
|
)
|
|||
Profit before tax
|
|
|
16,179
|
|
|
17,970
|
|
|||
Tax on profit on ordinary activities
|
8
|
|
|
(3,629
|
)
|
|
(3,893
|
)
|
||
Profit for the period and profit attributable to owners of the parent
|
|
|
12,550
|
|
|
14,077
|
|
|||
Earnings per share:
|
9
|
|
|
|
|
|
||||
Basic EPS
|
|
|
£
|
1.39
|
|
|
£
|
1.56
|
|
|
Diluted EPS
|
|
|
£
|
1.27
|
|
|
£
|
1.42
|
|
|
Weighted average number of shares outstanding - basic
|
|
|
9,060,100
|
|
|
9,020,033
|
|
|||
Weighted average number of shares outstanding - diluted
|
|
|
9,874,961
|
|
|
9,911,426
|
|
|||
Other comprehensive income
|
|
|
|
|
|
|||||
Items that may be reclassified subsequently to profit or loss:
|
|
|
|
|
|
|||||
Exchange differences on translating foreign operations
|
|
|
1,322
|
|
|
(1,112
|
)
|
|||
Total comprehensive income for the period attributable to the owners of the parent
|
|
|
13,872
|
|
|
12,965
|
|
|
June 30, 2017
£’000
|
|
March 31, 2018
£’000
|
||
Assets - Non current
|
|
|
|
||
Goodwill
|
16,198
|
|
|
39,267
|
|
Intangible assets
|
16,029
|
|
|
30,051
|
|
Property, plant and equipment
|
7,486
|
|
|
8,350
|
|
Deferred tax asset
|
867
|
|
|
926
|
|
Non-current financial assets
|
14
|
|
|
9
|
|
Total
|
40,594
|
|
|
78,603
|
|
Assets - Current
|
|
|
|
||
Inventory
|
62
|
|
|
57
|
|
Trade and other receivables
|
41,494
|
|
|
50,181
|
|
Corporation tax receivable
|
661
|
|
|
—
|
|
Cash and cash equivalents
|
23,571
|
|
|
9,462
|
|
Total
|
65,788
|
|
|
59,700
|
|
Total assets
|
106,382
|
|
|
138,303
|
|
Liabilities - Current
|
|
|
|
||
Borrowings
|
29,402
|
|
|
23,612
|
|
Trade and other payables
|
24,358
|
|
|
32,843
|
|
Corporation tax payable
|
1,000
|
|
|
644
|
|
Contingent consideration
|
—
|
|
|
4,947
|
|
Deferred consideration
|
—
|
|
|
2,851
|
|
Total
|
54,760
|
|
|
64,897
|
|
Liabilities - Non-current
|
|
|
|
||
Borrowings
|
63
|
|
|
34
|
|
Contingent consideration
|
—
|
|
|
6,751
|
|
Deferred consideration
|
—
|
|
|
1,238
|
|
Deferred tax liability
|
2,586
|
|
|
2,621
|
|
Other liabilities
|
253
|
|
|
267
|
|
Total
|
2,902
|
|
|
10,911
|
|
Equity
|
|
|
|
||
Share capital
|
996
|
|
|
996
|
|
Share premium
|
2,678
|
|
|
2,678
|
|
Merger relief reserve
|
4,430
|
|
|
4,430
|
|
Retained earnings
|
38,072
|
|
|
52,959
|
|
Other reserves
|
4,819
|
|
|
3,707
|
|
Investment in own shares
|
(2,275
|
)
|
|
(2,275
|
)
|
Total
|
48,720
|
|
|
62,495
|
|
Total liabilities and equity
|
106,382
|
|
|
138,303
|
|
|
Share capital
£’000
|
|
Share premium
£’000
|
|
Merger relief reserve
£’000
|
|
Investment in own shares
£’000
|
|
Retained earnings
£’000
|
|
Capital redemption reserve
£’000
|
|
Foreign exchange translation reserve
£’000
|
|
Total
£’000
|
||||||||
Balance at 30 June 2017
|
996
|
|
|
2,678
|
|
|
4,430
|
|
|
(2,275
|
)
|
|
38,072
|
|
|
161
|
|
|
4,658
|
|
|
48,720
|
|
Equity-settled share-based payment transactions
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
810
|
|
|
—
|
|
|
—
|
|
|
810
|
|
Transaction with owners
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
810
|
|
|
—
|
|
|
—
|
|
|
810
|
|
Profit for the period
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
14,077
|
|
|
—
|
|
|
—
|
|
|
14,077
|
|
Other comprehensive income
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,112
|
)
|
|
(1,112
|
)
|
Total comprehensive income for the period
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
14,077
|
|
|
—
|
|
|
(1,112
|
)
|
|
12,965
|
|
Balance at 31 March 2018
|
996
|
|
|
2,678
|
|
|
4,430
|
|
|
(2,275
|
)
|
|
52,959
|
|
|
161
|
|
|
3,546
|
|
|
62,495
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||
Balance at 30 June 2016
|
996
|
|
|
2,678
|
|
|
4,430
|
|
|
(1,035
|
)
|
|
20,425
|
|
|
161
|
|
|
2,138
|
|
|
29,793
|
|
Equity-settled share-based payment transactions
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
654
|
|
|
—
|
|
|
—
|
|
|
654
|
|
Shares purchased by the Employee Benefits Trust
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,064
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,064
|
)
|
Transaction with owners
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,064
|
)
|
|
654
|
|
|
—
|
|
|
—
|
|
|
(410
|
)
|
Profit for the period
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
12,550
|
|
|
—
|
|
|
—
|
|
|
12,550
|
|
Other comprehensive income
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,322
|
|
|
1,322
|
|
Total comprehensive income for the period
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
12,550
|
|
|
—
|
|
|
1,322
|
|
|
13,872
|
|
Balance at 31 March 2017
|
996
|
|
|
2,678
|
|
|
4,430
|
|
|
(2,099
|
)
|
|
33,629
|
|
|
161
|
|
|
3,460
|
|
|
43,255
|
|
|
Note
|
|
2017
£’000
|
|
2018
£’000
|
|||||
Operating activities
|
|
|
|
|
|
|||||
Profit for the period
|
|
|
£
|
12,550
|
|
|
£
|
14,077
|
|
|
Income tax charge
|
|
|
3,629
|
|
|
3,893
|
|
|||
Adjustments
|
10
|
|
|
2,348
|
|
|
4,453
|
|
||
Tax paid
|
|
|
(3,821
|
)
|
|
(3,688
|
)
|
|||
UK Research & Development Expenditure Credit received
|
|
|
—
|
|
|
1,854
|
|
|||
Net changes in working capital
|
10
|
|
|
(10,918
|
)
|
|
(215
|
)
|
||
Net cash from operating activities
|
|
|
3,788
|
|
|
20,374
|
|
|||
|
|
|
|
|
|
|||||
Investing activities
|
|
|
|
|
|
|||||
Purchase of non-current assets (tangibles and intangibles)
|
|
|
(3,418
|
)
|
|
(3,678
|
)
|
|||
Acquisition of business / subsidiaries (net of cash acquired)
|
|
|
(12,229
|
)
|
|
(25,423
|
)
|
|||
Interest received
|
|
|
14
|
|
|
30
|
|
|||
Net cash used in investing activities
|
|
|
(15,633
|
)
|
|
(29,071
|
)
|
|||
|
|
|
|
|
|
|||||
Financing activities
|
|
|
|
|
|
|||||
Proceeds from borrowings
|
|
|
16,997
|
|
|
22,979
|
|
|||
Repayment of borrowings
|
|
|
(3,358
|
)
|
|
(28,094
|
)
|
|||
Interest paid
|
|
|
(298
|
)
|
|
(413
|
)
|
|||
Grant received
|
|
|
—
|
|
|
147
|
|
|||
Purchase of own shares
|
|
|
(1,064
|
)
|
|
—
|
|
|||
Net cash used in financing activities
|
|
|
12,277
|
|
|
(5,381
|
)
|
|||
|
|
|
|
|
|
|||||
Net change in cash and cash equivalents
|
|
|
432
|
|
|
(14,078
|
)
|
|||
|
|
|
|
|
|
|||||
Cash and cash equivalents at the beginning of the period
|
|
|
12,947
|
|
|
23,571
|
|
|||
Net Foreign Exchange Differences
|
|
|
644
|
|
|
(31
|
)
|
|||
Cash and cash equivalents at the end of the period
|
|
|
£
|
14,023
|
|
|
£
|
9,462
|
|
1.
|
General Information
|
2.
|
Application Of New and Revised International Financial Reporting Standards (“IFRSs”)
|
3.
|
Significant Accounting Policies
|
1.
|
Statement of compliance
|
2.
|
Basis of Preparation
|
3.
|
Functional and Presentation Currency
|
4.
|
Use of Estimates and Judgments
|
5.
|
Going concern
|
6.
|
Basis of Consolidation
|
7.
|
Revenue
|
4.
|
Operating Segment Analysis
|
5.
|
Revenue
|
6.
|
Operating Profit
|
|
Nine Months Ended March 31
|
||||
|
2017
£’000
|
|
2018
£’000
|
||
Operating profit is stated after charging:
|
|
|
|
||
IPO preparation costs
|
—
|
|
|
2,472
|
|
7.
|
Particulars of Employees
|
|
Nine Months Ended March 31
|
||||
|
2017
|
|
2018
|
||
The average number of staff employed by the group during the financial year amounted to:
|
|
|
|
||
Number of operational staff
|
3,115
|
|
|
3,829
|
|
Number of administrative staff
|
274
|
|
|
352
|
|
Number of management staff
|
7
|
|
|
7
|
|
Total
|
3,396
|
|
|
4,188
|
|
8.
|
Tax on Profit on Ordinary Activities
|
9.
|
Earnings Per Share
|
|
Nine Months Ended March 31
|
||||
|
2017
£’000
|
|
2018
£’000
|
||
Profit for the period attributable to equity holders of the Company
|
12,550
|
|
|
14,077
|
|
|
Nine Months Ended March 31
|
||||
|
2017
|
|
2018
|
||
Weighted average number of shares outstanding
|
9,060,100
|
|
|
9,020,033
|
|
Earnings per share - basic (£)
|
1.39
|
|
|
1.56
|
|
|
Nine Months Ended March 31
|
||||
|
2017
£’000
|
|
2018
£’000
|
||
Profit for the period attributable to equity holders of the Company
|
12,550
|
|
|
14,077
|
|
|
Nine Months Ended March 31
|
||||
|
2017
|
|
2018
|
||
Weighted average number of shares outstanding
|
9,060,100
|
|
|
9,020,033
|
|
Diluted by: options in issue and contingently issuable shares
|
814,861
|
|
|
891,393
|
|
Weighted average number of shares outstanding (diluted)
|
9,874,961
|
|
|
9,911,426
|
|
Earnings per share - diluted (£)
|
1.27
|
|
|
1.42
|
|
10.
|
Cash Flow Adjustments and Changes in Working Capital
|
|
|
Nine Months Ended March 31
|
||||||
Adjustments
|
|
2017
£’000
|
|
2018
£’000
|
||||
Depreciation and amortisation
|
|
£
|
3,045
|
|
|
£
|
4,452
|
|
Interest income
|
|
(14
|
)
|
|
(30
|
)
|
||
Interest expense
|
|
315
|
|
|
413
|
|
||
Foreign exchange loss
|
|
499
|
|
|
495
|
|
||
Grant income
|
|
(941
|
)
|
|
(1,249
|
)
|
||
Research and development tax credit
|
|
(1,052
|
)
|
|
(756
|
)
|
||
Share based payment expense
|
|
676
|
|
|
1,026
|
|
||
Fair value loss on financial liabilities recognised in profit and loss
|
|
—
|
|
|
104
|
|
||
Income on contingent consideration
|
|
(180
|
)
|
|
—
|
|
||
Loss/(gain) from disposal of non-current assets
|
|
—
|
|
|
(2
|
)
|
||
Total adjustments
|
|
£
|
2,348
|
|
|
£
|
4,453
|
|
|
|
Nine Months Ended March 31
|
||||
Net changes in working capital
|
|
2017
£’000
|
|
2018
£’000
|
||
(Increase) / decrease in trade and other receivables
|
|
(10,347
|
)
|
|
(6,332
|
)
|
Increase / (decrease) in trade and other payables
|
|
(571
|
)
|
|
6,117
|
|
Total changes in working capital
|
|
(10,918
|
)
|
|
(215
|
)
|
11.
|
Acquisition of Subsidiaries
|
|
Fair Value
£’000
|
|
Intangible asset - Customer relationship
|
15,214
|
|
Property, plant and equipment
|
932
|
|
Trade and other receivables
|
6,045
|
|
Cash and cash equivalents
|
2,341
|
|
Trade and other payables
|
(3,791
|
)
|
Corporation tax payable
|
(39
|
)
|
Deferred tax liability
|
(27
|
)
|
Total net assets acquired
|
20,675
|
|
|
Fair Value
£’000
|
|
Consideration transferred
|
44,992
|
|
Fair value of identifiable net assets
|
(20,675
|
)
|
Goodwill
|
24,317
|
|
|
£’000
|
|
Revenue
|
7,437
|
|
Profit
|
1,037
|
|
|
£’000
|
|
Revenue
|
22,539
|
|
Profit
|
2,729
|
|
|
£’000
|
|
Legal and professional fees
|
1,233
|
|
12.
|
Refinancing
|
•
|
dispose of assets;
|
•
|
complete mergers or acquisitions;
|
•
|
incur or guarantee indebtedness;
|
•
|
sell or encumber certain assets;
|
•
|
pay dividends or make other distributions;
|
•
|
make specified investments;
|
•
|
engage in different lines of business; and
|
•
|
engage in certain transactions with affiliates.
|
ASSETS
|
|
|
|
||||
|
December 31,
|
||||||
|
2016
|
|
2015
|
||||
CURRENT ASSETS
|
|
|
|
||||
Cash and cash equivalents
|
$
|
4,600,242
|
|
|
$
|
4,927,270
|
|
Accounts receivable, net of allowance for doubtful accounts of $164,000 and $122,000, respectively
|
5,253,102
|
|
|
4,064,356
|
|
||
Prepaid expenses and other
|
1,473,663
|
|
|
984,920
|
|
||
Total current assets
|
11,327,007
|
|
|
9,976,546
|
|
||
PROPERTY AND EQUIPMENT, at cost
|
|
|
|
||||
Computer equipment
|
996,998
|
|
|
701,700
|
|
||
Leasehold improvements
|
649,616
|
|
|
361,713
|
|
||
Office furniture
|
348,036
|
|
|
233,777
|
|
||
|
1,994,650
|
|
|
1,297,190
|
|
||
Less accumulated depreciation and amortization
|
(758,630
|
)
|
|
(613,651
|
)
|
||
|
1,236,020
|
|
|
683,539
|
|
||
DEPOSITS
|
70,442
|
|
|
47,574
|
|
||
Total Assets
|
$
|
12,633,469
|
|
|
$
|
10,707,659
|
|
|
|
|
|
||||
LIABILITIES AND MEMBER’S EQUITY
|
|
|
|
||||
|
|
|
|
||||
CURRENT LIABILITIES
|
|
|
|
||||
Accounts payable
|
$
|
196,014
|
|
|
$
|
121,573
|
|
Accrued liabilities
|
365,682
|
|
|
362,822
|
|
||
Accrued wages and benefits
|
4,213,286
|
|
|
3,097,942
|
|
||
Current portion of long-term debt
|
269,617
|
|
|
156,991
|
|
||
Total current liabilities
|
5,044,599
|
|
|
3,739,328
|
|
||
DEFERRED INCOME TAX
|
31,568
|
|
|
1,419
|
|
||
LONG-TERM DEBT, net of current portion
|
329,371
|
|
|
74,991
|
|
||
Total liabilities
|
5,405,538
|
|
|
3,815,738
|
|
||
MEMBER’S EQUITY
|
|
|
|
||||
Member’s equity
|
8,916,092
|
|
|
8,360,981
|
|
||
Accumulated other comprehensive loss
|
(1,688,161
|
)
|
|
(1,469,060
|
)
|
||
Total member’s equity
|
7,227,931
|
|
|
6,891,921
|
|
||
Total liabilities and member’s equity
|
$
|
12,633,469
|
|
|
$
|
10,707,659
|
|
|
Years Ended December 31,
|
||||||
|
2016
|
|
2015
|
||||
REVENUE
|
$
|
34,675,330
|
|
|
$
|
29,088,879
|
|
COST OF REVENUE
|
19,850,218
|
|
|
15,797,442
|
|
||
GROSS PROFIT
|
14,825,112
|
|
|
13,291,437
|
|
||
GENERAL AND ADMINISTRATIVE EXPENSES
|
8,718,882
|
|
|
7,369,348
|
|
||
INCOME FROM OPERATIONS
|
6,106,230
|
|
|
5,922,089
|
|
||
OTHER INCOME (EXPENSE)
|
|
|
|
||||
Interest income
|
10,406
|
|
|
7,338
|
|
||
Interest expense
|
(12,805
|
)
|
|
(12,289
|
)
|
||
Gain on foreign currency exchange
|
142,596
|
|
|
401,887
|
|
||
Other (loss) income
|
(21,090
|
)
|
|
1,182
|
|
||
|
119,107
|
|
|
398,118
|
|
||
INCOME BEFORE INCOME TAX
|
6,225,337
|
|
|
6,320,207
|
|
||
INCOME TAX PROVISION
|
|
|
|
||||
Current tax
|
(332,746
|
)
|
|
(387,692
|
)
|
||
Deferred tax (benefit)
|
(30,149
|
)
|
|
11,538
|
|
||
|
(362,895
|
)
|
|
(376,154
|
)
|
||
CONSOLIDATED NET INCOME
|
5,862,442
|
|
|
5,944,053
|
|
||
OTHER COMPREHENSIVE LOSS - net change in foreign currency translation adjustment
|
(219,101
|
)
|
|
(579,936
|
)
|
||
COMPREHENSIVE INCOME
|
$
|
5,643,341
|
|
|
$
|
5,364,117
|
|
|
Member’s
Equity
|
|
Accumulated
Other
Comprehensive
Loss
|
|
Total
Member’s
Equity
|
||||||
BALANCE, December 31, 2014
|
$
|
5,101,591
|
|
|
$
|
(889,124
|
)
|
|
$
|
4,212,467
|
|
Foreign currency translation adjustment
|
—
|
|
|
(579,936
|
)
|
|
(579,936
|
)
|
|||
Member distributions
|
(2,684,663
|
)
|
|
—
|
|
|
(2,684,663
|
)
|
|||
Consolidated net income
|
5,944,053
|
|
|
—
|
|
|
5,944,053
|
|
|||
BALANCE, December 31, 2015
|
8,360,981
|
|
|
(1,469,060
|
)
|
|
6,891,921
|
|
|||
Foreign currency translation adjustment
|
—
|
|
|
(219,101
|
)
|
|
(219,101
|
)
|
|||
Member distributions
|
(5,307,331
|
)
|
|
—
|
|
|
(5,307,331
|
)
|
|||
Consolidated net income
|
5,862,442
|
|
|
—
|
|
|
5,862,442
|
|
|||
BALANCE, December 31, 2016
|
$
|
8,916,092
|
|
|
$
|
(1,688,161
|
)
|
|
$
|
7,227,931
|
|
|
Years Ended December 31,
|
||||||
|
2016
|
|
2015
|
||||
CASH FLOWS FROM OPERATING ACTIVITIES
|
|
|
|
||||
Cash received from customers
|
$
|
33,608,090
|
|
|
$
|
29,065,123
|
|
Cash paid to suppliers, employees, and subcontractors
|
(27,539,513
|
)
|
|
(22,682,702
|
)
|
||
Interest received
|
10,406
|
|
|
7,338
|
|
||
Interest paid
|
(12,805
|
)
|
|
(12,289
|
)
|
||
Income taxes paid
|
(332,746
|
)
|
|
(387,692
|
)
|
||
Net cash from operating activities
|
5,733,432
|
|
|
5,989,778
|
|
||
CASH FLOWS FROM INVESTING ACTIVITIES
|
|
|
|
||||
Purchase of property and equipment
|
(901,034
|
)
|
|
(501,196
|
)
|
||
CASH FLOWS FROM FINANCING ACTIVITIES
|
|
|
|
||||
Advances on line of credit
|
528,011
|
|
|
1,068,984
|
|
||
Payments on line of credit
|
(528,011
|
)
|
|
(1,068,984
|
)
|
||
Proceeds from long-term debt
|
523,900
|
|
|
—
|
|
||
Payments on long-term debt
|
(156,894
|
)
|
|
(158,153
|
)
|
||
Member distributions
|
(5,307,331
|
)
|
|
(2,684,663
|
)
|
||
Net cash from financing activities
|
(4,940,325
|
)
|
|
(2,842,816
|
)
|
||
EFFECT OF EXCHANGE RATE ON CASH FLOWS
|
(219,101
|
)
|
|
(579,936
|
)
|
||
NET CHANGE IN CASH AND CASH EQUIVALENTS
|
(327,028
|
)
|
|
2,065,830
|
|
||
CASH AND CASH EQUIVALENTS, beginning of year
|
4,927,270
|
|
|
2,861,440
|
|
||
CASH AND CASH EQUIVALENTS, end of year
|
$
|
4,600,242
|
|
|
$
|
4,927,270
|
|
RECONCILIATION OF CONSOLIDATED NET INCOME TO NET CASH FROM OPERATING ACTIVITIES
|
|
|
|
||||
Consolidated net income
|
$
|
5,862,442
|
|
|
$
|
5,944,053
|
|
Adjustments to reconcile consolidated net income to net
|
|
|
|
||||
Depreciation and amortization
|
348,553
|
|
|
290,382
|
|
||
Changes in operating assets and liabilities
|
|
|
|
||||
Accounts receivable, net
|
(1,188,746
|
)
|
|
(426,825
|
)
|
||
Prepaid expenses and other
|
(488,743
|
)
|
|
(235,325
|
)
|
||
Deposits
|
(22,868
|
)
|
|
(26,077
|
)
|
||
Accounts payable
|
74,441
|
|
|
(405,106
|
)
|
||
Accrued liabilities
|
2,860
|
|
|
160,750
|
|
||
Accrued wages
|
1,115,344
|
|
|
699,464
|
|
||
Deferred income tax
|
30,149
|
|
|
(11,538
|
)
|
||
NET CASH FROM OPERATING ACTIVITIES
|
$
|
5,733,432
|
|
|
$
|
5,989,778
|
|
2017
|
$
|
269,617
|
|
2018
|
202,430
|
|
|
2019
|
126,941
|
|
|
|
$
|
598,988
|
|
2017
|
$
|
662,829
|
|
2018
|
404,362
|
|
|
2019
|
336,239
|
|
|
2020
|
313,195
|
|
|
|
$
|
1,716,625
|
|
|
2016
|
|
2015
|
||||
Income tax expense – current
|
|
|
|
||||
Argentina
|
$
|
244,106
|
|
|
$
|
310,171
|
|
Colombia
|
64,599
|
|
|
77,521
|
|
||
Venezuela
|
14,985
|
|
|
9,056
|
|
||
|
323,690
|
|
|
396,748
|
|
||
Income tax expense (benefit) – deferred
|
|
|
|
||||
Argentina
|
835
|
|
|
7,417
|
|
||
Colombia
|
—
|
|
|
(19,130
|
)
|
||
Venezuela
|
38,370
|
|
|
(8,881
|
)
|
||
|
39,205
|
|
|
(20,594
|
)
|
||
Total income tax expense
|
$
|
362,895
|
|
|
$
|
376,154
|
|
|
2016
|
|
2015
|
||||
Provision for income tax at the statutory rate of 35%
|
$
|
2,178,868
|
|
|
$
|
2,212,150
|
|
Tax effect of nontaxable net income for LLC and S-Corp
|
(1,869,959
|
)
|
|
(1,843,047
|
)
|
||
Adjusted provision for income taxes at the statutory rate of 35%
|
308,909
|
|
|
369,103
|
|
||
Increase (decrease) in tax resulting from
|
|
|
|
||||
Permanent differences
|
68,370
|
|
|
41,827
|
|
||
Statutory rate differences/changes and other
|
(14,384
|
)
|
|
(34,776
|
)
|
||
Total income tax expense
|
$
|
362,895
|
|
|
$
|
376,154
|
|
|
2016
|
|
2015
|
||||
Deferred income tax asset (liability)
|
|
|
|
||||
Depreciation method differences
|
$
|
21,199
|
|
|
$
|
(20,549
|
)
|
Accrued liabilities
|
(52,767
|
)
|
|
19,130
|
|
||
Total deferred income taxes, net
|
$
|
(31,568
|
)
|
|
$
|
(1,419
|
)
|
|
September 30,
|
||||||
|
2017
|
|
2016
|
||||
ASSETS
|
|
|
|
||||
CURRENT ASSETS
|
|
|
|
||||
Cash and cash equivalents
|
$
|
5,832.895
|
|
|
$
|
4,985,952
|
|
Accounts receivable, net
|
5,378,483
|
|
|
4,712,947
|
|
||
Prepaid expenses and other
|
2,048,259
|
|
|
1,751,603
|
|
||
Total current assets
|
13,259,637
|
|
|
11,450,502
|
|
||
PROPERTY AND EQUIPMENT, at cost
|
|
|
|
||||
Computer equipment
|
1,192,214
|
|
|
989,916
|
|
||
Leasehold improvements
|
683,426
|
|
|
362,063
|
|
||
Office furniture
|
361,173
|
|
|
228,838
|
|
||
|
2,236,813
|
|
|
1,580,817
|
|
||
Less accumulated depreciation and amortization
|
(982,748
|
)
|
|
(785,491
|
)
|
||
|
1,254,065
|
|
|
795,326
|
|
||
DEPOSITS
|
51,918
|
|
|
77,333
|
|
||
Total assets
|
$
|
14,565,620
|
|
|
$
|
12,323,161
|
|
LIABILITIES AND MEMBER’S EQUITY
|
|
|
|
||||
CURRENT LIABILITIES
|
|
|
|
||||
Accounts payable
|
$
|
193,088
|
|
|
$
|
197,133
|
|
Accrued liabilities
|
330,151
|
|
|
273,270
|
|
||
Accrued wages and benefits
|
5,392,978
|
|
|
4,425,904
|
|
||
Current portion of long-term debt
|
216,971
|
|
|
95,762
|
|
||
Total current liabilities
|
6,133,188
|
|
|
4,992,069
|
|
||
DEFERRED INCOME TAX
|
55,876
|
|
|
31,508
|
|
||
LONG-TERM DEBT, net of current portion
|
266,608
|
|
|
388,644
|
|
||
Total liabilities
|
6,455,672
|
|
|
5,412,221
|
|
||
MEMBER’S EQUITY
|
|
|
|
||||
Member’s equity
|
9,929,085
|
|
|
8,493,031
|
|
||
Accumulated other comprehensive loss
|
(1,819,137
|
)
|
|
(1,582,091
|
)
|
||
Total member’s equity
|
8,109,948
|
|
|
6,910,940
|
|
||
Total liabilities and member’s equity
|
$
|
14,565,620
|
|
|
$
|
12,323,161
|
|
|
Nine Month Periods Ended
September 30,
|
||||||
|
2017
|
|
2016
|
||||
REVENUE
|
$
|
29,137,165
|
|
|
$
|
25,548,712
|
|
COST OF REVENUE
|
17,576,909
|
|
|
14,238,384
|
|
||
GROSS PROFIT
|
11,560,256
|
|
|
11,310,328
|
|
||
GENERAL AND ADMINISTRATIVE EXPENSES
|
6,890,589
|
|
|
6,359,626
|
|
||
INCOME FROM OPERATIONS
|
4,669,667
|
|
|
4,950,702
|
|
||
OTHER INCOME (EXPENSE)
|
|
|
|
||||
Interest income
|
7,889
|
|
|
7,884
|
|
||
Interest expense
|
(23,444
|
)
|
|
(7,398
|
)
|
||
Gain (loss) on foreign currency exchange
|
(81,712
|
)
|
|
58,516
|
|
||
Other (loss) income
|
87,287
|
|
|
(10,730
|
)
|
||
|
(9,980
|
)
|
|
48,272
|
|
||
INCOME BEFORE INCOME TAX
|
4,659,687
|
|
|
4,998,974
|
|
||
INCOME TAX PROVISION
|
|
|
|
||||
Current tax expense
|
(236,912
|
)
|
|
(256,026
|
)
|
||
Deferred tax expense
|
(48,173
|
)
|
|
(31,508
|
)
|
||
|
(285,085
|
)
|
|
(287,534
|
)
|
||
CONSOLIDATED NET INCOME
|
4,374,602
|
|
|
4,711,440
|
|
||
OTHER COMPREHENSIVE LOSS
|
|
|
|
||||
Net change in foreign currency translation adjustment
|
(130,976
|
)
|
|
(113,031
|
)
|
||
COMPREHENSIVE INCOME
|
$
|
4,243,626
|
|
|
$
|
4,598,409
|
|
|
Member’s
Equity
|
|
Accumulated
Other
Comprehensive
Loss
|
|
Total
Member’s
Equity
|
||||||
BALANCE, January 1, 2016
|
$
|
8,360,981
|
|
|
$
|
(1,469,060
|
)
|
|
$
|
6,891,921
|
|
Foreign currency translation adjustment
|
—
|
|
|
(113,031
|
)
|
|
(113,031
|
)
|
|||
Member contributions
|
26,680
|
|
|
—
|
|
|
26,680
|
|
|||
Member distributions
|
(4,606,070
|
)
|
|
—
|
|
|
(4,606,070
|
)
|
|||
Consolidated net income
|
4,711,440
|
|
|
—
|
|
|
4,711,440
|
|
|||
BALANCE, September 30, 2016
|
$
|
8,493,031
|
|
|
$
|
(1,582,091
|
)
|
|
$
|
6,910,940
|
|
|
|
|
|
|
|
||||||
BALANCE, January 1, 2017
|
$
|
8,916,092
|
|
|
$
|
(1,688,161
|
)
|
|
$
|
7,227,931
|
|
Foreign currency translation adjustment
|
—
|
|
|
(130,976
|
)
|
|
(130,976
|
)
|
|||
Member distributions
|
(3,361,609
|
)
|
|
—
|
|
|
(3,361,609
|
)
|
|||
Consolidated net income
|
4,374,602
|
|
|
—
|
|
|
4,374,602
|
|
|||
BALANCE, September 30, 2017
|
$
|
9,929,085
|
|
|
$
|
(1,819,137
|
)
|
|
$
|
8,109,948
|
|
|
Nine-Month Periods Ended
September 30,
|
||||||
|
2017
|
|
2016
|
||||
CASH FLOWS FROM OPERATING ACTIVITIES
|
|
|
|
||||
Cash received from customers
|
$
|
29,017,359
|
|
|
$
|
24,947,907
|
|
Cash paid to suppliers, employees, and subcontractors
|
(23,658,217
|
)
|
|
(19,908,642
|
)
|
||
Interest received
|
7,889
|
|
|
7,884
|
|
||
Interest paid
|
(23,444
|
)
|
|
(7,398
|
)
|
||
Income taxes paid
|
(260,777
|
)
|
|
(257,445
|
)
|
||
Net cash from operating activities
|
5,082,810
|
|
|
4,782,306
|
|
||
CASH FLOWS FROM INVESTING ACTIVITIES
|
|
|
|
||||
Purchase of equipment
|
(242,163
|
)
|
|
(283,627
|
)
|
||
CASH FLOWS FROM FINANCING ACTIVITIES
|
|
|
|
||||
Advances on line of credit
|
—
|
|
|
528,011
|
|
||
Payments on line of credit
|
—
|
|
|
(528,011
|
)
|
||
Proceeds from long-term debt
|
76,100
|
|
|
375,000
|
|
||
Payments on long-term debt
|
(191,509
|
)
|
|
(122,576
|
)
|
||
Member contributions
|
—
|
|
|
26,680
|
|
||
Member distributions
|
(3,361,609
|
)
|
|
(4,606,070
|
)
|
||
Net cash from financing activities
|
(3,477,018
|
)
|
|
(4,326,966
|
)
|
||
EFFECT OF EXCHANGE RATE ON CASH FLOWS
|
(130,976
|
)
|
|
(113,031
|
)
|
||
NET CHANGE IN CASH AND CASH EQUIVALENTS
|
1,232,653
|
|
|
58,682
|
|
||
CASH AND CASH EQUIVALENTS, beginning of period
|
4,600,242
|
|
|
4,927,270
|
|
||
CASH AND CASH EQUIVALENTS, end of period
|
$
|
5,832,895
|
|
|
$
|
4,985,952
|
|
RECONCILIATION OF CONSOLIDATED NET INCOME TO
NET CASH FROM OPERATING ACTIVITIES
|
|
|
|
||||
Consolidated net income
|
$
|
4,374,602
|
|
|
$
|
4,711,440
|
|
Adjustments to reconcile consolidated net income to net
cash from operating activities
|
|
|
|
||||
Depreciation and amortization
|
224,118
|
|
|
171,840
|
|
||
Deferred income tax
|
24,308
|
|
|
30,089
|
|
||
Changes in operating assets and liabilities
|
|
|
|
||||
Accounts receivable
|
(125,381
|
)
|
|
(648,591
|
)
|
||
Prepaid expenses and other
|
(574,596
|
)
|
|
(766,683
|
)
|
||
Deposits
|
18,524
|
|
|
(29,759
|
)
|
||
Accounts payable
|
(2,926
|
)
|
|
75,560
|
|
||
Accrued liabilities
|
(35,531
|
)
|
|
(89,552
|
)
|
||
Accrued wages and benefits
|
1,179,692
|
|
|
1,327,962
|
|
||
NET CASH FROM OPERATING ACTIVITIES
|
$
|
5,082,810
|
|
|
$
|
4,782,306
|
|
2017
|
$
|
63,611
|
|
2018
|
205,409
|
|
|
2019
|
214,559
|
|
|
|
$
|
483,579
|
|
2018
|
$
|
197,246
|
|
2019
|
754,569
|
|
|
2020
|
707,255
|
|
|
2021
|
488,281
|
|
|
|
$
|
2,147,351
|
|
|
Historical
Endava
|
|
Pre-acquisition
historical
results of
VP
07/01/17 - 12/29/17
|
|
Reclassification
adjustments
|
|
Transaction
adjustments
|
|
Pro forma
|
|||||||
Revenue
|
156,140
|
|
|
15,102
|
|
|
—
|
|
|
—
|
|
|
171,242
|
|
||
Cost of Sales
|
|
|
|
|
|
|
|
|
|
|||||||
-Direct Costs of Sales
|
(96,104
|
)
|
|
(8,853
|
)
|
|
—
|
|
|
—
|
|
|
(104,957
|
)
|
||
-Allocated Costs of Sales
|
(9,281
|
)
|
|
(564
|
)
|
|
99
|
|
(5)
|
—
|
|
|
(9,746
|
)
|
||
Total Cost of Sales
|
(105,385
|
)
|
|
(9,417
|
)
|
|
99
|
|
|
—
|
|
|
(114,703
|
)
|
||
Gross Profit
|
50,755
|
|
|
5,685
|
|
|
99
|
|
|
—
|
|
|
56,539
|
|
||
Selling, General, and Administrative Expenses
|
(31,755
|
)
|
|
(13,051
|
)
|
|
(99
|
)
|
(5)
|
9,476
|
|
(6a)
|
(35,429
|
)
|
||
Operating Profit
|
19,000
|
|
|
(7,366
|
)
|
|
—
|
|
|
9,476
|
|
|
21,110
|
|
||
Other Income (Expense)
|
|
|
|
|
|
|
|
|
|
|||||||
Finance Costs
|
(1,055
|
)
|
|
(11
|
)
|
|
(11
|
)
|
(5)
|
(228
|
)
|
(6b)
|
(1,305
|
)
|
||
Finance Income
|
25
|
|
|
7
|
|
|
144
|
|
(5)
|
(7
|
)
|
(6c)
|
169
|
|
||
Gain on Foreign Currency Exchange
|
—
|
|
|
(11
|
)
|
|
11
|
|
(5)
|
—
|
|
|
—
|
|
||
Other Gain / (Loss)
|
—
|
|
|
144
|
|
|
(144
|
)
|
(5)
|
—
|
|
|
—
|
|
||
Net Finance (Expense) / Income
|
(1,030
|
)
|
|
129
|
|
|
—
|
|
|
(235
|
)
|
|
(1,136
|
)
|
||
Profit / (Loss) Before Tax
|
17,970
|
|
|
(7,237
|
)
|
|
—
|
|
|
9,241
|
|
|
19,974
|
|
||
Tax on Profit of Ordinary Activities
|
(3,893
|
)
|
|
(182
|
)
|
|
—
|
|
|
(429
|
)
|
(6d)
|
(4,504
|
)
|
||
Profit / (Loss) For The Year And Profit / (Loss) Attributable To Owners Of The Parent
|
14,077
|
|
|
(7,419
|
)
|
|
—
|
|
|
8,812
|
|
|
15,470
|
|
||
Weighted average number of shares outstanding
|
9,020,033
|
|
|
|
|
|
|
|
|
9,020,033
|
|
|||||
Weighted average number of shares outstanding (diluted)
|
9,911,426
|
|
|
|
|
|
|
303,059
|
|
(6e)
|
10,214,485
|
|
||||
Earnings Per Share:
|
|
|
|
|
|
|
|
|
|
|||||||
Basic EPS
|
£
|
1.56
|
|
|
|
|
|
|
|
|
£
|
1.71
|
|
|||
Diluted EPS
|
£
|
1.42
|
|
|
|
|
|
|
|
|
£
|
1.51
|
|
|
Historical
Endava
|
|
Pre-acquisition
historical
results of
Velocity
07/01/16 - 06/30/17
|
|
Reclassification
adjustments
|
|
Transaction
adjustments
|
|
Pro forma
|
|||||||
Revenue
|
159,368
|
|
|
29,288
|
|
|
—
|
|
|
—
|
|
|
188,656
|
|
||
Cost of Sales
|
|
|
|
|
|
|
|
|
|
|||||||
-Direct Costs of Sales
|
(98,853
|
)
|
|
(16,568
|
)
|
|
—
|
|
|
—
|
|
|
(115,421
|
)
|
||
-Allocated Costs of Sales
|
(9,907
|
)
|
|
(1,011
|
)
|
|
141
|
|
(5)
|
—
|
|
|
(10,777
|
)
|
||
Total Cost of Sales
|
(108,760
|
)
|
|
(17,579
|
)
|
|
141
|
|
|
—
|
|
|
(126,198
|
)
|
||
Gross Profit
|
50,608
|
|
|
11,709
|
|
|
141
|
|
|
—
|
|
|
62,458
|
|
||
Selling, General, and Administrative Expenses
|
(27,551
|
)
|
|
(7,048
|
)
|
|
(141
|
)
|
(5)
|
(3,005
|
)
|
(6a)
|
(37,745
|
)
|
||
Operating Profit
|
23,057
|
|
|
4,661
|
|
|
—
|
|
|
(3,005
|
)
|
|
24,713
|
|
||
Other Income (Expense)
|
|
|
|
|
|
|
|
|
|
|||||||
Finance Costs
|
(1,375
|
)
|
|
(17
|
)
|
|
(11
|
)
|
(5)
|
(566
|
)
|
(6b)
|
(1,969
|
)
|
||
Finance Income
|
18
|
|
|
8
|
|
|
67
|
|
(5)
|
(8
|
)
|
(6c)
|
85
|
|
||
Gain on Foreign Currency Exchange
|
—
|
|
|
67
|
|
|
(67
|
)
|
(5)
|
—
|
|
|
—
|
|
||
Other Gain / (Loss)
|
—
|
|
|
(11
|
)
|
|
11
|
|
(5)
|
—
|
|
|
—
|
|
||
Net Finance (Expense) / Income
|
(1,357
|
)
|
|
47
|
|
|
—
|
|
|
(574
|
)
|
|
(1,884
|
)
|
||
Profit Before Tax
|
21,700
|
|
|
4,708
|
|
|
—
|
|
|
(3,579
|
)
|
|
22,829
|
|
||
Tax on Profit of Ordinary Activities
|
(4,868
|
)
|
|
(279
|
)
|
|
—
|
|
|
(125
|
)
|
(6d)
|
(5,272
|
)
|
||
Profit For The Year And Profit Attributable To Owners Of The Parent
|
16,832
|
|
|
4,429
|
|
|
—
|
|
|
(3,704
|
)
|
|
17,557
|
|
||
Weighted average number of shares outstanding
|
9,051,750
|
|
|
|
|
|
|
|
|
9,051,750
|
|
|||||
Weighted average number of shares outstanding (diluted)
|
9,858,504
|
|
|
|
|
|
|
303,059
|
|
(6e)
|
10,161,563
|
|
||||
Earnings Per Share:
|
|
|
|
|
|
|
|
|
|
|||||||
Basic EPS
|
£
|
1.86
|
|
|
|
|
|
|
|
|
£
|
1.94
|
|
|||
Diluted EPS
|
£
|
1.71
|
|
|
|
|
|
|
|
|
£
|
1.73
|
|
1.
|
Description of the Transaction
|
Net cash consideration
(1)
|
£
|
32,889
|
|
Fair value of contingent consideration
|
10,933
|
|
|
Fair value of contingent tax refund consideration
|
1,170
|
|
|
Fair value of consideration transferred
|
£
|
44,992
|
|
(1)
|
Inclusive of £7,963 of taxes withheld and to be remitted to foreign governments and £4.4 million of cash held back (with a fair value of £4.2 million) to secure indemnification obligations.
|
Fair value of consideration transferred
|
£
|
44,992
|
|
Net identifiable assets acquired
|
(20,675
|
)
|
|
Goodwill
|
£
|
24,317
|
|
2.
|
Basis of Pro Forma Presentation
|
|
Period Ending
December 29, 2017
VP ($)
|
|
TRANSLATION AT
$1.3185=£1
Period Ending
December 29, 2017
VP (£)
|
||
Revenue
|
19,912
|
|
|
15,102
|
|
Costs of Sales
|
|
|
|
||
Direct Costs of Sales
|
(11,673
|
)
|
|
(8,853
|
)
|
Allocated Costs of Sales
|
(744
|
)
|
|
(564
|
)
|
Total Cost of Sales
|
(12,417
|
)
|
|
(9,417
|
)
|
Gross Profit
|
7,495
|
|
|
5,685
|
|
Selling, General, and Administrative Expense
|
(17,208
|
)
|
|
(13,051
|
)
|
|
|
|
|
||
Operating Loss
|
(9,713
|
)
|
|
(7,366
|
)
|
|
|
|
|
||
Other Income (Expense)
|
|
|
|
||
Finance Costs
|
(15
|
)
|
|
(11
|
)
|
Finance Income
|
9
|
|
|
7
|
|
Gain (loss) on Foreign Currency Exchange
|
(14
|
)
|
|
(11
|
)
|
Other Gain/(Loss)
|
189
|
|
|
144
|
|
Net Finance (Expense)/Income
|
169
|
|
|
129
|
|
|
|
|
|
||
Loss Before Tax
|
(9,544
|
)
|
|
(7,237
|
)
|
|
|
|
|
||
Tax on Profit of Ordinary Activities
|
(240
|
)
|
|
(182
|
)
|
Profit For the Year and Profit Attributable to Owners of the Parent
|
(9,784
|
)
|
|
(7,419
|
)
|
•
|
the derivation of Velocity’s results of operations for the six-month period ended December 31, 2016 from Velocity’s audited financial statements for the fiscal year ended December 31, 2016 and Velocity’s unaudited results of operations for the six-month period ended June 30, 2016;
|
•
|
the combining of Velocity’s results of operations for the six-month periods ended December 31, 2016 and June 30, 2017 to produce unaudited results of operations for the year ended June 30, 2017; and
|
•
|
the translation of Velocity’s unaudited results of operations for the year ended June 30, 2017 into GBP.
|
|
12 Months Ended
December 31, 2016
VP ($)
|
|
LESS:
6 Months Ended
June 30, 2016
VP ($)
|
|
SUBTOTAL:
6 Months Ended
December 31, 2016
VP ($)
|
|
PLUS:
6 Months Ended
June 30, 2017
VP ($)
|
|
TOTAL: 12 Months Ended June 30, 2017
VP ($)
|
|
TRANSLATION AT
$1.2685 = £1.00
12 Months Ended June 30, 2017
VP (£)
|
||||||
Revenue
|
34,675
|
|
|
16,725
|
|
|
17,950
|
|
|
19,202
|
|
|
37,152
|
|
|
29,288
|
|
Cost of Sales
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Direct Costs of Sales
|
(18,892
|
)
|
|
(8,800
|
)
|
|
(10,092
|
)
|
|
(10,924
|
)
|
|
(21,016
|
)
|
|
(16,568
|
)
|
Allocated Costs of Sales
|
(958
|
)
|
|
(407
|
)
|
|
(551
|
)
|
|
(732
|
)
|
|
(1,283
|
)
|
|
(1,011
|
)
|
Total Cost of Sales
|
(19,850
|
)
|
|
(9,207
|
)
|
|
(10,643
|
)
|
|
(11,656
|
)
|
|
(22,299
|
)
|
|
(17,579
|
)
|
Gross Profit
|
14,825
|
|
|
7,518
|
|
|
7,307
|
|
|
7,546
|
|
|
14,853
|
|
|
11,709
|
|
Selling, General, and Administrative Expenses
|
(8,719
|
)
|
|
(4,290
|
)
|
|
(4,429
|
)
|
|
(4,511
|
)
|
|
(8,940
|
)
|
|
(7,048
|
)
|
Operating Profit
|
6,106
|
|
|
3,228
|
|
|
2,878
|
|
|
3,035
|
|
|
5,913
|
|
|
4,661
|
|
Other Income (Expense)
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Finance Costs
|
(13
|
)
|
|
(4
|
)
|
|
(9
|
)
|
|
(13
|
)
|
|
(22
|
)
|
|
(17
|
)
|
Finance Income
|
10
|
|
|
5
|
|
|
5
|
|
|
5
|
|
|
10
|
|
|
8
|
|
Gain on Foreign Currency Exchange
|
143
|
|
|
119
|
|
|
24
|
|
|
61
|
|
|
85
|
|
|
67
|
|
Other Gain / (Loss)
|
(21
|
)
|
|
(8
|
)
|
|
(13
|
)
|
|
(1
|
)
|
|
(14
|
)
|
|
(11
|
)
|
Net Finance (Expense) / Income
|
119
|
|
|
112
|
|
|
7
|
|
|
52
|
|
|
59
|
|
|
47
|
|
Profit Before tax / Income Before Tax
|
6,225
|
|
|
3,340
|
|
|
2,885
|
|
|
3,087
|
|
|
5,972
|
|
|
4,708
|
|
Taxon Profit of Ordinary Activities
|
(363
|
)
|
|
(191
|
)
|
|
(172
|
)
|
|
(182
|
)
|
|
(354
|
)
|
|
(279
|
)
|
Profit For The Year And Profit Attribuable To Owners of the Companmy
|
5,862
|
|
|
3,149
|
|
|
2,713
|
|
|
2,905
|
|
|
5,618
|
|
|
4,429
|
|
3.
|
Accounting Policies
|
4.
|
Financing Transactions
|
5.
|
Reclassifications of Velocity Historical Financial Information
|
|
Historical
Endava
|
|
Pre-acquisition
historical
results of
VP
07/01/17 - 12/29/17
|
|
Reclassification
adjustments
|
|
Historical as
reclassified
before
pro forma
adjustments
|
||||
Cost of Sales
(1)
|
(105,385
|
)
|
|
(9,417
|
)
|
|
99
|
|
|
(114,703
|
)
|
Selling, General, and Administrative Expenses
(1)
|
(31,755
|
)
|
|
(13,051
|
)
|
|
(99
|
)
|
|
(44,905
|
)
|
Finance Costs
(2)
|
(1,055
|
)
|
|
(11
|
)
|
|
(11
|
)
|
|
(1,077
|
)
|
Finance Income
(2)
|
25
|
|
|
7
|
|
|
144
|
|
|
176
|
|
Gain on Foreign Currency Exchange
(2)
|
—
|
|
|
(11
|
)
|
|
11
|
|
|
—
|
|
Other Gain / (Loss)
(2)
|
—
|
|
|
144
|
|
|
(144
|
)
|
|
—
|
|
(1)
|
Reclassifications conform the classification and presentation of certain internet costs incurred by Velocity to the classification and presentation of such costs in the financial statements of Endava.
|
(2)
|
Reclassifications conform Velocity’s other income (expense) classification and presentation to be consistent with the financial statements of Endava.
|
|
Historical
Endava
|
|
Pre-acquisition
historical
results of
VP
07/01/16 - 06/30/17
|
|
Reclassification
adjustments
|
|
Historical as
reclassified
before
pro forma
adjustments
|
||||
Cost of Sales
(1)
|
(108,760
|
)
|
|
(17,579
|
)
|
|
141
|
|
|
(126,198
|
)
|
Selling, General, and Administrative Expenses
(1)
|
(27,551
|
)
|
|
(7,048
|
)
|
|
(141
|
)
|
|
(34,740
|
)
|
Finance Costs
(2)
|
(1,375
|
)
|
|
(17
|
)
|
|
(11
|
)
|
|
(1,403
|
)
|
Finance Income
(2)
|
18
|
|
|
8
|
|
|
67
|
|
|
93
|
|
Gain on Foreign Currency Exchange
(2)
|
—
|
|
|
67
|
|
|
(67
|
)
|
|
—
|
|
Other Gain / (Loss)
(2)
|
—
|
|
|
(11
|
)
|
|
11
|
|
|
—
|
|
(1)
|
Reclassifications conform the classification and presentation of certain internet costs incurred by Velocity to the classification and presentation of such costs in the financial statements of Endava.
|
(2)
|
Reclassifications conform Velocity’s other income (expense) classification and presentation to be consistent with the financial statements of Endava.
|
6.
|
Unaudited Pro Forma Condensed Combined Statement of Income Adjustments
|
|
Nine Months Ended
March 31, 2018
|
|
Year-Ended
June 30, 2017
|
||||
Equity Bonus Compensation Expense
(1)
|
£
|
(639
|
)
|
|
£
|
(1,327
|
)
|
LTIP Stock Option Compensation Expense
(2)
|
(29
|
)
|
|
(58
|
)
|
||
Incremental Amortization Expense
(3)
|
(779
|
)
|
|
(1,620
|
)
|
||
Transaction Cost
(4)
|
10,923
|
|
|
—
|
|
||
Net Pro Forma Adjustment
|
£
|
9,476
|
|
|
£
|
(3,005
|
)
|
(1)
|
A portion of the adjustments of approximately £9.5 million and £(3.0) million to the combined selling, general and administrative costs recognized by Endava and Velocity for the nine months ended March 31, 2018 and year ended June 30, 2017, respectively, reflects the estimated incremental compensation expense expected to be recognized based upon the equity bonus payment arrangements entered into with certain continuing employees of Velocity. Under these arrangements (the “Compensation Arrangements”), Endava is obligated to make a total potential payment of up to £3.7 million to certain continuing employees of Velocity between the closing date of the Acquisition and December 29, 2020 (the “Service Period”). Under the terms of the Compensation Arrangements, on each anniversary of the closing of the Acquisition through the end of the Service Period, Endava is obligated to issue a fixed number of ordinary shares and/or make cash payments; provided that the first such issuance is due upon the expiration of the lock-up period with respect to the IPO, if such expiration occurs prior to the first anniversary of the closing of the Acquisition. Compensation expense reflected in the pro forma financial statements assumes (1) the Compensation Arrangements were entered into on July 1, 2016, (2) one third of the issued awards vest during each full annual period, (3) ratable vesting of awards during the nine months ended March 31, 2018, and (2) translation of compensation expense to GBP at the applicable average foreign currency exchange rate for each period presented.
|
(2)
|
A portion of the adjustments of approximately £9.5 million and £(3.0) million to the combined selling, general and administrative costs recognized by Endava and Velocity for the nine months ended March 31, 2018 and year ended June 30, 2017, respectively, reflects the estimated incremental share-based compensation expense expected to be recognized based upon the issuance of certain Long-Term Incentive Plan (“LTIP”) awards to continuing Velocity employees in connection with the Acquisition. These awards were not replacement awards for existing stock options held by the continuing Velocity employees. Instead, Endava issued the awards to incentivize the employees to remain with the combined business following the Acquisition. Endava
|
(3)
|
A portion of the adjustments of approximately £9.5 million and £(3.0) million to the combined selling, general and administrative costs recognized by Endava and Velocity for the nine months ended March 31, 2018 and year ended June 30, 2017, respectively, reflects estimated incremental amortization expense expected to be incurred based upon the preliminary estimates of the fair value and useful life of the acquired customer relationship intangible asset recognized in connection with the Acquisition. This customer relationship intangible asset has been assigned a fair value £15.2 million, based upon a preliminary valuation. For pro forma income statement purposes, the assigned asset value has been amortized over a useful life of 10 years, and the related expense has been translated to GBP at the applicable average foreign currency exchange rate for each period presented. The application of purchase price accounting did not result in the recognition of any other acquired definitive-life intangible assets. Endava will finalize its conclusions regarding the valuation and useful life of the acquired customer relationship intangible asset as soon as practicable within the measurement period. Any change to the estimated fair value or useful of this asset could materially affect the actual amount of annual amortization expense ultimately recognized by the combined business.
|
(4)
|
A portion of the adjustment of approximately £9.5 million to the combined selling, general and administrative costs recognized by Endava and Velocity for the nine months ended March 31, 2018 reflects the elimination of non-recurring transaction costs recognized by both Endava and Velocity. These non-recurring transaction costs included a substantial amount of non-recurring compensation earned by certain Velocity employees as a direct result of Endava’s acquisition of Velocity, as these employees were entitled to a portion of the cash consideration paid for the membership interests in Velocity based upon their employee participation rights that vested upon any change-in-control event.
|
|
Nine Months Ended
March 31, 2018
|
|
Year-Ended
June 30, 2017
|
||||
Elimination of Velocity, LLC’s Interest Expense
(1)
|
£
|
11
|
|
|
£
|
17
|
|
Incremental Interest and Finance Costs Related to Refinanced Revolver
(2)
|
(194
|
)
|
|
(488
|
)
|
||
Fees Attributable to Holdback Letter of Credit
(3)
|
(45
|
)
|
|
(95
|
)
|
||
Net Pro Forma Adjustment
|
£
|
(228
|
)
|
|
£
|
(566
|
)
|
(1)
|
The adjustments of £(0.2) million and £(0.6) million include reductions to finance costs of £11,340 and £16,714 related to interest expense incurred by Velocity during the nine and twelve-month periods ended March 31, 2018 and June 30, 2017, respectively. As the purchase of Velocity was structured as a cash-free, debt-free acquisition, Velocity’s entire debt balance was extinguished upon consummation of the Acquisition. This adjustment eliminates the interest expense incurred on the extinguished debt, as if the extinguishment had occurred on July 1, 2016.
|
(2)
|
The adjustments of £(0.2) million and £(0.6) million include incremental finance costs of £0.2 million and £0.5 million for the nine and twelve-month periods ended March 31, 2018 and June 30, 2017, respectively, to reflect the net impact that (A) the extinguishment of Endava’s prior revolving credit facility and (B) the execution and borrowing of funds against Endava’s new revolving credit facility would have had on interest expense for each respective period, if these actions were taken on July 1, 2016. All borrowings under the Endava’s new revolving credit facility are subject to variable interest rates. The estimated pro forma interest expense adjustments related to the new revolving credit facility are based upon the interest rates that were in effect as of the date of the Acquisition. A change of 0.125% in the interest rate charged on the Company’s borrowings under its new credit facility would increase or decrease the pro forma interest expense reported for the nine month period ended March 31, 2018 and the year ended June 30, 2017 by approximately £36,948 and £49,264, respectively. The following table summarizes the material components of the net financing cost adjustments attributable to the Debt Refinancing
(in thousands)
:
|
|
Nine Months Ended
March 31, 2018
|
|
Year-Ended
June 30, 2017
|
||||
Estimated interest expense related to newly executed revolving credit facility
|
£
|
(378
|
)
|
|
£
|
(774
|
)
|
Elimination of interest expense incurred on extinguished revolving credit facility
|
184
|
|
|
286
|
|
||
Net Pro Forma Adjustment
|
£
|
(194
|
)
|
|
£
|
(488
|
)
|
(3)
|
The adjustments of £(0.2) million and £(0.6) million include incremental finance costs of £45,506 and £94,600 for the nine and twelve-month periods ended March 31, 2018 and June 30, 2017, respectively, which reflect the fees that will be charged on the letter of credit issued with respect to the holdback amount of $6 million. Fees are incurred at a rate of 2% per annum on the outstanding letter of credit amount and have been translated from U.S. dollars to GBP at the applicable average foreign currency exchange rate for each period presented.
|
|
Nine Months Ended
March 31, 2018
|
|
Year-Ended
June 30, 2017
|
||||
Incremental taxes historically charged to Velocity’s founder
(1)
|
£
|
2,426
|
|
|
£
|
(1,463
|
)
|
Tax impact of pro forma adjustments
(2)
|
(2,855
|
)
|
|
1,338
|
|
||
Net Pro Forma Adjustment
|
£
|
(429
|
)
|
|
£
|
(125
|
)
|
(1)
|
Prior to the Acquisition, Velocity was structured as a pass-through entity for taxation purposes. Accordingly, Velocity’s equity holders were primarily responsible for the payment of taxes on the business’s earnings. Subsequent to the Acquisition, the taxable earnings of the acquired business will be directly subject to taxation in the United States. Accordingly, the pro forma adjustments of approximately £2.4 million and £(1.5) million for the nine and twelve-month periods ended March 31, 2018 and June 30, 2017, respectively, assume that this change in responsibility for the payment of taxes on earnings occurred as of July 1, 2016. The adjustment also assumes that 100% of Velocity’s reported profit or loss before taxes would have been subject to tax expense or a tax benefit at
(i) a blended U.S. effective tax rate (including state taxes) of 31% for the nine-month pro forma period ended March 31, 2018, which gives effect to the reduction in the U.S. federal corporate tax rate to 21% as of January 1, 2018 and (ii) a U.S. effective tax rate of 37% (including state taxes) for the 12-month pro forma period ended June 30, 2017
.
|
(2)
|
Statutory tax rates were applied, as appropriate, to each pro forma adjustment, based on the jurisdiction in which the adjustment would occur. As post-Acquisition results of the acquired business are expected to be taxed in the United States, Endava applied
(i) a blended U.S. effective tax rate (including state taxes) of 31% for the nine-month pro forma period ended March 31, 2018, which gives effect to the reduction in the U.S. federal corporate tax rate to 21% as of January 1, 2018 and (ii) a U.S. effective tax rate (including state taxes) of 37% for the 12-month pro forma period ended June 30, 2017
to all pro forma adjustments to the historical results reported by Velocity. In order to
give effect to the tax impact of certain adjustments related to the interest expense that will be incurred in the United Kingdom, U.K. statutory tax rates of 19.0% and 19.75% were applied for the pro forma periods ended March 31, 2018 and June 30, 2017, respectively.
The actual effective tax rate of the combined company could be significantly different, depending on the post-acquisition geographical mix of income and other factors.
|
|
Nine Months Ended
March 31, 2018
|
|
Year-Ended
June 30, 2017
|
||||
Unadjusted basic weighted-average common shares outstanding
|
£
|
9,020,033
|
|
|
£
|
9,051,750
|
|
Unadjusted dilutive weighted-average common shares outstanding
|
891,393
|
|
|
806,754
|
|
||
Pro forma dilutive shares
(1)
|
303,059
|
|
|
303,059
|
|
||
Pro forma diluted weighted-average common shares outstanding
|
£
|
10,214,485
|
|
|
£
|
10,161,563
|
|
(1)
|
These pro forma dilutive shares reflect the Class A ordinary shares potentially issuable for purposes of satisfying the contingent equity consideration attributable to the Acquisition, the equity bonus arrangements entered into with certain continuing employees of Velocity and the LTIP awards provided to certain continuing employees of Velocity. Determination of the number of dilutive shares gives effect to the treasury method, where applicable.
|
(i)
|
all costs, charges, losses, expenses and liabilities sustained or incurred in relation to his or her actual or purported execution of his or her duties in relation to the registrant, including any liability incurred in defending any criminal or civil proceedings; and
|
(ii)
|
expenses incurred or to be incurred in defending any criminal or civil proceedings, in an investigation by a regulatory authority or against a proposed action to be taken by a regulatory authority, or in connection with any application for relief under the statutes of the United Kingdom and any other statutes that concern and affect the registrant as a company, or collectively the Statutes, arising in relation to the registrant or an associated company, by virtue of the actual or purposed execution of the duties of his or her office or the exercise of his or her powers.
|
1.
|
In March 2015, we issued an aggregate of 137,778 ordinary shares to certain of our directors and executive officers upon the exercise of stock options under the Endava Limited Enterprise Management Incentives Plan, at a weighted average exercise price of £1.04.
|
2.
|
In April 2015, we issued an aggregate of 407,864 ordinary shares to employees, including certain of our directors and executive officers upon the exercise of stock options under the Endava Limited Enterprise Management Incentives Plan, at a weighted average exercise price of £0.85.
|
3.
|
In May 2015, we issued an aggregate of 74,782 ordinary shares to employees upon the exercise of stock options under the Endava Limited Enterprise Management Incentives Plan, at a weighted average exercise price of £0.79.
|
4.
|
In June 2015, we issued an aggregate of 501,722 ordinary shares to employees, including certain of our directors and executive officers upon the exercise of stock options under the Endava Limited Enterprise Management Incentives Plan, at a weighted average exercise price of £0.85.
|
5.
|
In June 2015, we issued an aggregate of 475,000 ordinary shares to three investors as consideration in connection with the acquisition of PS Tech d.o.o.
|
6.
|
In October 2015, we issued an aggregate of 64,620 ordinary shares to two investors as consideration in connection with the acquisition of Nickel Fish Design LLC.
|
Exhibit
Number
|
|
Description of Document
|
1.1†
|
|
Form of Underwriting Agreement.
|
|
||
|
||
|
||
5.1†
|
|
Opinion of Cooley (UK) LLP.
|
|
||
|
||
|
||
|
||
|
||
|
||
10.7+†
|
|
Endava Executive Bonus Scheme.
|
|
||
|
||
|
||
|
||
|
||
|
||
|
||
23.3†
|
|
Consent of Cooley (UK) LLP (included in Exhibit 5.1).
|
|
†
|
To be filed by amendment.
|
+
|
Indicates management contract or compensatory plan.
|
(a)
|
The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.
|
(b)
|
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the U.S. Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
|
(c)
|
The undersigned registrant hereby undertakes that:
|
(1)
|
For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
|
(2)
|
For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
ENDAVA LIMITED
|
|
|
|
By:
|
/s/ John Cotterell
|
|
John Cotterell
|
|
Chief Executive Officer
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ John Cotterell
|
|
Chief Executive Officer and Director
(Principal Executive Officer)
|
|
June 29, 2018
|
John Cotterell
|
|
|
|
|
|
|
|
|
|
/s/ Mark Thurston
|
|
Chief Financial Officer and Director
(Principal Financial Officer and Principal Accounting Officer)
|
|
June 29, 2018
|
Mark Thurston
|
|
|
|
|
|
|
|
|
|
/s/ Andrew Allan
|
|
Director
|
|
June 29, 2018
|
Andrew Allan
|
|
|
|
|
|
|
|
|
|
/s/ Ben Druskin
|
|
Director
|
|
June 29, 2018
|
Ben Druskin
|
|
|
|
|
|
|
|
|
|
/s/ Mike Kinton
|
|
Director
|
|
June 29, 2018
|
Mike Kinton
|
|
|
|
|
|
|
|
|
|
/s/ David Pattillo
|
|
Director
|
|
June 29, 2018
|
David Pattillo
|
|
|
|
|
|
|
|
|
|
/s/ Trevor Smith
|
|
Chairman of the Board of Directors
|
|
June 29, 2018
|
Trevor Smith
|
|
|
|
|
Endava Inc.
|
|||||
|
|
|
|
|
|
By:
|
/s/ Simon Whittington
|
|
Authorized U.S. Representative
|
|
June 29, 2018
|
|
Name: Simon Whittington
|
|
|
|
|
|
Title: Managing Director
|
|
|
|
|
CONTENTS
|
|||
CLAUSE
|
|||
|
|
|
|
1.
|
EXCLUSION OF MODEL ARTICLES (AND ANY OTHER PRESCRIBED REGULATIONS)
|
1
|
|
2.
|
INTERPRETATION
|
1
|
|
3.
|
FORM OF RESOLUTION
|
5
|
|
4.
|
LIMITED LIABILITY
|
5
|
|
5.
|
CHANGE OF NAME
|
5
|
|
6.
|
SHAREHOLDER RIGHTS
|
5
|
|
7.
|
POWER TO ATTACH RIGHTS TO SHARES
|
5
|
|
8.
|
ALLOTMENT OF SHARES AND PRE-EMPTION
|
5
|
|
9.
|
REDEEMABLE SHARES
|
6
|
|
10.
|
PARI PASSU ISSUES
|
6
|
|
11.
|
VARIATION OF RIGHTS
|
7
|
|
12.
|
RIGHTS DEEMED NOT VARIED
|
7
|
|
13.
|
PAYMENT OF COMMISSION
|
7
|
|
14.
|
TRUSTS NOT RECOGNISED
|
7
|
|
15.
|
UNCERTIFICATED SHARES
|
7
|
|
16.
|
SHARE CERTIFICATES
|
9
|
|
17.
|
REPLACEMENT CERTIFICATES
|
9
|
|
18.
|
LIEN ON SHARES NOT FULLY PAID
|
10
|
|
19.
|
ENFORCEMENT OF LIEN BY SALE
|
10
|
|
20.
|
APPLICATION OF PROCEEDS OF SALE
|
10
|
|
21.
|
CALLS
|
10
|
|
22.
|
LIABILITY OF JOINT HOLDERS
|
11
|
|
23.
|
INTEREST ON CALLS
|
11
|
|
24.
|
SUMS TREATED AS CALLS
|
11
|
|
25.
|
POWER TO DIFFERENTIATE
|
11
|
|
26.
|
PAYMENT OF CALLS IN ADVANCE
|
11
|
|
27.
|
NOTICE IF CALL OR INSTALMENT NOT PAID
|
11
|
|
28.
|
FORFEITURE FOR NON-COMPLIANCE
|
11
|
|
29.
|
NOTICE AFTER FORFEITURE
|
11
|
|
30.
|
FORFEITURE MAY BE ANNULLED
|
12
|
|
31.
|
SURRENDER
|
12
|
|
32.
|
SALE OF FORFEITED SHARES
|
12
|
|
33.
|
EFFECT OF FORFEITURE
|
12
|
|
34.
|
EVIDENCE OF FORFEITURE
|
12
|
|
35.
|
LOCK-UP POST LISTING
|
12
|
|
36.
|
FORM OF TRANSFER
|
14
|
|
37.
|
RIGHT TO REFUSE REGISTRATION OF TRANSFER
|
14
|
|
38.
|
NOTICE OF REFUSAL TO REGISTER A TRANSFER
|
15
|
|
39.
|
NO FEES ON REGISTRATION
|
15
|
|
40.
|
OTHER POWERS IN RELATION TO TRANSFERS
|
15
|
|
41.
|
TRANSMISSION OF SHARES ON DEATH
|
15
|
|
42.
|
ELECTION OF PERSON ENTITLED BY TRANSMISSION
|
15
|
|
43.
|
RIGHTS ON TRANSMISSION
|
16
|
|
44.
|
DESTRUCTION OF DOCUMENTS
|
16
|
|
45.
|
SUB-DIVISION
|
17
|
|
46.
|
FRACTIONS
|
17
|
|
47.
|
ANNUAL GENERAL MEETINGS
|
17
|
|
48.
|
CONVENING OF GENERAL MEETINGS
|
17
|
|
49.
|
NOTICE OF GENERAL MEETINGS
|
18
|
|
50.
|
CONTENTS OF NOTICE OF MEETINGS
|
18
|
|
51.
|
OMISSION TO GIVE NOTICE AND NON-RECEIPT OF NOTICE
|
18
|
|
52.
|
POSTPONEMENT OF GENERAL MEETING
|
18
|
|
53.
|
QUORUM AT GENERAL MEETING
|
19
|
|
54.
|
PROCEDURE IF QUORUM NOT PRESENT
|
19
|
|
55.
|
CHAIRMAN OF GENERAL MEETING
|
19
|
|
56.
|
ENTITLEMENT TO ATTEND AND SPEAK
|
19
|
|
57.
|
ADJOURNMENTS
|
20
|
|
58.
|
NOTICE OF ADJOURNMENT
|
20
|
|
59.
|
BUSINESS OF ADJOURNED MEETING
|
20
|
|
60.
|
SECURITY ARRANGEMENTS AND ORDERLY CONDUCT
|
20
|
|
61.
|
OVERFLOW MEETING ROOMS
|
21
|
|
62.
|
SATELLITE MEETING PLACES
|
21
|
|
63.
|
PROCEDURE WHERE GENERAL MEETINGS HELD AT MORE THAN ONE PLACE
|
22
|
|
64.
|
AMENDMENT TO RESOLUTIONS
|
22
|
|
65.
|
WITHDRAWAL AND RULING AMENDMENTS OUT OF ORDER
|
22
|
|
66.
|
MEMBERS' RESOLUTIONS
|
22
|
|
67.
|
METHOD OF VOTING
|
23
|
|
68.
|
OBJECTION TO ERROR IN VOTING
|
23
|
|
69.
|
VOTING PROCEDURE
|
23
|
|
70.
|
VOTES OF MEMBERS
|
23
|
|
71.
|
NO RIGHT TO VOTE WHERE SUMS OVERDUE ON SHARES
|
24
|
|
72.
|
VOTING BY PROXY
|
24
|
|
73.
|
RECEIPT OF PROXY
|
25
|
|
74.
|
REVOCATION OF PROXY
|
26
|
|
75.
|
AVAILABILITY OF APPOINTMENTS OF PROXY
|
27
|
|
76.
|
CORPORATE REPRESENTATIVES
|
27
|
|
77.
|
FAILURE TO DISCLOSE INTERESTS IN SHARES
|
27
|
|
78.
|
POWER OF SALE OF SHARES OF UNTRACED MEMBERS
|
29
|
|
79.
|
APPLICATION OF PROCEEDS OF SALE OF SHARES OF UNTRACED MEMBERS
|
30
|
|
80.
|
NUMBER OF DIRECTORS
|
30
|
|
81.
|
POWER OF COMPANY TO APPOINT DIRECTORS
|
30
|
|
82.
|
POWER OF BOARD TO APPOINT DIRECTORS
|
30
|
|
83.
|
ELIGIBILITY OF NEW DIRECTORS
|
30
|
|
84.
|
RETIREMENT OF DIRECTORS
|
31
|
|
85.
|
DEEMED RE-APPOINTMENT
|
31
|
|
86.
|
PROCEDURE IF INSUFFICIENT DIRECTORS APPOINTED
|
31
|
|
87.
|
REMOVAL OF DIRECTORS
|
31
|
|
88.
|
VACATION OF OFFICE BY DIRECTOR
|
32
|
|
89.
|
RESOLUTION AS TO VACANCY CONCLUSIVE
|
32
|
|
90.
|
APPOINTMENT OF ALTERNATE DIRECTORS
|
32
|
|
91.
|
ALTERNATE DIRECTORS’ PARTICIPATION IN BOARD MEETINGS
|
33
|
|
92.
|
ALTERNATE DIRECTOR RESPONSIBLE FOR OWN ACTS
|
33
|
|
93.
|
INTERESTS OF ALTERNATE DIRECTOR
|
33
|
|
94.
|
REVOCATION OF ALTERNATE DIRECTOR
|
33
|
|
95.
|
DIRECTORS' FEES
|
33
|
|
96.
|
EXPENSES
|
34
|
|
97.
|
ADDITIONAL REMUNERATION
|
34
|
|
98.
|
REMUNERATION OF EXECUTIVE DIRECTORS
|
34
|
|
99.
|
PENSIONS AND OTHER BENEFITS
|
34
|
|
100.
|
POWERS OF THE BOARD
|
35
|
|
101.
|
POWERS OF DIRECTORS IF LESS THAN MINIMUM NUMBER
|
35
|
|
102.
|
POWERS OF EXECUTIVE DIRECTORS
|
35
|
|
103.
|
DELEGATION TO COMMITTEES
|
35
|
|
104.
|
LOCAL MANAGEMENT
|
35
|
|
105.
|
POWER OF ATTORNEY
|
36
|
|
106.
|
EXERCISE OF VOTING POWER
|
36
|
|
107.
|
PROVISION FOR EMPLOYEES ON CESSATION OF BUSINESS
|
36
|
|
108.
|
OVERSEAS REGISTERS
|
36
|
|
109.
|
BORROWING POWERS
|
36
|
|
110.
|
BOARD MEETINGS
|
39
|
|
111.
|
NOTICE OF BOARD MEETINGS
|
39
|
|
112.
|
QUORUM
|
39
|
|
113.
|
CHAIRMAN
|
39
|
|
114.
|
VOTING
|
39
|
|
115.
|
PARTICIPATION BY TELEPHONE OR OTHER FORM OF COMMUNICATION
|
39
|
|
116.
|
RESOLUTION IN WRITING
|
40
|
|
117.
|
PROCEEDINGS OF COMMITTEES
|
40
|
|
118.
|
MINUTES OF PROCEEDINGS
|
40
|
|
119.
|
VALIDITY OF PROCEEDINGS
|
40
|
|
120.
|
TRANSACTIONS OR OTHER ARRANGEMENTS WITH THE COMPANY
|
40
|
|
121.
|
AUTHORISATION OF DIRECTORS' CONFLICTS OF INTEREST
|
41
|
|
122.
|
DIRECTORS' PERMITTED INTERESTS
|
42
|
|
123.
|
GENERAL
|
44
|
|
124.
|
POWER TO AUTHENTICATE DOCUMENTS
|
44
|
|
125.
|
USE OF SEALS
|
44
|
|
126.
|
DECLARATION OF DIVIDENDS
|
45
|
|
127.
|
INTERIM DIVIDENDS
|
45
|
|
128.
|
CALCULATION AND CURRENCY OF DIVIDENDS
|
45
|
|
129.
|
AMOUNTS DUE ON SHARES CAN BE DEDUCTED FROM DIVIDENDS
|
45
|
|
130.
|
DIVIDENDS NOT IN CASH
|
45
|
|
131.
|
NO INTEREST ON DIVIDENDS
|
46
|
|
132.
|
METHOD OF PAYMENT
|
46
|
|
133.
|
UNCASHED DIVIDENDS
|
47
|
|
134.
|
UNCLAIMED DIVIDENDS
|
47
|
|
135.
|
SCRIP DIVIDENDS
|
47
|
|
136.
|
CAPITALISATION OF RESERVES
|
49
|
|
137.
|
RECORD DATES
|
51
|
|
138.
|
INSPECTION OF RECORDS
|
51
|
|
139.
|
ACCOUNT TO BE SENT TO MEMBERS
|
51
|
|
140.
|
SERVICE OF NOTICES
|
52
|
|
141.
|
HARD COPY FORM
|
53
|
|
142.
|
ELECTRONIC FORM
|
53
|
|
143.
|
ELECTRONIC MEANS
|
53
|
|
144.
|
WEBSITE
|
53
|
|
145.
|
SENDING OR SUPPLYING ANY DOCUMENT, INFORMATION OR NOTICE BY ANY OTHER MEANS
|
54
|
|
146.
|
PRESENCE AT MEETING EVIDENCE IN ITSELF OF RECEIPT OF NOTICE
|
54
|
|
147.
|
NOTICE ON PERSON ENTITLED BY TRANSMISSION
|
54
|
|
148.
|
RECORD DATE FOR SERVICE
|
54
|
|
149.
|
EVIDENCE OF SERVICE
|
54
|
|
150.
|
NOTICE WHEN POST NOT AVAILABLE
|
55
|
|
151.
|
VALIDATION OF DOCUMENTS IN ELECTRONIC FORM
|
55
|
|
152.
|
WINDING UP
|
56
|
|
153.
|
INDEMNITY AND INSURANCE
|
56
|
|
154.
|
EXCLUSIVE JURISDICTION
|
57
|
|
SCHEDULE
|
58
|
|
1.
|
Exclusion of model articles (and any other prescribed regulations)
|
2.
|
Interpretation
|
2.1
|
In these articles, unless the context otherwise requires:
|
(i)
|
a trust for the benefit of that Class B Ordinary Shareholder or persons other than the Class B Ordinary Shareholder, if such transfer does not involve any payment of cash, securities, property or other consideration (other than an interest in such trust) to the Class B Ordinary Shareholder, in each case so long as the Class B Ordinary Shareholder has sole dispositive power and exclusive Voting Control with respect to the Class B Ordinary Shares held by such trust;
|
(ii)
|
a pension, profit sharing, stock bonus or other type of plan or trust of which that Class B Ordinary Shareholder is a participant or beneficiary, provided that in each such Class
|
(iii)
|
a corporation, partnership or limited liability company in which that Class B Ordinary Shareholder directly, or indirectly through one or more Permitted Class B Ordinary Transferees, owns shares, partnership interests or membership interests, as applicable, with sufficient Voting Control in the corporation, partnership or limited liability company, as the case may be, or otherwise has legally enforceable rights, such that the Class B Ordinary Shareholder retains sole dispositive power and exclusive Voting Control with respect to the Class B Ordinary Shares held by such corporation, partnership or limited liability company, as the case may be;
|
(iv)
|
an Affiliate; or
|
(v)
|
a transfer to a person or entity on the share register at the time of the transfer who is already a holder of Class B Ordinary Shares;
|
(i)
|
a trust for the benefit of that Class C Ordinary Shareholder or persons other than the Class C Ordinary Shareholder, if such transfer does not involve any payment of cash, securities, property or other consideration (other than an interest in such trust) to the Class C Ordinary Shareholder, in each case so long as the Class C Ordinary Shareholder has sole dispositive power and exclusive Voting Control with respect to the Class C Ordinary Shares held by such trust;
|
(ii)
|
a pension, profit sharing, stock bonus or other type of plan or trust of which that Class C Ordinary Shareholder is a participant or beneficiary, provided that in each such Class C Ordinary Shareholder has sole dispositive power and exclusive Voting Control with respect to the Class C Ordinary Shares held in such account, plan or trust;
|
(iii)
|
a corporation, partnership or limited liability company in which that Class C Ordinary Shareholder directly, or indirectly through one or more Permitted Class C Ordinary Transferees, owns shares, partnership interests or membership interests, as applicable, with sufficient Voting Control in the corporation, partnership or limited liability company, as the case may be, or otherwise has legally enforceable rights, such that the Class C Ordinary Shareholder retains sole dispositive power and exclusive Voting Control with respect to the Class C Ordinary Shares held by such corporation, partnership or limited liability company, as the case may be;
|
(iv)
|
an Affiliate; or
|
(v)
|
a transfer to a person or entity on the share register at the time of the transfer who is already a holder of Class C Ordinary Shares;
|
2.2
|
Headings are used for convenience only and shall not affect the construction or interpretation of these Articles.
|
2.3
|
A
person
includes a corporate and an unincorporated body (whether or not having separate legal personality).
|
2.4
|
Words in the singular shall include the plural and vice versa.
|
2.5
|
A reference to one gender shall include a reference to the other gender.
|
2.6
|
A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
|
2.7
|
Any words or expressions defined in the Companies Acts in force when these Articles or any part of these Articles are adopted shall (if not inconsistent with the subject or context in which they appear) have the same meaning in these Articles or that part, save that the word "company" shall include any body corporate.
|
2.8
|
A reference to a document
being signed
or to
signature
includes references to its being executed under hand or under seal or by any other method and, in the case of a communication in electronic form, such references are to its being authenticated as specified by the Companies Acts.
|
2.9
|
A reference to
writing
or
written
includes references to any method of representing or reproducing words in a legible and non-transitory form whether sent or supplied in electronic form or otherwise.
|
2.10
|
A reference to documents or information
being sent or supplied by or to
a company (including the Company) shall be construed in accordance with section 1148(3) of the Act.
|
2.11
|
A reference to a
meeting
shall not be taken as requiring more than one person to be present if any quorum requirement can be satisfied by one person.
|
3.
|
Form of resolution
|
4.
|
Limited liability
|
5.
|
Change of name
|
6.
|
Shareholder rights
|
6.1
|
The Class A Ordinary Shareholders have the rights in respect of the Class A Ordinary Shares which are set out in Part 1 of the Schedule.
|
6.2
|
The Class B Ordinary Shareholders have the rights in respect of the Class B Ordinary Shares which are set out in Part 2 of the Schedule.
|
6.3
|
The Class C Ordinary Shareholders have the rights in respect of the Class C Ordinary Shares which are set out in Part 3 of the Schedule.
|
7.
|
Power to attach rights to shares
|
8.
|
Allotment of shares and pre-emption
|
8.1
|
Subject to the Companies Acts, these Articles and to any relevant authority of the Company in general meeting required by the Act, the Board may offer, allot (with or without conferring rights of renunciation), grant options over or otherwise deal with or dispose of shares or grant rights to subscribe for or convert any security into shares to such persons, at such times and upon such terms as the Board may decide. No share may be issued at a discount to the nominal value of such share.
|
8.2
|
The Board may, at any time after the allotment of any share but before any person has been entered in the Register, recognise a renunciation by the allottee in favour of some other person and accord to the allottee of a share a right to effect such renunciation and/or allow the rights to be represented to be one or more participating securities, in each case upon the subject to such terms and conditions as the Board may think fit to impose.
|
8.3
|
Under and in accordance with section 551 of the Act, the Directors shall be generally and unconditionally authorised to exercise for each prescribed period all the powers of the Company to allot shares up to an aggregate nominal amount equal to the Section 551 Amount.
|
8.4
|
Under and within the terms of the said authority or otherwise in accordance with section 570 of the Act, the Directors shall be empowered during each prescribed period to allot equity securities (as defined by the Act) wholly for cash:
|
(a)
|
in connection with a rights issue; and
|
(b)
|
otherwise than in connection with a rights issue up to an aggregate nominal amount equal to the Section 561 Amount.
|
8.5
|
During each prescribed period the Company and its Directors by such authority and power may make offers or agreements which would or might require equity securities or other securities to be allotted after the expiry of such period.
|
8.6
|
During the Initial Period the authorities set for the Section 551 amount and the Section 561 amount are both set at £3,000,000 unless either of those authorities are revoked by Shareholders by special resolution or replaced by relevant resolutions of Shareholders at a general meeting convened for the purpose prior to their expiry.
|
8.7
|
For the purposes of this Article:
|
(a)
|
Initial Period
means the period commencing on adoption of these Articles and expiring on the fifth anniversary of the same;
|
(b)
|
rights issue
means an offer of equity securities (as defined by the Act) open for acceptance for a period fixed by the Board to holders of equity securities on the Register on a fixed record date in proportion to their respective holdings of such securities or in accordance with the rights attached to them but subject to such exclusions or other arrangements as the Board may deem necessary or expedient with regard to treasury shares, fractional entitlements or legal or practical problems under the laws of any territory or under the requirements of any recognised regulatory body or stock exchange in any territory;
|
(c)
|
prescribed period
means any period (not exceeding five years on any occasion) for which the authority, in the case of Article 8.3, is conferred or renewed by ordinary or special resolution stating the Section 551 Amount and in the case of Article 8.4 is conferred or renewed by special resolution stating the Section 561 Amount provided that for the Initial Period the relevant amounts are those set out in Article 8.6;
|
(d)
|
Section 551 Amount
means for any prescribed period, the amount stated in the relevant ordinary or special resolution;
|
(e)
|
Section 561 Amount
means for any prescribed period, the amount stated in the relevant special resolution; and
|
(f)
|
the nominal amount of any securities shall be taken to be, in the case of rights to subscribe for or to convert any securities into shares of the Company, the nominal amount of such shares which may be allotted pursuant to such rights.
|
9.
|
Redeemable shares
|
10.
|
Pari passu issues
|
11.
|
Variation of rights
|
11.1
|
Subject to the Companies Acts, the rights attached to any class of shares can be varied or abrogated:
|
(a)
|
in such manner (if any) as may be provided by those rights;
|
(b)
|
with the consent in writing of the holders of not less than three-quarters in nominal value of the issued share of that class (excluding any shares of that class held as treasury shares); or
|
(c)
|
with the authority of a special resolution passed at a separate meeting of the holders of the relevant class of shares known as a
class meeting
.
|
11.2
|
The provisions of this Article will apply to any variation or abrogation of rights of shares forming part of a class. Each part of the class which is being treated differently is treated as a separate class in applying this Article.
|
11.3
|
All the provisions in these Articles as to general meetings shall apply, with any necessary modifications, to every class meeting except that:
|
(a)
|
the quorum at every such meeting shall not be less than two persons holding or representing by proxy at least one-third of the nominal amount paid up on the issued shared of the class) (excluding any shares of that class held as treasury shares); and
|
(b)
|
if at any adjourned meeting of such holders such quorum as set out above is not present, at least one person holding shares of the class who is present in person or by proxy shall be a quorum.
|
11.4
|
The Board may convene a class meeting whenever it thinks fit and whether or not the business to be transacted involves a variation or abrogation of class rights.
|
12.
|
Rights deemed not varied
|
13.
|
Payment of commission
|
14.
|
Trusts not recognised
|
15.
|
Uncertificated shares
|
15.1
|
Under and subject to the uncertificated securities rules, the Board may permit title to shares of any class to be evidenced otherwise than by certificate and title to shares of such a class to be
|
15.2
|
In relation to a class of shares which is a participating class and for so long as it remains a participating class, no provision of these Articles shall apply or have effect to the extent that it is inconsistent in any respect with:
|
(a)
|
the holding of shares of that class in uncertificated form;
|
(b)
|
the transfer of title to shares of that class by means of a relevant system; or
|
(c)
|
any provision of the uncertificated securities rules,
|
15.3
|
Shares of a class which is at the relevant time a participating class may be changed from uncertificated to certificated form, and from certificated to uncertificated form, in accordance with and subject as provided in the uncertificated securities rules.
|
15.4
|
If, under these Articles or the Companies Acts, the Company is entitled to sell, transfer or otherwise dispose of, forfeit, re-allot, accept the surrender of or otherwise enforce a lien over an uncertificated share, then, subject to these Articles and the Companies Acts, such entitlement shall include the right of the Board to:
|
(a)
|
require the holder of the uncertificated share by notice in writing to change that share from uncertificated to certificated form within such period as may be specified in the notice and keep it as a certificated share for as long as the Board requires;
|
(b)
|
appoint any person to take such other steps, by instruction given by means of a relevant system or otherwise, in the name of the holder of such share as may be required to effect the transfer of such share and such steps shall be as effective as if they had been taken by the registered holder of that share; and
|
(c)
|
take such other action that the Board considers appropriate to achieve the sale, transfer, disposal, forfeiture, re-allotment or surrender of that share or otherwise to enforce a lien in respect of that share.
|
15.5
|
Unless the Board determines otherwise, shares which a member holds in uncertificated form shall be treated as separate holdings from any shares which that member holds in certificated form but a class of shares shall not be treated as two classes simply because some shares of that class are held in certificated form and others in uncertificated form.
|
15.6
|
Unless the Board determines otherwise or the uncertificated securities rules require otherwise, any shares issued or created out of or in respect of any uncertificated shares shall be uncertificated shares and any shares issued or created out of or in respect of any certificated shares shall be certificated shares.
|
15.7
|
The Company shall be entitled to assume that the entries on any record of securities maintained by it in accordance with the uncertificated securities rules and regularly reconciled with the relevant Operator register of securities are a complete and accurate reproduction of the particulars entered in the Operator register of securities and shall accordingly not be liable in respect of any act or thing done or omitted to be done by or on behalf of the Company in reliance on such assumption. Any provision of these Articles which requires or envisages that action will be taken in reliance on information contained in the Register shall be construed to permit that action to be taken in reliance on information contained in any relevant record of securities (as so maintained and reconciled).
|
16.
|
Share certificates
|
16.1
|
Every person (except a person to whom the Company is not by law required to issue a certificate) whose name is entered in the Register as a holder of any certificated shares shall be entitled, without charge, to receive within the time limits prescribed by the Companies Acts (unless the terms of issue prescribe otherwise) one certificate for all of the shares of that class registered in his name.
|
16.2
|
The Company shall not be bound to issue more than one certificate in respect of shares held jointly by two or more persons. Delivery of a certificate to the person first named in the Register shall be sufficient delivery to all joint holders.
|
16.3
|
Where a member has transferred part only of the shares comprised in a certificate, he shall be entitled without charge to a certificate for the balance of such shares to the extent that the balance is to be held in certificated form. Where a member receives more shares of any class, he shall be entitled without charge to a certificate for the extra shares of that class to the extent that the balance is to be held in certificated form.
|
16.4
|
A share certificate may be issued under Seal (by affixing the Seal to or printing the Seal or a representation of it on the certificate) or signed by at least two Directors or by at least one Director and the Secretary. Such certificate shall specify the number and class of the shares in respect of which it is issued and the amount or respective amounts paid up on it. The Board may by resolution decide, either generally or in any particular case or cases, that any signatures on any share certificates need not be autographic but may be applied to the certificates by some mechanical or other means or may be printed on them or that the certificates need not be signed by any person.
|
16.5
|
Every share certificate sent in accordance with these Articles will be sent at the risk of the member or other person entitled to the certificate. The Company will not be responsible for any share certificate lost or delayed in the course of delivery.
|
17.
|
Replacement certificates
|
17.1
|
Any two or more certificates representing shares of any one class held by any member may at his request be cancelled and a single new certificate for such shares issued in lieu without charge on surrender of the original certificates for cancellation.
|
17.2
|
Any certificate representing shares of any one class held by any member may at his request be cancelled and two or more certificates for such shares may be issued instead.
|
17.3
|
If a share certificate is defaced, worn out or said to be stolen, lost or destroyed, it may be replaced on such terms as to evidence and indemnity as the Board may decide and, where it is defaced or worn out, after delivery of the old certificate to the Company.
|
17.4
|
The Board may require the payment of any exceptional out-of-pocket expenses of the Company incurred in connection with the issue of any certificates under this Article. In the case of shares held jointly by several persons, any such request as is mentioned in this Article may be made by any one of the joint holders.
|
18.
|
Lien on shares not fully paid
|
19.
|
Enforcement of lien by sale
|
20.
|
Application of proceeds of sale
|
(a)
|
first, in or towards satisfaction of so much of the amount due to the Company or of the liability or engagement (as the case may be) as is presently payable or is liable to be presently fulfilled or discharged; and
|
(b)
|
second, any residue shall be paid to the person who was entitled to the share at the time of the sale but only after the certificate for the shares sold has been surrendered to the company for cancellation, or an indemnity in a form reasonably satisfactory to the Directors has been given for any lost certificates, and subject to a like lien for debts or liabilities not presently payable as existed on the share prior to the sale.
|
21.
|
Calls
|
21.1
|
Subject to these Articles and the terms on which the shares are allotted, the Board may from time to time make calls on the members in respect of any monies unpaid on their shares (whether in respect of nominal value or premium) and not payable on a date fixed by or in accordance with the terms of issue.
|
21.2
|
Each member shall (subject to the Company serving upon him at least fourteen (14) clear days' notice specifying when and where payment is to be made and whether or not by instalments) pay to the Company as required by the notice the amount called on for his shares.
|
21.3
|
A call shall be deemed to have been made at the time when the resolution of the Board authorising the call was passed.
|
21.4
|
A call may be revoked or postponed, in whole or in part, as the Board may decide.
|
21.5
|
Liability to pay a call is not extinguished or transferred by transferring the shares in respect of which the call is required to be paid.
|
22.
|
Liability of joint holders
|
23.
|
Interest on calls
|
24.
|
Sums treated as calls
|
25.
|
Power to differentiate
|
26.
|
Payment of calls in advance
|
27.
|
Notice if call or instalment not paid
|
28.
|
Forfeiture for non-compliance
|
29.
|
Notice after forfeiture
|
30.
|
Forfeiture may be annulled
|
31.
|
Surrender
|
32.
|
Sale of forfeited shares
|
32.1
|
A forfeited share shall become the property of the Company.
|
32.2
|
Subject to the Companies Acts, any such share may be sold, re-allotted or otherwise disposed of, on such terms and in such manner as the Board thinks fit.
|
32.3
|
The Board may, for the purposes of the disposal, authorise some person to transfer the share in question and may enter the name of the transferee in respect of the transferred share in the Register even if no share certificate is lodged and may issue a new certificate to the transferee. An instrument of transfer executed by that person shall be as effective as if it had been executed by the holder of, or the person entitled by transmission to, the share. The Company may receive the consideration (if any) given for the share on its disposal.
|
33.
|
Effect of forfeiture
|
34.
|
Evidence of forfeiture
|
35.
|
Lock-up post Listing
|
35.1
|
In respect of any shares not transferred by a member on Listing, the member must not without the prior written consent of the Company and the managing underwriter acting in connection with the Listing, during the period commencing on the date of the final prospectus relating to the
|
(a)
|
directly or indirecty, lend, offer, mortgage, assign, charge, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant or issue any option, right, or warrant to purchase, or otherwise directly or indirectly transfer or dispose of, directly or indirectly, any shares or any securities convertible into or exercisable or exchangeable (directly or indirectly) for shares (whether such shares or any such securities are then owned by the member or are thereafter acquired); or
|
(b)
|
directly or indirectly enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities, whether any such transaction described in Article 35.1(a) is to be settled by delivery of shares or other securities, in cash, or otherwise.
|
35.2
|
The restrictions in Article 35.1 do not apply to:
|
(a)
|
shares issued by the Company or shares sold by a member pursuant to the Listing (which for the avoidance of doubt includes sales pursuant to any secondary offering or exercise of any over-allotment option in connection with the Listing);
|
(b)
|
Class A Ordinary Shares held in a settlement system operated by DTC;
|
(c)
|
a member accepting a general offer made to all holders of issued and allotted shares of the Company for the time being (other than shares held or contracted to be acquired by the offeror or its associates within the meaning of the Companies Acts (as has the meaning given in Section 2 of the Act)) made in accordance with Takeover Code on terms which treat all such holders alike;
|
(d)
|
a member executing and delivering an irrevocable commitment or undertaking to accept a general offer (without any further agreement to transfer or dispose of any shares of the Company or any interest therein) as is referred to in paragraph 9(c) above or a sale of shares of the Company to an offeror or potential offeror during an offer period (within the meaning of the Takeover Code);
|
(e)
|
a member selling or otherwise disposing of shares of the Company pursuant to any offer by the Company to purchase its own shares which is made on identical terms to all holders of shares of the Company;
|
(f)
|
a member transferring or disposing of shares of the Company pursuant to a compromise or arrangement between the Company and its creditors or any class of them or between the Company and its members or any class of them which is agreed to by the creditors or members and (where required) sanctioned by the court under the Companies Acts;
|
(g)
|
any disposal of shares of the Company by a member in connection with a scheme of reconstruction under s.110 Insolvency Act 1986 in relation to the Company;
|
(h)
|
any circumstances where a disposal of shares of the Company by a member is required by law or by any competent authority or by order of a court of competent jurisdiction;
|
(i)
|
any transfer of the legal interest in shares of the Company by a member provided that the beneficial owner shall not change; or
|
(j)
|
transfers of shares or any security convertible into shares as a will or intestacy, to an immediate family member or to a trust formed for the benefit of any immediate family member or, (and “immediate family” shall mean the spouse, widow or widower of the
|
35.3
|
The Class B Ordinary Shares shall be subject to the additional post Listing lock-up restrictions and orderly market arrangements as are set out in Part 2 of the Schedule.
|
35.4
|
The Class C Ordinary Shares shall be subject to the orderly market arrangements as are set out in Part 3 of the Schedule.
|
36.
|
Form of transfer
|
36.1
|
Subject to these Articles:
|
(a)
|
each member may transfer all or any of his shares which are in certificated form by instrument of transfer in writing in any usual form or in any form approved by the Board. Such instrument shall be executed by or on behalf of the transferor and (in the case of a transfer of a share which is not fully paid up) by or on behalf of the transferee. All instruments of transfer, when registered, may be retained by the Company.
|
(b)
|
each member may transfer all or any of his shares which are in uncertificated form by means of a relevant system in such manner provided for, and subject as provided in, the uncertificated securities rules. No provision of these Articles shall apply in respect of an uncertificated share to the extent that it requires or contemplates the effecting of a transfer by an instrument in writing or the production of a certificate for the share to be transferred.
|
36.2
|
The transferor of a share shall be deemed to remain the holder of the share concerned until the name of the transferee is entered in the Register in respect of it.
|
37.
|
Right to refuse registration of transfer
|
37.1
|
The Board may, in its absolute discretion, refuse to register any transfer of a share in certificated form (or renunciation of a renounceable letter of allotment) unless:
|
(a)
|
it is for a share which is fully paid up;
|
(b)
|
it is for a share upon which the Company has no lien;
|
(c)
|
it is only for one class of share;
|
(d)
|
it is in favour of a single transferee or no more than four joint transferees;
|
(e)
|
it is duly stamped or is duly certificated or otherwise shown to the satisfaction of the Board to be exempt from stamp duty (if this is required); and
|
(f)
|
it is delivered for registration to the Office (or such other place as the Board may determine), accompanied (except in the case of a transfer by a person to whom the Company is not required by law to issue a certificate and to whom a certificate has not been issued or in the case of a renunciation) by the certificate for the shares to which it relates and such other evidence as the Board may reasonably require to prove the title of the transferor (or person renouncing) and the due execution of the transfer or renunciation by him or, if the transfer or renunciation is executed by some other person on his behalf, the authority of that person to do so.
|
37.2
|
The Board shall not refuse to register any transfer or renunciation of partly paid shares which are listed on NYSE on the grounds that they are partly paid shares in circumstances where such refusal would prevent dealings in such shares from taking place on an open and proper basis.
|
37.3
|
Transfers of shares will not be registered in the circumstances referred to in Article 77.
|
37.4
|
The Board may refuse to register a transfer of uncertificated shares in any circumstances that are allowed or required by the uncertificated securities rules and the relevant system.
|
38.
|
Notice of refusal to register a transfer
|
39.
|
No fees on registration
|
40.
|
Other powers in relation to transfers
|
(a)
|
from recognising a renunciation of the allotment of any share by the allottee in favour of another person; or
|
(b)
|
(if empowered to do so by these Articles) from authorising any person to execute an instrument of transfer of a share and from authorising any person to transfer that share in accordance with any procedures implemented under Article 19.
|
41.
|
Transmission of shares on death
|
42.
|
Election of person entitled by transmission
|
42.1
|
Any person becoming entitled to a share because of the death or bankruptcy of a member, or otherwise by operation of law, may (on such evidence as to his title being produced as the Board may require) elect either to become registered as a member or to have some person nominated by him registered as a member. If he elects to become registered himself, he shall notify the Company to that effect. If he elects to have some other person registered, he shall execute an instrument of transfer of such share to that person. All the provisions of these Articles relating to the transfer of shares shall apply to the notice or instrument of transfer (as the case may be) as if it were an instrument of transfer executed by the member and his death, bankruptcy or other event had not occurred. Where the entitlement of a person to a share because of the death or bankruptcy of a member or otherwise by operation of law is proved to the satisfaction of the Board, the Board shall within thirty (30) days after proof cause the entitlement of that person to be noted in the Register.
|
42.2
|
A person entitled by transmission to a share in uncertificated form who elects to have some other person registered shall either:
|
(a)
|
procure that instructions are given by means of the relevant system to effect transfer of such uncertificated share to that person; or
|
(b)
|
change the uncertificated share to certificated form and execute an instrument of transfer of that certificated share to that person.
|
43.
|
Rights on transmission
|
44.
|
Destruction of documents
|
44.1
|
The Company may destroy any:
|
(a)
|
instrument of transfer, after six years from the date on which it is registered;
|
(b)
|
dividend mandate or any variation or cancellation of a dividend mandate or any notification of change of name or address, after two years from the date on which it is recorded;
|
(c)
|
share certificate, after one year from the date on which it is cancelled;
|
(d)
|
instrument of proxy which has been used for the purpose of voting at any time after one year has elapsed from the date of use;
|
(e)
|
instrument of proxy which has not been used for the purpose of voting at any time after a period of one month has elapsed from the end of the meeting to which the instrument of proxy relates;
|
(f)
|
Share Warrant (including coupons or tokens detailed from it) which has been cancelled at any time after seven years from the date on which it was cancelled; or
|
(g)
|
other document for which any entry in the Register is made, after six years from the date on which an entry was first made in the Register in respect of it,
|
44.2
|
It shall be conclusively presumed in favour of the Company that every:
|
(a)
|
entry in the Register purporting to have been made on the basis of a document so destroyed was duly and properly made;
|
(b)
|
instrument of transfer so destroyed was duly registered;
|
(c)
|
share certificate so destroyed was duly cancelled; and
|
(d)
|
other document so destroyed had been properly dealt with under its terms and was valid and effective according to the particulars in the records of the Company.
|
44.3
|
This Article shall only apply to the destruction of a document in good faith and without notice of any claim (regardless of the parties to it) to which the document might be relevant. Nothing in this Article shall be construed as imposing any liability on the Company in respect of the destruction of any such document other than as provided for in this Article which would not attach to the Company in the absence of this Article. References in this Article to the destruction of any document include references to the disposal of it in any manner.
|
44.4
|
References in this Article to instruments of transfer shall include, in relation to uncertificated shares, instructions and/or notifications made in accordance with the relevant system relating to the transfer of such shares.
|
45.
|
Sub-division
|
46.
|
Fractions
|
46.1
|
Where any difficulty arises in regard to any consolidation or division, the Board may settle such difficulty as they see fit. In particular, without limitation, the Directors may sell to any person (including the Company) the shares representing the fractions for the best once reasonably obtainable and distribute the net proceeds of sale in due proportion among those members or retain such net proceeds for the benefit of the Company and:
|
(a)
|
in the case of shares in certificated form, the Board may authorise any person to execute an instrument of transfer of the shares to the purchaser or a person nominated by the purchaser and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as they think fit to effect such transfer; and
|
(b)
|
in the case of shares in uncertificated form, the Board may:
|
(i)
|
to enable the Company to deal with the share in accordance with the provisions of this Article, require or procure any relevant person or the Operator (as applicable) to convert the share into certificated form; and
|
(ii)
|
after such conversion, authorise any person to execute an instrument of transfer of the shares to the purchaser or a person nominated by the purchaser and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as they think fit to effect the transfer.
|
46.2
|
The transferee shall not be bound to see to the application of the purchase money nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale.
|
47.
|
Annual general meetings
|
48.
|
Convening of general meetings
|
49.
|
Notice of general meetings
|
50.
|
Contents of notice of meetings
|
50.1
|
Every notice calling a meeting shall specify;
|
(a)
|
whether the meeting shall be a physical or electronic meeting or a hybrid meeting;
|
(b)
|
in the case of a physical meeting and/or a hybrid meeting the place, date and time of the meeting,
|
(c)
|
in the case of an electronic and/or hybrid meeting, the date, time and electronic platform for the meeting, which electronic platform may vary from time to time and from meeting to meeting as the board, in its sole discretion, sees fit,
|
50.2
|
The notice shall specify the general nature of the business to be transacted at the meeting and shall set out the text of all resolutions to be considered by the meeting and shall state in each case whether it is proposed as an ordinary resolution or as a special resolution.
|
50.3
|
In the case of an annual general meeting, the notice shall also specify the meeting as such.
|
50.4
|
For the purposes of determining which persons are entitled to attend or vote at a meeting and how many votes a person may cast, the Company may specify in the notice of meeting a time, not more than forty-eight (48) hours before the time fixed for the meeting (not taking into account non-working days) by which a person must be entered in the Register in order to have the right to attend or vote at the meeting or appoint a proxy to do so.
|
51.
|
Omission to give notice and non-receipt of notice
|
52.
|
Postponement of general meeting
|
53.
|
Quorum at general meeting
|
54.
|
Procedure if quorum not present
|
55.
|
Chairman of general meeting
|
56.
|
Entitlement to attend and speak
|
56.1
|
A Director (and any other person invited by the chairman to do so) may attend and speak at any general meeting and at any separate meeting of the holders of any class of shares of the Company, whether or not he is a member.
|
56.2
|
The Board may resolve to enable persons entitled to attend a general meeting hosted on an electronic platform (such meeting being an
electronic general meeting)
to do so by simultaneous attendance by electronic means with no member necessarily in physical attendance at the electronic general meeting. The members or their proxies present shall be counted in the quorum for, and entitled to vote at, the general meeting in question, and that meeting shall be duly constituted and its proceedings valid if the chairman of the general meeting is satisfied that adequate facilities are available throughout the electronic general meeting to ensure that members attending the electronic general meeting who are not present together at the same place may, by electronic means, attend and speak and vote at it.
|
56.3
|
Nothing in these Articles prevents a general meeting being held both physically and electronically.
|
57.
|
Adjournments
|
57.1
|
The chairman may, with the consent of a meeting at which a quorum is present, and shall, if so directed by the meeting, adjourn any meeting from time to time (or indefinitely) and from place to place as the meeting shall determine.
|
57.2
|
Without prejudice to any other power which he may have under these Articles or at common law, the chairman may, without the need for the consent of the meeting, interrupt or adjourn any meeting from time to time and from place to place or for an indefinite period if he is of the opinion that it has become necessary to do so in order to secure the proper and orderly conduct of the meeting or to give all persons entitled to do so a reasonable opportunity of attending, speaking and voting at the meeting (where facilities at a physical meeting place and/or an electronic platform appear to the chairman to have become inadequate for the purpose) or to ensure that the business of the meeting is properly disposed of.
|
57.3
|
Meetings can be adjourned more than once, in accordance with the procedures set out in this Article.
|
58.
|
Notice of adjournment
|
59.
|
Business of adjourned meeting
|
60.
|
Security arrangements and orderly conduct
|
60.1
|
The Board may direct that any person wishing to attend any meeting should provide such evidence of identity and submit to such searches or other security arrangements or restrictions as the Board shall consider appropriate in the circumstances and shall be entitled in its absolute discretion to refuse entry to any meeting to any person who fails to provide such evidence of identity or to submit to such searches or to otherwise comply with such security arrangements or restrictions.
|
60.2
|
The Board and, at any electronic general meeting, the chairman may make any arrangement and impose any requirement or restriction as is:
|
60.3
|
The chairman shall take such action or give directions as he thinks fit to promote the orderly conduct of the business of the meeting as laid down in the notice of the meeting and to ensure the security of the meeting and the safety of the people attending the meeting. The chairman's decision on matters of procedure or arising incidentally from the business of the meeting shall be final as shall be his determination as to whether any matter is of such a nature.
|
61.
|
Overflow meeting rooms
|
61.1
|
The Board may, in accordance with this Article, make arrangements for members and proxies who are entitled to attend and participate in a general meeting, but who cannot be seated in the main meeting room where the chairman will be, to attend and take part in a general meeting in an overflow room or rooms. Any overflow room will have appropriate links to the main room and will enable audio-visual communication between the meeting rooms throughout the meeting. The Board will decide how to divide members and proxies between the main room and the overflow room. If an overflow room is used, the meeting will be treated as being held and taking place in the main meeting room and the meeting will consist of all the members and proxies who are attending both in the main meeting room and the overflow room.
|
61.2
|
Details of any arrangements for overflow rooms will be set out in the notice of the meeting but failure to do so will not invalidate the meeting.
|
62.
|
Satellite meeting places
|
62.1
|
To facilitate the organisation and administration of any general meeting, the Board may decide that the meeting shall be held at two or more locations.
|
62.2
|
For the purposes of these Articles, any general meeting of the Company taking place at two or more locations shall be treated as taking place where the chairman of the meeting presides (the
principal meeting place
) and any other location where that meeting takes place is referred in this Article as a
satellite meeting
.
|
62.3
|
A member present in person or by proxy at a satellite meeting may be counted in the quorum and may exercise all rights that they would have been able to exercise if they were present at the principal meeting place.
|
62.4
|
The Board may make and change from time to time such arrangements as they shall in their absolute discretion consider appropriate to:
|
(a)
|
ensure that all members and proxies for members wishing to attend the meeting can do so;
|
(b)
|
ensure that all persons attending the meeting are able to participate in the business of the meeting and to see and hear anyone else addressing the meeting;
|
(c)
|
ensure the safety of persons attending the meeting and the orderly conduct of the meeting; and
|
(d)
|
restrict the numbers of members and proxies at any one location to such number as can safely and conveniently be accommodated there.
|
62.5
|
The entitlement of any member or proxy to attend a satellite meeting shall be subject to any such arrangements then in force and stated by the notice of the meeting or adjourned meeting to apply to the meeting.
|
62.6
|
If there is a failure of communication equipment or any other failure in the arrangements for participation in the meeting at more than one place, the chairman may adjourn the meeting in accordance with Article 57. Such adjournment will not affect the validity of such meeting, or any business conducted at such meeting up to the point of adjournment, or any action taken pursuant to such meeting.
|
62.7
|
A person (
satellite chairman
) appointed by the Board shall preside at each satellite meeting. Every satellite chairman shall carry out all requests made of him by the chairman of the meeting, may take such action as he thinks necessary to maintain the proper and orderly conduct of the satellite meeting and shall have all powers necessary or desirable for such purposes.
|
63.
|
Procedure where general meetings held at more than one place
|
63.1
|
The provisions of this Article shall apply if any general meeting is held at or adjourned to more than one place.
|
63.2
|
The notice of such a meeting or adjourned meeting shall specify the principal meeting place and the Directors shall make arrangements for simultaneous attendance and participation at the principal meeting place and at other satellite meetings by members, provided that persons attending at any particular place shall be able to see and hear and be seen and heard by means of audio visual links by persons attending the principal meeting place and at the other satellite meeting places at which the meeting is held.
|
63.3
|
The Directors may from time to time make such arrangements for the purpose of controlling the level of attendance at any such place (whether involving the issue of tickets or the imposition of some geographical or regional means of selection or otherwise) as they shall in their absolute discretion consider appropriate, and may from time to time vary any such arrangements or make new arrangements in place of them, provided that a member who is not entitled to attend, in person or by proxy, at any principal meeting place shall be entitled so to attend at one of the satellite meetings, and the entitlement of any member so to attend the meeting or adjourned meeting at such place shall be subject to any such arrangements as may from time to time be in force and by the notice of meeting or adjourned meeting stated to apply to the meeting.
|
63.4
|
For the purposes of all other provisions of these Articles, any such meeting shall be treated as being held at the principal meeting place.
|
63.5
|
If a meeting is adjourned to more than one place, not less than seven days’ notice of the adjourned meeting shall be given despite any other provision of these Articles.
|
64.
|
Amendment to resolutions
|
64.1
|
If an amendment to any resolution under consideration is proposed but is ruled out of order by the chairman of the meeting in good faith, any error in such ruling shall not invalidate the proceedings on the original resolution.
|
64.2
|
In the case of a resolution duly proposed as a special resolution, no amendment to it (other than an amendment to correct a patent error) may in any event be considered or voted on. In the case of a resolution duly proposed as an ordinary resolution no amendment to it (other than an amendment to correct a patent error) may be considered or voted on unless either at least forty-eight (48) hours prior to the time appointed for holding the meeting or adjourned meeting at which such ordinary resolution is to be proposed, notice in writing of the terms of the amendment and intention to move the same has been lodged at the Office or received in electronic form at the electronic address at which the Company has or is deemed to have agreed to receive it or the chairman of the meeting in his absolute discretion decides that it may be considered or voted on.
|
65.
|
Withdrawal and ruling amendments out of order
|
66.
|
Members' resolutions
|
66.1
|
Members of the Company shall have the rights provided by the Companies Acts to have the Company circulate and give notice of a resolution which may be properly moved, and is intended to be moved, at the Company's next annual general meeting.
|
66.2
|
Expenses of complying with these rights shall be borne in accordance with the Companies Acts.
|
67.
|
Method of voting
|
67.1
|
Any resolution put to the vote of a general meeting must be decided exclusively on a poll.
|
67.2
|
At general meetings, resolutions shall be put to the vote by the chairman of the meeting and there shall be no requirement for the resolution to be proposed or seconded by any person.
|
68.
|
Objection to error in voting
|
69.
|
Voting Procedure
|
69.1
|
Any poll on any question of adjournment shall be taken immediately. A poll on any other matter shall be taken in such manner (including the use of ballot or voting papers or tickets) and at such time and place, not more than thirty (30) days from the date of the meeting or adjourned meeting, as the chairman shall direct. The chairman may appoint scrutineers who need not be members. It is not necessary to give notice of a poll not taken immediately if the time and place at which it is to be taken are announced at the meeting. In any other case, at least seven clear days’ notice shall be given specifying the time, date and place at which the poll shall be taken. The result of the poll shall be deemed to be the resolution of the meeting at which the poll was due to be conducted.
|
69.2
|
Votes may be given in person or by proxy. A member entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses in the same way.
|
69.3
|
No notice need be given of a poll not taken during the meeting if the time and place at which it is to be taken are announced at the meeting. In any other case, at least seven clear days’ notice must be given specifying the time and place at which the poll is to be taken.
|
70.
|
Votes of members
|
70.1
|
Subject to Article 70.2, to the Companies Acts, to any special terms as to voting on which any shares may have been issued or may for the time being be held and to any suspension or abrogation of voting rights under these Articles, at any general meeting:
|
(a)
|
every Class A Ordinary Shareholder and Class C Ordinary Shareholder present in person or by duly appointed proxy or corporate representative has one vote for every Class A Ordinary Share or Class C Ordinary Share of which he is the holder or in respect of which his appointment as proxy or corporate representative has been made;
|
(b)
|
each Class B Ordinary Shareholder present in person or by duly appointed proxy or corporate representative has ten (10) votes for every Class B Ordinary Share of which he is the holder or in respect of which his appointment as proxy or corporate representative has been made; and
|
(c)
|
a member, proxy or corporate representative entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses the same way.
|
70.2
|
If two or more persons are joint holders of a share, then in voting on any question the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion
|
70.3
|
Where in England or elsewhere a receiver or other person (by whatever name called) has been appointed by any court claiming jurisdiction in that behalf to exercise powers with respect to the property or affairs of any member on the ground (however formulated) of mental disorder, the Board may in its absolute discretion, upon or subject to production of such evidence of the appointment as the Board may require, permit such receiver or other person on behalf of such member to vote in person by proxy on behalf of such member at any general meeting or to exercise any other right conferred by membership in relation to meetings of the Company. Evidence to the satisfaction of the Board of the authority of the person claiming to exercise the right to vote shall be deposited at the Office, or at such other place as is specified in accordance with these Articles for the deposit of instruments of proxy, at least forty-eight (48) hours before the time appointed for holding the meeting or adjourned meeting at which the right to vote is to be exercised and, in default, the right to vote shall not be exercisable.
|
70.4
|
In the case of equality of votes the chairman of the meeting shall not be entitled to a casting vote.
|
70.5
|
In order that the Company may determine the members entitled to vote at any meeting of members or any adjournment thereof, and how many votes such person may cast, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed the record date for determining members entitled to vote at a meeting of members shall, unless otherwise required by law, be at the close of business on the business day preceding the day on which notice is given.
|
71.
|
No right to vote where sums overdue on shares
|
(a)
|
all calls or other sums presently due and payable by him in respect of that share whether alone or jointly with any other person together with interest and expenses (if any) have been paid to the Company; or
|
(b)
|
the Board determines otherwise.
|
72.
|
Voting by Proxy
|
72.1
|
Subject to Article 72.2, an instrument appointing a proxy shall be in writing in any usual form (or in another form approved by the Board) executed under the hand of the appointor or his duly constituted attorney or, if the appointor is a corporation, under its seal or signed by a duly authorised officer or attorney or other person authorised to sign.
|
72.2
|
Subject to the Companies Acts, the Board may accept the appointment of a proxy received by electronic means on such terms and subject to such conditions as it considers fit. The appointment of a proxy received by electronic means shall not be subject to the requirements of Article 72.1.
|
72.3
|
For the purposes of Articles 72.1 and 72.2, the Board may require such reasonable evidence it considers necessary to determine:
|
(a)
|
the identity of the member and the proxy; and
|
(b)
|
where the proxy is appointed by a person acting on behalf of the member, the authority of that person to make the appointment.
|
72.4
|
A member may appoint another person as his proxy to exercise all or any of his rights to attend and to speak and to vote on a resolution or amendment of a resolution, or on other business arising, at a meeting or meetings of the Company. Unless the contrary is stated in it, the appointment of a proxy shall be deemed to confer authority to exercise all such rights, as the proxy thinks fit.
|
72.5
|
A proxy need not be a member.
|
72.6
|
A member may appoint more than one proxy in relation to a meeting, provided that each proxy is appointed to exercise the rights attached to different shares held by the member. When two or more valid but differing appointments of proxy are delivered or received for the same share for use at the same meeting, the one which is last validly delivered or received (regardless of its date or the date of its execution) shall be treated as replacing and revoking the other or others as regards that share. If the Company is unable to determine which appointment was last validly delivered or received, none of them shall be treated as valid in respect of that share.
|
72.7
|
Delivery or receipt of an appointment of proxy does not prevent a member attending and voting in person at the meeting or an adjournment of the meeting.
|
72.8
|
The appointment of a proxy shall (unless the contrary is stated in it) be valid for an adjournment of the meeting as well as for the meeting or meetings to which it relates. The appointment of a proxy shall be valid for 12 months from the date of execution or, in the case of an appointment of proxy delivered by electronic means, for 12 months from the date of delivery unless otherwise specified by the Board.
|
72.9
|
Subject to the Companies Acts, the Company may send a form of appointment of proxy to all or none of the persons entitled to receive notice of and to vote at a meeting. If sent, the form shall provide for three-way voting on all resolutions (other than procedural resolutions) set out in the notice of meeting.
|
72.10
|
The Company shall not be bound to enquire whether any proxy or corporate representative votes in accordance with the instructions given to him by the member he represents and if a proxy or corporate representative does not vote in accordance with the instructions of the member he represents the vote or votes cast shall nevertheless be valid for all purposes.
|
73.
|
Receipt of proxy
|
73.1
|
An instrument appointing a proxy and any reasonable evidence required by the Board in accordance with Article 72.3 shall:
|
(a)
|
subject to Articles 73.1(c) and (d), in the case of an instrument of proxy in hard copy form, delivered to the office, or another place in the United Kingdom specified in the notice convening the meeting or in the form of appointment of proxy or other accompanying document sent by the Company in relation to the meeting (a "
proxy notification address
") not less than forty-eight (48) hours before the time for holding the meeting or adjourned meeting at which the person named in the form of appointment of proxy proposes to vote;
|
(b)
|
subject to Articles 73.1(c) and (d), in the case of an appointment of a proxy sent by electronic means, where the Company has given an electronic address (a "
proxy notification electronic address
"):
|
(i)
|
in the notice calling the meeting;
|
(ii)
|
in an instrument of proxy sent out by the Company in relation to the meeting;
|
(iii)
|
in an invitation to appoint a proxy issued by the Company in relation to the meeting; or
|
(iv)
|
on a website maintained by or on behalf of the Company on which any information relating to the meeting is required by the Act to be kept,
|
(c)
|
in the case of a poll taken more than forty-eight (48) hours after it is demanded, delivered or received at a proxy notification address or a proxy notification electronic address and not less than twenty-four (24) hours before the time appointed for the holding of the adjourned meeting; or
|
(d)
|
in the case of a poll which is not taken at the meeting but is taken forty-eight (48) hours or less thereafter, or in the case of an adjourned meeting to be held forty-eight (48) hours or less after the time fixed for holding the original meeting, received:
|
(i)
|
at a proxy notification address or a proxy notification electronic address in accordance with
Article
s 73.1(a) or (b);
|
(ii)
|
by the chairman of the meeting or the secretary or any Director at the meeting, as the case may be, at the original meeting; or
|
(iii)
|
at a proxy notification address or a proxy notification electronic address by such time as the chairman of the meeting may direct at the meeting.
|
73.2
|
The Board may decide, either generally or in any particular case, to treat a proxy appointment as valid notwithstanding that the appointment or any of the information required under Article 72.3 has not been received in accordance with the requirements of this Article.
|
73.3
|
Subject to Article 73.2, if the proxy appointment and any of the information required under Article 72.3 is not received in the manner set out in Article 73.1, the appointee shall not be entitled to vote in respect of the shares in question.
|
73.4
|
Without limiting the foregoing, in relation to any uncertificated shares, the Board may from time to time:
|
(a)
|
permit appointments of a proxy by means of a communication sent in electronic form in the form of an uncertificated proxy instruction; and
|
(b)
|
permit supplements to, or amendments or revocations of, any such uncertificated proxy instruction by the same means.
|
74.
|
Revocation of proxy
|
75.
|
Availability of appointments of proxy
|
76.
|
Corporate representatives
|
76.1
|
A corporation (whether or not a company within the meaning of the Act) which is a member may, by resolution of its Directors or other governing body, authorise such person as it thinks fit to act as its representative (or, as the case may be, representatives) at any meeting of the Company or at any separate meeting of the holders of any class of shares.
|
76.2
|
Any person so authorised shall be entitled to exercise the same powers on behalf of the corporation (in respect of that part of the corporation's holdings to which the authority relates) as the corporation could exercise if it were an individual member.
|
76.3
|
The corporation shall for the purposes of these Articles be deemed to be present in person and at any such meeting if a person so authorised is present at it, and all references to attendance and voting in person shall be construed accordingly.
|
76.4
|
A Director, the Secretary or some person authorised for the purpose by the Secretary may require the representative to produce a certified copy of the resolution so authorising him or such other evidence of his authority reasonably satisfactory to them before permitting him to exercise his powers.
|
76.5
|
A vote given by a corporate representative shall be valid notwithstanding that he is no longer authorised to represent the member unless notice of the revocation of appointment was delivered in writing to the Company at such place or address and by such time as is specified in Article 74 for the revocation of the appointment of a proxy.
|
77.
|
Failure to disclose interests in shares
|
77.1
|
If a member, or any other person appearing to be interested in shares held by that member, has been issued with a notice under section 793 of the Act (
section 793 notice
) and has failed in relation to any shares (
default shares
, which expression includes any shares issued after the date of such notice in right of those shares) to give the Company the information required by the section 793 notice within the prescribed period from the service of the notice, the following sanctions shall apply unless the Board determines otherwise:
|
(a)
|
the member shall not be entitled in respect of the default shares to be present or to vote (either in person or by representative or proxy) at any general meeting or at any separate meeting of the holders of any class of shares or to exercise any other right conferred by membership in relation to any such meeting; and
|
(b)
|
where the default shares represent at least 0.25% in nominal value of the issued shares of their class (calculated exclusive of any shares held as treasury shares):
|
(i)
|
any dividend or other money payable for such shares shall be withheld by the Company, which shall not have any obligation to pay interest on it, and the member shall not be entitled to elect, pursuant to Article 135, to receive shares instead of that dividend; and
|
(ii)
|
no transfer, other than an excepted transfer, of any shares held by the member shall be registered unless the member himself is not in default of supplying the required information and the member proves to the satisfaction of the Board that no person in default of supplying such information is interested in any of the shares that are the subject of the transfer.
|
(c)
|
For the purposes of ensuring Article 77.1(b)(ii) can apply to all shares held by the member, the Company may in accordance with the uncertificated securities rules, issue a written notification to the Operator requiring conversion into certificated form of any share held by the member in uncertificated form.
|
77.2
|
Where the sanctions under Article 77.1 apply in relation to any shares, they shall cease to have effect (and any dividends withheld under Article 77.1(b) shall become payable):
|
(a)
|
if the shares are transferred by means of an excepted transfer but only in respect of the shares transferred; or
|
(b)
|
at the end of the period of seven days (or such shorter period as the Board may determine) following receipt by the Company of the information required by the section 793 notice and the Board being fully satisfied that such information is full and complete.
|
77.3
|
Where, on the basis of information obtained from a member in respect of any share held by him, the Company issues a section 793 notice to any other person, it shall at the same time send a copy of the notice to the member, but the accidental omission to do so, or the non-receipt by the member of the copy, shall not invalidate or otherwise affect the application of Article 77.1.
|
77.4
|
For the purposes of this Article:
|
(a)
|
a person, other than the member holding a share, shall be treated as appearing to be interested in that share if the member has informed the Company that the person is, or may be, so interested, or if the Company (after taking account of any information obtained from the member or, pursuant to a section 793 notice, from anyone else) knows or has reasonable cause to believe that the person is, or may be, so interested;
|
(b)
|
interested
shall be construed as it is for the purpose of section 793 of the Act;
|
(c)
|
reference to a person having failed to give the Company the information required by a notice, or being in default as regards supplying such information, includes reference:
|
(i)
|
to his having failed or refused to give all of any part of it; and
|
(ii)
|
to his having given information which he knows to be false in a material particular or having recklessly given information which is false in a material particular;
|
(d)
|
prescribed period means fourteen (14) days;
|
(e)
|
excepted transfer
means, in relation to any shares held by a member:
|
(i)
|
a transfer by way of or pursuant to acceptance of a takeover offer for the Company (within the meaning of section 974 of the Act); or
|
(ii)
|
a transfer in consequence of a sale made through NYSE or any other stock exchange on which the Company's shares are normally traded; or
|
(iii)
|
a transfer which is shown to the satisfaction of the Board to be made in consequence of a sale of the whole of the beneficial interest in the shares to a person who is unconnected with the member and with any other person appearing to be interested in the shares.
|
77.5
|
Nothing contained in this Article shall be taken to limit the powers of the Company under section 794 of the Act.
|
78.
|
Power of sale of shares of untraced members
|
78.1
|
The Company shall be entitled to sell at the best price reasonably obtainable any share of a member, or any share to which a person is entitled by transmission, if and provided that:
|
(a)
|
during the period of twelve (12) years before the date of sending of the notice referred to in Article 78.1(b) no cheque, order or warrant in respect of such share sent by the Company through the post in a pre-paid envelope addressed to the member or to the person entitled by transmission to the share, at his address on the Register or other last known address given by the member or person to which cheques, orders or warrants in respect of such share are to be sent has been cashed and the Company has received no communications in respect of such share from such member or person entitled, provided that during such period of twelve (12) years the Company has paid at least three cash dividends (whether interim or final) and no such dividend has been claimed by the person entitled to it;
|
(b)
|
on or after expiry of the said period of twelve (12) years, the Company has given notice of its intention to sell such share by sending a notice to the member or person entitled by transmission to the share at his address on the Register or other last known address given by the member or person entitled by transmission to the share and before sending such a notice to the member or other person entitled by transmission, the Company must have used reasonable efforts to trace the member or other person entitled, engaging, if considered appropriate, a professional asset reunification company or other tracing agent and/or giving notice of its intention to sell the share by advertisement in a national newspaper and in a newspaper circulating in the area of the address of the member or person entitled by transmission to the share shown in the Register;
|
(c)
|
during the further period of three months following the date of such notice and prior to the exercise of the power of sale the Company has not received any communication in respect of such share from the member or person entitled by transmission; and
|
(d)
|
the Company has given notice to NYSE or the SEC of its intention to make such sale, if shares of the class concerned are listed on NYSE.
|
78.2
|
To give effect to any sale of shares under this Article:
|
(a)
|
in the case of a share in certificated form, the Board may authorise any person to execute an instrument of transfer of the share to the purchaser or a person nominated by the purchaser and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as it thinks fit to effect the transfer. The Board may authorise some person to transfer the shares in question and may enter the name of the transferee in respect of the transferred shares in the Register even if no share certificate has been lodged for such shares and may issue a new certificate to the transferee. An instrument of transfer executed by that person shall be as effective as if it had been executed by the holder of, or the person entitled by transmission to, the shares.
|
(b)
|
in the case of a share in uncertificated form, the Directors may:
|
(i)
|
to enable the Company to deal with the share in accordance with the provisions of this Article, require or procure any relevant person or the Operator (as applicable) to convert the share into certificated form; and
|
(ii)
|
after such conversion authorise any person to execute an instrument of transfer of the shares to the purchase or person nominated by the purchaser and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as it thinks fit to effect the transfer.
|
78.3
|
The buyer shall not be bound to see to the application of the purchase monies, nor shall his title to the shares be affected by any irregularity or invalidity in the proceedings in reference to the sale. If the shares are in uncertificated form, in accordance with the uncertificated securities rules, the Board may issue a written notification to the Operator requiring the conversion of the share to certificated form.
|
78.4
|
If during the period of twelve (12) years referred to in Article 78.1, or during any period ending on the date when all the requirements of Articles 78.1(a) to 78.1(d) have been satisfied, any additional shares have been issued in respect of those held at the beginning of, or previously so issued during, any such period and all the requirements of Articles 78.1(b) to 78.1(d) have been satisfied in regard to such additional shares, the Company shall also be entitled to sell the additional shares.
|
79.
|
Application of proceeds of sale of shares of untraced members
|
80.
|
Number of Directors
|
81.
|
Power of company to appoint Directors
|
82.
|
Power of board to appoint Directors
|
83.
|
Eligibility of new Directors
|
83.1
|
No person, other than a retiring Director (by rotation or otherwise), shall be appointed or re-appointed a Director at any general meeting unless:
|
(a)
|
he is recommended by the Board; or
|
(b)
|
at least seven but not more than forty-two (42) clear days before the date appointed for the meeting the Company has received notice from a member (other than the person proposed) entitled to vote at the meeting of his intention to propose a resolution for the appointment or re-appointment of that person, stating the particulars which would, if he were so appointed or re-appointed, be required to be included in the Company's register of Directors and a notice executed by that person of his willingness to be appointed or re-appointed, is lodged at the Office.
|
83.2
|
A Director need not be a member of the Company.
|
84.
|
Retirement of Directors
|
85.
|
Deemed re-appointment
|
85.1
|
A Director who retires at an annual general meeting shall (unless he is removed from office or his office is vacated in accordance with these Articles) retain office until the close of the meeting at which he retires or (if earlier) when a resolution is passed at that meeting not to fill the vacancy or to elect another person in his place or the resolution to re-appoint him is put to the meeting and lost.
|
85.2
|
If the Company, at any meeting at which a Director retires in accordance with these Articles does not fill the office vacated by such Director, the retiring Director, if willing to act, shall be deemed to be re-appointed unless at that meeting a resolution is passed not to fill the vacancy or elect another person in his place or unless the resolution to re-appoint him is put to the meeting and lost.
|
86.
|
Procedure if insufficient Directors appointed
|
86.1
|
If:
|
(a)
|
at the annual general meeting in any year any resolution or resolutions for the appointment or re-appointment of the persons eligible for appointment or re-appointment as Directors are put to the meeting and lost; and
|
(b)
|
at the end of that meeting the number of Directors is fewer than any minimum number of Directors required under Article 80,
|
86.2
|
The Retiring Directors shall convene a general meeting as soon as reasonably practicable following the meeting referred to in Article 86.1 and they shall retire from office at that meeting. If at the end of any meeting convened under this Article the number of Directors is fewer than any minimum number of Directors required under Article 80, the provisions of this Article shall also apply to that meeting.
|
87.
|
Removal of Directors
|
88.
|
Vacation of office by Director
|
88.1
|
Without prejudice to the provisions for retirement (by rotation or otherwise) contained in these Articles, the office of a Director shall be vacated if:
|
(a)
|
he resigns by notice in writing delivered to the Secretary at the Office or at an address specified by the Company for the purposes of communication by electronic means or tendered at a Board meeting;
|
(b)
|
he offers to resign by notice in writing delivered to the Secretary at the Office or at an address specified by the Company for the purposes of communication by electronic means or tendered at a Board meeting and the Board resolves to accept such offer;
|
(c)
|
he is requested to resign by all of the other Directors by notice in writing addressed to him at his address as shown in the register of Directors (without prejudice to any claim for damages which he may have for breach of any contract between him and the Company);
|
(d)
|
he ceases to be a Director by virtue of any provision of the Companies Acts, is removed from office pursuant to these Articles or the Act or becomes prohibited by law or the NYSE Rules from being a Director;
|
(e)
|
he becomes bankrupt or makes an arrangement or composition with his creditors generally;
|
(f)
|
a registered medical practitioner who is treating that person gives a written opinion to the Company stating that person has become physically or mentally incapable of acting as a Director and may remain so for more than three months, or he is or has been suffering from mental or physical ill health and the Board resolves that his office be vacated; or
|
(g)
|
he is absent (whether or not his alternate Director appointed by him attends), without the permission of the Board, from Board meetings for six consecutive months and a notice is served on him personally, or at his residential address provided to the Company under section 165 of the Act signed by all the other Directors stating that he shall cease to be a Director with immediate effect (and such notice may consist of several copies each signed by one or more Directors).
|
88.2
|
If the office of a Director is vacated for any reason, he shall cease to be a member of any committee or sub-committee of the Board.
|
89.
|
Resolution as to vacancy conclusive
|
90.
|
Appointment of alternate Directors
|
90.1
|
Each Director may appoint any person (including another Director) to be his alternate and may at his discretion remove an alternate Director so appointed. Any appointment or removal of an alternate Director must be by written notice delivered to the Office or at an address specified by the Company for the purposes of communication by electronic means or tendered at a Board meeting or in any other manner approved by the Board. The appointment requires the approval of the Board unless it has been previously approved or the appointee is another Director.
|
90.2
|
An alternate Director must provide the particulars, and sign any form for public filing required by the Companies Acts relating to his appointment.
|
91.
|
Alternate Directors’ participation in Board meetings
|
91.1
|
Every alternate Director is (subject to his giving to the Company an address within the United Kingdom at which notices may be served on him (and, if applicable, an address in relation to which electronic communications may be received by him)) entitled to receive notice of all meetings of the Board and all committees of the Board of which his appointor is a member and, in his appointor's absence, to attend and vote at such meetings and to exercise all the powers, rights, duties and authorities of his appointor. Each person acting as an alternate Director shall have a separate vote at Board meetings for each Director for whom he acts as alternate Director in addition to his own vote if he is also a Director, but he shall count as only one for the purpose of determining whether a quorum is present.
|
91.2
|
Signature by an alternate Director of any resolution in writing of the Board or a committee of the Board will, unless the notice of his appointment provides otherwise, be as effective as signature by his appointor.
|
92.
|
Alternate Director responsible for own acts
|
93.
|
Interests of alternate Director
|
94.
|
Revocation of alternate Director
|
(a)
|
if his appointor revokes his appointment; or
|
(b)
|
if he resigns his office by notice in writing to the Company; or
|
(c)
|
if his appointor ceases for any reason to be a Director, provided that if any Director retires but is re-appointed or deemed to be re-appointed at the same meeting, any valid appointment of an alternate Director which was in force immediately before his retirement shall remain in force; or
|
(d)
|
if any event happens in relation to him which, if he were a Director otherwise appointed, would cause him to vacate his office.
|
95.
|
Directors' fees
|
96.
|
Expenses
|
97.
|
Additional remuneration
|
98.
|
Remuneration of executive Directors
|
99.
|
Pensions and other benefits
|
99.1
|
The Board may exercise all the powers of the Company to provide pensions or other retirement or superannuation benefits and to provide death or disability benefits or other allowances or gratuities (whether by insurance or otherwise) for any person who is or has at any time been a Director or employee of:
|
(a)
|
the Company;
|
(b)
|
any company which is or was a holding company or a subsidiary undertaking of the Company;
|
(c)
|
any company which is or was allied to or associated with the Company or a subsidiary undertaking or holding company of the Company; or
|
(d)
|
a predecessor in business of the Company or of any holding company or subsidiary undertaking of the Company.
|
99.2
|
The Board may establish, maintain, subscribe and contribute to any scheme, institution, association, club, trust or fund and pay premiums and, subject to the Companies Acts, lend money or make payments to, guarantee or give an indemnity in respect of, or give any financial or other assistance in connection with any of the matters set out in Article 99.1. The Board may procure any of such matters to be done by the Company either alone or in conjunction with any other person. Any Director or former Director shall be entitled to receive and retain for his own benefit any pension or other benefit provided under this Article and shall not have to account for it to the Company. The receipt of any such benefit will not disqualify any person from being or becoming a Director of the Company.
|
100.
|
Powers of the Board
|
100.1
|
Subject to the Companies Acts, these Articles and to any directions given by special resolution of the Company, the business of the Company will be managed by the Board, which may exercise all the powers of the Company, whether relating to the management of the business or not.
|
100.2
|
No alteration of these Articles and no such direction given by the Company shall invalidate any prior act of the Board which would have been valid if such alteration had not been made or such direction had not been given. Provisions contained elsewhere in these Articles as to any specific power of the Board shall not be deemed to limit the general powers given by this Article.
|
101.
|
Powers of Directors if less than minimum number
|
102.
|
Powers of executive Directors
|
(a)
|
delegate or entrust to and confer on any Director holding executive office (including a Chief Executive or Managing Director) such of its powers, authorities and discretions (with power to sub-delegate) for such time, on such terms and subject to such conditions as it thinks fit; and
|
(b)
|
revoke, withdraw, alter or vary all or any of such powers.
|
103.
|
Delegation to committees
|
103.1
|
The Board may delegate any of its powers, authorities and discretions (with power to sub-delegate) for such time on such terms and subject to such conditions as it thinks fit to any committee consisting of one or more Directors and (if thought fit) one or more other persons provided that:
|
(a)
|
a majority of the members of a committee shall be Directors; and
|
(b)
|
no resolution of a committee shall be effective unless a majority of those present when it is passed are Directors or alternate Directors.
|
103.2
|
The Board may confer such powers either collaterally with, or to the exclusion of and in substitution for, all or any of the powers of the Board in that respect and may revoke, withdraw, alter or vary any such powers and discharge any such committee in whole or in part. Insofar as any power, authority or discretion is so delegated, any reference in these Articles to the exercise by the Board of such power, authority or discretion shall be construed as if it were a reference to the exercise of such power, authority or discretion by such committee.
|
104.
|
Local management
|
104.1
|
The Board may establish any local or divisional boards or agencies for managing any of the affairs of the Company in any specified locality, either in the United Kingdom or elsewhere, and appoint any persons to be members of such local or divisional board, or any managers or agents, and may fix their remuneration.
|
104.2
|
The Board may delegate to any local or divisional board, manager or agent so appointed any of its powers, authorities and discretions (with power to sub-delegate) and may authorise the members of any such local or divisional board, or any of them, to fill any vacancies and to act notwithstanding vacancies. Any such appointment or delegation under this Article may be made, on such terms and conditions as the Board may think fit. The Board may confer such powers either collaterally with, or to the exclusion of and in substitution for, all or any of the powers of the Board, and the Board may remove any person so appointed and may annul or vary all or any of such powers, but no person dealing in good faith and without notice of any such annulment or variation shall be affected by it.
|
104.3
|
Subject to any terms and conditions expressly imposed by the Board, the proceedings of any local or divisional board or agency with two or more members shall be governed by such of these Articles as regulate the proceedings of the Board, so far as they are capable of applying.
|
105.
|
Power of attorney
|
106.
|
Exercise of voting power
|
107.
|
Provision for employees on cessation of business
|
108.
|
Overseas registers
|
109.
|
Borrowing powers
|
109.1
|
Subject to these Articles and the Companies Acts, the Board may exercise all the powers of the Company to:
|
(a)
|
borrow money;
|
(b)
|
indemnify and guarantee;
|
(c)
|
mortgage or charge all or any part of the undertaking, property and assets (present and future) and uncalled capital of the Company;
|
(d)
|
create and issue debentures and other securities; and
|
(e)
|
give security either outright or as collateral security for any debt, liability or obligation of the Company or of any third party.
|
109.2
|
The Board shall restrict the borrowings of the Company and exercise all voting and other rights or powers of control exercisable by the Company in relation to its subsidiary undertakings (if any) so as to secure (as regards the subsidiary undertakings, so far as by such exercise they can secure) that the aggregate of the amounts borrowed by the Group and remaining outstanding at any time (excluding intra-Group borrowings) shall not without the previous sanction of an ordinary resolution of the Company exceed an amount equal to five times the Adjusted Capital and Reserves. The limit in this Article 109.2 may be varied, increased, reduced or relaxed (temporarily or permanently) or the same replaced with a fixed monetary cap at any time and from time to time with the sanction of an ordinary resolution of Shareholders.
|
109.3
|
For the purpose of this Article:
|
(a)
|
Group
means the Company and its subsidiary undertakings for the time being;
|
(b)
|
relevant balance sheet
means the most recent audited consolidated balance sheet of the Group at the relevant time;
|
(c)
|
Adjusted Capital and Reserves
means a sum equal to the aggregate, as shown by the relevant balance sheet, of the amount paid up or credited or deemed to be paid up on the issued or allotted share capital of the Company and the amount standing to the credit of the reserves (including, without limitation, the profit and loss account and any share premium account or capital redemption reserve) of the Company and its subsidiary undertakings included in the consolidation in the relevant balance sheet but after:
|
(i)
|
making such adjustment as may be appropriate to reflect the profit or loss of the Company since the relevant balance sheet;
|
(ii)
|
excluding any amount set aside for taxation (including any deferred taxation) or any amounts attributable to outside shareholders in subsidiary undertakings of the Company;
|
(iii)
|
making such adjustments as may be appropriate in respect of any variation in the amount of such paid up share capital and or any reserves (other than the profit and loss account) after the date of the relevant balance sheet. For this purpose, if any issue or proposed issue of shares by the Company for cash has been underwritten then such shares shall be deemed to have been issued and the amount (including any premium) of the subscription monies paid for them (other than money to be paid more than six months after the allotment date) shall to the extent so underwritten be deemed to have been paid up on the date when the issue of such shares was underwritten (or, if such underwriting was conditional, on the date when it became unconditional);
|
(iv)
|
making such adjustments as may be appropriate in respect of any distribution declared, recommended, made or paid by the Company or its subsidiary undertakings (to the extent not attributable directly or indirectly to the Company) out of profits earned up to and including the date of the relevant balance sheet to the extent such distribution is not provided for in such balance sheet;
|
(v)
|
making such adjustments as may be appropriate in respect of any variation in the interests of the Company in its subsidiary undertakings (including a variation where an undertaking ceases to be a subsidiary undertaking) since the date of the relevant balance sheet; and
|
(vi)
|
making such adjustments as the auditors of the Company may consider appropriate.
|
(d)
|
minority proportion
means a proportion equal to the proportion of the issued share capital of a partly-owned subsidiary undertaking which is not attributable to a member of the Group.
|
109.4
|
Borrowings shall be deemed to include the following except in so far as otherwise taken into account:
|
(a)
|
the nominal amount of any issued and paid up share capital (other than equity share capital) of any subsidiary undertaking of the Company owned otherwise than by a member of the Group;
|
(b)
|
the nominal amount of any other issued and paid up share capital and the principal amount of any debentures or borrowed moneys which is not at the relevant time beneficially owned by a member of the Group, the redemption or repayment of which is the subject of a guarantee or indemnity by a member of the Group or which any member of the Group may be required to buy;
|
(c)
|
the principal amount of any debenture (whether secured or unsecured) of a member of the Group beneficially owned otherwise than by a member of the Group;
|
(d)
|
the outstanding amount raised by acceptances by any bank or accepting house under any acceptance credit opened by or on behalf of any member of the Group;
|
(e)
|
the minority proportion of moneys borrowed by a member of the Group and owing to a partly-owned subsidiary undertaking.
|
109.5
|
Borrowings shall not include and shall be deemed not to include:
|
(a)
|
borrowings incurred by any member of the Group for the purpose of repaying within six months of the borrowing the whole or any part (with or without premium) of any borrowings of that or other member of the Group then outstanding, pending their application for such purpose within such period;
|
(b)
|
the minority proportion of moneys borrowed by a partly owned subsidiary undertaking and not owing to another member of the Group.
|
109.6
|
When the aggregate principal amount of borrowings required to be taken into account on any particular date is being ascertained, any particular borrowing then outstanding which is denominated or repayable in a currency other than sterling shall be notionally converted into sterling at the rate of exchange prevailing in London on the last business day before that date or, if it would result in a lower figure, at the rate of exchange prevailing in London on the last business day six months before that date. For these purposes the rate of exchange shall be taken to be the spot rate in London recommended by a London clearing bank, selected by the Board, as being the most appropriate rate for the purchase by the company of the currency in question for sterling on the day in question.
|
109.7
|
A certificate or report by the auditors of the Company as to the amount of any borrowings or to the effect that the limit imposed by this Article has not been or will not be exceeded at any particular time or times, shall be conclusive evidence of such amount or fact for the purposes of this Article. Nevertheless the Board may at any time rely on a bona fide estimate of the aggregate of the borrowings. If, in consequence, the limit on borrowings set out in this Article is inadvertently exceeded, the amount of borrowings equal to the excess may be disregarded for ninety (90) days after the date on which by reason of a determination of the auditors of the Company or otherwise the Board becomes aware that such a situation has or may have arisen.
|
109.8
|
No person dealing with the Company or any of its subsidiary undertakings shall be concerned to see or enquire whether the said limit is observed and no debt incurred or security given in excess of such limit shall be invalid or ineffectual unless the lender or recipient of the security
|
110.
|
Board meetings
|
110.1
|
The Board can decide when and where to have meetings and how they will be conducted. They may also adjourn meetings.
|
110.2
|
A Board meeting can be called by any Director. The Secretary must call a Board meeting if asked to do so by a Director.
|
111.
|
Notice of Board meetings
|
111.1
|
Notice of a Board meeting shall be deemed to be duly given to a Director if it is given to him personally or by word of mouth or given in writing or by electronic means to him at his last known address or any other address given by him to the Company for that purpose.
|
111.2
|
A Director may waive the requirement that notice be given to him of any Board meeting, either prospectively or retrospectively and any retrospective waiver shall not affect the validity of the meeting or of any business conducted at the meeting.
|
112.
|
Quorum
|
112.1
|
The quorum necessary for the transaction of business may be determined by the Board and until otherwise determined shall be two persons, each being a Director or an alternate Director. A duly convened meeting of the Board at which a quorum is present shall be competent to exercise all or any of the authorities, powers, and discretions for the time being vested in or exercisable by the Board.
|
112.2
|
If a Director ceases to be a Director at a Board meeting, he can continue to be present and to act as a Director and be counted in the quorum until the end of the meeting if no other Director objects and if otherwise a quorum of Directors would not be present.
|
113.
|
Chairman
|
113.1
|
The Board may appoint one or more of its body as chairman or joint chairman and one or more of its body as deputy chairman of its meetings and may determine the period for which he is or they are to hold office and may at any time remove him or them from office.
|
113.2
|
If no such chairman or deputy chairman is elected, or if at any meeting neither a chairman nor a deputy chairman is present within ten (10) minutes of the time appointed for holding the same, the Directors present shall choose one of their number to be chairman of such meeting. In the event two or more joint chairmen or, in the absence of a chairman, two or more deputy chairman being present, the joint chairman or deputy chairman to act as chairman of the meeting shall be decided by those Directors present.
|
114.
|
Voting
|
115.
|
Participation by telephone or other form of communication
|
115.1
|
Any Director or his alternate may validly participate in a meeting of the Board or a committee of the Board through the medium of conference telephone or any other form of communications equipment (whether in use when these Articles are adopted or developed subsequently),
|
115.2
|
A person so participating by telephone or other communication shall be deemed to be present in person at the meeting and shall be counted in a quorum and entitled to vote. Such a meeting shall be deemed to take place where the largest group of those participating is assembled or, if there is no group which is larger than any other group, where the chairman of the meeting then is.
|
115.3
|
A resolution passed at any meeting held in the above manner, and signed by the chairman of the meeting, shall be as valid and effectual as if it had been passed at a meeting of the Board (or committee, as the case may be) duly convened and held.
|
116.
|
Resolution in writing
|
116.1
|
A resolution in writing signed or confirmed electronically by all the Directors for the time being entitled to receive notice of a Board meeting and to vote on the resolution and not being less than a quorum (or by all the members of a committee of the Board for the time being entitled to receive notice of such committee meeting and to vote on the resolution and not being less than a quorum of that committee), shall be as valid and effective for all purposes as a resolution duly passed at a meeting of the Board (or committee, as the case may be).
|
116.2
|
Such a resolution may consist of several documents or electronic communications in the same form each signed or authenticated by one or more of the Directors or members of the relevant committee.
|
117.
|
Proceedings of committees
|
118.
|
Minutes of proceedings
|
118.1
|
The Board shall keep minutes of all shareholder meetings, all Board meetings and meetings of committees of the Board. The minutes must include the names of the Directors present.
|
118.2
|
Any such minutes, if purporting to be signed by the chairman of the meeting at which the proceedings were held or by the chairman of the next meeting or the Secretary, shall be evidence of the matters stated in such minutes without any further proof.
|
119.
|
Validity of proceedings
|
120.
|
Transactions or other arrangements with the company
|
120.1
|
Subject to the Companies Acts and provided he has declared the nature and extent of his interest in accordance with the requirements of the Companies Acts, a Director who is in any way, whether directly or indirectly, interested in an existing or proposed transaction or arrangement with the Company may:
|
(a)
|
be a party to, or otherwise interested in, any transaction or arrangement with the Company or in which the Company is otherwise (directly or indirectly) interested;
|
(b)
|
act by himself or through his firm in a professional capacity for the Company (otherwise than as auditor) and he or his firm shall be entitled to remuneration for professional services as if he were not a Director;
|
(c)
|
be or become a Director or other officer of, or employed by, or a party to a transaction or arrangement with, or otherwise interested in, any body corporate in which the Company is otherwise (directly or indirectly) interested; and
|
(d)
|
hold any office or place of profit with the Company (except as auditor) in conjunction with his office of Director for such period and upon such terms, including as to remuneration as the Board may decide.
|
120.2
|
A Director shall not, save as he may otherwise agree, be accountable to the Company for any benefit which he derives from any such contract, transaction or arrangement or from any such office or employment or from any interest in any such body corporate and no such contract, transaction or arrangement shall be liable to be avoided on the grounds of any such interest or benefit nor shall the receipt of any such remuneration or other benefit constitute a breach of his duty under section 176 of the Act.
|
121.
|
Authorisation of Directors' conflicts of interest
|
121.1
|
The Board may, in accordance with the requirements set out in this Article, authorise any matter or situation proposed to them by any Director which would, if not authorised, involve a Director (an
Interested Director
) breaching his duty under the Act to avoid conflicts of interest.
|
121.2
|
A Director seeking authorisation in respect of a conflict of interest shall declare to the Board the nature and extent of his interest in a conflict of interest as soon as is reasonably practicable. The Director shall provide the Board with such details of the matter as are necessary for the Board to decide how to address the conflict of interest together with such additional information as may be requested by the Board.
|
121.3
|
Any authorisation under this Article will be effective only if:
|
(a)
|
to the extent permitted by the Act, the matter in question shall have been proposed by any Director for consideration in the same way that any other matter may be proposed to the Directors under the provisions of these Articles;
|
(b)
|
any requirement as to the quorum for consideration of the relevant matter is met without counting the Interested Director and any other interested Director; and
|
(c)
|
the matter is agreed to without the Interested Director voting or would be agreed to if the Interested Director's and any other interested Director's vote is not counted.
|
121.4
|
Any authorisation of a conflict of interest under this Article must be recorded in writing (but the authority shall be effective whether or not the terms are so recorded) and may (whether at the time of giving the authorisation or subsequently):
|
(a)
|
extend to any actual or potential conflict of interest which may reasonably be expected to arise out of the matter or situation so authorised;
|
(b)
|
provide that the Interested Director be excluded from the receipt of documents and information and the participation in discussions (whether at meetings of the Directors or otherwise) related to the conflict of interest;
|
(c)
|
impose upon the Interested Director such other terms for the purposes of dealing with the conflict of interest as the Directors think fit;
|
(d)
|
provide that, where the Interested Director obtains, or has obtained (through his involvement in the conflict of interest and otherwise than through his position as a Director) information that is confidential to a third party, he will not be obliged to disclose that information to the Company, or to use it in relation to the Company’s affairs where to do so would amount to a breach of that confidence; and
|
(e)
|
permit the Interested Director to absent himself from the discussion of matters relating to the conflict of interest at any meeting of the Directors and be excused from reviewing papers prepared by, or for, the Directors to the extent they relate to such matters.
|
121.5
|
Where the Directors authorise a conflict of interest, the Interested Director will be obliged to conduct himself in accordance with any terms and conditions imposed by the Directors in relation to the conflict of interest.
|
121.6
|
The Directors may revoke or vary such authorisation at any time, but this will not affect anything done by the Interested Director, prior to such revocation or variation, in accordance with the terms of such authorisation.
|
121.7
|
A Director is not required, by reason of being a Director (or because of the fiduciary relationship established by reason of being a Director), to account to the Company for any remuneration, profit or other benefit which he derives from or in connection with a relationship involving a conflict of interest which has been authorised by the Directors or by the Company in general meeting (subject in each case to any terms, limits or conditions attaching to that authorisation) and no contract shall be liable to be avoided on such grounds.
|
121.8
|
If he has disclosed to the Board the nature and extent of his interest to the extent required by the Companies Acts, a Director is not required, by reason of being a Director (or because of the fiduciary relationship established by reason of being a Director), to account to the Company for any remuneration or other benefit which he derives from or in connection with:
|
(a)
|
being a party to, or otherwise interested in, any transaction or arrangement with:
|
(i)
|
the Company or in which the Company is interested; or
|
(ii)
|
a body corporate in which the Company is interested;
|
(b)
|
acting (otherwise than as auditor) alone or through his organisation in a professional capacity for the Company (and he or that organisation is entitled to remuneration for professional services as if he were not a Director); or
|
(c)
|
being a director or other officer of, or employed by, or otherwise interested in any other body corporate in which the Company is interested.
|
121.9
|
A Director’s receipt of any remuneration or other benefit referred to in Article 121.7 or 121.8 does not constitute an infringement of his duty under the Companies Acts.
|
121.10
|
A transaction or arrangement referred to in Article 121.7 or 121.8 is not liable to be avoided on the ground of any remuneration, benefit or interest referred to in that Article.
|
122.
|
Directors' permitted interests
|
122.1
|
A Director cannot vote or be counted in the quorum on any resolution relating to any transaction or arrangement with the Company in which he has an interest and which may reasonably be regarded as likely to give rise to a conflict of interest but can vote (and be counted in the quorum) on the following:
|
(a)
|
giving him any security, guarantee or indemnity for any money or any liability which he, or any other person, has lent or obligations he or any other person has undertaken at the request, or for the benefit, of the Company or any of its subsidiary undertakings;
|
(b)
|
giving any security, guarantee or indemnity to any other person for a debt or obligation which is owed by the Company or any of its subsidiary undertakings, to that other person if the Director has taken responsibility for some or all of that debt or obligation. The Director can take this responsibility by giving a guarantee, indemnity or security;
|
(c)
|
a proposal or contract relating to an offer of any shares or debentures or other securities for subscription or purchase by the Company or any of its subsidiary undertakings, if the Director takes part because he is a holder of shares, debentures or other securities, or if he takes part in the underwriting or sub-underwriting of the offer;
|
(d)
|
any arrangement for the benefit of employees of the Company or any of its subsidiary undertakings which only gives him benefits which are also generally given to employees to whom the arrangement relates;
|
(e)
|
any arrangement involving any other company if the Director (together with any person connected with the Director) has an interest of any kind in that company (including an interest by holding any position in that company or by being a shareholder of that company). This does not apply if he knows that he has a Relevant Interest.
|
(f)
|
a contract relating to insurance which the Company can buy or renew for the benefit of the Directors or a group of people which includes Directors; and
|
(g)
|
a contract relating to a pension, superannuation or similar scheme or a retirement, death, disability benefits scheme or employees' share scheme which gives the Director benefits which are also generally given to the employees to whom the scheme relates.
|
122.2
|
A Director cannot vote or be counted in the quorum on a resolution relating to his own appointment or the settlement or variation of the terms of his appointment to an office or place of profit with the Company or any other company in which the Company has an interest.
|
122.3
|
Where the Directors are considering proposals about the appointment, or the settlement or variation of the terms or the termination of the appointment of two or more Directors to other offices or places of profit with the Company or any company in which the Company has an interest, a separate resolution may be put in relation to each Director and in that case each of the Directors concerned shall be entitled to vote and be counted in the quorum in respect of each resolution unless it concerns his own appointment or the settlement or variation of the terms or the termination of his own appointment or the appointment of another Director to an office or place of profit with a company in which the Company has an interest and the Director seeking to vote or be counted in the quorum has a Relevant Interest in it.
|
122.4
|
A company shall be deemed to be one in which the Director has a
Relevant Interest
if and so long as (but only if and so long as) he is to his knowledge (either directly or indirectly) the holder of or beneficially interested in one per cent or more of any class of the equity share capital of that company (calculated exclusive of any shares of that class in that company held as treasury shares) or of the voting rights available to members of that company. In relation to an alternate Director, an interest of his appointor shall be treated as an interest of the alternate Director without prejudice to any interest which the alternate Director has otherwise. Where a company in which a Director has Relevant Interest is interested in a contract, he also shall be deemed interested in that contract.
|
122.5
|
If a question arises at a Board meeting about whether a Director (other than the chairman of the meeting) has an interest which is likely to give rise to a conflict of interest, or whether he can vote or be counted in the quorum, and the Director does not agree to abstain from voting on the issue or not to be counted in the quorum, the question must be referred to the chairman of the
|
123.
|
General
|
123.1
|
An interest of a person who is connected (which word shall have the meaning given to it by section 252 of the Act) with a Director shall be treated as an interest of the Director.
|
123.2
|
A contract includes references to any proposed contract and to any transaction or arrangement or proposed transaction or arrangement whether or not consulting a contract.
|
123.3
|
A conflict of interest includes a conflict of interest and duty and a conflict of duties.
|
123.4
|
Subject to the Companies Acts, the Company may by ordinary resolution suspend or relax the provisions of Articles 119 to 122 to any extent or ratify any contract not properly authorised by reason of a contravention of any of the provisions of Articles 119 to 122.
|
124.
|
Power to authenticate documents
|
125.
|
Use of seals
|
125.1
|
The Board shall provide for the safe custody of the Seal. A Seal shall not be used without the authority of the Board or of a committee of the Board so authorised.
|
125.2
|
Subject as otherwise provided in these Articles, every document which is sealed using the Seal must be signed by at least one authorised person in the presence of a witness who attests the signature. An authorised person for this purpose is any Director, the Secretary or any other person authorised by the Directors for the purpose of signing documents to which the Seal is applied.
|
125.3
|
The Seal shall be used only for sealing securities issued by the Company and documents creating or evidencing securities so issued. Any such securities or documents sealed with the Seal shall not require to be signed unless the Board decides otherwise or the law otherwise requires.
|
125.4
|
The Board may decide who will sign an instrument to which a Seal is affixed (or in the case of a share certificate, on which the Seal may be printed) either generally or in relation to a particular instrument or type of instrument and may also determine either generally or in a particular case that a signature may be dispensed with or affixed by mechanical means.
|
126.
|
Declaration of dividends
|
127.
|
Interim dividends
|
127.1
|
Subject to the Act, the Board may declare and pay such interim dividends (including any dividend at a fixed rate) as appears to the Board to be justified by the profits of the Company available for distribution. If the Board acts in good faith, it shall not incur any liability to the holders of shares for any loss that they may suffer by the lawful payment of any interim dividend on any other class of shares ranking with or after those shares.
|
127.2
|
If the share capital is divided into different classes, the Board may pay interim dividends on shares which confer deferred or non-preferred rights with regard to dividend as well as on shares which confer preferential rights with regard to dividend, but no interim dividend shall be paid on shares carrying deferred or non-preferred rights if, at the time of payment, any preferential dividend is in arrears.
|
127.3
|
The Board may also pay at intervals settled by them any dividend payable at a fixed rate if it appears to them that the profits available for distribution justify the payment. If the Directors act in good faith they shall not incur any liability to the holders of shares conferring preferred rights for any loss they may suffer by the lawful payment of a dividend on any shares having deferred or non-preferred rights.
|
128.
|
Calculation and currency of dividends
|
(a)
|
shall be declared and paid accordingly to the amounts paid up (otherwise than in advance of calls) on the shares on which the dividend is paid;
|
(b)
|
shall be apportioned and paid proportionately to the amounts paid up on the shares during any portion or portions of the period in respect of which the dividend is paid, but if any share is issued on terms that it shall rank for dividend as from a particular date, it shall rank for dividend accordingly; and
|
(c)
|
may be declared or paid in any currency. The Board may decide the rate of exchange for any currency conversions that may be required and how any costs involved are to be met.
|
129.
|
Amounts due on shares can be deducted from dividends
|
130.
|
Dividends not in cash
|
(a)
|
issue fractional certificates (or ignore fractions);
|
(b)
|
fix the value for distribution of such assets or any part of them and determine that cash payments may be made to any members on the footing of the values so fixed, in order to adjust the rights of members; and
|
(c)
|
vest any such assets in trustees on trust for the person entitled to the dividend.
|
131.
|
No interest on dividends
|
132.
|
Method of payment
|
132.1
|
The Company may pay any dividend, interest or other sum payable in respect of a share wholly or partly in cash or by direct debit, bank transfer, cheque, dividend warrant, or money order or by any other method, including by electronic means, as the Board may consider appropriate. For uncertificated shares, any payment may be made by means of the relevant system (subject always to the facilities and requirements of the relevant system) and such payment may be made by the Company or any person on its behalf by sending an instruction to the operator of the relevant system to credit the cash memorandum account of the holder or joint holders of such shares or, if permitted by the Company, of such person as the holder or joint holders may in writing direct.
|
132.2
|
The Company may send such payment by post or other delivery service (or by such means offered by the Company as the member or person entitled to it may agree in writing) to the registered address of the member or person entitled to it (or, if two or more persons are holders of the share or are jointly entitled to it because of the death or bankruptcy of the member or otherwise by operation of law, to the registered address of such of those persons as is first named in the Register) or to such person and such address as such member or person may direct in writing.
|
132.3
|
Every cheque, warrant, order or other form of payment is sent at the risk of the person entitled to the money represented by it, shall be made payable to the person or persons entitled, or to such other person as the person or persons entitled may direct in writing. Payment of the cheque, warrant, order or other form of payment (including transmission of funds through a bank transfer or other funds transfer system or by such other electronic means as permitted by these Articles or in accordance with the facilities and requirements of the relevant system concerned) shall be good discharge to the Company. If any such cheque, warrant, order or other form of payment has or shall be alleged to have been lost, stolen or destroyed the Company shall not be responsible.
|
132.4
|
Any joint holder or other person jointly entitled to a share may give an effective receipt for any dividend or other monies payable in respect of such share.
|
132.5
|
The Board may, at its discretion, make provisions to enable any member as the Board shall determine to receive duly declared dividends in a currency or currencies other than sterling. For the purposes of the calculation of the amount receivable in respect of any dividend, the rate of exchange to be used to determine the foreign currency equivalent of any sum payable as a dividend shall be such rate or rates and the payment shall be on such terms and conditions as the Board may in its absolute discretion determine
|
132.6
|
In respect of the payment of any dividend or other sum which is a distribution, the Board may decide, and notify recipients, that:
|
(a)
|
one or more of the means described in this Article will be used for payment and a recipient may elect to receive the payment by one of the means so notified in the manner prescribed by the Directors;
|
(b)
|
one or more of such means will be used for the payment unless a recipient elects otherwise in the manner prescribed by the Directors; or
|
(c)
|
one or more of such means will be used for the payment and that recipients will not be able to elect otherwise,
|
132.7
|
All cheques, warrants and similar financial instruments are sent, and payment in any other way is made, at the risk of the person who is entitled to the money and the Company will not be responsible for a payment which is lost, rejected or delayed. The Company can rely on a receipt for a dividend or other money paid in relation to a share from any one of the joint recipients on behalf of all of them. The Company is treated as having paid a dividend if the cheque, warrant or similar financial instrument is cleared or if a payment is made using a relevant system or inter-bank transfer or other electronic means.
|
132.8
|
Subject to the rights attaching to any shares, any dividends or other monies payable on or in respect of a share may be declared or paid in such currency or currencies and using such exchange rate or such date for determining the value or currency conversions as the Directors may determine.
|
133.
|
Uncashed dividends
|
134.
|
Unclaimed dividends
|
135.
|
Scrip dividends
|
135.1
|
Subject to the Act, the Board may, by ordinary resolution of the Company and subject to such terms and conditions as the Board may determine, offer to any holders of shares (excluding any member holding shares as treasury shares) the right to elect to receive shares, credited as fully paid, instead of cash in respect of the whole (or some part, to be determined by the Board) of any dividend specified by the ordinary resolution. The following provisions shall apply:
|
(a)
|
the said resolution may specify a particular dividend, or may specify all or any dividends declared within a specified period or periods but such period may not end later than the fifth anniversary of the date of the meeting at which the ordinary resolution is passed;
|
(b)
|
the entitlement of each holder of shares to new shares shall be such that the relevant value of the entitlement shall be as nearly as possible equal to (but not greater than) the cash amount (disregarding any tax credit) of the dividend that such holder would have received by way of dividend. For this purpose
relevant value
shall be calculated by reference to the average of the middle market quotations for the shares on NASDAQ or any other publication of a recognised investment exchange showing quotations for the Company's shares), for the day on which the shares are first quoted "ex" the relevant dividend and the four subsequent dealing days, or in such other manner as the Board may determine on such basis as it considers to be fair and reasonable. A certificate or
|
(c)
|
no fractions of a share shall be allotted. The Board may make such provisions as it thinks fit for any fractional entitlements including provisions where, in whole or in part, the benefit accrues to the Company and/or under which fractional entitlements are accrued and/or retained and in each case accumulated on behalf of any member and such accruals or retentions are applied to the allotment by way of bonus to or cash subscription on behalf of any member of fully paid shares and/or provisions where cash payments may be made to members in respect of their fractional entitlements;
|
(d)
|
the Board shall, after determining the basis of allotment, notify the holders of shares in writing of the right of election offered to them, and specify the procedure to be followed and place at which, and the latest time by which, elections must be lodged in order to be effective. No such notice need to be given to holders of shares who have previously given election mandates in accordance with this Article and whose mandates have not been revoked. The accidental omission to give notice of any right of election to, or the non-receipt (even if the Company becomes aware of such non-receipt) of any such notice by, any holder of shares entitled to the same shall neither invalidate any offer of an election nor give rise to any claim, suit or action;
|
(e)
|
The Board may on any occasion decide that rights of election shall only be made available subject to such exclusions, restrictions or other arrangements as they shall in their absolute discretion deem necessary or desirable in order to comply with legal or practical problems under the laws of, or the requirements of any recognised regulatory body or stock exchange in, any territory;
|
(f)
|
the Board shall not proceed with any election unless the company has sufficient reserves or funds that may be capitalised, and the Board has authority to allot sufficient shares, to give effect to it after the basis of the allotment is determined;
|
(g)
|
the Board may exclude from any offer or make other arrangements in relation to any holders of shares where the Board considers that the making of the offer to them or in respect of such shares would or might involve the contravention of the laws of any territory or that for any other reason the offer should not be made to them or in respect of such shares;
|
(h)
|
Unless the Board decides otherwise or the rules of a relevant system require otherwise, any new shares which a holder has elected to receive instead of cash in respect of some or all of his dividend will be:
|
(i)
|
shares in uncertificated form if the corresponding elected shares were uncertificated shares on the record date for that dividend; and
|
(ii)
|
shares in certificated form if the corresponding elected shares were shares in certificated form on the record date for that dividend;
|
(i)
|
the Board may establish or vary a procedure for election mandates in respect of future rights of election and may determine that every duly effected election in respect of any shares shall be binding on every successor in title to the holder;
|
(j)
|
the dividend (or that part of the dividend in respect of which a right of election has been offered) shall not be payable on shares in respect of which an election has been duly made (
elected shares
) and instead additional shares shall be allotted to the holders of the elected shares on the basis of allotment determined as stated above. For such purpose the Board may capitalise, out of any amount for the time being standing to the credit of any reserve or fund (including any share premium account or capital redemption reserve) or of any of the profits which could otherwise have been applied in paying
|
(k)
|
the Board may decide how any costs relating to the new shares available in place of a cash dividend will be met, including to deduct an amount from the entitlement of a holder of shares under this Article;
|
(l)
|
the additional shares so allotted shall rank pari passu in all respects with each other and with the fully paid shares in issue on the record date for the dividend in respect of which the right of election has been offered, except that they will not rank for any dividend or other distribution or other entitlement which has been declared, paid or made by reference to such record date;
|
(m)
|
the Board may terminate, suspend, or amend any offer of the right to elect to receive shares in lieu of any cash dividend at any time and generally may implement any scrip dividend scheme on such terms and conditions as the Board may determine and take such other action as the Board may deem necessary or desirable in respect of any such scheme; and
|
(n)
|
The Board may do all acts and things which they consider necessary or expedient to give effect to any such capitalisation, and may authorise any person to enter on behalf of all the members interested into an agreement with the Company providing for such capitalisation and incidental matters and any agreement so made shall be binding on all concerned.
|
136.
|
Capitalisation of reserves
|
136.1
|
The Board may, with the authority of an ordinary resolution of the Company:
|
(a)
|
subject as provided in this Article, resolve to capitalise any undivided profits of the Company not required for paying any preferential dividend (whether or not they are available for distribution) or any sum standing to the credit of any reserve or fund of the Company which is available for distribution or standing to the credit of the share premium account of capital redemption reserve or other undistributable reserve;
|
(b)
|
appropriate the sum resolved to be capitalised to the members in proportion to the nominal amounts of the shares (whether or not fully paid) held by them respectively which would entitle them to participate in a distribution of that sum if the shares were fully paid and the sum were then distributable and were distributed by way of dividend and apply such sum on their behalf either in or towards paying up the amounts, if any, for the time being unpaid on any shares held by them respectively, or in paying up in full unissued shares or debentures of the Company of a nominal amount equal to that sum, and allot the shares or debentures credited as fully paid to those members or as they may direct, in those proportions, or partly in one way and partly in the other, provided that:
|
(i)
|
the share premium account, the capital redemption reserve, any other undistributable reserve and any profits which are not available for distribution may, for the purposes of this Article, only be applied in paying up in full shares to be allotted to members credited as fully paid;
|
(ii)
|
the Company will also be entitled to participate in the relevant distribution in relation to any shares of the relevant class held by it as treasury shares and the proportionate entitlement of the relevant class of members to the distribution will be calculated accordingly; and
|
(iii)
|
in a case where any sum is applied in paying amounts for the time being unpaid on any shares of the Company or in paying up in full debentures of the Company, the amount of the net assets of the Company at that time in not less than the aggregate of the called up share capital of the Company and its undistributable reserves as shown in the latest audited accounts of the Company or such other accounts as may be relevant and would not be reduced below that aggregate by the payment of it;
|
(c)
|
resolve that any shares so allotted to any member in respect of a holding by him of any partly paid shares shall, so long as such shares remain partly paid, rank for dividends only to the extent that such partly paid shares rank for dividends;
|
(d)
|
make such provision by the issue of fractional certificates (or by ignoring fractions or by accruing the benefit of it to the Company rather than to the members concerned) or by payment in cash or otherwise as it thinks fit in the case of shares or debentures becoming distributable in fractions;
|
(e)
|
authorise any person to enter on behalf of such members concerned into an agreement with the Company providing for either:
|
(i)
|
the allotment to them respectively, credited as fully paid up, of any shares or debentures to which they may be entitled on such capitalisation; or
|
(ii)
|
the payment up by the Company on behalf of such members by the application of their respective proportions of the reserves or profits resolved to be capitalised, of the amounts or any part of the amounts remaining unpaid on their existing shares,
|
(f)
|
generally do all acts and things required to give effect to such resolution.
|
136.2
|
Where, pursuant to an employees’ share scheme (within the meaning of section 1166 of the Act) or any similar scheme under which participation is extended to non-executive Directors or consultants providing services to the Company or any of its subsidiaries:
|
(a)
|
the Company has granted options to subscribe for shares on terms which provide (inter alia) for adjustments to the subscription price payable on the exercise of such options or to the number of shares to be allotted upon such exercise in the event of any increase or reduction in or other reorganisation of the Company’s issued share capital and an otherwise appropriate adjustment would result in the subscription price for any share being less than its nominal value, then the Board may, on the exercise of any of the options concerned and payment of the subscription price which would have applied had such adjustment been made, capitalise any such profits or other sum as is mentioned in Article 136.1(a) to the extent necessary to pay up the unpaid balance of the nominal value of the shares which fall to be allotted on the exercise of such options and apply such amount in paying up such balance and allot shares fully paid accordingly;
|
(b)
|
the Company has granted (or assumed liability to satisfy) rights to subscribe for shares (whether in the form of stock options, stock units, restricted stock, stock appreciation rights, performance shares and units, dividend equivalent rights or otherwise) then the Board may, in connection with the issue of shares, capitalise any such profits or other sum as is mentioned in Article 136.1 to the extent necessary to pay up the unpaid balance of the nominal value of the shares which fall to be issued in connection with such rights to subscribe and apply such amount in paying up such balance and allot shares fully paid accordingly; and
|
(c)
|
the provisions of Article 136.1(a) to (f) shall apply with the necessary alterations to this Article.
|
137.
|
Record dates
|
137.1
|
Notwithstanding any other provision of these Articles but without prejudice to the rights attached to any shares and subject always to the Act, the Company or the Board may by resolution specify any date (
record date
) as the date at the close of business (or such other time as the Board may determine) on which persons registered as the holders of shares or other securities shall be entitled to receipt of any dividend, distribution, interest, allotment, issue, notice, information, document or circular. Such record date may be before, on or after the date on which the dividend, distribution, interest, allotment, issue, notice, information, document or circular is declared, made, paid, given, or served.
|
137.2
|
In the absence of a record date being fixed, entitlement to any dividend, distribution, interest, allotment, issue, notice, information, document or circular shall be determined by reference to the date on which the dividend is declared, the distribution allotment or issue is made or the notice, information, document or circular made, given or served.
|
138.
|
Inspection of records
|
139.
|
Account to be sent to members
|
139.1
|
In respect of each financial year, a copy of the Company's annual accounts, the strategic report, the Directors' report, the Directors' remuneration report, the auditor's report on those accounts and on the auditable part of the Directors' remuneration report shall be sent or supplied to:
|
(a)
|
Every member (whether or not entitled to receive notices of general meetings);
|
(b)
|
Every holder of debentures (whether or not entitled to receive notice of general meetings); and
|
(c)
|
Every other person who is entitle to receive notice of general meetings,
|
139.2
|
This Article does not require copies of the documents to which it applies to be sent or supplied to:
|
(a)
|
A member or holder of debentures of whose address the Company is unaware; or
|
(b)
|
More than one of the joint holders of shares or debentures.
|
139.3
|
The Board may determine that persons entitled to receive a copy of the Company's annual accounts, the strategic report, the Directors' report, the Directors' remuneration report, the auditor's report on those accounts and on the auditable part of the Directors' remuneration report are those persons entered on the Register at the close of business on a day determined by the Board, provided that the day determined by the Board may not be more than twenty-one (21) days before the day that the relevant copies are being sent.
|
139.4
|
Where permitted by the Act, a strategic report with supplementary material in the form and containing the information prescribed by the Act may be sent or supplied to a person so electing in place of the documents required to be sent or supplied by Article 139.
|
140.
|
Service of Notices
|
140.1
|
The Company can send, deliver or serve any notice or other document, including a share certificate, to or on a member:
|
(a)
|
personally;
|
(b)
|
by sending it through the postal system addressed to the member at his registered address or by leaving it at that address addressed to the member;
|
(c)
|
through a relevant system, where the notice or document relates to uncertificated shares;
|
(d)
|
where appropriate, by sending or supplying it in electronic form to an address notified by the member to the Company for that purpose;
|
(e)
|
where appropriate, by making it available on a website and notifying the member of its availability in accordance with this Article or
|
(f)
|
by any other means authorised in writing by the member.
|
140.2
|
In the case of joint holders of a share:
|
(a)
|
service, sending or supply of any notice, document or other information on or to one of the joint holders shall for all purposes be deemed a sufficient service on, sending or supplying to all the joint holders; and
|
(b)
|
anything to be agreed or specified in relation to any notice, document or other information to be served on, sent or supplied to them may be agreed or specified by any one of the joint holders and the agreement or specification of the first named in the Register shall be accepted to the exclusion of that of the other joint holders.
|
140.3
|
Where a member (or, in the case of a joint holders, the person first named in the Register) has a registered address outside the United Kingdom but has notified the Company of an address within the United Kingdom at which notices, documents or other information may be given to him or has given to the Company an address for the purposes of communications by electronic means at which notices, documents or other information may be served, sent or supplied to him, he shall be entitled to have notices served, sent or supplied to him at such address or, where applicable, the Company may make them available on a website and notify the holder of that address. Otherwise no such member shall be entitled to receive any notice, document or other information from the Company.
|
140.4
|
If on three consecutive occasions any notice, document or other information has been sent to any member at his registered address or his address for the service of notices (by electronic means or otherwise) but has been returned undelivered, such member shall not be entitled to receive notices, documents or other information from the Company until he shall have communicated with the Company and supplied in writing a new registered address or address within the United Kingdom for the service of notices or has informed the Company of an address for the service of notices and the sending or supply of documents and other information in electronic form. For these purposes, any notice, document or other information served, sent or supplied by post shall be treated as returned undelivered if the notice, document or other information is served, sent or supplied back to the Company (or its agents) and a notice, document or other information served, sent or supplied in electronic form shall be treated as returned undelivered if the Company (or its agents) receives notification that the notice, document or other information was not delivered to the address to which it was served, sent or supplied.
|
140.5
|
The Company may at any time and in its sole discretion choose to serve, send or supply notices, documents or other information in hard copy form alone to some or all of the members.
|
141.
|
Hard copy form
|
141.1
|
Any document, information or notice is validly sent or supplied by the Company in hard copy form if it is handed to the intended recipient or sent or supplied by hand or through the post in a prepaid envelope:
|
(a)
|
to an address specified for the purpose by the intended recipient;
|
(b)
|
if the intended recipient is a company, to its registered office;
|
(c)
|
to the address shown in the Company’s Register;
|
(d)
|
to any address to which any provision of the Companies Acts authorises it to be sent or supplied; or
|
(e)
|
if the Company is unable to obtain an address falling within paragraphs (a) to (d), to the last address known to the Company of the intended recipient.
|
142.
|
Electronic form
|
142.1
|
Any document, information or notice is validly sent or supplied by the Company in electronic form:
|
(a)
|
to a person if that person has agreed (generally or specifically) that the document, information or notice may be sent or supplied in that form and has not revoked that agreement; or
|
(b)
|
to a company that is deemed to have so agreed by the Companies Acts.
|
143.
|
Electronic means
|
143.1
|
Any document, information or notice is validly sent or supplied by the Company by electronic means if it is sent or supplied:
|
(a)
|
to an address specified for the purpose by the intended recipient (generally or specifically); or
|
(b)
|
where the intended recipient is a company, to an address deemed by the Companies Acts to have been so specified.
|
144.
|
Website
|
144.1
|
Any document, information or notice is validly sent or supplied by the Company to a person by being made available on a website if:
|
(a)
|
the person has agreed (generally or specifically) that the document, information or notice may be sent or supplied to him in that manner, or he is taken to have so agreed under Schedule 5 of the Act, and in either case he has not revoked that agreement:
|
(b)
|
the Company has notified the intended recipient of:
|
(i)
|
the presence of the document, information or notice on the website;
|
(ii)
|
the address of the website;
|
(iii)
|
the place on the website where it may be accessed;
|
(iv)
|
how to access the document, information or notice; and
|
(v)
|
any other information prescribed by the Companies Acts or any other provisions of law including, when the document, information or notice is a notice of meeting, that fact, the place, date and time of the meeting and whether the meeting is an annual general meeting; and
|
(c)
|
the document, information or notice is available on the website throughout the period specified by any applicable provision of the Companies Acts or, if no such period is specified, the period of twenty-eight (28) days starting on the date on which the notification referred to in paragraph (b) above is sent to the relevant person.
|
145.
|
Sending or supplying any Document, information or notice by any other means
|
146.
|
Presence at meeting evidence in itself of receipt of notice
|
147.
|
Notice on person entitled by transmission
|
148.
|
Record date for service
|
149.
|
Evidence of service
|
149.1
|
Any notice, document or other information, addressed to a member at his registered address or address for service in the United Kingdom shall, if served, sent or supplied by first class post, be deemed to have been served or delivered on the day after the day when it was put in the post (or, where second class post is employed, on the second day after the day when it was put in the post). Proof that an envelope containing the notice, document or other information was properly addressed and put into the post as a prepaid letter shall be conclusive evidence that the notice was given.
|
149.2
|
Any notice, document or other information not served, sent or supplied by post but delivered or left at a registered address or address for service in the United Kingdom (other than an address for the purposes of communications by electronic means) shall be deemed to have been served or delivered on the day on which it was so delivered or left.
|
149.3
|
Any notice, document or other information, if served, sent or supplied by electronic means shall be deemed to have been received on the day on which the electronic communication was sent by or on behalf of the Company notwithstanding that the Company subsequently sends such notice, document or other information in hard copy form by post. Any notice, document or other information made available on a website shall be deemed to have been received on the day on which the notice, document or other information was first made available on the website or, if later, when a notice of availability is received or deemed to have been received pursuant to this Article. Proof that the notice, document or other information was properly addressed shall be conclusive evidence that the notice by electronic means was given.
|
149.4
|
Any notice, document or other information served, sent or supplied by the Company by means of a relevant system shall be deemed to have been received when the Company or any sponsoring system-participant acting on its behalf sends the issuer-instruction relating to the notice, document or other information.
|
149.5
|
Any notice, document or other information served, sent or supplied by the Company by any other means authorised in writing by the member concerned shall be deemed to have been received when the Company has carried out the action it has been authorised to take for that purpose.
|
150.
|
Notice when post not available
|
151.
|
Validation of documents in electronic form
|
151.1
|
Where a document is required under these Articles to be signed by a member or any other person, if the document is in electronic form, then in order to be valid the document must:
|
(a)
|
incorporate the electronic signature, or personal identification details (which may be details previously allocated by the Company), of that member or other person, in such form as the Board may approve; or
|
(b)
|
be accompanied by such other evidence as the Board may require in order to be satisfied that the document is genuine.
|
151.2
|
The Company may designate mechanisms for validating any such document and a document not validated by the use of any such mechanisms shall be deemed as having not been received by the Company In the case of any document or information relating to a meeting, an instrument of proxy or invitation to appoint a proxy, any validation requirements shall be specified in the relevant notice of meeting in accordance with Articles 49 and 73.
|
152.
|
Winding Up
|
153.
|
Indemnity and insurance
|
153.1
|
In this Article:
|
(a)
|
companies are
associated
if one is a subsidiary of the other or both are subsidiaries of the same body corporate;
|
(b)
|
a
relevant officer
means any Director or other officer or former Director or other officer of the Company or an associated company (including any company which is a trustee of an occupational pension scheme (as defined by section 235(6) of the Act), but excluding in each case any person engaged by the Company (or associated company) as auditor (whether or not he is also a Director or other officer), to the extent he acts in his capacity as auditor); and
|
(c)
|
relevant loss
means any loss or liability which has been or may be incurred by a relevant officer in connection with that relevant officer's duties or powers in relation to the company, any associated company or any pension fund or employees' share scheme of the company or associated company.
|
153.2
|
Subject to Article 153.3, but without prejudice to any indemnity to which a relevant officer is otherwise entitled:
|
(a)
|
each relevant officer shall be indemnified out of the Company's assets against all relevant loss and in relation to the Company's (or any associated company's) activities as trustee of an occupational pension scheme (as defined in section 235(6) of the Act), including any liability incurred by him in defending any civil or criminal proceedings, in which judgment is given in his favour or in which he is acquitted or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his part or in connection with any application in which the court grants him, in his capacity as a relevant officer, relief from liability for negligence, default, breach of duty or breach of trust in relation to the Company's (or any associated company's) affairs; and
|
(b)
|
the Company may provide any relevant officer with funds to meet expenditure incurred or to be incurred by him in connection with any proceedings or application referred to in Article 153.2(a) and otherwise may take any action to enable any such relevant officer to avoid incurring such expenditure.
|
153.3
|
This Article does not authorise any indemnity which would be prohibited or rendered void by any provision of the Companies Acts or by any other provision of law.
|
153.4
|
The Directors may decide to purchase and maintain insurance, at the expense of the Company, for the benefit of any relevant officer in respect of any relevant loss.
|
153.5
|
Where a relevant officer is indemnified against a liability in accordance with this Article, the indemnity extends to each cost, charge, loss, expense and liability incurred by him in relation to that liability.
|
154.
|
Exclusive jurisdiction
|
1.
|
Dividends
|
2.
|
Return of Capital
|
3.
|
Deemed Liquidation
|
(a)
|
consolidation or merger of the Company with or into another entity or entities (whether or not the Company is the surviving entity) as a result of which the holders of the Company’s outstanding shares possessing the voting power (under ordinary circumstances) to elect a majority of the Board immediately prior to such sale or issue cease to own the Company’s outstanding shares possessing the voting power (under ordinary circumstances) to elect a majority of the Board;
|
(b)
|
sale or transfer by the Company of all or substantially all of its assets (determined either for the Company alone or together with its subsidiaries on a consolidated basis); or
|
(c)
|
sale, transfer or issuance or series of sales, transfers and/or issues of shares by the Company or the holders thereof, as a result of which the holders of the Company’s outstanding shares possessing the voting power (under ordinary circumstances) to elect a majority of the Board immediately prior to such sale or issue cease to own the Company’s outstanding shares possessing the voting power (under ordinary circumstances) to elect a majority of the Board,
|
4.
|
Voting
|
4.1
|
At a general meeting of the Company and at any separate class meeting of the holders of Class A Ordinary Shares, where a holder of Class A Ordinary Shares is entitled to vote, such holder is entitled to one vote for each Class A Ordinary Share held.
|
4.2
|
A holder of Class A Ordinary Shares is entitled to receive notice of any general meeting of the Company (and notice of any separate class meeting of the holders of Class A Ordinary Shares) and a copy of every report, accounts, circular or other document sent out by the Company to members.
|
5.
|
Takeover Offers
|
1.
|
Dividends
|
2.
|
Return of Capital
|
3.
|
Deemed Liquidation
|
4.
|
Restrictions on transfer and orderly market provisions
|
4.1
|
During the period of one hundred and eighty (180) days commencing on the Listing Date, no transfers of Class B Ordinary Shares shall be permitted other than to a person who is a Permitted Class B Ordinary Transferee or pursuant to the Listing (which for the avoidance of doubt includes sales pursuant to any secondary offering or exercise of any over-allotment option in connection with the Listing).
|
4.2
|
In addition to the restriction in paragraph 4.1, above, and subject to any written agreement between a Class B Ordinary Shareholder, the Company and the managing underwriter acting in connection with the Listing executed prior to the Listing Date and/or in contemplation of the Listing, no transfers of Class B Ordinary Shares shall be permitted (other than to a person who is a Permitted Class B Ordinary Transferee):
|
(a)
|
in excess of 25% of the Class B Ordinary Shareholders holding of Class B Ordinary Shares (determined as at the Listing Date) in the period commencing 180 days after the Listing Date and ending on the date falling 18 months after the Listing Date;
|
(b)
|
in excess of 40% of the Class B Ordinary Shareholders holding of Class B Ordinary Shares (determined as at the Listing Date) in the period commencing 180 days after the Listing Date and ending on the date falling on the third anniversary of the Listing Date; and
|
(c)
|
in excess of 60% of the Class B Ordinary Shareholders holding of Class B Ordinary Shares (determined as at the Listing Date) in the period commencing 180 days after the Listing Date and ending on the fifth anniversary of the Listing Date,
|
(i)
|
accept a general offer for its holding of Class B Ordinary Shares made to all holders of issued and allotted shares of the Company for the time being (other than shares held or contracted to be acquired by the offeror or its associates
|
(ii)
|
execute and deliver an irrevocable commitment or undertaking to accept a general offer (without any further agreement to transfer or dispose of any Class B Ordinary Shares or any interest therein) as is referred to in paragraph 4.2(i) of Part 1 to this Schedule or a sale of Class B Ordinary Shares to an offeror or potential offeror during an offer period (within the meaning of the Takeover Code);
|
(iii)
|
sell or otherwise dispose of Class B Ordinary Shares pursuant to any offer by the Company to purchase its own shares which is made on identical terms to all holders of shares of the Company;
|
(iv)
|
transfer or dispose of Class B Ordinary Shares pursuant to a compromise or arrangement between the Company and its creditors or any class of them or between the Company and its members or any class of them which is agreed to by the creditors or members and (where required) sanctioned by the court under the Companies Acts;
|
(v)
|
dispose of Class B Ordinary Shares in connection with a scheme of reconstruction under s.110 Insolvency Act 1986 in relation to the Company;
|
(vi)
|
dispose of Class B Ordinary Shares in any circumstances where such disposal is required by law or by any competent authority or by order of a court of competent jurisdiction;
|
(vii)
|
transfer of the legal interest in Class B Ordinary Shares provided that the beneficial owner shall not change; or
|
(viii)
|
transfer the legal and beneficial interests in Class B Ordinary Shares to a third party transferee in cases of exceptional hardship or change in personal circumstances, subject to the third party transferee agreeing to be bound by the terms of the restriction set out in paragraph 4.1 of Part 1 to this Schedule; or
|
(ix)
|
transfers of shares or any security convertible into shares as a will or intestacy, to an immediate family member or to a trust formed for the benefit of any immediate family member or, (and “immediate family” shall mean the spouse, widow or widower of the undersigned and the lineal descendants, including any step-child, adopted child or illegitimate child of the member).
|
4.3
|
In respect of any proposed sale of Class B Ordinary Shares pursuant to paragraph 4.2 above, prior the second anniversary of the Listing Date, he or she shall give notice to the Board of his or her intent. In order to preserve an orderly market in the Company’s shares, the Board may, after consultation with its investment bankers and stockbrokers, permit such sale in the open market or may impose such conditions as the Board considers fit to maintain an orderly market in the Company’s shares. Such conditions may include (a) the imposition of volume restrictions (on any individual holder of Class B Ordinary Shares, or on an aggregate basis); (b) a requirement that such sales only occur through the Company’s designated stockbroker; (c) that such intended sale be deferred or delayed on grounds of market conditions; (d) in the event that the Board consider that volumes of requests to sell are material, delaying such sales pending the arrangement of a formalised secondary offering of such shares; or (e) such other conditions as the Board see fit to maintain an orderly market in consultation with its investment bankers.
|
5.
|
Conversion
|
5.1
|
(Election by Class B Ordinary Shareholder and mandatory conversion)
A Class B Ordinary Shareholder may, at any time after the fifth (5
th
) anniversary of the Listing Date, elect at any time
|
5.2
|
(Less than 10% of total voting rights attributable to Class B Ordinary Shares)
Each Class B Ordinary Share will automatically, without any further action on behalf of the Company or otherwise, convert into one Class A Ordinary Share if the aggregate number of voting rights attaching to the Class B Ordinary Shares then in issue comprise less than 10% of the total voting rights of the Company then outstanding.
|
5.3
|
(Transfer to a non-Permitted Class B Ordinary Transferee)
A Class B Ordinary Share will automatically, without any further action on behalf of the Company or otherwise, convert into one Class A Ordinary Share upon a transfer of such Class B Ordinary Share by its holder to any person that is not a Permitted Class B Ordinary Transferee. For the avoidance of doubt, the automatic conversion under this paragraph affects only the Class B Ordinary Share(s) that is/are the subject of such transfer.
|
5.4
|
(Application of the Takeover Code)
For so long as the Company is subject to the Takeover Code, or should the Panel determine at any time that the Company is or has become subject to the Takeover Code, the following provisions shall apply in respect of the Class B Ordinary Shares and the voting rights in the Company attaching thereto:
|
(a)
|
If at any time the Panel determines that a person or persons holding Class B Ordinary Shares (whether alone or acting or deemed to be acting in concert) having actively or passively breached the provisions of Rule 9 of the Takeover Code (the “
Triggering Event
”), the Board may take such steps with respect to directing the conversion of such number of Class B Ordinary Shares held by such person or persons into such number of Class A Ordinary Shares so as to reduce the aggregate interests in the voting rights in the Company held by such person or persons of such Class B Ordinary Shares to maintain the percentage of voting rights held immediately prior to the Triggering Event (the “Pre-Trigger Percentage Level”) or to such other level as is acceptable to the Panel.
|
(b)
|
The Board shall also take such steps with respect to directing the conversion of such number of Class B Ordinary Shares as are necessary to maintain the Pre-Trigger Percentage Level of a person (or persons acting or deemed by the Panel to be acting in concert) upon the request of that person or persons whose aggregate voting rights in the Company, when combined with: (A) any anticipated acquisition of additional voting rights in the Company, or (B) any increase within the Relevant Percentage Limits as a result of any corporate action or event (including the conversion of any other Class B Ordinary Shares into Class A Ordinary Shares). in the opinion of that person or persons might constitute a Triggering Event;
|
(c)
|
Where multiple persons holding Class B Ordinary Shares are, or are deemed to be acting in concert, the Board, when exercising its powers pursuant to this Article, shall direct the conversion of Class B Ordinary Shares into Class A Ordinary Shares pro rata to the respective interests of the respective individual persons in the voting rights in the Company.
|
(d)
|
Any notice from the Board to a person holding Class B Ordinary Shares directing the conversion of Class B Ordinary Shares into Class A Ordinary Shares shall be given in writing to the address of the relevant person appearing on the Register at the date on which the relevant notice was given, and shall be given in accordance with Article 49,
|
(e)
|
A resolution of the Board to direct the conversion of Class B Ordinary Shares into Class A Ordinary Shares pursuant to this Article shall be valid and effective notwithstanding that any period of notice to convene the relevant Board meeting or pass a written resolution was not duly given.
|
6.
|
Voting
|
6.1
|
At a general meeting of the Company, and at any separate class meeting of the holders of Class B Ordinary Shares, where a holder of Class B Ordinary Shares is entitled to vote, such holder is entitled to ten (10) votes for each Class B Ordinary Share held.
|
6.2
|
A holder of Class B Ordinary Shares is entitled to receive notice of any general meeting of the Company (and notice of any separate class meeting of the holders of Class B Ordinary Shares) and a copy of every report, accounts, circular or other document sent out by the Company to members.
|
7.
|
No further action required in respect of a conversion
|
8.
|
Takeover Offers
|
1.
|
Dividends
|
2.
|
Return of Capital
|
3.
|
Deemed Liquidation
|
(a)
|
consolidation or merger of the Company with or into another entity or entities (whether or not the Company is the surviving entity) as a result of which the holders of the Company’s outstanding shares possessing the voting power (under ordinary circumstances) to elect a majority of the Board immediately prior to such sale or issue cease to own the Company’s outstanding shares possessing the voting power (under ordinary circumstances) to elect a majority of the Board;
|
(b)
|
sale or transfer by the Company of all or substantially all of its assets (determined either for the Company alone or together with its subsidiaries on a consolidated basis); or
|
(c)
|
sale, transfer or issuance or series of sales, transfers and/or issues of shares by the Company or the holders thereof, as a result of which the holders of the Company’s outstanding shares possessing the voting power (under ordinary circumstances) to elect a majority of the Board immediately prior to such sale or issue cease to own the Company’s outstanding shares possessing the voting power (under ordinary circumstances) to elect a majority of the Board,
|
4.
|
Voting
|
4.1
|
At a general meeting of the Company and at any separate class meeting of the holders of Class C Ordinary Shares, where a holder of Class C Ordinary Shares is entitled to vote, such holder is entitled to one vote for each Class C Ordinary Share held.
|
4.2
|
A holder of Class C Ordinary Shares is entitled to receive notice of any general meeting of the Company (and notice of any separate class meeting of the holders of Class C Ordinary Shares) and a copy of every report, accounts, circular or other document sent out by the Company to members.
|
5.
|
Conversion of the Class C Ordinary Shares into Class A Ordinary Shares
|
5.1
|
On the second anniversary of the Listing Date all of the Class C Ordinary Shares shall be redesignated as Class A Ordinary Shares. The Company may, but shall not be obligated to, issue new certificates in respect of the conversion and if the Company fails, or elects not, to do so, any certificate issued representing C Ordinary Shares shall automatically evidence title to an identical number of A Ordinary Shares.
|
5.2
|
A Class C Ordinary Share will automatically, without any further action on behalf of the Company or otherwise, convert into one Class A Ordinary Share upon a transfer of such Class C Ordinary Share by its holder to any person that is not a Permitted Class C Ordinary Transferee. For the avoidance of doubt, the automatic conversion under this paragraph affects only the Class C Ordinary Share(s) that is/are the subject of such transfer.
|
6.
|
Restrictions on transfer and orderly market provisions
|
6.1
|
During the period of one hundred and eighty (180) days commencing on the Listing Date, no transfers of Class C Ordinary Shares shall be permitted other in accordance with Article 35.2.
|
6.2
|
In addition to the restriction in paragraph 6.1, above, and subject to any written agreement between a Class C Ordinary Shareholder, the Company and the managing underwriter acting in connection with the Listing executed prior to the Listing Date and/or in contemplation of the Listing, no transfers of Class C Ordinary Shares shall be permitted (other than in accordance with Article 35.2) in excess of 25% of the Class C Ordinary Shareholders holding of Class C Ordinary Shares (determined as at the Listing Date) in the period commencing 180 days after the Listing Date and ending on the date falling 18 months after the Listing Date;
|
6.3
|
If any holder of Class C Ordinary Shares wished to dispose of some or all of his holding after expiry of the one hundred and eighty (180) day period referred to in paragraph 4.3, and prior to the second anniversary of the Listing Date, he or she shall give notice to the Board of his or her intent. In order to preserve an orderly market in the Company’s shares, the Board may, after consultation with its investment bankers and stockbrokers, permit such sale in the open market or may impose such conditions as the Board considers fit to maintain an orderly market in the Company’s shares. Such conditions may include (a) the imposition of volume restrictions (or any individual holder of Class C Ordinary Shares, or on an aggregate basis); (b) a requirement that such sales only occur through the Company’s designated stockbroker; (c) that such intended sale be deferred or delayed on grounds of market conditions; (d) in the event that the Board consider that volumes of requests to sell are material, delaying such sales pending the arrangement of a formalised secondary offering of such shares; or (e) such other conditions as the Board see fit to maintain an orderly market in consultation with its investment bankers.
|
7.
|
Takeover Offers
|
|
Table of Contents
|
Page
|
|
|
|
|
|
ARTICLE I
|
DEFINITIONS
|
1
|
|
Section 1.1
|
“ADS Record Date”
|
1
|
|
Section 1.2
|
“Affiliate”
|
1
|
|
Section 1.3
|
“American Depositary Receipt(s)”, “ADR(s)” and “Receipt(s)”
|
2
|
|
Section 1.4
|
“American Depositary Share(s)” and “ADS(s)”
|
2
|
|
Section 1.5
|
“Applicant”
|
2
|
|
Section 1.6
|
“Articles of Association”
|
2
|
|
Section 1.7
|
“Beneficial Owner”
|
2
|
|
Section 1.8
|
“Certificated ADS(s)”
|
3
|
|
Section 1.9
|
“Citibank”
|
3
|
|
Section 1.10
|
“Commission”
|
3
|
|
Section 1.11
|
“Company”
|
3
|
|
Section 1.12
|
“CREST”
|
3
|
|
Section 1.13
|
“Custodian”
|
3
|
|
Section 1.14
|
“Deliver” and “Delivery”
|
4
|
|
Section 1.15
|
“Deposit Agreement”
|
4
|
|
Section 1.16
|
“Depositary”
|
4
|
|
Section 1.17
|
“Deposited Property”
|
4
|
|
Section 1.18
|
“Deposited Securities”
|
4
|
|
Section 1.19
|
“Dollars” and “$”
|
4
|
|
Section 1.20
|
“DTC”
|
4
|
|
Section 1.21
|
“DTC Participant”
|
4
|
|
Section 1.22
|
“Exchange Act”
|
5
|
|
Section 1.23
|
“Foreign Currency”
|
5
|
|
Section 1.24
|
“Full Entitlement ADR(s)”, “Full Entitlement ADS(s)” and “Full Entitlement Share(s)”
|
5
|
|
Section 1.25
|
“Holder(s)”
|
5
|
|
Section 1.26
|
“Partial Entitlement ADR(s)”, “Partial Entitlement ADS(s)” and “Partial Entitlement Share(s)”
|
5
|
|
Section 1.27
|
“Pounds”, “Pence” and “£”
|
5
|
|
Section 1.28
|
“Pre-Release Transaction”
|
5
|
|
Section 1.29
|
“Principal Office”
|
5
|
|
Section 1.30
|
“Registrar”
|
5
|
|
Section 1.31
|
“Restricted Securities”
|
6
|
|
Section 1.32
|
“Restricted ADR(s)”, “Restricted ADS(s)” and “Restricted Shares”
|
6
|
|
Section 1.33
|
“Securities Act”
|
6
|
|
Section 1.34
|
“Share Registrar”
|
6
|
|
Section 1.35
|
“Shares”
|
6
|
|
Section 1.36
|
“Uncertificated ADS(s)”
|
6
|
|
Section 1.37
|
“United States” and “U.S.”
|
6
|
|
|
|
|
|
ARTICLE II
|
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
|
7
|
|
Section 2.1
|
Appointment of Depositary
|
7
|
|
Section 2.2
|
Form and Transferability of ADSs
|
7
|
|
Section 2.3
|
Deposit of Shares
|
9
|
|
Section 2.4
|
Registration and Safekeeping of Deposited Securities
|
10
|
|
Section 2.5
|
Issuance of ADSs
|
11
|
|
Section 2.6
|
Transfer, Combination and Split-up of ADRs
|
11
|
|
Section 2.7
|
Surrender of ADSs and Withdrawal of Deposited Securities
|
12
|
|
Section 2.8
|
Limitations on Execution and Delivery, Transfer, etc
|
13
|
|
Section 2.9
|
Lost ADRs, etc
|
14
|
|
Section 2.10
|
Cancellation and Destruction of Surrendered ADRs; Maintenance of Records
|
14
|
|
Section 2.11
|
Escheatment
|
15
|
|
Section 2.12
|
Partial Entitlement ADSs
|
15
|
|
Section 2.13
|
Certificated/Uncertificated ADSs
|
15
|
|
Section 2.14
|
Restricted ADSs
|
17
|
|
|
|
|
|
ARTICLE III
|
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSS
|
18
|
|
Section 3.1
|
Proofs, Certificates and Other Information
|
18
|
|
Section 3.2
|
Liability for Taxes and Other Charges
|
19
|
|
Section 3.3
|
Representations and Warranties on Deposit of Shares
|
20
|
|
Section 3.4
|
Compliance with Information Requests
|
20
|
|
Section 3.5
|
Ownership Restrictions
|
20
|
|
Section 3.6
|
Reporting Obligations and Regulatory Approvals
|
21
|
|
|
|
|
|
ARTICLE IV
|
THE DEPOSITED SECURITIES
|
21
|
|
Section 4.1
|
Cash Distributions
|
21
|
|
Section 4.2
|
Distribution in Shares
|
22
|
|
Section 4.3
|
Elective Distributions in Cash or Shares
|
23
|
|
Section 4.4
|
Distribution of Rights to Purchase Additional ADSs
|
24
|
|
Section 4.5
|
Distributions Other Than Cash, Shares or Rights to Purchase Shares
|
26
|
|
Section 4.6
|
Distributions with Respect to Deposited Securities in Bearer Form
|
27
|
|
Section 4.7
|
Redemption
|
27
|
|
Section 4.8
|
Conversion of Foreign Currency
|
28
|
|
Section 4.9
|
Fixing of ADS Record Date
|
28
|
|
Section 4.10
|
Voting of Deposited Securities
|
29
|
|
Section 4.11
|
Changes Affecting Deposited Securities
|
31
|
|
Section 4.12
|
Available Information
|
32
|
|
Section 4.13
|
Reports
|
32
|
|
Section 4.14
|
List of Holders
|
32
|
|
Section 4.15
|
Taxation
|
32
|
|
|
|
|
|
ARTICLE V
|
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
|
33
|
|
Section 5.1
|
Maintenance of Office and Transfer Books by the Registrar
|
33
|
|
Section 5.2
|
Exoneration
|
34
|
|
Section 5.3
|
Standard of Care
|
35
|
|
Section 5.4
|
Resignation and Removal of the Depositary; Appointment of Successor Depositary
|
35
|
|
Section 5.5
|
The Custodian
|
36
|
|
Section 5.6
|
Notices and Reports
|
37
|
|
Section 5.7
|
Issuance of Additional Shares, ADSs etc
|
38
|
|
Section 5.8
|
Indemnification
|
38
|
|
Section 5.9
|
ADS Fees and Charges
|
40
|
|
Section 5.10
|
Pre-Release Transactions
|
41
|
|
Section 5.11
|
Restricted Securities Owners
|
41
|
|
|
|
|
|
ARTICLE VI
|
AMENDMENT AND TERMINATION
|
42
|
|
Section 6.1
|
Amendment/Supplement
|
42
|
|
Section 6.2
|
Termination
|
42
|
|
|
|
|
|
ARTICLE VII
|
MISCELLANEOUS
|
44
|
|
Section 7.1
|
Counterparts
|
44
|
|
Section 7.2
|
No Third‑Party Beneficiaries/Acknowledgments
|
44
|
|
Section 7.3
|
Severability
|
44
|
|
Section 7.4
|
Holders and Beneficial Owners as Parties; Binding Effect
|
45
|
|
Section 7.5
|
Notices
|
45
|
|
Section 7.6
|
Governing Law and Jurisdiction
|
46
|
|
Section 7.7
|
Assignment
|
47
|
|
Section 7.8
|
Compliance with U.S. Securities Laws
|
47
|
|
Section 7.9
|
English Law References
|
48
|
|
Section 7.10
|
Titles and References
|
48
|
|
|
|
|
|
EXHIBIT A
|
FORM OF ADR
|
A-1
|
|
EXHIBIT B
|
FEE SCHEDULE
|
B-1
|
Section 2.8
|
Limitations on Execution and Delivery, Transfer, etc. of ADSs; Suspension of Delivery, Transfer, etc.
|
ENDAVA PLC
|
|
|
|
|
|
By:
|
|
|
Name:
|
|
Title:
|
|
|
|
|
CITIBANK, N.A.
|
|
|
|
|
|
By:
|
|
|
Name:
|
|
Title:
|
Number
|
|
CUSIP NUMBER:
|
|
|
|
|
|
|
|
|
|
|
|
American Depositary Shares (each
American Depositary Share
representing the right to receive one
(1) fully paid Class A ordinary share)
|
(i)
|
ADS Issuance Fee
: by any person for whom ADSs are issued (
e.g.
, an issuance upon a deposit of Shares, upon a change in the ADS(s)-to-Share(s) ratio, or for any other reason), excluding issuances as a result of distributions described in paragraph (iv) below, a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) issued under the terms of the Deposit Agreement;
|
(ii)
|
ADS Cancellation Fee
: by any person for whom ADSs are being cancelled (
e.g.
, a cancellation of ADSs for Delivery of deposited shares, upon a change in the ADS(s)-to-Share(s) ratio, or for any other reason), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) cancelled;
|
(iii)
|
Cash Distribution Fee
: by any Holder of ADSs to whom the distribution is made, a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for the distribution of cash dividends or other cash distributions (
e.g.
, upon a sale of rights and other entitlements);
|
(iv)
|
Stock Distribution /Rights Exercise Fee
: by any Holder of ADS(s) to whom the distribution is made, a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for the distribution of ADSs pursuant to (a) stock dividends or other free stock distributions, or (b) an exercise of rights to purchase additional ADSs;
|
(v)
|
Other Distribution Fee
: by any Holder of ADS(s) to whom the distribution is made, a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for the distribution of securities other than ADSs or rights to purchase additional ADSs (
e.g.
, spin-off shares); and
|
(vi)
|
Depositary Services Fee
: by any Holder of ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held on the applicable record date(s) established by the Depositary.
|
(a)
|
taxes (including applicable interest and penalties) and other governmental charges;
|
(b)
|
such registration fees as may from time to time be in effect for the registration of Shares or other Deposited Securities on the share
|
(c)
|
such cable, telex and facsimile transmission and delivery expenses as are expressly provided in the Deposit Agreement to be at the expense of the person depositing Shares or withdrawing Deposited Property or of the Holders and Beneficial Owners of ADSs;
|
(d)
|
the expenses and charges incurred by the Depositary in the conversion of foreign currency (including transaction spreads);
|
(e)
|
such fees and expenses as are incurred by the Depositary in connection with compliance with exchange control regulations and other regulatory requirements applicable to Deposited Property, ADSs and ADRs; and
|
(f)
|
the fees and expenses incurred by the Depositary, the Custodian, or any nominee in connection with the delivery or servicing of Deposited Property.
|
CITIBANK, N.A.
Transfer Agent and Registrar |
|
CITIBANK, N.A.
as Depositary |
||
|
|
|
|
|
By:
|
|
|
By:
|
|
|
Authorized Signatory
|
|
|
Authorized Signatory
|
I.
|
ADS Fees
|
Service
|
Rate
|
By Whom Paid
|
(1) Issuance of ADSs (
e.g.
, an issuance upon a deposit of Shares, upon a change in the ADS(s)-to-Share(s) ratio, or for any other reason), excluding issuances as a result of distributions described in paragraph (4) below.
|
Up to U.S. $5.00 per 100 ADSs (or fraction thereof) issued.
|
Person for whom ADSs are issued.
|
(2) Cancellation of ADSs (
e.g.
,
a cancellation of ADSs for Delivery of deposited Shares, upon a change in the ADS(s)-to-Share(s) ratio, or for any other reason).
|
Up to U.S. $5.00 per 100 ADSs (or fraction thereof) cancelled.
|
Person for whom ADSs are being cancelled.
|
(3) Distribution of cash dividends or other cash distributions (
e.g.
, upon a sale of rights and other entitlements).
|
Up to U.S. $5.00 per 100 ADSs (or fraction thereof) held.
|
Person to whom the distribution is made.
|
(4) Distribution of ADSs pursuant to (i) stock dividends or other free stock distributions, or (ii) an exercise of rights to purchase additional ADSs.
|
Up to U.S. $5.00 per 100 ADSs (or fraction thereof) held.
|
Person to whom the distribution is made.
|
(5) Distribution of securities other than ADSs or rights to purchase additional ADSs (
e.g.
, spin-off shares).
|
Up to U.S. $5.00 per 100 ADSs (or fraction thereof) held.
|
Person to whom the distribution is made.
|
6) ADS Services.
|
Up to U.S. $5.00 per 100 ADSs (or fraction thereof) held on the applicable record date(s) established by the Depositary.
|
Person holding ADSs on the applicable record date(s) established by the Depositary.
|
II.
|
Charges
|
(i)
|
taxes (including applicable interest and penalties) and other governmental charges;
|
(ii)
|
such registration fees as may from time to time be in effect for the registration of Shares or other Deposited Securities on the share register and applicable to transfers of Shares or other Deposited Securities to or from the name of the Custodian, the Depositary or any nominees upon the making of deposits and withdrawals, respectively;
|
(iii)
|
such cable, telex and facsimile transmission and delivery expenses as are expressly provided in the Deposit Agreement to be at the expense of the person depositing Shares or withdrawing Deposited Property or of the Holders and Beneficial Owners of ADSs;
|
(iv)
|
the expenses and charges incurred by the Depositary in the conversion of foreign currency (including transaction spreads);
|
(v)
|
such fees and expenses as are incurred by the Depositary in connection with compliance with exchange control regulations and other regulatory requirements applicable to Deposited Property, ADSs and ADRs; and
|
(vi)
|
the fees and expenses incurred by the Depositary, the Custodian, or any nominee in connection with the servicing or delivery of Deposited Property.
|
|
Adopted by the Board on
|
7
th
May 2014
|
Expiry Date
|
7
th
May 2024
|
Contents
|
|||
1
|
GRANT OF OPTIONS
|
3
|
|
|
|
|
|
2
|
EXERCISE OF OPTION
|
4
|
|
|
|
|
|
3
|
LAPSE OF OPTION
|
6
|
|
|
|
|
|
4
|
CESSATION OF EMPLOYMENT
|
7
|
|
|
|
|
|
5
|
CORPORATE TRANSACTIONS
|
8
|
|
|
|
|
|
6
|
EMPLOYMENT RIGHTS
|
12
|
|
|
|
|
|
7
|
ADMINISTRATION
|
13
|
|
|
|
|
|
8
|
INTERPRETATION
|
15
|
|
|
|
|
|
SCHEDULE 1
|
18
|
|
|
OPTION AGREEMENT
|
18
|
|
|
|
|
||
SCHEDULE 2
|
23
|
|
|
THE ENDAVA LIMITED APPROVED SHARE OPTION PLAN
|
23
|
|
|
|
|
||
SCHEDULE 3
|
27
|
|
|
OPTION AGREEMENT - APPROVED
|
27
|
|
|
|
|
||
SCHEDULE 4
|
32
|
|
|
FORM OF GRANT LETTER
|
32
|
|
1
|
GRANT OF OPTIONS
|
1.1
|
The Grantor may in its absolute discretion grant Options under the Plan to Employees:
|
(a)
|
at any time or times not later than the tenth anniversary of the Adoption Date;
|
(b)
|
subject to the limitations and conditions contained in these Rules; and
|
(c)
|
provided the grant is not prohibited by or in breach of any law, regulation with the force of law, or non-statutory set of guidelines or code that applies to the Company or with which it wishes to comply from time to time.
|
1.2
|
The Options shall be granted subject to the terms and conditions of these Rules, including but not limited to Rules 2.4 to 2.9 (
Taxation
) and on such other terms as the Grantor shall specify, not inconsistent with the Rules.
|
1.3
|
The Board may grant Options on terms that they cannot be exercised until specified Exercise Conditions (which may include performance targets) have been satisfied. Where events happen which cause the Board to consider that the Exercise Conditions are no longer appropriate, the Board may:
|
(a)
|
vary or amend the Exercise Conditions in such a way as the Board, acting fairly and reasonably, considers appropriate, provided that the new Exercise Conditions are not more difficult to satisfy than the original Exercise Conditions; or
|
(b)
|
waive the Exercise Conditions in whole or in part.
|
1.4
|
As soon as practicable after an Option has been granted, the Grantor shall send an Option Agreement to the Option Holder. The Option shall not be capable of being exercised (and shall lapse) unless the Option Holder has, within the period of 30 days beginning with the Date of Grant (or such longer period as the Board may specify), signed the Option Agreement and any other documents required by the Grantor, and returned them to the Company. Where the documents are not signed and returned to the Company within the required period the Option shall lapse and shall for all purposes be taken never to have been granted.
|
1.5
|
An Option is personal to the Option Holder and may not be transferred, assigned or charged, and any purported transfer, assignment or charge of the Option shall cause it to lapse. For the avoidance of doubt, this Rule 1.5 shall not prevent the personal representative(s) of a deceased Option Holder exercising an Option to the extent permitted by these Rules.
|
2
|
EXERCISE OF OPTION
|
2.1
|
An Option shall be capable of being exercised in whole or in part at the times and to the extent set out in the Option Agreement, Rule 4 and Rule 5 save that the Board shall have the discretion to permit all or any part of an Option to be exercised at an earlier time, on such terms as may be determined by the Board. Notwithstanding the foregoing, following Admission, the Option may not be exercised during a Close Period or in circumstances that would constitute market abuse for the purposes of section 118 of the Financial Services and Markets Act 2000.
|
2.2
|
An Option shall be exercised by the Option Holder delivering to the Grantor a duly completed Notice of Exercise together with such other documents as the Grantor may require pursuant to this Plan. The Option Holder shall also pay to the Grantor the aggregate Exercise Price payable in respect of the exercise of the Option in such form as the Grantor may determine unless the Grantor has agreed alternative arrangements for payment of the Exercise Price.
|
2.3
|
When an Option is exercised in part, the terms of exercise that originally applied to the Option will continue to apply in relation to the remainder of the Option.
|
2.4
|
If Tax Liabilities arise in respect of an Option or any Shares acquired pursuant to exercise of an Option, the Company or Employer shall be entitled to deduct (to the extent permitted by law) such amount(s) from any payment due to be made by the Company or Employer to or in respect of the Option Holder at any time.
|
2.5
|
If and to the extent that the Tax Liabilities exceed the amount from which deductions can be made pursuant to Rule 2.4, the Option Holder shall pay to the Employer in cleared funds the amount of the excess on demand or within such period as may be specified in any written notice given by the Company.
|
2.6
|
Neither the Company nor the Grantor shall be obliged to issue or transfer any Shares on the exercise of an Option until the Employer has received an amount equal to the Tax Liabilities.
|
2.7
|
Where Tax Liabilities arise in respect of the exercise of an Option, and the Option Holder has not accounted for the Tax Liabilities as provided for in Rules 2.4 and 2.5, the Company may sell such number of Shares issued or transferred upon the exercise of the Option as may be required in order to discharge the Tax Liabilities and any other liability (including costs) connected with the sale of the Shares.
|
2.8
|
Unless the Board otherwise determines, the Option Holder shall agree to accept any Secondary NIC Liability that arises in respect of an Option or any Shares acquired on exercise of an Option and Rules 2.4 to 2.7 above shall apply in respect of such Secondary NIC Liability mutatis mutandis and as if references in those Rules to Tax Liabilities were replaced by references to the Secondary NIC Liability. The Board may require the Option Holder to enter into a NIC Election as a condition of the exercise of the Option.
|
2.9
|
The Board may require the Option Holder to enter into a Joint Election as a condition of the exercise of the Option.
|
2.10
|
Subject to Rules 2.4 to 2.9 (
Taxation
), as soon as reasonably practicable after receipt of the signed documents and Exercise Price (if any) in accordance with Rule 2.2, the Grantor shall issue or procure the transfer to the Option Holder of the number of Shares in respect of which the Option has been exercised, save that if the issue or transfer is prohibited by law or the Company is in a Close Period, such issue or transfer shall be effected as soon as reasonably practicable after the issue or transfer ceases to be prohibited, or the end of the Close Period.
|
2.11
|
Subject to Rule 5.11, save for any rights determined by reference to a date on or before the date of issue, all Shares issued on exercise of Options shall rank equally in all respects with the Company's existing Shares of the same class.
|
2.12
|
In respect of any Shares issued under this Plan at a time when the Shares are admitted to or listed on a Recognised Exchange, the Company shall apply to the Recognised Exchange for such Shares to be admitted to listing as soon as practicable after the Shares are issued.
|
3
|
LAPSE OF OPTION
|
3.1
|
An Option shall cease to be exercisable and shall lapse on the earliest of the following:
|
(a)
|
if, and to the extent that, the Board determines (in its sole discretion) that the Exercise Conditions (if any) cannot be met;
|
(b)
|
if, and to the extent that, the Option Holder surrenders all or any part of the Option;
|
(c)
|
if the Option Holder attempts to transfer, assign or charge the Option;
|
(d)
|
if the Option Agreement and other documents are not signed and returned to the Company in accordance with Rule 1.4;
|
(e)
|
5pm on the last working day before the tenth anniversary of the Date of Grant of the Option;
|
(f)
|
the first anniversary of the Option Holder's death;
|
(g)
|
the date three months after the Leaving Date of any Employee who has ceased employment as set out in Rule 4.2;
|
(h)
|
the Leaving Date of any Employee other than one who has ceased employment as set out in Rule 4.2, or such later date as the Board may determine in its sole discretion in accordance with Rule 4;
|
(i)
|
the first date on which the Option lapses in accordance with the provisions of Rule 5 (
Corporate Transactions
);
|
(j)
|
the Option Holder being adjudicated bankrupt or any voluntary arrangement or scheme being made in relation to his debts with his creditors or any section of them; or
|
(k)
|
the passing of an effective resolution for the making of an order by the court for the winding-up of the Company other than in accordance with Rule 5.8.
|
4
|
CESSATION OF EMPLOYMENT
|
4.1
|
If an Option Holder ceases employment within the Group by reason of his death, his personal representatives may exercise his Option to the extent set out in the Option Agreement (or as the Board may otherwise determine) at any time before the Option lapses pursuant to Rule 3 (
Lapse
).
|
4.2
|
If an Option Holder ceases employment within the Group due to:
|
(a)
|
ill health, injury or disability evidenced to the satisfaction of the Board,
|
(b)
|
retirement with the agreement of the Board,
|
(c)
|
his Employer ceasing to be Controlled by the Company, or
|
(d)
|
a relevant transfer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006,
|
4.3
|
If an Option Holder ceases employment with the Group for any reason, other than as provided by Rule 4.1 and Rule 4.2, his Option shall cease to be exercisable.
|
4.4
|
If an Option Holder gives or is given notice to terminate his employment other than as provided for in Rule 4.2 his Option shall not be capable of exercise.
|
4.5
|
If an Option Holder is subject to any disciplinary process or procedure in relation to his employment with any Group Company, his Option shall not be capable of exercise until such process or procedure has been resolved as determined by the Board.
|
4.6
|
An Option Holder shall not be regarded as having ceased employment with the Group if:
|
(a)
|
the Option Holder continues to be employed by any Group Company, or
|
(b)
|
the Option Holder is absent from work by reason of statutory or contractual maternity, paternity, parental or adoption leave or compulsory national military service, until the Option Holder no longer has any right under the relevant legislation to return to work at the end of any such period of absence.
|
5
|
CORPORATE TRANSACTIONS
|
5.1
|
Subject to Rule 5.3 (Compulsory Acquisition) and Rule 5.5 (Exchange of Options) if any person acting alone or in concert with others obtains Control of the Company as a result of making either:
|
(a)
|
a general offer to acquire the whole of the issued ordinary share capital of the Company, which is made on a condition such that if it is met, the person making the offer will have Control of the Company; or
|
(b)
|
a general offer to acquire all the shares in the Company which are of the same class as the Shares.
|
(i)
|
within 30 days (or such earlier date as the Board may determine) of the date upon which the person making the offer obtains Control of the Company and any condition subject to which the offer is made has been satisfied and if not so exercised the Options shall lapse at the end of that period; or
|
(ii)
|
at the sole discretion of the Board, during any period specified by the Board ending before the person making the offer obtains Control of the Company and any condition subject to which the offer is made has been satisfied, such exercise to be conditional upon and take effect immediately prior to the Change of Control. If the Board exercises its discretion under this sub-paragraph (ii), the Options will cease to be exercisable at the end of the period specified by the Board, there will be on other rights of exercise under this Rule 5 and all unexercised Options will lapse on the Change of Control. If the Change of Control does not take place, the Option will continue to be exercisable in accordance with these Rules and the Option Agreement
|
5.2
|
If any court sanctions a compromise or arrangement under section 899 of the Companies Act 2006 applicable to or affecting:
|
(a)
|
all the ordinary share capital of the company or all the shares of the same class as the shares to which the option relates, or
|
(b)
|
all the shares, or all the shares of that same class, which are held by a class of shareholders identified otherwise than by reference to their employment or directorships or their participation in a plan approved under Schedule 4 of ITEPA,
|
(i)
|
within 30 days of the date on which the court sanctions the compromise or arrangement and if not so exercised the Options shall lapse at the end of that period; or
|
(ii)
|
at the sole discretion of the Board, during any period specified by the Board ending before the court sanctions the compromise or arrangement, such exercise to be conditional upon and take effect immediately prior to court sanction. If the Board exercises its discretion under this sub-paragraph (ii), the Options will cease to be exercisable at the end of the period specified by the Board, there will be on other rights of exercise under this Rule 5 and all unexercised Options will lapse on the Change of Control. If the Change of Control does not take place, the Option will continue to be exercisable in accordance with these Rules and the Option Agreement.
|
5.3
|
If any person becomes bound or entitled to acquire Shares under sections 974 to 987 of the Companies Act 2006, the Board shall notify all Option Holders following which, subject to Rule 2 (
Exercise of Options
) and this Rule 5, Subsisting Options may be exercised, to the extent that Exercise Conditions have been met or waived, at any time during which the person remains so bound or entitled, and any unexercised Options will lapse at the end of such period.
|
5.4
|
Rule 5.1 to 5.3 will not apply on an Internal Reorganisation unless the Board determines otherwise.
|
5.5
|
If as a result of the events specified in Rules 5.1 or 5.2 a person has obtained Control of the Company or if a person has become bound or entitled as mentioned in Rule 5.3, the Option Holder may with the agreement of that other person release his Subsisting Options in consideration of the grant of a new Option which is no less valuable than the original Option.
|
5.6
|
If the Board considers that Admission is likely to occur, it shall notify all Option Holders as soon as practicable and the Board shall have the discretion to:
|
(a)
|
permit Subsisting Options to be exercised on such terms as are specified by the Board and during any period notified to the Option Holders by the Board, in which case the Board shall have the discretion:
|
(i)
|
to waive any remaining Exercise Conditions attached to any Subsisting Options in whole or in part, and
|
(ii)
|
to require that the whole or any part of such Subsisting Options may not be exercised until the end of any "lock in" period that may be agreed by the Company; and
|
(iii)
|
to require that some or all of the Shares acquired pursuant to the exercise of these Options may not be transferred until the end of any "lock in" period that may be agreed by the Company,
|
(b)
|
require Subsisting Options to continue to be Subsisting Options following Admission, subject to the terms of this Plan, in which case the Board shall have the discretion to waive any remaining Exercise Conditions attached to any Subsisting Options in whole or in part.
|
5.7
|
If the Company proposes a Demerger, the Board may notify any Option Holders that it may select in its sole discretion, following which, subject to Rule 2 (
Exercise of Options
), the selected Option Holders may exercise their Subsisting Options on such terms and to such extent and during such period as the Board may specify. Any Options held by Option Holders who were selected under this Rule 5.7 that are not exercised at the end of the specified period shall lapse. If the Board gives notice under this Rule 5.7, this Rule shall take priority over the other provisions of this Rule 5.
|
5.8
|
If the Company gives notice to its shareholders of a general meeting of the Company at which a resolution will be proposed for the voluntary liquidation of the Company, the Board shall notify Option Holders following which, subject to Rule 2 (
Exercise of Options
), those Option Holders may exercise their Subsisting Options to the extent that Exercise Conditions have been met or waived, at any time prior to but conditional upon the passing of the resolution and any unexercised Options will lapse on the passing of that resolution.
|
5.9
|
Where an Option Holder exercises an Option under Rule 5.8, the Option Holder shall be entitled to share in the assets of the Company with existing shareholders in the same manner as he would have been entitled had the Shares acquired on exercise of the Options been registered in his name before the resolution for voluntary liquidation was passed.
|
5.10
|
In the event of any increase or variation of the issued ordinary share capital of the Company (whenever effected) by way of capitalisation or rights issue, or sub-division, consolidation or reduction, the Grantor may make such adjustments as it considers appropriate to:
|
(a)
|
the number of shares in respect of which any Option may be exercised, and/or
|
(b)
|
the Exercise Price
|
(i)
|
the aggregate market value of the shares which may be acquired on exercise of the Option and the aggregate Exercise Price payable on exercise of the Option in full is substantially the same as what it was immediately before the adjustment; and
|
(ii)
|
no adjustments shall be made if the Option is to subscribe for Shares issued by the Company and the adjustment would reduce the Exercise Price below the nominal value of the Shares unless the Company is authorised to:
|
(i)
|
capitalise from the reserves of the Company a sum equal to the amount by which the aggregate nominal value of the Shares subject to the Option exceeds the aggregate Exercise Price ("the deficit"); and
|
(ii)
|
apply the amount referred to in (i) above in paying up each Share on exercise of the Option to the extent of the deficit by way of a capitalisation.
|
5.11
|
As soon as reasonably practicable after making any adjustment under Rule 5.10 above, the Grantor shall notify each Option Holder of the adjustment.
|
6
|
EMPLOYMENT RIGHTS
|
6.1
|
The Plan is discretionary in nature and participation does not create any contractual or other right to future participation in the Plan, even if participation has been offered repeatedly.
|
6.2
|
The Option Holder's participation in the Plan shall not create a right to further employment with any Group Company and shall not interfere with the ability of his Employer to terminate his employment relationship at any time.
|
6.3
|
By accepting the grant of an Option pursuant to the Plan, the Option Holder shall waive any and all rights to compensation or damages in consequence of any loss or diminution in value of the Option or Shares acquired pursuant to the Plan, including without limitation as a result of:
|
(a)
|
the termination of his office or employment for any reason whatsoever (including unfair or wrongful dismissal); and
|
(b)
|
the way in which the Board or Grantor exercises (or does not exercise) any discretion under the Plan, even if the exercise (or non-exercise) of discretion is or appears to be irrational or perverse or breaches any implied term of any contract between the Option Holder and his Employer.
|
6.4
|
Neither Options granted nor Shares acquired pursuant to the Plan are part of the Option Holder's contract of employment or normal or expected remuneration and they shall not be taken into account for the purposes of calculating earnings, compensation or benefits for any reason, including but not limited to any pension or retirement benefit rights, termination payments, redundancy payments, bonuses or any similar payments.
|
6.5
|
No Group Company makes any representation or warranty that any benefit will accrue to any individual who is granted an Option. The future value of Shares is unknown and any Shares acquired pursuant to the Plan may increase or decrease in value, even below the Exercise Price.
|
6.6
|
By accepting the grant of an Option, the Option Holder shall agree and consent to:
|
(a)
|
the collection, use and processing by the Grantor, the Company, any members of the Group, any administrator of the Plan and the Company's advisers, brokers or registrars of Personal Data relating to the Option Holder or any other person as a holder of Shares acquired pursuant to the exercise of an Option;
|
(b)
|
the Company, any member of the Group, the Grantor, any administrator of the Plan and the Company's advisers, brokers or registrars transferring Personal Data to or between any such person for all purposes reasonably connected with the administration of the Plan;
|
(c)
|
the use of such Personal Data by any such person for such purpose; and
|
(d)
|
the transfer to and retention of such Personal Data by any third party for such purposes wherever located and where necessary transmitted outside of the United Kingdom or the European Economic Area.
|
7
|
ADMINISTRATION
|
7.1
|
The Plan shall in all respects be administered by the Board who may from time to time make and vary such rules, regulations and procedures (not inconsistent with these Rules) for the administration and implementation of the Plan and Rules as it thinks fit. The Board may also adopt sub-plans to this Plan that are on substantially the same terms as this Plan but comply with or take account of any applicable legislation or statutory regulation in any jurisdiction outside the United Kingdom.
|
7.2
|
In the event of any dispute or disagreement as to the interpretation of the Rules, or of any rule, regulation or procedure, or as to any question or right arising from or related to the Plan, the decision of the Board shall be final and binding upon all persons.
|
7.3
|
The Board may by resolution at any time make any alteration to the Rules or the terms of any Subsisting Options which it thinks fit provided that:
|
(a)
|
where the Grantor is not the Company, no such alteration shall take effect so as to materially affect the liabilities of the Grantor without the prior written consent of the Grantor; and
|
(b)
|
no such alteration shall take effect which would materially affect the liability of any Option Holder or which would materially affect the value of his Subsisting Options without the prior written consent of the Option Holder.
|
7.4
|
The costs of introducing and administering the Plan shall be borne by the Company or any Group Company and shall be allocated at the discretion of the Board.
|
7.5
|
Subject to Rule 7.7, the existence of any Option shall not affect in any way the right or power of the Company or its shareholders to make or authorise any or all adjustments, capitalisation, reorganisation, reductions of capital, purchase or redemption of its own shares pursuant to the Companies Act 2006 or any other changes in the Company's capital structure or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or convertible into, or otherwise affecting the Shares or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceedings, whether of a similar character or otherwise.
|
7.6
|
Any notice or other communication under or in connection with the Rules may be given by personal delivery or by sending the same by post or email, in the case of a company to its registered office or address shown on the company website and in the case of an individual to his last known address or address at which he performs the duties of his office or employment with a Group Company, including his email address. Where a notice or other communication is given by first-class post, it shall be deemed to have been received 48 hours after it was put into the post properly addressed and stamped. Where a notice or other communication is given by email, it shall be deemed to have been received when opened. Share certificates and other communications sent by post shall be sent at the risk of the individual concerned and neither the Grantor, Company or Employer shall have any liability to any such individual in respect of any notification, document, share certificate or other communication that is given, sent or made.
|
7.7
|
The Board shall at all times keep available sufficient unissued Shares or shall procure that there are available sufficient Shares to satisfy the exercise of all Options granted under the Plan. For this purpose the Board may enter into an agreement with any individual, company or the trustees of any employee benefit trust for the provision by such persons of Shares to satisfy Options.
|
7.8
|
Except as otherwise expressly stated to the contrary, and in respect of Group Companies, neither this Plan nor the making of any Option shall have the effect of giving any third party any rights under this Plan pursuant to the Contracts (Rights of Third Parties) Act 1999 and that Act shall not apply to this Plan or the terms of any Option under it.
|
7.9
|
The Rules and the Plan shall in all respects be governed by and construed in accordance with the laws of England and be subject to the exclusive jurisdiction of the English Courts.
|
8
|
INTERPRETATION
|
8.1
|
In these Rules (unless the context otherwise requires) the following words and expressions shall have the following meanings:
|
"Admission"
|
the effective admission of Shares to the Official List of the UK Listing Authority or the effective admission to trading of such capital to the London Stock Exchange plc or to any other Recognised Exchange wheresoever located or the grant of permission of the Shares to be dealt in on AIM or admitted to trading on any market owned or operated by Plus Markets plc (including without limitation, Plus-Listed or Plus-Quoted), and on any day that the Shares are to trade they shall be "Admitted";
|
"Adoption Date"
|
the date on which the Plan is adopted by the Board;
|
"Board"
|
the board of directors for the time being of the Company or a committee thereof duly authorised for the purposes of the Plan at which a quorum is present;
|
"Change of Control"
|
any person, or persons who are Connected or acting in concert with each other, obtaining Control of the Company;
|
"Close Period"
|
any period where there are restrictions on dealing in the Shares either under the rules of the Recognised Exchange or under any share dealing code adopted by the Company from time to time;
|
"Company"
|
Endava Limited registered in England & Wales with registration number 05722669 and whose registered address is 125 Old Broad Street, London, EC2N 1AR;
|
"Connected"
|
has the meaning given to it by section 718 ITEPA and "
unconnected
" shall be interpreted accordingly;
|
"Control"
|
has the meaning given to it by section 719 ITEPA and
"controlled"
shall be interpreted accordingly;
|
"Date of Grant"
|
the date on which an Option was or is to be granted;
|
"Demerger"
|
any spin-off or demerger by the Company of substantially the whole of its interest in a trade or business or of its shares in one or more of its Subsidiaries as determined in the sole discretion of the Board;
|
"Employee"
|
an employee (including an executive director) of any member of the Group and
"Employer"
shall be construed accordingly;
|
"Exercise Conditions"
|
any objective conditions, imposed under Rule 1.3 and determined by the Board (as set out in the Option Agreement), which are required to be satisfied before the Option can be exercised;
|
"Exercise Period"
|
the period determined by the Board during which the Option Holder may exercise the Option (as set out in the Option Agreement;
|
"Exercise Price"
|
the price determined by the Grantor at the Date of Grant at which each Share may be acquired on the exercise of an Option, provided that where the exercise of the Option shall be satisfied by subscription for newly issued Shares, the Exercise Price shall not be less than the nominal value of the Shares;
|
"Grantor"
|
the person who has granted or intends to grant an Option, being the Board or any other person who has confirmed to the Company that it will comply with the terms of this Plan;
|
"Group"
|
the Company and its Subsidiaries and the phrases "
Group Company
" shall be construed accordingly;
|
"Internal Reorganisation"
|
any compromise, arrangement or offer which, in the reasonable opinion of the Board, having regard to the shareholdings in the Company and any acquiring company before and after the compromise, arrangement or offer and/or any other matter which it considers relevant, is in the nature of an internal reorganisation or reconstruction of Company;
|
"ITEPA"
|
the Income Tax (Earnings and Pensions) Act 2003;
|
"Joint Election"
|
a joint election pursuant to section 425, 430 or 431 ITEPA;
|
"Leaving Date"
|
the date on which an Employee ceases employment with any Group Company;
|
"NIC"
|
national insurance contributions;
|
"NIC Election"
|
an agreement by the Employee to indemnify his Employer against Secondary NIC Liability or an election to transfer the Secondary NIC Liability to the Employee;
|
"Notice of Exercise"
|
a notice of exercise substantially in the form appended to the Option Agreement as Appendix 2 (or such other form as the Board may specify);
|
"Option"
|
a right to acquire Shares at an Exercise Price (if any) granted or to be granted pursuant to Rule 1;
|
"Option Agreement"
|
the agreement substantially in the form set out in Schedule 1 to these Rules (or such other form as the Board may specify) setting out the terms of an Option;
|
"Option Holder"
|
a person who holds an Option or (where the context admits) his duly appointed personal representatives;
|
"Personal Data"
|
has the meaning it bears for the purposes of the Data Protection Act 1998;
|
"Plan"
|
this Endava Limited Share Option Plan constituted and governed by the Rules as amended from time to time;
|
"Recognised Exchange"
|
a recognised stock exchange within the meaning of section 1005 of the Income Tax Act 2007 or a recognised investment exchange within the meaning of the Financial Services and Markets Act 2000;
|
"Rules"
|
these rules of the Plan as amended from time to time and "
Rule
" shall be construed accordingly;
|
"Secondary NIC Liability"
|
any employer's secondary Class 1 NIC arising on the exercise, variation or release of an Option;
|
"Share"
|
a ordinary share of £0.10 each of the Company;
|
"Subsidiary"
|
a company which is under the control of the Company and is a "Subsidiary" as defined in section 1159 and Schedule 6 of the Companies Act 2006;
|
"Subsisting Option"
|
an Option which has been granted to the extent that it has not lapsed, been surrendered, renounced or exercised;
|
"Tax Liabilities"
|
any income tax and employee's NIC charge attributable to or payable in connection with the Option or any Shares acquired pursuant to the exercise of such Option.
|
8.2
|
In these Rules, except insofar as the context otherwise requires:
|
(a)
|
words denoting the singular shall include the plural and vice versa and words importing a gender shall include every gender and references to a person shall include bodies corporate and unincorporated and vice versa;
|
(b)
|
rule headings are inserted for convenience only and are to be ignored in construing these Rules;
|
(c)
|
references in these Rules to any statute shall be deemed to include every modification, amendment, extension and/or re-enactment by statute or sub-ordinate legislation for the time being in force and shall include any orders, regulations, instruments or other sub-ordinate legislation made under the relevant statute; and
|
(d)
|
words shall have the same meanings as in ITEPA unless the context otherwise requires.
|
Name of Option Holder:
|
|
Address of Option Holder:
|
|
Date of Grant:
|
|
Number of Shares subject to Option:
|
|
Exercise Price per Share:
|
£4.50
|
Exercise Period:
|
The period commencing and ending on the dates as set out in clauses 2 and 3 of this Option Agreement respectively.
|
Exercise Condition:
|
As set out in Appendix 1 to this Option Agreement.
|
1
|
[Endava Limited (the "
Company
")
OR
[Grantor Name] (the "
Grantor
")] has granted to the Option Holder named above an Option to acquire the Number of Shares in the Company at the Exercise Price set out above. The Option has been granted pursuant to and is subject to the Rules of the Plan as amended from time to time. Capitalised terms in this Option Agreement shall have the same meanings as given to them in the Plan. In the event of any conflict between the Plan and the terms of this Option Agreement, the Plan shall prevail unless the Plan has been specifically varied by this Option Agreement.
|
2
|
The Option is exercisable in accordance with Rule 2 and to the extent permitted by the Rules upon the earliest to occur of:
|
3
|
The Option may not be exercised after the date on which it has lapsed or ceased to be exercisable as provided in Rules 3 or 5.
|
4
|
To accept this Option, the Option Holder must sign this Option Agreement and return it to [name] at [ ] by [
date – 30 day deadline under Rule 1.4
]. If the Option Holder does not do so, the Option will lapse and cease to be exercisable.
|
SIGNED
|
|
|
|
|
[Name of Option Holder]
|
|
|
|
Date:
|
|
|
1.
|
Exercise Conditions
|
2.
|
Tax Withholding
|
2.1
|
The Option Holder agrees to accept any liability for any Secondary NIC Liability that arises in respect of the Option or any Shares acquired on exercise of an Option and agrees that his Employer may recover this from the Option Holder as set out in Rules 2.4 to 2.8 of the Plan. The Option Holder further agrees that he will enter into a NIC Election as a condition of the exercise of the Option if so requested by the Board.
|
2.2
|
The Option Holder agrees that to the extent any Tax Liabilities arise in respect of the Option or any Shares acquired on exercise of an Option, his Employer may recover these from the Option Holder as set out in Rules 2.4 to 2.8 of the Plan.
|
3.
|
Data Protection
|
4.
|
Employment Rights
|
5.
|
General
|
5.1
|
The Option Agreement and the Rules of the Plan comprise the entire agreement between the Company, Grantor, Employer and Option Holder in relation to the Option and supersedes any previous agreement, arrangement or undertaking between the parties in relation thereto.
|
5.2
|
A person other than a Group Company who is not a party to this Option Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Option Agreement, but this does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act. This Option Agreement shall be governed by and construed in accordance with the laws of England and be subject to the exclusive jurisdiction of the English Courts.
|
Name of Option Holder:
|
|
Address of Option Holder:
|
|
Date of Grant of Option:
|
|
Number of Shares subject to Option:
|
|
Exercise Price per Share:
|
£4.50
|
1.
|
I exercise the Option granted to me on the Date of Grant set out above in respect of the Number of Shares and at the Exercise Price set out above, and request the allotment or transfer to me of those Shares in accordance with the Rules of the Plan. I acknowledge that this exercise is binding on me and irrevocable.
|
2.
|
I enclose a cheque for £……… made payable to Endava Limited, being the aggregate Exercise Price of the Shares. *
delete if alternative arrangements for payment of the Exercise Price have been agreed – see Note 1
|
3.
|
I confirm that any Group Company or my Employer may withhold or collect any Tax Liabilities and Secondary NIC Liability payable by me in respect of the exercise of my Option as set out in Rules 2.4 to 2.8 of the Plan.
|
4.
|
I enclose a signed Joint Election and NIC Election as requested by the Grantor or Board.
|
Signature:
|
|
|
|
|
|
Date:
|
|
|
1.
|
This form must be accompanied by payment of the Exercise Price for the Shares in respect of which the Option is exercised, unless you have been notified by the Grantor that alternative arrangements will be in effect.
|
2.
|
If the Option is exercised by personal representatives, please contact the Board for a revised Notice of Exercise. An office copy of the Probate or Letter of Administration should accompany the Notice of Exercise.
|
3.
|
Under current tax rules a charge to income tax and NICs may arise when this Option is exercised. It is a condition of exercise of the Option that you enter into arrangements satisfactory to the Board to ensure that any such Tax Liabilities (and Secondary NIC Liability) will be recovered from you.
|
4.
|
For interpretation purposes, words and phrases in this Notice shall bear the same meanings as for the Plan.
|
1.
|
RULE 1 – GRANT OF OPTIONS
|
1.1
|
No Option shall be granted pursuant to the Approved Plan if the requirements of Parts 2 to 6 of Schedule 4 to ITEPA are not met.
|
1.2
|
For the purposes of the Approved Plan, the word "Employees" in Rule 1.1 shall be replaced by Eligible Employees".
|
1.3
|
New Rule 1.1(d) shall be inserted into the Approved Plan:
|
(d)
|
provided that no Option shall be granted under the Approved Plan to any person who has or has had within the preceding 12 months a "material interest" as set out in paragraph 9 of Schedule 4 of ITEPA.
|
1.4
|
For the purposes of the Approved Plan, any Exercise Conditions that are performance targets must be objective and set by the Board at the Date of Grant.
|
1.5
|
The Option Agreement shall state the terms required to be stated pursuant to paragraph 21A of Schedule 4 to ITEPA, which as at the date of adoption of the Plan are:
|
(a)
|
the price at which shares may be acquired by the exercise of the option,
|
(b)
|
the number and description of the shares which may be acquired by the exercise of the option,
|
(c)
|
the restrictions to which those shares may be subject,
|
(d)
|
the times at which the option may be exercised (in whole or in part), and
|
(e)
|
the circumstances under which the option will lapse or be cancelled (in whole or in part), including any conditions to which the exercise of the option is subject (in whole or in part).
|
1.5
|
New Rule 1.7 shall be inserted into the Approved Plan:
|
1.7
|
An Option granted under the Approved Plan shall be limited and take effect so that the aggregate Market Value of (i) the Shares which may be acquired on the exercise of that Option (measured at the Date of Grant), plus (ii) any Shares which may be acquired on the exercise of any other Subsisting Options granted to the Option Holder under a company share option plan approved by HM Revenue & Customs pursuant to the provisions of Schedule 4 of ITEPA (measured as at the date of grant of those
|
2.
|
RULE 2 – EXERCISE OF OPTIONS
|
2.1
|
An Option granted under the Approved Plan may not be exercised if the Option Holder has or has had within the preceding 12 months a "material interest" as set out in paragraph 9 of Schedule 4 of ITEPA.
|
2.2
|
For the purposes of Rule 2.2, no alternative arrangements for payment of the Exercise Price can take effect until they have been agreed by HM Revenue & Customs (while the Approved Plan is intended to remain approved under Schedule 4 of ITEPA).
|
2.3
|
Rule 2.6 shall not apply to the Approved Plan.
|
2.4
|
Subject to compliance with all legal and regulatory requirements, following receipt of a valid Notice of Exercise in respect of Options granted under the Approved Plan, the Company shall procure that Shares are issued or transferred to the Option Holder within 30 days of exercise of the Option.
|
3.
|
RULE 5 – CORPORATE TRANSACTIONS
|
3.1
|
If a person obtains control of the Company as a result of the events specified in Rules 5.1 to 5.3, and in consequence the Shares in the Company no longer meet the requirements of Part 4 of Schedule 4 of ITEPA, the Board shall notify Option Holders following which, subject to Rule 5.5, an Option may be exercised in accordance with Rules 5.1 to 5.3 no later than 20 days (or such other period as may be specified by paragraph 25A(7B) of Schedule 4 of ITEPA) after the change of control of the Company, notwithstanding that the Shares no longer meet the requirements of Part 4 of Schedule 4 of ITEPA.
|
3.2
|
If an event within Rules 5.1 to 5.3 is proposed, the Board may permit the Option Holders to exercise their Options within the period of 20 days (or such other period as may be specified by paragraph 25A(7E) of Schedule 4 of ITEPA) ending with the Relevant Date, in which case:
|
(a)
|
the Option shall be treated as if it had been exercised in accordance with Rules 5.1 to 5.3; and
|
(b)
|
if the Option is exercised in anticipation of an event within Rules 5.1 to 5.3, but the Relevant Date does not occur during the period of 20 days (or such other period as may be specified by paragraph 25A(7E) of Schedule 4 of ITEPA) beginning with the date on which the Option is exercised, the exercise of the Option is to be treated as having had no effect.
|
3.3
|
Rule 5.5 shall be replaced by:
|
5.5
|
If as a result of the events specified in Rules 5.1 or 5.2 a person has obtained Control of the Company or if a person has become bound or entitled as mentioned in Rule 5.3, the Option Holder may with the agreement of that other person release his Subsisting Options (the "
Old Option
") in consideration of the grant of a new Option (the "
New Option
") which is equivalent to the Old Option for the purposes of paragraph 27(4) of Schedule 4 to ITEPA but relates to shares in the company which has obtained Control of the Company or some other company falling within paragraph 16(b) or (c) of Schedule 4 to ITEPA. The release of the Old Option and grant of the New Option must take place within the period during which an Option
|
3.4
|
For the purposes of the Approved Plan, no adjustments made pursuant to Rule 5.10 while the Approved Plan is intended to meet the requirements of Parts 2 to 6 of Schedule 4 to ITEPA shall take effect if they would result in the requirements of Schedule 4 to ITEPA ceasing to be met). No adjustment may be made in accordance with Rule 5.10 in the event of a spin-off or demerger of the Company or other exceptional event that does not include the variation of the share capital of the Company.
|
4.
|
RULE 7 – ADMINISTRATION
|
4.1
|
If an alteration is made to a "key feature" of the Approved Plan while the Approved Plan is intended to meet the requirements of Parts 2 to 6 of Schedule 4 to ITEPA, such alteration or addition shall not have effect until it has been approved by HM Revenue & Customs so long as such approval is available and required under Schedule 4 to ITEPA. For the purposes of this clause, a "key feature" is any provision of the Approved Plan which is necessary to meet the requirements of Schedule 4 to ITEPA.
|
4.2
|
Any exercise of discretion by the Board in relation to the Approved Plan shall be carried out on a fair and reasonable basis.
|
5.
|
RULE 8 – INTERPRETATION
|
"Constituent Company"
|
the Company, any Subsidiary and any company within paragraph 34 of Schedule 4 of ITEPA (
Jointly owned companies
);
|
"Eligible Employee"
|
any individual who at the Date of Grant is:
(a) a full-time director (being a director required to work at least 25 hours or more per week excluding meal breaks); or
(b) an employee (who is not a director)
of a Constituent Company and who is not precluded from participating in the Approved Plan by paragraph 9 of Schedule 4 of ITEPA;
|
"Exercise Price"
|
the price determined by the Grantor at the Date of Grant at which each Share may be acquired on the exercise of an Option, which shall not be less than the Market Value of a Share at the Date of Grant provided that where the exercise of the Option shall be satisfied by subscription for newly issued Shares, the Exercise Price shall not be less than the nominal value of the Shares;
|
"Market Value"
|
in relation to a Share on any day the market value as determined in accordance with Part VIII of the Taxation of Chargeable Gains Act 1992, and as agreed for the purposes of the grant of Options with HM Revenue & Customs. In the case of any Shares that are subject to restrictions as defined in paragraph 36(3) of Schedule 4 of ITEPA, the Market Value of those Shares shall be determined as if they were not subject to the restrictions;
|
"Option Agreement"
|
the agreement substantially in the form set out in Schedule 3 to these Rules (or such other form as the Board may specify) setting out the terms of an Option;
|
"Relevant Date"
|
(i) the date on which the person making the offer under Rule 5.1 obtains Control of the Company and any condition subject to which the offer is made has been satisfied;
(ii) the date on which the court sanctions the compromise or arrangement under Rule 5.2; or
(iii) the date on which any person becomes bound or entitled to acquire Shares under Rule 5.3; and
|
"Share"
|
a ordinary share of £0.10 each of the Company which meets the conditions specified in paragraphs 16 to 20 of Schedule 4 of ITEPA.
|
Name of Option Holder:
|
|
Address of Option Holder:
|
|
Date of Grant:
|
|
Number of Shares subject to Option:
|
|
Exercise Price per Share:
|
£4.50
|
Market Value per Share as agreed with HM Revenue & Customs
|
|
Exercise Period:
|
The period commencing and ending on the dates as set out in clauses 2 and 3 of this Option Agreement respectively.
|
Exercise Condition:
|
As set out in Appendix 1 to this Option Agreement.
|
1
|
[Endava Limited (the "
Company
")
OR
[Grantor Name] (the "
Grantor
")] has granted to the Option Holder named above an Option to acquire the Number of Shares in the Company at the Exercise Price set out above. The Option has been granted pursuant to and is subject to the Rules of the Approved Plan as amended from time to time. Capitalised terms in this Option Agreement shall have the same meanings as given to them in the Approved Plan. In the event of any conflict between the Approved Plan and the terms of this Option Agreement, the Plan shall prevail unless the Plan has been specifically varied by this Option Agreement.
|
2
|
The Option is exercisable in accordance with Rule 2 and to the extent permitted by the Rules upon the earliest to occur of:
|
3
|
The Option may not be exercised after the date on which it has lapsed or ceased to be exercisable as provided in Rules 3 or 5.
|
4
|
The Shares which will be acquired when the Option is exercised are subject to the terms and restrictions set out in the Company's Articles of Association, a copy of which is enclosed. The Shares are not subject to any restrictions that do not apply to all Shares. The Company's Articles of Association specify that:
|
(a)
|
all Shares are subject to the restrictions on transfer under articles 9, 10 and 12;
|
(b)
|
all Shares must be offered in accordance with pre-emption rights under article 11;
|
(c)
|
in the event of exit, there may be a requirement to sell Shares under drag-along rights in article 13.
|
5
|
To accept this Option, the Option Holder must sign this Option Agreement and return it to [ name] at [ ] by [
date – 30 day deadline under Rule 1.4
]. If the Option Holder does not do so, the Option will lapse and cease to be exercisable.
|
SIGNED
|
|
|
|
|
[Name of Option Holder]
|
|
|
|
Date:
|
|
|
1.
|
Exercise Conditions
|
2.
|
Tax Withholding
|
2.1
|
There should be no income tax due on exercise of the Option where, in addition to complying with the rules of the Approved Plan, an exercise takes place while the Approved Plan remains approved by HM Revenue & Customs and either (i) not earlier than three years after the Option was granted, or (ii) within six months of the cessation of the Option Holder's employment by reason of injury, disability, redundancy or retirement, or in relation to certain corporate transactions as described in Rules 5.1 and 5.2.
|
2.2
|
Notwithstanding the above, the Option Holder agrees that to the extent any Tax Liabilities arise in respect of the Option or any Shares acquired on exercise of an Option, his Employer may recover these from the Option Holder as set out in Rules 2.4 to 2.8 of the Plan.
|
2.3
|
The Option Holder agrees to accept any liability for any Secondary NIC Liability that arises in respect of the Option or any Shares acquired on exercise of an Option and agrees that his Employer may recover this from the Option Holder as set out in Rules 2.4 to 2.8 of the Plan. The Option Holder further agrees that he will enter into a NIC Election as a condition of the exercise of the Option if so requested by the Board.]
|
3.
|
Data Protection
|
4.
|
Employment Rights
|
5.
|
General
|
a.
|
The Option Agreement and the Rules of the Plan comprise the entire agreement between the Company, Grantor, Employer and Option Holder in relation to the Option and supersedes any previous agreement, arrangement or undertaking between the parties in relation thereto.
|
b.
|
A person other than a Group Company who is not a party to this Option Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Option Agreement, but this does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act. This Option Agreement shall be governed by and construed in accordance with the laws of England and be subject to the exclusive jurisdiction of the English Courts.
|
Name of Option Holder:
|
|
Address of Option Holder:
|
|
Date of Grant of Option:
|
|
Number of Shares subject to Option:
|
|
Exercise Price per Share:
|
£4.50
|
1.
|
I exercise the Option granted to me on the Date of Grant set out above in respect of the Number of Shares and at the Exercise Price set out above, and request the allotment or transfer to me of those Shares in accordance with the Rules of the Approved Plan. I acknowledge that this exercise is binding on me and irrevocable.
|
2.
|
I enclose a cheque for £……… made payable to Endava Limited, being the aggregate Exercise Price of the Shares. *
delete if alternative arrangements for payment of the Exercise Price have been agreed – see Note 1
|
3.
|
I confirm that any Group Company or my Employer may withhold or collect any Tax Liabilities and Secondary NIC Liability payable by me in respect of the exercise of my Option as set out in Rules 2.4 to 2.8 of the Approved Plan.
|
4.
|
I enclose a signed NIC Election as requested by the Grantor or Board.
|
Signature:
|
|
|
|
|
|
Date:
|
|
|
1.
|
This form must be accompanied by payment of the Exercise Price for the Shares in respect of which the Option is exercised, unless you have been notified by the Grantor that alternative arrangements have been approved by HM Revenue & Customs and will be in effect.
|
2.
|
If the Option is exercised by personal representatives, please contact the Board for a revised Notice of Exercise. An office copy of the Probate or Letter of Administration should accompany the Notice of Exercise.
|
3.
|
Under current tax rules a charge to income tax and NICs may arise when this Option is exercised. It is a condition of exercise of the Option that you enter into arrangements
|
4.
|
For interpretation purposes, words and phrases in this Notice shall bear the same meanings as for the Approved Plan.
|
1.
|
Rules of the Approved Plan [and Plan]- for your safekeeping;
|
2.
|
Option Agreement[s] - a copy for you to sign and return to us and a further copy for you to keep for your information;
|
3.
|
Exercise Notice[s] - for your safekeeping;
|
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1
|
|
|
|
|
|
2.
|
ACQUISITION OF SHARES
|
4
|
|
|
|
|
|
3.
|
OWNERSHIP OF SHARES
|
4
|
|
|
|
|
|
4.
|
PAYMENT OF DIVIDENDS AND OTHER DISTRIBUTIONS
|
5
|
|
|
|
|
|
5.
|
VOTING AND OTHER RIGHTS ATTACHING TO THE SHARES
|
6
|
|
|
|
|
|
6.
|
EFFECT OF CERTAIN EVENTS ON THIS DEED
|
6
|
|
|
|
|
|
7.
|
EFFECT OF THE OCCURRENCE OF A TRIGGER EVENT
|
7
|
|
|
|
|
|
8.
|
EMPLOYMENT RIGHTS AND INDEMNITY
|
8
|
|
|
|
|
|
9.
|
DEALING RESTRICTIONS
|
9
|
|
|
|
|
|
10
|
ENTIRE AGREEMENT
|
9
|
|
|
|
|
|
11.
|
WAIVER
|
9
|
|
|
|
|
|
12.
|
SEVERABILITY OF PROVISIONS
|
10
|
|
|
|
|
|
13.
|
NO ASSIGNMENT
|
10
|
|
|
|
|
|
14.
|
COUNTERPARTS
|
10
|
|
|
|
|
|
15.
|
THIRD PARTY RIGHTS
|
10
|
|
|
|
|
|
16.
|
DATA PROTECTION
|
10
|
|
|
|
|
|
17.
|
GOVERNING LAW
|
10
|
|
|
|
|
|
18.
|
AMENDMENTS
|
10
|
|
|
|
|
|
19.
|
ADMINISTRATION
|
11
|
|
|
|
|
|
20.
|
NOTICES
|
11
|
|
|
|
|
|
SCHEDULE 1 Form of Written Notice
|
12
|
|
(1)
|
[EMPLOYEE]
of [ ] (“
the Employee
”);
|
(2)
|
ARDEL TRUST COMPANY (GUERNSEY) LIMITED
whose registered address is at PO Box 175, Frances House, Sir William Place, St Peter Port, Guernsey GY1 4HQ (“
the Trustee
”); and
|
(3)
|
ENDAVA LIMITED
(company number 5722669) whose registered office is at 125 Old Broad Street, London EC2N 1AR (“
the Company
”).
|
A.
|
The Trustee is the trustee of the [Endava Limited] Employee Benefit Trust
(“EBT”)
established by the Company and reference to the Trustee shall include reference to the trustee from time to time of the EBT.
|
B.
|
The Employee is an employee/director of a Group Company.
|
C.
|
The Employee and the Trustee have purchased [ ] ordinary shares of £0.10 each in the capital of the Company (“
the Shares
”) together beneficially on a joint basis as tenants in common for the aggregate sum of £[ ] and have contributed funds and are holding their interests in the proportions and subject to the terms and conditions set out below.
|
D.
|
The unrestricted market value (for tax purposes) of the Employee’s interest in the
Shares as at today’s date has been estimated by Grant Thornton UK LLP as [nil]
tbc
and agreed by the Company and the Employee.
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
In this Deed (including the Background) unless the contrary intention appears, the following definitions and rules of construction apply:
|
“Accounts”
|
the audited consolidated financial statements of the Group or, at the Board’s absolute discretion, the consolidated management accounts of the Group, as prepared on a consistent basis;
|
“Admission”
|
the effective admission of Shares to the Official List of the UK Listing Authority or the effective admission to trading of such capital to the London Stock Exchange plc as a Recognised Investment Exchange or to any other recognised stock exchange wheresoever located (as defined in section 1137 of the Corporation Tax Act 2010) or the grant of permission for the Shares to be dealt in on AIM or admitted to trading on any market owned or operated by Plus Markets plc (including, without limitation, Plus-Listed or Plus-Quoted), and on any day that the Shares are so traded they shall be “
Admitted
”;
|
“AIM”
|
the AIM market of London Stock Exchange plc;
|
“Board”
|
the Board of Directors for the time being of the Company or a committee of it duly authorised for the purposes of this Deed;
|
“Business Day”
|
a day (excluding Saturdays, Sundays and public holidays) on which banks in the City of London are generally open for business;
|
“Group” or “Group Company”
|
the Company and all subsidiaries and any holding company of the Company from time to time where subsidiaries has the meaning given in the Companies Act 2006 but a company shall be treated for the purposes of the membership requirement contained in sub-sections 1159(1)(b) and (c), as a member of another company, even if its shares in that other company are registered in the name of (a) another person (or its nominee) whether by way of security or in connection with taking security or (b) its nominee;
|
“Internal Reorganisation”
|
any compromise, arrangement or offer which, in the reasonable opinion of the Board, having regard to the shareholdings in the Company and any acquiring company before and after the compromise, arrangement or offer and/or the consideration given for the acquisition of the JSOP Shares and/or any other matter which it considers relevant, is in the nature of an internal reorganisation or reconstruction of the Company;
|
“JSOP Shares”
|
[ ] Shares including:
(a) any other shares or securities that may be acquired in addition to or in place of such Shares being derived from this original holding as a result of any variation of share capital of the Company or Internal Reorganisation of the Company (including but not limited to any reconstruction, amalgamation or merger or the sub-division, consolidation or division of Shares), but not as a result of a rights issue (in which case clause 5.2 shall apply); and
(b) bonus shares and dividend reinvestments relating to the Shares which are the subject matter of this Deed and any other property representing the same,
|
“Leaver”
|
an individual ceasing to be a director and/or employee of the Group where that individual does not continue (or is not immediately re-employed) as an employee or director of any member of the Group,
and where an individual’s contract of employment or service contract with the Group Company is terminated with or without notice the individual's employment or service shall be deemed to cease on the date on which the termination takes effect;
|
“Market Value”
|
in respect of a JSOP Share:
(a) save where (b) or (c) applies, on any date when Shares are Admitted, the average of the closing middle market quotations (expressed in £) for a Share for the preceding [five]
tbc
days that the Recognised Investment Exchange or market in question is open for business
provided always that (i) if there is no such price for a Share on any day the last available price for the Shares shall be used instead and (ii) if in the reasonable opinion of the Board on any one or more of those days there is insufficient trading volume in the Shares for such quotation(s) to be a proper determination of market value, the Board shall choose one or more other preceding days for the determination of Market Value;
(b) save where (c) applies, on any sale or transfer of a JSOP Share pursuant to clause 7.3, the Net Proceeds of Sale as defined in that clause;
(c) on any sale or transfer of a JSOP Share pursuant to clause 7.2(b)(ii) or 7.3(b)(ii), PBT multiplied by six and divided by the number of Shares then in issue; or
(d) save where any of (a) to (c) apply, the market value of a Share determined by the Board in accordance with the provisions of Part VIII of the Taxation of Chargeable Gains Act 1992;
|
“PBT”
|
the profit before taxation in £ sterling for the Group for the most recently completed financial year of the Company as determined from the most recent Accounts (as at the date of the Trigger Event) and stated as “[Profit before ordinary activities before taxation]”;
|
“Recognised Investment Exchange”
|
the meaning given to that term in section 285 of the Financial Services and Markets Act 2000;
|
“Shares”
|
all of the shares in issue in the capital of the Company from time to time and “Share” shall mean any of them;
|
“Share Sale”
|
the sale of (or a connected series of sales which in total amount to) 100% of the Shares in existence at the date of the Exit Event to a single purchaser or purchasers each acting in concert (as such phrase is defined in the ‘City Code of Takeovers and Mergers’) excluding a sale in connection with an Internal Reorganisation;
|
“Trigger Event”
|
the meaning given in clause 6.2.
|
1.2
|
references to clauses are to clauses of this Deed;
|
1.3
|
words importing gender include each gender;
|
1.4
|
references to persons include bodies corporate, firms and unincorporated associations and that person’s legal representatives and successors;
|
1.5
|
the singular includes the plural and vice versa;
|
1.6
|
headings are for convenience only and do not affect the interpretation of this Deed;
|
1.7
|
references to any enactment, statutory provision or regulation shall be deemed to include references to such enactment, provision or regulation as extended, re-enacted, modified or amended;
|
1.8
|
references to parties are to parties to this Deed and party means any one of them; and
|
1.9
|
references to this Deed include this Deed as amended or varied in accordance with its terms.
|
2.
|
ACQUISITION OF SHARES
|
2.1
|
The Trustee and the Employee have agreed to acquire the JSOP Shares by way of purchase and have together paid the sum of £[
price paid for shares
] (
“the Consideration”
) to [ ] as consideration for such purchase.
|
2.2
|
The Consideration has been provided by the Trustee and the Employee in the following proportions:
|
Party
|
Amount
|
Trustee
|
£[ ]
|
Employee
|
£[10]
|
2.3
|
The JSOP Shares have been or will be legally entered into the register of shareholders of the Company in the sole name of the Trustee.
|
3.
|
OWNERSHIP OF SHARES
|
3.1
|
The purpose of this clause 3 is to describe and calculate the respective interests of the Employee and the Trustee in the JSOP Shares. The formula calculates the beneficial interest in each JSOP Share owned by the Employee and the Trustee from time to time, the effect being that the Employee’s interest in the JSOP Shares increases as the JSOP Shares increase in value from £[
this will be the ‘hurdle’ value as determined by GT
] per JSOP Share.
|
3.2
|
The Employee and the Trustee hereby agree that they own the unencumbered beneficial interest in the JSOP Shares for themselves as tenants in common so that the beneficial entitlement to the JSOP Shares belonging to each of the Employee and the Trustee on any date may be determined in accordance with the following method:
|
(a)
|
the Market Value shall be determined:
|
(i)
|
on the date of this Deed (in accordance with clause 3.1 above);
|
(ii)
|
on the date of any sale or transfer of the JSOP Shares or any interest in the JSOP Shares following a Trigger Event in the circumstances set out in clause 7; and
|
(iii)
|
on any other date on which the parties shall agree that the Market Value shall be determined,
|
(b)
|
on the Relevant Date, the Trustee shall be beneficially entitled to such proportion of each JSOP Share as shall be calculated as a percentage (to two decimal places) with reference to the Relevant Date according to the following formula:
|
IMV
|
x 100
|
MV
2
|
(c)
|
on the Relevant Date, the Employee shall be beneficially entitled to such proportion calculated as a percentage (to two decimal places) of each of the JSOP Shares as shall not belong to the Trustee;
|
(d)
|
if on any Relevant Date the percentage calculated in accordance with (b) above is equal to or more than 99.9 then the Trustee shall be beneficially entitled to 99.9% of the JSOP Shares and the Employee shall be entitled to 0.1% of the JSOP Shares provided that in these circumstances where the value of 0.1% of the beneficial entitlement is more than £10, the Employee shall only be beneficially entitled to such percentage of the JSOP Shares as shall be equal in value to £10 and the Trustee shall be beneficially entitled to the remainder.
|
3.3
|
Subject to clauses 6 and 7 of this Deed, neither the Employee nor the Trustee shall transfer or create any rights in or over their interest in the JSOP Shares without the prior or contemporaneous written consent of the other. The JSOP Shares or any interest in the JSOP Shares can otherwise only be transferred or disposed of or otherwise dealt with pursuant to clauses 6 and 7 of this Deed.
|
4.
|
PAYMENT OF DIVIDENDS AND OTHER DISTRIBUTIONS
|
5.
|
VOTING AND OTHER RIGHTS ATTACHING TO THE SHARES
|
5.1
|
Subject to the remainder of this clause 5, if the Trustee receives notification of any voting at any meeting of the Company or otherwise, the Trustee shall notify the Employee and they may agree between themselves, such agreement to be confirmed in writing (which may be coordinated and facilitated by the Company), how the votes attaching to the JSOP Shares shall be exercised. In the absence of agreement or of agreement in time to submit a proxy vote, the Trustee shall be entitled to exercise all voting and similar rights attaching to the JSOP Shares as it in its absolute discretion thinks fit and the Employee shall not take any action in relation to any voting in relation to the JSOP Shares at such meeting of the Company or otherwise.
|
5.2
|
If the Trustee receives notification of a rights issue in respect of the JSOP Shares, the Trustee shall notify the Employee and they may agree between themselves, such agreement to be confirmed in writing, that the Trustee shall be put in funds (some or all of which may be provided by the Employee) sufficient to take up the rights to the extent agreed and the shares received shall not form part of the JSOP Shares but shall be held by the Trustee for the Trustee and the Employee as nearly as may be in proportion to the proportion of the funds contributed by the Trustee and the Employee to fund the take up of the rights. In the absence of any such agreement by the date the Trustee considers it appropriate to respond to the rights issue, the Trustee shall sell sufficient of the rights (nil paid) to fund the exercise of the balance of the rights. For the avoidance of doubt, the Trustee shall have the right, but shall never be required, to fund the take up of any such rights issues out of the assets of the EBT.
|
6.
|
EFFECT OF CERTAIN EVENTS ON THIS DEED
|
6.1
|
The purpose of this clause 6 and clause 7 is to define certain events which bring to an end the joint ownership arrangement with the Trustee. Clause 6 defines these events and clause 7 details the consequences of each event.
|
6.2
|
Clause 7 shall apply on the occurrence (“
Trigger
Event”)
of any of the following events (an earlier event taking precedence over a later event):
|
(a)
|
a Share Sale;
|
(b)
|
post Admission, the Employee gives to the Company and the Trustee a written notice in the form of Schedule 1 hereto in respect of all JSOP Shares;
|
(c)
|
the expiry of 25 years from the date of this Deed.
|
6.3
|
The Employee and the Trustee each agree to give the other notice of the occurrence of any event in 6.2(a) or 6.2(b) above as soon as reasonably practicable after becoming aware of it.
|
7.
|
EFFECT OF THE OCCURRENCE OF A TRIGGER EVENT
|
7.1
|
Subject to clause 9, on the date of any Trigger Event within (b) or (c) above the Trustee shall have the option to acquire the beneficial interest belonging to the Employee in the JSOP Shares, which option may be exercised by giving notice of the desire to exercise the option to the Employee at any time from the date of the Trigger Event. Subject to the provisions of this clause 7, the Trustee shall pay to the Employee the option price (“
Option Price
”) (as soon as reasonably practicable after it is possible to determine the Option Price) calculated in accordance with clause 7.2 below.
|
7.2
|
The Option Price shall be as follows:
|
(a)
|
if the Trigger Event shall arise as a result of the event specified in sub-clause 6.2(b) and the Employee is not a Leaver before the date of the Trigger Event then the Option Price shall be such proportion of the Market Value at the date of the Trigger Event of the JSOP Shares to which the Employee is beneficially entitled calculated using the method set out in clause 3.2(b) above;
|
(b)
|
if the Trigger Event shall arise as a result of the event specified in sub-clause 6.2(b) and the Employee has become a Leaver before the date of the Trigger Event then the Option Price for the JSOP Shares under option shall be the lower of (taking into account here the effect of any Internal Reorganisation when comparing respective Market Values) (i) such proportion of the Market Value of the JSOP Shares under option to which the Employee is beneficially entitled, calculated using the method set out in clause 3.2(b) above (taking the Relevant Date for the purposes of calculating “MV2” as the date of the Trigger Event), and (ii) such proportion of the Market Value of the JSOP Shares under option to which the Employee is beneficially entitled, calculated using the method set out in clause 3.2(b) above, but here taking the Relevant Date for the purposes of calculating “MV2” as the date of becoming a Leaver;
|
(c)
|
if the Trigger Event shall arise as a result of the event specified in sub-clause 6.2(c) then the Option Price for the JSOP Shares shall be £10;
|
7.3
|
On and from the date of any Trigger Event, and if and for so long as the Trustee shall not have exercised the option referred to in clause 7.1 (if relevant), the Trustee shall use reasonable endeavours (subject always to clause 9) to make such arrangements to sell the JSOP Shares as soon as reasonably practicable [(subject, in all cases, to the Trustee having regard to (including advice received in relation to) the orderly marketing and disposal of such JSOP Shares and the Employee and the Company agree that there shall be no obligation on the Trustee to sell within a specific time frame where the Trustee has regard to such matters, other than (for the avoidance of doubt) in a case where there has been a Share Sale and the Trustee is selling the JSOP Shares in connection with that Share Sale)]
tbc
. The net proceeds of sale, after the deduction of all expenses and any taxes directly relating to that sale (which shall not, for the avoidance of doubt, include any capital gains tax or other tax on profit arising from such sale) (“
Net Proceeds of Sale
”) shall be held and distributed by the Trustee for the Trustee and the Employee (as soon as reasonably practicable after it is possible to determine how such proceeds should be distributed in accordance with this clause) as follows:
|
(a)
|
if the Trigger Event shall arise as a result of the events described in sub-clauses 6.2(a) or (b) and the Employee is not a Leaver before the date of the Trigger Event then the Net Proceeds of Sale shall be held and distributed in the proportions to
|
(b)
|
if the Trigger Event shall arise as a result of the event specified in sub-clause 6.2(a) or (b) and the Employee has become a Leaver before the date of the Trigger Event then the fraction of the Net Proceeds of Sale that shall be due and distributed to the Employee shall be the lower of (taking into account here the effect of any Internal Reorganisation when comparing respective Market Values) (i) such proportion of the Market Value of the JSOP Shares to which the Employee is beneficially entitled, calculated using the method set out in clause 3.2(b) above (taking the Relevant Date for the purposes of calculating “MV2” as the date of the Trigger Event), and (ii) such proportion of the Market Value of the JSOP Shares to which the Employee is beneficially entitled, calculated using the method set out in clause 3.2(b) above, but here taking the Relevant Date for the purposes of calculating “MV2” as the date of becoming a Leaver;
|
(c)
|
if the Trigger Event shall arise as a result of an event specified in sub-clause 6.2(c) then the Net Proceeds of Sale shall be held as to £10 for the Employee and the remainder for the Trustee.
|
7.4
|
In any case where the Trustee becomes entitled under the terms of this Deed to acquire the Employee’s interest in a JSOP Share from the Employee, or where the Trustee sells the JSOP Shares pursuant to clause 7.3, the Employee hereby irrevocably appoints the Trustee as his attorney with power on his behalf to do all things and sign all documents to ensure that the transfer is completed.
|
7.5
|
Where the Trustee exercises its option under clause 7.1 over, or there is a sale of, the JSOP Shares, this Deed (other than the indemnity in clause 8.5) shall terminate on the date of payment or distribution of the Option Price or of other amounts due pursuant to this clause 7 (but for the avoidance of doubt this Deed shall not otherwise terminate in relation to the JSOP Shares).
|
8.
|
EMPLOYMENT RIGHTS AND INDEMNITY
|
8.1
|
This Deed shall not form part of the Employee’s entitlement to remuneration or benefits pursuant to his contract of employment.
|
8.2
|
The rights and obligations of the Employee under the terms of his contract of employment with any member of the Group (present or past) shall not be affected by this Deed.
|
8.3
|
The rights or opportunity given to the Employee under this Deed shall not give the Employee any rights or additional rights to compensation or damages in consequence of the loss or termination of his office or employment with any present or former member of the Group for any reason whatsoever (whether or not the termination is ultimately held to be wrongful or unfair).
|
8.4
|
The Employee shall not be entitled to any compensation or damages for any loss or potential loss which he may suffer by reason of being unable to acquire or retain the JSOP
Shares, or any interest in the JSOP Shares pursuant to this Deed in consequence of the loss or termination of his office or employment with any present or former member of the Group for any reason whatsoever (whether or not the termination is ultimately held to be wrongful or unfair).
|
8.5
|
If the Employee shall have any tax, national insurance contribution or other fiscal liability arising in respect of the operation of any part of this Deed, including any payment made pursuant to it or its termination or the acquisition, the holding or disposal of any interest in JSOP Shares
(“Tax Liability”)
,
the Employee shall submit such returns or other notification as may be required by HM Revenue and Customs or the relevant taxing authorities and shall duly pay such Tax Liability. If the Trustee or any Group Company shall be required at any time or times (whether during the term of this Deed or after the Termination Date) to operate PAYE or to make any payments in respect of all or any part of any Tax Liability (including, for the avoidance of doubt, any employer’s national insurance contribution arising from any exercise of the option in clause 7.3, in which case the indemnity given by the Employee under this clause shall be in respect of the whole of such employer’s national insurance contribution liability), the Employee hereby indemnifies the Trustee or the Company (on behalf of the Group) on an after-tax basis in respect of such PAYE or Tax Liability and hereby authorises the Trustee or any member of the Group to sell such number of JSOP Shares and to make such deductions from such proceeds of sale or to make deductions from any other amounts due or payable to the Employee whether under this Deed or otherwise.
|
8.6
|
The Employee and the Company agree to enter into an election under section 431 Income Tax (Earnings and Pensions) Act 2003 in relation to the JSOP Shares forthwith after execution of this Deed.
|
8.7
|
No participation in, or rights or benefits from, this Deed shall be taken into account for the purposes of the calculation of any amount payable to any pension fund or for the purposes of calculating any pensionable salary or other earnings related benefit of the Employee.
|
9.
|
DEALING RESTRICTIONS
|
10.
|
ENTIRE AGREEMENT
|
10.1
|
This Deed and the documents referred to in it constitute the entire agreement and understanding between the parties hereto and supersede any previous Deed or agreement between them in relation to its subject matter.
|
10.2
|
Except as otherwise permitted by this Deed (including but not limited to clause 18), no change to its terms shall be effective unless it is in writing and signed by or on behalf of all parties.
|
11.
|
WAIVER
|
12.
|
SEVERABILITY OF PROVISIONS
|
13.
|
NO ASSIGNMENT
|
14.
|
COUNTERPARTS
|
15.
|
THIRD PARTY RIGHTS
|
16.
|
DATA PROTECTION
|
17.
|
GOVERNING LAW
|
18.
|
AMENDMENTS
|
19.
|
ADMINISTRATION
|
19.1
|
The Company hereby appoints the Trustee as agent for PAYE purposes (the Company agreeing to indemnify and hold harmless the Trustee in respect thereof) in relation to the administration or collection of any PAYE arising from any matter or transaction contemplated by this Deed. Any PAYE so collected or withheld by the Trustee shall be remitted to the relevant employing Group Company (as directed by the Company to the Trustee) as soon as reasonably practicable. For the avoidance of doubt, the Trustee shall not be obliged to set up or operate any payroll or other similar procedures in connection with its appointment as agent under this clause and the Company and any other employing Group Company will provide to the Trustee such information as the Trustee may reasonably require in relation to such administration or collection of any PAYE.
|
19.2
|
If any dispute arises from the operation of this Deed the matter shall be decided by the Board whose decision shall be final and binding on the parties hereto.
|
20.
|
NOTICES
|
20.1
|
Any notice or other communication under or in connection with this Deed may be given:
|
(a)
|
by personal delivery; or
|
(b)
|
by sending by post and if by first-class post, it shall be deemed to have been received 48 hours after it was put into the post properly addressed and stamped; or
|
(c)
|
by electronic transmission, which shall include but not be limited to email and fax, and shall be treated as duly given when actually received (or in the case of an email, opened, save that an email shall not be treated as received if the recipient notifies the sender that it has not been opened because it contains a warning or caution that it could contain or be subject to, a virus or other computer programme which could alter, damage or interfere with any computer software or email)
|
To:
|
ARDEL TRUST COMPANY (GUERNSEY)
LIMITED
|
Re:
|
JSOP SHARES
|
From:
|
[EMPLOYEE]
|
Signed
|
|
|
|
Full name and contact details:
|
|
|
|
|
|
|
|
|
|
Endava Limited
|
Long Term
Incentive Plan
|
Adoption Date
30 June 2015
|
|
PricewaterhouseCoopers LLP, 1 Embankment Place, London WC2N 6RH
T: +44 (0) 20 7583 5000, F: +44 (0) 20 7822 4652, www.pwc.co.uk
PricewaterhouseCoopers LLP is a limited liability partnership registered in England with registered number OC303525. The registered office of
PricewaterhouseCoopers LLP is 1 Embankment Place, London WC2N 6RH.PricewaterhouseCoopers LLP is authorised and regulated by the Financial Conduct Authority for designated investment business.
|
|
1
|
||
1
|
||
1
|
||
1
|
||
1
|
||
1
|
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1
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1
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1
|
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2
|
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2
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2
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2
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2
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2
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2
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2
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3
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3
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3
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3
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3
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3
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3
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4
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4
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4
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4
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4
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4
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5
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5
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||
5
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5
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5
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5
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6
|
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6
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6
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6
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7
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7
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7
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7
|
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7
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8
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8
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8
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9
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9
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||
9
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9
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9
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9
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10
|
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10
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10
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10
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10
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10
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10
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10
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11
|
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11
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11
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11
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11
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11
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11
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11
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12
|
||
12
|
||
12
|
||
12
|
||
12
|
||
12
|
||
12
|
||
12
|
||
12
|
||
12
|
||
13
|
||
13
|
||
13
|
||
13
|
||
13
|
||
13
|
||
13
|
||
13
|
||
13
|
||
14
|
|
|
1
|
Making of Awards
|
1.1
|
Making of Awards
|
1.2
|
Terms of Awards
|
1.3
|
Procedure for making of Awards and Award Date
|
1.4
|
Contents of Award Certificate
|
1.
|
whether the Award comprises an Option or a Conditional Share Award;
|
2.
|
the Award Date;
|
3.
|
the number of Plan Shares subject to the Award;
|
4.
|
the Award Price (if any);
|
5.
|
the date or dates on which the Award will Bank;
|
6.
|
the date or dates on which the Award will Vest;
|
7.
|
the Lapse Date;
|
8.
|
the Performance Target or the method by which the Performance Target will be set;
|
9.
|
any other conditions of the Award.
|
1.5
|
When Awards can be made
|
1.6
|
When Awards may not be made
|
1.7
|
Who can be made Awards
|
1.8
|
Right to refuse Awards
|
|
1.9
|
Awards non-transferable
|
2
|
Plan Limits
|
2.1
|
General
|
2.2
|
Calculation
|
•
|
there shall be disregarded any Plan Shares where the right to acquire the Plan Shares has lapsed or been renounced; and
|
•
|
any Plan Shares issued in relation to an Award, or on the exercise of an option or the vesting of other rights of an employee under any other Employees’ Share Scheme operated by the Group shall be taken into account once only (when the Award is made or the option is granted or the right awarded) and shall not fall out of account when the Award Vests, the option is exercised or other rights vest.
|
2.3
|
Scaling down
|
3
|
Award Price
|
4
|
Performance Target
|
4.1
|
Setting of Performance Target
|
|
4.2
|
Nature of
Performance Target
|
•
|
objective; and
|
•
|
notified to the Award Holder as soon as practicable after the start of the relevant Financial Year.
|
4.3
|
Substitution, variation or waiver of Performance Target
|
4.4
|
Notification of Award Holders
|
5
|
Banking of Awards
|
5.1
|
Earliest date for Banking of Awards
|
•
|
the relevant date or dates specified in the Award Certificate under Rule 1.4 (which, unless otherwise specified, shall be as set out in Schedule 1); and
|
•
|
the date on which the Board determines that the Performance Target and any further condition imposed under Rule 4.1, have been satisfied.
|
5.2
|
Effect of Award Banking
|
5.3
|
Effect of Cessation of Relevant Employment
|
|
5.4
|
Clawback
|
•
|
discovery of a material misstatement in the audited consolidated accounts of the Company or the audited accounts of any Group Member, in particular but not limited to any misstatement that would have affected the extent to which an Award has Banked; and\or action or conduct of an Award Holder or Award Holders which, in the reasonable opinion of the Board, amounts to fraud or gross misconduct or brings the Company into disrepute.
|
•
|
In determining the reduction which should be applied under this Rule 5.4, the Board shall act fairly and reasonably but its decision shall be final and binding.
|
6
|
Vesting of Awards (and Exercise of Options)
|
6.1
|
Earliest date for Vesting of Awards
|
•
|
the relevant date or dates on or after an Exit Event specified in the Award Certificate under Rule 1.4 (which unless otherwise specified shall be as set out in Schedule 2); and
|
•
|
the date on which the Award is Banked.
|
6.2
|
Effect of Award Vesting
|
•
|
in the case of an Option, that the Award Holder is entitled to exercise the Option at any time until it otherwise lapses under the Rules to the extent that it has Vested;
|
6.3
|
No Vesting or Exercise while Dealing Restrictions apply
|
6.4
|
Effect of Cessation of Relevant Employment
|
|
6.5
|
Options may be exercised in whole or in part
|
6.6
|
Procedure for exercise of Options
|
•
|
An Option shall be exercised by the Award Holder delivering to the Company a duly completed notice of exercise in the form from time to time prescribed by the Company, specifying the number of Plan Shares in respect of which the Option is being exercised, and either accompanied by the Award Price (if any) in full or confirmation of arrangements satisfactory to the Board for the payment of the Award Price, together with any payment and/or documentation required under Rule 12 and, if required, the Award Certificate.
|
•
|
For the avoidance of doubt, the date of exercise of an Option shall be the date of the receipt of the notice of exercise and compliance with the first paragraph of this Rule 6.6.
|
6.7
|
Issue or transfer of Plan Shares
|
•
|
the exercise date in the case of an Option arrange, for the issue or transfer to the Award Holder of the number of Plan Shares specified in the notice of exercise together with, in the case of the partial exercise of an Option, an Award Certificate in respect of, or the original Award Certificate endorsed to show, the unexercised part of the Option; and
|
•
|
the Vesting of an Award, in the case of a Conditional Share Award, arrange for the issue or transfer to the Award Holder of the number of Plan Shares in respect of which the Award has Vested.
|
6.8
|
Power to declare Exit Event
|
6.9
|
Net Settling
|
6.10
|
US Taxpayers
|
|
7
|
Banking and Vesting of Awards (and Exercise of Options) in Special Circumstances
|
7.1
|
Death
|
7.2
|
Good Leaver provisions
|
7.3
|
Award Holder relocated abroad
|
•
|
suffer less favourable tax treatment in respect of his Awards; or
|
•
|
become subject to a restriction on his ability to exercise an Option, to have issued or transferred to him the Plan Shares subject to an Award or to hold or deal in such Plan Shares or the proceeds of sale of such Plan Shares
|
|
7.4
|
Meaning of ceasing to be in Relevant Employment
|
7.5
|
Interaction of Rules
|
•
|
If the Option has become exercisable under Rule 7.2 and, during the period allowed for the exercise of the Option under Rule 7.2 the Award Holder dies, the period allowed for the exercise of the Option shall be the period allowed by Rule 7.1;
|
•
|
If the Option has become exercisable under Rule 7 and, during the period allowed for the exercise of the Option under Rule 7, the Option becomes exercisable under Rule 8 also (or vice versa), the period allowed for the exercise of the Option shall be the shorter of the period allowed by Rule 7 and the period allowed by Rule 8.
|
8
|
Takeover and other corporate events
|
8.1
|
Takeover
|
8.2
|
Compulsory acquisition of Company
|
|
8.3
|
Reconstruction or amalgamation of Company
|
8.4
|
Winding-up of Company
|
8.5
|
Asset Sale
|
|
8.6
|
Demergers and Other Events
|
8.7
|
Meaning of “obtains Control of the Company”
|
8.8
|
Notification of Award Holders
|
9
|
Exchange of Awards
|
9.1
|
Circumstances in which exchange can occur
|
9.2
|
Terms of exchange
|
1.
|
The Award Date of the New Award shall be deemed to be the same as the Award Date of the Award.
|
2.
|
The New Award will be in respect of the shares in a company determined by the Board.
|
3.
|
In the application of the Plan to the New Award, where appropriate, references to “Company” and “Plan Shares” shall be read as if they were references to the company to whose shares the New Award relates.
|
|
4.
|
The New Award must be equivalent to the Award. Whether an Award is “equivalent” will be determined by the Board taking account of the total value of Plan Shares and total Award Price and applicable Performance Targets of the Award at the date of exchange.
|
10
|
Lapse of Awards
|
•
|
the Lapse Date;
|
•
|
the Board determining that the Performance Target or any further condition imposed under Rule 4.1 has not been satisfied either in whole nor in part in respect of the Award and can no longer be satisfied in whole or in part (such that the relevant part of the Award is no longer capable of becoming Banked) in which case the Award shall lapse either in whole or as to such part in relation to which the Performance Target or other conditions imposed under Rule 4.1 can no longer be satisfied;
|
•
|
subject to Rule 7, the Award Holder ceasing to be in Relevant Employment;
|
•
|
any date provided for under these Rules;
|
•
|
unless the Board decides otherwise, the date on which the Award Holder becomes bankrupt or enters into a compromise with his creditors generally.
|
11
|
Adjustment of Awards on Reorganisation
|
11.1
|
Power to adjust Awards
|
11.2
|
Notification of Award Holders
|
12
|
Taxes and Social Security
|
12.1
|
Deductions
|
12.2
|
Transfer of Employer’s NIC
|
12.3
|
Execution of Document by Award Holder
|
|
12.4
|
Tax elections
|
13
|
Issue and Listing of Plan Shares
|
13.1
|
Rights attaching to Plan Shares
|
13.2
|
Listing of Plan Shares
|
14
|
Relationship of Plan to Contract of Employment
|
14.1
|
Contractual Provisions
|
•
|
the Plan shall not form part of any contract of employment between any Group Company and an Eligible Employee;
|
•
|
unless expressly so provided in his contract of employment, an Eligible Employee has no right to be made an Award and the receipt of an Award in one year is no indication that the Award Holder will be made any subsequent Awards;
|
•
|
the Plan does not entitle any Award Holder to the exercise of any discretion in their favour;
|
•
|
the benefit to an Eligible Employee of participation in the Plan (including, in particular but not by way of limitation, any Awards held by him) shall not form any part of his remuneration or count as his remuneration for any purpose and shall not be pensionable; and
|
•
|
if an Eligible Employee ceases to be in Relevant Employment for any reason, he shall not be entitled to compensation for the loss or diminution in value of any right or benefit or prospective right or benefit under the Plan (including, in particular but not by way of limitation, any Awards held by him which lapse by reason of his ceasing to be in Relevant Employment) whether by way of damages for unfair dismissal, wrongful dismissal, breach of contract or otherwise.
|
14.2
|
Deemed Agreement
|
15
|
Administration of Plan
|
|
15.1
|
Responsibility for administration
|
15.2
|
Board’s decision final and binding
|
15.3
|
Discretionary nature of Awards
|
15.4
|
Provision of information
|
15.5
|
Cost of Plan
|
15.6
|
Data protection
|
15.7
|
Third party rights
|
16
|
Amendment of Plan
|
16.1
|
Power to amend Plan
|
16.2
|
Amendments to Plan
|
•
|
the limit on the aggregate number of Plan Shares over which Awards may be made;
|
•
|
this Rule 16.2
|
|
•
|
an amendment which is of a minor nature and benefits the administration of the Plan; or
|
•
|
an amendment which is of a minor nature and is necessary or desirable in order to take account of a change of legislation or to obtain or maintain favourable tax, exchange control or regulatory treatment for participants in the Plan, the Company or some other Group Member.
|
16.3
|
Rights of existing Award Holders
|
16.4
|
Power to declare Awards Banked
|
17
|
Notices
|
17.1
|
Notice by Company
|
17.2
|
Notice to Company
|
18
|
Governing Law and Jurisdiction
|
18.1
|
Plan governed by English law
|
18.2
|
English courts to have jurisdiction
|
18.3
|
Jurisdiction agreement for benefit of Company
|
|
18.4
|
Award Holder deemed to submit to such jurisdiction
|
19
|
Interpretation
|
19.1
|
Definitions
|
|
•
|
the admission by the Financial Conduct Authority (or any other competent authority for the purposes of Part VI of the Financial Services and Markets Act 2000) of any of the issued equity share capital of the Company to the Official List and such admission becoming effective;
|
•
|
the admission by the London Stock Exchange of any of the issued equity share capital of the Company to trading on the Alternative Investment Market; or
|
•
|
any equivalent admission to any other “recognised investment exchange” (as that expression is defined in the Financial Services and Markets Act 2000) becoming unconditionally effective in relation to any of the issued equity share capital of the Company;
|
•
|
injury, ill-health or disability;
|
•
|
retirement by agreement with the company by which he is employed;
|
•
|
the Award Holder being employed by a company which ceases to be a Group Member;
|
•
|
the Award Holder being employed in an undertaking or part of an undertaking which is transferred to a person who is not a Group Member; or
|
•
|
any other circumstances if the Board decides in any particular case.
|
(a)
|
if at the relevant time Plan Shares are listed in the Daily Official List of the London Stock Exchange (or any other recognised stock exchange within the meaning of section 1005 of ITA
|
|
(b)
|
where such value is determined at or around the time of an Exit Event, the value of a Plan Share as implied by the terms of the relevant event, as reasonably determined by the Board; or
|
(c)
|
where Plan Shares are not so listed, the market value of a Plan Share calculated in accordance with the provisions of section 272 Taxation of Chargeable Gains Act 1992, as reasonably determined by the Board.
|
•
|
the disposal is to a New Holding Company in which case such company shall be considered to be the Company for the purpose of this definition; or
|
•
|
the relevant transfer is to a person or person(s) connected (within the meaning of section 993 of ITA 2007) with the transferring shareholder;
|
|
19.2
|
Interpretation
|
•
|
save as provided for by law a reference to writing includes any mode of reproducing words in a legible form and reduced to paper or electronic format or communication including, for the avoidance of doubt, correspondence via e-mail; and
|
•
|
the Interpretation Act 1978 applies to the Plan in the same way as it applies to an enactment.
|
|
1.
|
Unless specified otherwise at the Award Date, the Awards shall Bank in five equal tranches based on the satisfaction of Performance Targets in respect of each Financial Year ending in the Performance Period, as follows:
|
Financial Year
|
Tranche
|
Proportion of tranche Banked at Threshold
|
Proportion of tranche Banked at Target
|
1
|
20%
|
30%
|
100%
|
2
|
20%
|
30%
|
100%
|
3
|
20%
|
30%
|
100%
|
4
|
20%
|
30%
|
100%
|
5
|
20%
|
30%
|
100%
|
2.
|
The Company may specify one or more Performance Targets in respect of any Financial Year, and may specify that these operate independently in respect of a proportion of an annual tranche or otherwise specify the interaction between the Performance Targets.
|
3.
|
None of the relevant proportion of an Award will Bank if the Threshold in respect of the relevant Performance Target is not met.
|
4.
|
Between Threshold and Target achievement level, the proportion of the tranche that Banks shall be calculated on a straight-line basis unless otherwise specified.
|
5.
|
Where the number of Plan Shares calculated above is not a whole number, the number of Plan Shares Vesting shall be rounded down to the nearest whole share. However, on the calculation of the level of Banking for the final tranche, any cumulative fractions of Plan Shares arising on the calculation of earlier tranches (prior to rounding) shall be added to the calculated amount and the rounded down figure calculated taking these into account.
|
6.
|
The date of Banking shall be the date on which the Board determines the level of achievement of the applicable Performance Targets and the related level of Banking.
|
7.
|
Threshold is defined each year by the Board.
|
8.
|
Target is defined each year by the Board.
|
|
1.
|
Unless otherwise specified by the Board at the Award Date, the Award shall Vest on or after an Exit Event as follows:
|
Date
|
Level of Vesting
|
|
Date of Exit Event
|
Banked Awards x 25%
|
(A)
|
1
st
anniversary of Exit Event
|
(Cumulative Banked Awards x 50%) - A
|
(B)
|
2
nd
anniversary of Exit Event
|
Cumulative Banked Awards – A - B
|
(C)
|
2.
|
Where the second anniversary of the Exit Event occurs prior to the determination of the achievement of Performance Targets applicable to any part of the Award, the Award shall continue to Bank in accordance with the Rules and Banked Awards not previously Vested shall Vest on the date of Banking.
|
3.
|
Where the number of Plan Shares calculated above is not a whole number, the number of Plan Shares Vesting shall be rounded down to the nearest whole share.
|
4.
|
Cumulative Banked Awards shall take account of all Awards Banked on or before the relevant Vesting Date.
|
|
Endava Limited
|
Non-Executive
Director Long Term
Incentive Plan
|
Adoption Date
21 June 2017
|
|
PricewaterhouseCoopers LLP, 1 Embankment Place, London WC2N 6RH
T: +44 (0) 20 7583 5000, F: +44 (0) 20 7822 4652, www.pwc.co.uk
PricewaterhouseCoopers LLP is a limited liability partnership registered in England with registered number OC303525. The registered office of
PricewaterhouseCoopers LLP is 1 Embankment Place, London WC2N 6RH.PricewaterhouseCoopers LLP is authorised and regulated by the Financial Conduct Authority for designated investment business.
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
1
|
||
1
|
||
1
|
||
1
|
||
1
|
||
1
|
||
1
|
||
1
|
||
1
|
||
2
|
||
2
|
||
2
|
||
2
|
||
2
|
||
2
|
||
2
|
||
2
|
||
2
|
||
3
|
||
3
|
||
3
|
||
3
|
||
3
|
||
3
|
||
4
|
||
4
|
||
4
|
||
4
|
||
4
|
||
4
|
||
5
|
||
5
|
||
5
|
||
5
|
||
6
|
||
6
|
||
6
|
||
6
|
||
7
|
||
7
|
||
7
|
||
7
|
||
8
|
||
8
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
8
|
||
8
|
||
8
|
||
9
|
||
9
|
||
9
|
||
9
|
||
9
|
||
9
|
||
9
|
||
10
|
||
10
|
||
10
|
||
10
|
||
10
|
||
10
|
||
10
|
||
10
|
||
11
|
||
11
|
||
11
|
||
11
|
||
11
|
||
11
|
||
11
|
||
11
|
||
11
|
||
11
|
||
11
|
||
12
|
||
12
|
||
12
|
||
12
|
||
12
|
||
12
|
||
12
|
||
12
|
||
13
|
||
13
|
||
13
|
||
13
|
||
13
|
||
16
|
||
17
|
||
18
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
1
|
Making of Awards
|
1.1
|
Making of Awards
|
1.2
|
Terms of Awards
|
1.3
|
Procedure for making of Awards and Award Date
|
1.4
|
Contents of Award Certificate
|
1.
|
whether the Award comprises an Option or a Conditional Share Award;
|
2.
|
the Award Date;
|
3.
|
the number of Plan Shares subject to the Award;
|
4.
|
the Award Price (if any);
|
5.
|
the date or dates on which the Award will Bank;
|
6.
|
the date or dates on which the Award will Vest;
|
7.
|
the Lapse Date;
|
8.
|
any other conditions of the Award.
|
1.5
|
When Awards can be made
|
1.6
|
When Awards may not be made
|
1.7
|
Who can be made Awards
|
1.8
|
Right to refuse Awards
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
1.9
|
Awards non-transferable
|
2
|
Plan Limits
|
2.1
|
General
|
2.2
|
Calculation
|
•
|
there shall be disregarded any Plan Shares where the right to acquire the Plan Shares has lapsed or been renounced; and
|
•
|
any Plan Shares issued in relation to an Award, or on the exercise of an option or the vesting of other rights of a participant under any other share scheme operated by the Group shall be taken into account once only (when the Award is made or the option is granted or the right awarded) and shall not fall out of account when the Award Vests, the option is exercised or other rights vest.
|
2.3
|
Scaling down
|
3
|
Award Price
|
4
|
Banking of Awards
|
4.1
|
Earliest date for Banking of Awards
|
4.2
|
Effect of Award Banking
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
4.3
|
Effect of having had a Break in Continuous Service
|
4.4
|
Clawback
|
•
|
discovery of a material misstatement in the audited consolidated accounts of the Company or the audited accounts of any Group Member, in particular but not limited to any misstatement that would have affected the extent to which an Award has Banked; and\or
|
•
|
action or conduct of an Award Holder or Award Holders which, in the reasonable opinion of the Board, amounts to fraud or gross misconduct or brings the Company into disrepute.
|
5
|
Vesting of Awards (and Exercise of Options)
|
5.1
|
Earliest date for Vesting of Awards
|
•
|
the relevant date or dates on or after an Exit Event specified in the Award Certificate under Rule 1.4 (which unless otherwise specified shall be as set out in Schedule 2); and
|
•
|
the date on which the Award is Banked.
|
5.2
|
Effect of Award Vesting
|
•
|
in the case of an Option, that the Award Holder is entitled to exercise the Option at any time until it otherwise lapses under the Rules to the extent that it has Vested;
|
•
|
in the case of a Conditional Share Award, that the Award Holder shall become entitled to the transfer of the Plan Shares to the extent that the Award has Vested.
|
5.3
|
No Vesting or Exercise while Dealing Restrictions apply
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
5.4
|
Effect of having had a Break in Continuous Service
|
5.5
|
Options may be exercised in whole or in part
|
5.6
|
Procedure for exercise of Options
|
•
|
An Option shall be exercised by the Award Holder delivering to the Company a duly completed notice of exercise in the form from time to time prescribed by the Company, specifying the number of Plan Shares in respect of which the Option is being exercised, and either accompanied by the Award Price (if any) in full or confirmation of arrangements satisfactory to the Board for the payment of the Award Price, together with any payment and/or documentation required under Rule 11 and, if required, the Award Certificate.
|
•
|
For the avoidance of doubt, the date of exercise of an Option shall be the date of the receipt of the notice of exercise and compliance with the first paragraph of this Rule 5.6.
|
5.7
|
Issue or transfer of Plan Shares
|
•
|
the exercise date in the case of an Option arrange, for the issue or transfer to the Award Holder of the number of Plan Shares specified in the notice of exercise together with, in the case of the partial exercise of an Option, an Award Certificate in respect of, or the original Award Certificate endorsed to show, the unexercised part of the Option; and
|
•
|
the Vesting of an Award, in the case of a Conditional Share Award, arrange for the issue or transfer to the Award Holder of the number of Plan Shares in respect of which the Award has Vested.
|
5.8
|
Power to declare Exit Event
|
5.9
|
Net Settling
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
5.10
|
US Taxpayers
|
6
|
Banking and Vesting of Awards (and Exercise of Options) in Special Circumstances
|
6.1
|
Death
|
6.2
|
Good Leaver provisions
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
6.3
|
Award Holder relocated abroad
|
•
|
suffer less favourable tax treatment in respect of his Awards; or
|
•
|
become subject to a restriction on his ability to exercise an Option, to have issued or transferred to him the Plan Shares subject to an Award or to hold or deal in such Plan Shares or the proceeds of sale of such Plan Shares
|
6.4
|
Interaction of Rules
|
•
|
If the Option has become exercisable under Rule 6.2 and, during the period allowed for the exercise of the Option under Rule 6.2 the Award Holder dies, the period allowed for the exercise of the Option shall be the period allowed by Rule 6.1;
|
•
|
If the Option has become exercisable under Rule 6 and, during the period allowed for the exercise of the Option under Rule 6, the Option becomes exercisable under Rule 7 also (or vice versa), the period allowed for the exercise of the Option shall be the shorter of the period allowed by Rule 6 and the period allowed by Rule 7.
|
7
|
Takeover and other corporate events
|
7.1
|
Takeover
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
7.2
|
Compulsory acquisition of Company
|
7.3
|
Reconstruction or amalgamation of Company
|
7.4
|
Winding-up of Company
|
7.5
|
Asset Sale
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
7.6
|
Demergers and Other Events
|
7.7
|
Meaning of “obtains Control of the Company”
|
7.8
|
Notification of Award Holders
|
8
|
Exchange of Awards
|
8.1
|
Circumstances in which exchange can occur
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
8.2
|
Terms of exchange
|
1.
|
The Award Date of the New Award shall be deemed to be the same as the Award Date of the Award.
|
2.
|
The New Award will be in respect of the shares in a company determined by the Board.
|
3.
|
In the application of the Plan to the New Award, where appropriate, references to “Company” and “Plan Shares” shall be read as if they were references to the company to whose shares the New Award relates.
|
4.
|
The New Award must be equivalent to the Award. Whether an Award is “equivalent” will be determined by the Board taking account of the total value of Plan Shares and total Award Price at the date of exchange.
|
9
|
Lapse of Awards
|
•
|
the Lapse Date;
|
•
|
the Board determining that any further condition imposed under Rule 1.4has not been satisfied either in whole nor in part in respect of the Award and can no longer be satisfied in whole or in part (such that the relevant part of the Award is no longer capable of becoming Banked) in which case the Award shall lapse either in whole or as to such part in relation to which the condition(s) imposed under Rule 1.4can no longer be satisfied;
|
•
|
subject to Rule 6, the Award Holder ceasing to be in Continuous Service;
|
•
|
any date provided for under these Rules;
|
•
|
unless the Board decides otherwise, the date on which the Award Holder becomes bankrupt or enters into a compromise with his creditors generally.
|
10
|
Adjustment of Awards on Reorganisation
|
10.1
|
Power to adjust Awards
|
10.2
|
Notification of Award Holders
|
11
|
Taxes and Social Security
|
11.1
|
Deductions
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
11.2
|
Transfer of Employer’s NIC
|
11.3
|
Execution of Document by Award Holder
|
11.4
|
Tax elections
|
12
|
Issue and Listing of Plan Shares
|
12.1
|
Rights attaching to Plan Shares
|
12.2
|
Listing of Plan Shares
|
13
|
Relationship of Plan to contract relating to Continuous Service
|
13.1
|
Contractual Provisions
|
•
|
the Plan shall not form part of any contract for the provision of services between any Group Company and an Eligible Participant;
|
•
|
unless expressly so provided in his contract relating to the Continuous Service, an Eligible Participant has no right to be made an Award and the receipt of an Award in one year is no indication that the Award Holder will be made any subsequent Awards;
|
•
|
the Plan does not entitle any Award Holder to the exercise of any discretion in their favour; and
|
•
|
if an Eligible Participant ceases to be in Continuous Service for any reason, he shall not be entitled to compensation for the loss or diminution in value of any right or benefit or prospective right or benefit under the Plan (including, in particular but not by way of limitation, any Awards held by him which lapse by reason of his having had a Break in Continuous Service) whether by way of damages for breach of contract or otherwise.
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
13.2
|
Deemed Agreement
|
14
|
Administration of Plan
|
14.1
|
Responsibility for administration
|
14.2
|
Board’s decision final and binding
|
14.3
|
Discretionary nature of Awards
|
14.4
|
Provision of information
|
14.5
|
Cost of Plan
|
14.6
|
Data protection
|
14.7
|
Third party rights
|
15
|
Amendment of Plan
|
15.1
|
Power to amend Plan
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
15.2
|
Amendments to Plan
|
•
|
the limit on the aggregate number of Plan Shares over which Awards may be made;
|
•
|
this Rule 15.2
|
•
|
an amendment which is of a minor nature and benefits the administration of the Plan; or
|
•
|
an amendment which is of a minor nature and is necessary or desirable in order to take account of a change of legislation or to obtain or maintain favourable tax, exchange control or regulatory treatment for participants in the Plan, the Company or some other Group Member.
|
15.3
|
Rights of existing Award Holders
|
15.4
|
Power to declare Awards Banked
|
16
|
Notices
|
16.1
|
Notice by Company
|
16.2
|
Notice to Company
|
17
|
Governing Law and Jurisdiction
|
17.1
|
Plan governed by English law
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
17.2
|
English courts to have jurisdiction
|
17.3
|
Jurisdiction agreement for benefit of Company
|
17.4
|
Award Holder deemed to submit to such jurisdiction
|
18
|
Interpretation
|
18.1
|
Definitions
|
(i)
|
where any suspension of Continuous Service is on the basis of any leave of absence, or suspension agreed with the Board in advance; or
|
(ii)
|
any other reason as may be determined at the discretion of the Board.
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
•
|
the admission by the Financial Conduct Authority (or any other competent authority for the purposes of Part VI of the Financial Services and Markets Act 2000) of any of the issued equity share capital of the Company to the Official List and such admission becoming effective;
|
•
|
the admission by the London Stock Exchange of any of the issued equity share capital of the Company to trading on the Alternative Investment Market; or
|
•
|
any equivalent admission to any other “recognised investment exchange” (as that expression is defined in the Financial Services and Markets Act 2000) becoming unconditionally effective in relation to any of the issued equity share capital of the Company;
|
•
|
injury, ill-health or disability;
|
•
|
retirement by agreement with the company by which he is engaged;
|
•
|
the Award Holder being engaged by a company which ceases to be a Group Member;
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
•
|
the Award Holder being engaged by an undertaking or part of an undertaking which is transferred to a person who is not a Group Member; or
|
•
|
any other circumstances if the Board decides in any particular case.
|
(a)
|
if at the relevant time Plan Shares are listed in the Daily Official List of the London Stock Exchange (or any other recognised stock exchange within the meaning of section 1005 of ITA 2007 or the Alternative Investment Market of the London Stock Exchange), the middle market quotation (as derived from that List) on the preceding Dealing Day; or
|
(b)
|
where such value is determined at or around the time of an Exit Event, the value of a Plan Share as implied by the terms of the relevant event, as reasonably determined by the Board; or
|
(c)
|
where Plan Shares are not so listed, the market value of a Plan Share calculated in accordance with the provisions of section 272 Taxation of Chargeable Gains Act 1992, as reasonably determined by the Board.
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
•
|
the disposal is to a New Holding Company in which case such company shall be considered to be the Company for the purpose of this definition; or
|
•
|
the relevant transfer is to a person or person(s) connected (within the meaning of section 993 of ITA 2007) with the transferring shareholder;
|
18.2
|
Interpretation
|
•
|
save as provided for by law a reference to writing includes any mode of reproducing words in a legible form and reduced to paper or electronic format or communication including, for the avoidance of doubt, correspondence via e-mail; and
|
•
|
the Interpretation Act 1978 applies to the Plan in the same way as it applies to an enactment.
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
1.
|
Unless specified otherwise at the Award Date, the Awards shall Bank in three equal tranches based on the Continuous Service on the anniversaries of the Award Date, as follows:
|
Anniversary of the Award Date
|
Tranche
|
1
|
1/3
|
2
|
1/3
|
3
|
1/3
|
2.
|
Where the number of Plan Shares calculated above is not a whole number, the number of Plan Shares Vesting shall be rounded down to the nearest whole share. However, on the calculation of the level of Banking for the final tranche, any cumulative fractions of Plan Shares arising on the calculation of earlier tranches (prior to rounding) shall be added to the calculated amount and the rounded down figure calculated taking these into account.
|
Endava Non-Executive Director Long Term Incentive Plan
|
|
1.
|
Unless otherwise specified by the Board at the Award Date, the Award shall Vest on or after an Exit Event as follows:
|
Date
|
Level of Vesting
|
|
Date of Exit Event
|
Banked Awards x 50%
|
(A)
|
1
st
anniversary of Exit Event
|
(Cumulative Banked Awards x 100%) - A
|
(B)
|
2.
|
Where the first anniversary of the Exit Event occurs prior to the date the Award will become Banked the Award shall continue to Bank in accordance with the Rules and Banked Awards not previously Vested shall Vest on the date of Banking.
|
3.
|
Where the number of Plan Shares calculated above is not a whole number, the number of Plan Shares Vesting shall be rounded down to the nearest whole share.
|
4.
|
Cumulative Banked Awards shall take account of all Awards Banked on or before the relevant Vesting Date.
|
ENDAVA
|
|
2018 EQUITY INCENTIVE PLAN
|
|
|
|
Page
|
|
1.
|
PURPOSE
|
1
|
|
|
2.
|
ELIGIBILITY
|
1
|
|
|
3.
|
ADMINISTRATION AND DELEGATION
|
1
|
|
|
|
3.1
|
Administration
|
1
|
|
|
3.2
|
Appointment of Committees
|
1
|
|
4.
|
SHARES AVAILABLE FOR AWARDS
|
1
|
|
|
|
4.1
|
Number of Shares
|
1
|
|
|
4.2
|
Share Recycling
|
1
|
|
|
4.3
|
Incentive Option Limitations
|
2
|
|
|
4.4
|
Substitute Awards
|
2
|
|
|
4.5
|
Deed Poll
|
2
|
|
5.
|
OPTIONS AND SHARE APPRECIATION RIGHTS
|
2
|
|
|
|
5.1
|
General
|
2
|
|
|
5.2
|
Exercise Price
|
3
|
|
|
5.3
|
Duration
|
3
|
|
|
5.4
|
Exercise
|
3
|
|
|
5.5
|
Payment Upon Exercise
|
3
|
|
6.
|
RESTRICTED SHARES; RESTRICTED SHARE UNITS; PERFORMANCE RESTRICTED SHARE UNITS
|
4
|
|
|
|
6.1
|
General
|
4
|
|
|
6.2
|
Restricted Shares.
|
4
|
|
|
6.3
|
Restricted Share Units.
|
5
|
|
|
6.4
|
Performance Restricted Share Units.
|
5
|
|
7.
|
OTHER SHARE BASED AWARDS
|
5
|
|
|
8.
|
ADJUSTMENTS FOR CHANGES IN SHARES AND CERTAIN OTHER EVENTS
|
5
|
|
|
|
8.1
|
Equity Restructuring
|
5
|
|
|
8.2
|
Corporate Events
|
6
|
|
|
8.3
|
Administrative Stand Still
|
7
|
|
|
8.4
|
General
|
7
|
|
9.
|
GENERAL PROVISIONS APPLICABLE TO AWARDS
|
7
|
|
|
|
9.1
|
Transferability
|
7
|
|
|
9.2
|
Documentation
|
7
|
|
|
9.3
|
Discretion
|
7
|
|
|
9.4
|
Termination of Status
|
7
|
|
|
9.5
|
Withholding
|
8
|
|
|
9.6
|
Amendment of Award; Repricing
|
8
|
|
|
9.7
|
Conditions on Delivery of Shares
|
8
|
|
|
9.8
|
Acceleration
|
9
|
|
|
9.9
|
Additional Terms of Incentive Options
|
9
|
|
10.
|
MISCELLANEOUS
|
9
|
|
|
|
10.1
|
No Right to Employment or Other Status
|
9
|
|
|
10.2
|
No Rights as Shareholder; Certificates
|
9
|
|
|
10.3
|
Effective Date and Term of Plan
|
10
|
|
|
10.4
|
Amendment of Plan
|
10
|
|
|
|
|
Page
|
|
|
10.5
|
Provisions for Foreign Participants
|
10
|
|
|
10.6
|
Section 409A
|
10
|
|
|
10.7
|
Limitations on Liability
|
11
|
|
|
10.8
|
Lock-Up Period
|
11
|
|
|
10.9
|
Data Privacy
|
11
|
|
|
10.10
|
Severability
|
12
|
|
|
10.11
|
Governing Documents
|
12
|
|
|
10.12
|
Governing Law
|
12
|
|
|
10.13
|
Claw-back Provisions
|
12
|
|
|
10.14
|
Titles and Headings
|
12
|
|
|
10.15
|
Conformity to Securities Laws
|
13
|
|
|
10.16
|
Relationship to Other Benefits
|
13
|
|
|
10.17
|
Broker-Assisted Sales
|
13
|
|
11.
|
DEFINITIONS
|
13
|
|
|
APPENDIX 1 OPTION
GRANT NOTICE
|
17
|
|
||
22
|
|
|||
30
|
|
|||
38
|
|
|||
APPENDIX 5
NON-EMPLOYEE SUB-PLAN
|
45
|
|
1.
|
PURPOSE
|
2.
|
ELIGIBILITY
|
3.
|
ADMINISTRATION AND DELEGATION
|
3.1
|
Administration
|
3.2
|
Appointment of Committees
|
4.
|
SHARES AVAILABLE FOR AWARDS
|
4.1
|
Number of Shares
|
4.2
|
Share Recycling.
|
4.3
|
Incentive Option Limitations.
|
4.4
|
Substitute Awards.
|
4.5
|
Deed Poll.
|
5.
|
OPTIONS AND SHARE APPRECIATION RIGHTS
|
5.1
|
General.
|
5.2
|
Exercise Price.
|
5.3
|
Duration.
|
5.4
|
Exercise.
|
5.5
|
Payment Upon Exercise.
|
(a)
|
cash, wire transfer of immediately available funds or by check payable to the order of the Company, provided that the Company may limit the use of one of the foregoing payment forms if one or more of the payment forms below is permitted;
|
(b)
|
if there is a public market for Shares at the time of exercise, unless the Company otherwise determines, (A) delivery (including telephonically to the extent permitted by the Company) of an irrevocable and unconditional undertaking by a broker acceptable to the Company to deliver promptly to the Company sufficient funds to pay the exercise price, or (B) the Participant’s delivery to the Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the Company to deliver promptly to the Company cash or a check sufficient to pay the exercise price; provided that such amount is paid to the Company at such time as may be required by the Administrator;
|
(c)
|
to the extent permitted by the Administrator, delivery (either by actual delivery or attestation) of Shares owned by the Participant valued at their Fair Market Value;
|
(d)
|
to the extent permitted by the Administrator, except with respect to Incentive Options, surrendering Shares then issuable upon the Option’s exercise valued at their Fair Market Value on the exercise date;
|
(e)
|
to the extent permitted by the Administrator, delivery of a promissory note or any other property that the Administrator determines is good and valuable consideration; or
|
(f)
|
to the extent permitted by the Company, any combination of the above payment forms approved by the Administrator.
|
6.
|
RESTRICTED SHARES; RESTRICTED SHARE UNITS; PERFORMANCE RESTRICTED SHARE UNITS
|
6.1
|
General.
|
6.2
|
Restricted Shares.
|
(a)
|
Dividends.
|
(b)
|
Certificates.
|
6.3
|
Restricted Share Units.
|
(a)
|
Settlement.
|
(b)
|
Shareholder Rights.
|
6.4
|
Performance Restricted Share Units.
|
(a)
|
Settlement.
|
(b)
|
Shareholder Rights.
|
7.
|
OTHER SHARE BASED AWARDS
|
8.
|
ADJUSTMENTS FOR CHANGES IN SHARES AND CERTAIN OTHER EVENTS
|
8.1
|
Equity Restructuring.
|
8.2
|
Corporate Events.
|
(a)
|
To provide for the cancellation of any such Award in exchange for either an amount of cash or other property with a value equal to the amount that could have been obtained upon the exercise or settlement of the vested portion of such Award or realization of the Participant’s rights under the vested portion of such Award, as applicable; provided that, if the amount that could have been obtained upon the exercise or settlement of the vested portion of such Award or realization of the Participant’s rights, in any case, is equal to or less than zero (as determined by the Administrator in its discretion), then the Award may be terminated without payment. In addition, such payments under this provision may, in the Administrator’s discretion, be delayed to the same extent that payment of consideration to the holders of Ordinary Shares in connection with the Corporate Event is delayed as a result of escrows, earn outs, holdbacks or any other contingencies;
|
(b)
|
To provide that such Award shall vest and, to the extent applicable, be exercisable as to all shares covered thereby, notwithstanding anything to the contrary in the Plan or the provisions of such Award;
|
(c)
|
To provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by awards covering the equity securities of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and/or applicable exercise or purchase price, in all cases, as determined by the Administrator;
|
(d)
|
To make adjustments in the number and type of shares (or other securities or property) subject to outstanding Awards and/or with respect to which Awards may be granted under the Plan (including, but not limited to, adjustments of the limitations in Section 4 hereof on the maximum number and kind of shares which may be issued) and/or in the terms and conditions of (including the grant or exercise price), and the criteria included in, outstanding Awards;
|
(e)
|
To replace such Award with other rights or property selected by the Administrator; and/or
|
(f)
|
To provide that the Award will terminate and cannot vest, be exercised or become payable after the applicable transaction or event.
|
8.3
|
Administrative Stand Still.
|
8.4
|
General.
|
9.1
|
Transferability.
|
9.2
|
Documentation.
|
9.3
|
Discretion.
|
9.4
|
Termination of Status.
|
9.5
|
Withholding.
|
9.6
|
Amendment of Award; Repricing.
|
9.7
|
Conditions on Delivery of Shares.
|
9.8
|
Acceleration.
|
9.9
|
Additional Terms of Incentive Options.
|
10.
|
MISCELLANEOUS
|
10.1
|
No Right to Employment or Other Status.
|
10.2
|
No Rights as Shareholder; Certificates.
|
10.3
|
Effective Date and Term of Plan.
|
10.4
|
Amendment of Plan.
|
10.5
|
Provisions for Foreign Participants.
|
10.6
|
Section 409A.
|
(a)
|
General.
|
(b)
|
Separation from Service.
|
(c)
|
Payments to Specified Employees.
|
10.7
|
Limitations on Liability.
|
10.8
|
Lock-Up Period.
|
10.9
|
Data Privacy.
|
(a)
|
As a condition for receiving any Award, each Participant acknowledges that the Company and any Subsidiary may collect, use and transfer, in electronic or other form, personal data as described in this section by and among the Company and its Subsidiaries and affiliates exclusively for implementing, administering and managing the Participant’s participation in the Plan. The Company (as above) may hold certain personal information about a Participant, including the Participant’s name, address and telephone number; birthdate; social security, insurance number or other identification number; salary; nationality; job title(s); any Shares held in the Company (as above); and Award details, to implement, manage and administer the Plan and Awards (the “
Data
”). The Company (as above) may transfer the Data amongst themselves as necessary to implement,
|
(b)
|
For the purpose of operating the Plan in the European Union, the Company will collect and process information relating to Participants in accordance with the privacy notice which is provided to each Participant.
|
10.10
|
Severability.
|
10.11
|
Governing Documents.
|
10.12
|
Governing Law.
|
10.13
|
Claw-back Provisions.
|
10.14
|
Titles and Headings.
|
10.15
|
Conformity to Securities Laws.
|
10.16
|
Relationship to Other Benefits.
|
10.17
|
Broker-Assisted Sales.
|
11.
|
DEFINITIONS
|
11.1
|
“
ADSs
” means American Depositary Shares, representing Ordinary Shares on deposit with a U.S. banking institution selected by the Company and which are registered pursuant to a Form F-6.
|
11.2
|
“
Administrator
” means the Board or a Committee to the extent that the Board’s powers or authority under the Plan have been delegated to such Committee.
|
11.3
|
“
Applicable Laws
” shall mean any applicable laws, including without limitation: (a) the requirements relating to the administration of equity incentive plans under U.S. federal and state securities, tax and other applicable laws, rules and regulations, the applicable rules of any stock exchange or quotation system on which the Shares are listed or quoted and the applicable laws and rules of any foreign country or other jurisdiction where Awards are granted; and (b) corporate, securities, tax or other laws, statutes, rules, requirements or regulations, whether U.S. federal, state, local or foreign, applicable in the United Kingdom, United States or any other relevant jurisdiction.
|
11.4
|
“
Award
” means, individually or collectively, a grant under the Plan of Options, Share Appreciation Rights, Restricted Shares, Restricted Share Units or Other Share Based Awards.
|
11.5
|
“
Award Agreement
” means a written agreement evidencing an Award, which may be electronic, that contains such terms and conditions as the Administrator determines, consistent with and subject to the terms and conditions of the Plan.
|
11.6
|
“
Board
” means the Board of Directors of the Company.
|
11.7
|
“
Cause
” means (i) if a Participant is a party to a written employment or consulting agreement with the Company or any of its Subsidiaries or an Award Agreement in which the term “cause” is defined (a “Relevant Agreement”), “Cause” as defined in the Relevant Agreement, and (ii) if no Relevant Agreement exists, (A) the Administrator’s determination that the Participant failed to substantially perform the Participant’s duties (other than a failure resulting from the Participant’s Disability); (B) the Administrator’s determination that the Participant failed to carry out, or comply with any lawful and reasonable directive of the Board or the Participant’s immediate supervisor; (C) the occurrence of any act or omission by the Participant that could reasonably be expected to result in (or has resulted in) the Participant’s conviction, plea of no contest, plea of nolo contendere, or imposition of unadjudicated probation for any felony or indictable offense or crime involving moral turpitude; (D) the Participant’s unlawful use (including being under the influence) or possession of illegal drugs on the premises of the Company or any of its Subsidiaries or while performing the Participant’s duties and responsibilities for the Company or any of its Subsidiaries; or (E) the Participant’s commission of an act of fraud, embezzlement, misappropriation, misconduct, or breach of fiduciary duty against the Company or any of its Subsidiaries.
|
11.8
|
“
Change in Control
” means and includes each of the following:
|
(a)
|
a Sale; or
|
(b)
|
a Takeover.
|
11.9
|
“
Code
” means the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.
|
11.10
|
“
Committee
” means one or more committees or subcommittees of the Board, which may include one or more Company directors or executive officers, to the extent Applicable Laws permit. To the extent required to comply with the provisions of Rule 16b-3, it is intended that each member of the Committee will be, at the time the Committee takes any action with respect to an Award that is subject to Rule 16b-3, a “non-employee director” within the meaning of Rule 16b-3; however, a Committee member’s failure to qualify as a “non-employee director” within the meaning of Rule 16b-3 will not invalidate any Award granted by the Committee that is otherwise validly granted under the Plan.
|
11.11
|
“
Company
” means Endava [PLC], registered in England and Wales with company number 05722669, or any successor.
|
11.12
|
“
Control
” shall have the meaning given in section 995 (2) of the UK Income Tax Act 2007, unless otherwise specified.
|
11.13
|
“
Designated Beneficiary
” means the beneficiary or beneficiaries the Participant designates, in a manner the Administrator determines, to receive amounts due or exercise the Participant’s rights if the Participant dies or becomes incapacitated. Without a Participant’s effective designation, “
Designated Beneficiary
” will mean the Participant’s estate.
|
11.14
|
“
Director
” means a Board member.
|
11.15
|
“
Disability
” means a permanent and total disability under Section 22(e)(3) of the Code, as amended.
|
11.16
|
“
Employee
” means any employee of the Company or its Subsidiaries.
|
11.17
|
“
Equity Restructuring
” means a nonreciprocal transaction between the Company and its shareholders, such as a share dividend, share split, spin-off, rights offering or recapitalization through a large, nonrecurring cash dividend, that affects the number or kind of Shares (or other Company securities) or the price of Shares (or other Company securities) and causes a change in the per share value of the Shares underlying outstanding Awards.
|
11.18
|
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
|
11.19
|
“
Fair Market Value
” means, as of any date, the value of Shares determined as follows: (i) if the Shares are listed on any established stock exchange, its Fair Market Value will be the closing sales price for Shares as quoted on such exchange for the last day preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; (ii) if the Shares are not traded on a stock exchange but is quoted on a national market or other quotation system, the closing sales price on the last date preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; or (iii) without an established market for the Shares, the Administrator will determine the Fair Market Value in its discretion. Notwithstanding the foregoing, with respect to any Award granted on the pricing date of the Company’s initial public offering, the Fair Market Value shall mean the initial public offering price of a Share as set forth in the Company’s final prospectus relating to its initial public offering filed with the Securities and Exchange Commission.
|
11.20
|
“
Greater Than 10% Shareholder
” means an individual then owning (within the meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of equity securities of the Company or its parent or subsidiary corporation, as defined in Section 424(e) and (f) of the Code, respectively.
|
11.21
|
“
Incentive Option
” means an Option intended to qualify as an “incentive stock option” as defined in Section 422 of the Code.
|
11.22
|
“
NYSE Listing Date
” means the first date upon which the Shares are listed (or approved for listing) upon notice of issuance on the New York Stock Exchange.
|
11.23
|
“
Non-Employee Sub-Plan
” means the Non-Employee Sub-Plan to the Plan adopted by the Board;
|
11.24
|
“
Non-Qualified Option
” means an Option not intended or not qualifying as an Incentive Option.
|
11.25
|
“
Option
” means an option to purchase Shares.
|
11.26
|
“
Ordinary Share
” means an ordinary share of £0.01 each in the capital of the Company.
|
11.27
|
“
Other Share Based Awards
” means awards of Shares, and other awards valued wholly or partially by referring to, or are otherwise based on, Shares or other property.
|
11.28
|
“
Participant
” means a Service Provider who has been granted an Award.
|
11.29
|
“
Performance Criteria
” mean the criteria (and adjustments) that the Administrator may select for an Award to establish performance goals for a performance period.
|
11.30
|
“
Plan
” means this 2018 Equity Incentive Plan.
|
11.31
|
“
Restricted Shares
” means Shares awarded to a Participant under Section 6 subject to certain vesting conditions and other restrictions.
|
11.32
|
“
Restricted Share Unit
” means an unfunded, unsecured right to receive, on the applicable settlement date, one Share or an amount in cash or other consideration determined by the Administrator to be of equal value as of such settlement date, subject to certain vesting conditions and other restrictions.
|
11.33
|
“
Rule 16b-3
” means Rule 16b-3 promulgated under the Exchange Act.
|
11.34
|
“
Sale
” shall mean the sale of all or substantially all of the assets of the Company.
|
11.35
|
“
Section 409A
” means Section 409A of the Code and all regulations, guidance, compliance programs and other interpretative authority thereunder.
|
11.36
|
“
Securities Act
” means the Securities Act of 1933, as amended.
|
11.37
|
“
Service Provider
” means an Employee or a Director who is an Employee.
|
11.38
|
“
Share
” means an Ordinary Share or the number of ADSs equal to an Ordinary Share.
|
11.39
|
“
Share Appreciation Right
” means a Share Appreciation right granted under Section 5.
|
11.40
|
“
Subsidiary
” means any entity (other than the Company), whether domestic or foreign, in an unbroken chain of entities beginning with the Company if each of the entities other than the last entity in the unbroken chain beneficially owns, at the time of the determination, securities or interests representing at least 50% of the total combined voting power of all classes of securities or interests in one of the other entities in such chain.
|
11.41
|
“
Substitute Awards
” shall mean Awards granted or Shares issued by the Company in assumption of, or in substitution or exchange for, awards previously granted, or the right or obligation to make future awards, in each case by a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines.
|
(a)
|
“
Takeover
” shall mean if any person (or a group of persons acting in concert) (the “
Acquiring Person
”):
|
(i)
|
obtains Control of the Company as the result of making a general offer to:-
|
(A)
|
acquire all of the issued ordinary share capital of the Company, which is made on a condition that, if it is satisfied, the Acquiring Person will have Control of the Company; or
|
(B)
|
acquire all of the shares in the Company which are of the same class as the Shares; or
|
(ii)
|
obtains Control of the Company as a result of a compromise or arrangement sanctioned by a court under Section 899 of the UK Companies Act 2006, or sanctioned under any other similar law of another jurisdiction; or
|
(iii)
|
becomes bound or entitled under Sections 979 to 985 of the UK Companies Act 2006 (or similar law of another jurisdiction) to acquire shares of the same class as the Shares; or
|
(iv)
|
obtains Control of the Company in any other way.
|
11.42
|
“
Termination of Service
” means the date the Participant ceases to be a Service Provider.
|
ENDAVA
|
|
PARTICIPANT
|
|
|
|
|
|
By:
|
|
|
|
:
|
Name
|
|
[Participant Name]
|
|
|
|
|
|
Title:
|
|
|
1.
|
GENERAL
|
1.1
|
Grant of Option.
|
1.2
|
Incorporation of Terms of Plan.
|
2.
|
PERIOD OF EXERCISABILITY
|
2.1
|
Commencement of Exercisability.
|
2.2
|
Duration of Exercisability.
|
2.3
|
Expiration of Option.
|
(a)
|
The final expiration date in the Grant Notice;
|
(b)
|
Except as the Administrator may otherwise approve, the expiration of three (3) months from the date of Participant’s Termination of Service, unless Participant’s Termination of Service is for Cause or by reason of Participant’s death or Disability;
|
(c)
|
Except as the Administrator may otherwise approve, the expiration of one (1) year from the date of Participant’s Termination of Service by reason of Participant’s death or Disability; and
|
(d)
|
Except as the Administrator may otherwise approve, Participant’s Termination of Service for Cause.
|
3.
|
EXERCISE OF OPTION
|
3.1
|
Person Eligible to Exercise.
|
3.2
|
Partial Exercise.
|
3.3
|
Tax Withholding.
|
(a)
|
The Company has the right and option, but not the obligation, to treat Participant’s failure to provide timely payment in accordance with the Plan of any withholding tax arising in connection with the Option as Participant’s election to satisfy all or any portion of the withholding tax by requesting the Company retain Shares otherwise issuable under the Option.
|
(b)
|
Participant acknowledges that Participant is ultimately liable and responsible for all taxes owed in connection with the Option, regardless of any action the Company or any Subsidiary takes with respect to any tax withholding obligations that arise in connection with the Option. Neither the Company nor any Subsidiary makes any representation or undertaking regarding the treatment of any tax withholding in connection with the awarding, vesting or exercise of the Option or the subsequent sale of Shares. The Company and the Subsidiaries do not commit and are under no obligation to structure the Option to reduce or eliminate Participant’s tax liability.
|
4.
|
OTHER PROVISIONS
|
4.1
|
Adjustments.
|
4.2
|
Notices.
|
4.3
|
Titles.
|
4.4
|
Conformity to Securities Laws.
|
4.5
|
Successors and Assigns.
|
4.6
|
Limitations Applicable to Section 16 Persons.
|
4.7
|
Entire Agreement.
|
4.8
|
Agreement Severable.
|
4.9
|
Limitation on Participant’s Rights.
|
4.10
|
Not a Contract of Employment.
|
4.11
|
Counterparts.
|
4.12
|
Incentive Options.
|
(a)
|
Participant acknowledges that to the extent the aggregate fair market value of shares (determined as of the time the option with respect to the shares is granted) with respect to which options intended to qualify as “incentive stock options” under Section 422 of the Code, including the Option, are exercisable for the first time by Participant during any calendar year exceeds $100,000 or if for any other reason such options do not qualify or cease to qualify for treatment as “incentive stock options” under Section 422 of the Code, such options (including the Option) will be treated as non-qualified options. Participant further acknowledges that the rule set forth in the preceding sentence will be applied by taking the Option and other options into account in the order in which they were granted, as determined under Section 422(d) of the Code. Participant also acknowledges that if the Option is exercised more than three (3) months after Participant’s Termination of Service, other than by reason of death or disability, the Option will be taxed as a Non-Qualified Option.
|
(b)
|
Participant will give prompt written notice to the Company of any disposition or other transfer of any Shares acquired under this Agreement if such disposition or other transfer is made (a) within two (2) years from the Grant Date or (b) within one (1) year after the transfer of such Shares to Participant. Such notice will specify the date of such disposition or other transfer and the amount realized, in cash, other property, assumption of indebtedness or other consideration, by Participant in such disposition or other transfer.
|
ENDAVA
|
|
PARTICIPANT
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
:
|
Name
|
|
[Participant Name]
|
|
|
|
|
|
Title:
|
|
|
1.
|
GENERAL
|
1.1
|
Issuance of Restricted Shares.
|
1.2
|
Incorporation of Terms of Plan.
|
2.
|
VESTING, FORFEITURE AND ESCROW
|
2.1
|
Vesting.
|
2.2
|
Forfeiture.
|
2.3
|
Escrow.
|
(a)
|
Unvested Shares will be held by the Company or its authorized representatives until (i) they are forfeited, (ii) they become Vested Shares or (iii) this Agreement is no longer in effect. By accepting this Award, Participant appoints the Company and its authorized representatives as Participant’s attorney(s)-in-fact to take all actions necessary to effect any transfer of forfeited Unvested Shares (and Retained Distributions (as defined below), if any, paid on such forfeited Unvested Shares) to the Company as may be required pursuant to the Plan or this Agreement and to execute such representations or other documents or assurances as the Company or such representatives deem necessary or advisable in connection with any such transfer. The Company, or its authorized representative, will not be liable for any good faith act or omission with respect to the holding in escrow or transfer of the Restricted Shares.
|
(b)
|
All cash dividends and other distributions made or declared with respect to Unvested Shares (“
Retained Distributions
”) will be held by the Company until the time (if ever) when the Unvested Shares to which such Retained Distributions relate become Vested Shares. The Company will establish a separate Retained Distribution bookkeeping account (“
Retained Distribution Account
”) for each Unvested Share with respect to which Retained Distributions have been made or declared in cash and credit the Retained Distribution Account (without interest) on the date of payment with the amount of such cash made or declared with respect to the Unvested Share. Retained Distributions (including any Retained Distribution Account balance) will immediately and automatically be forfeited upon forfeiture of the Unvested Share with respect to which the Retained Distributions were paid or declared.
|
(c)
|
As soon as reasonably practicable following the date on which an Unvested Share becomes a Vested Share, the Company will (i) cause the certificate (or a new certificate without the legend required by this Agreement, if Participant so requests) representing the Share to be delivered to Participant or, if the Share is held in book-entry form, cause the notations indicating the Share is subject to the restrictions of this Agreement to be removed and (ii) pay to Participant the Retained Distributions relating to the Share.
|
2.4
|
Rights as Shareholder.
|
3.
|
TAXATION AND TAX WITHHOLDING
|
3.1
|
Representation.
|
3.2
|
Section 83(b) Election.
|
3.3
|
Tax Withholding.
|
(a)
|
On each vesting date, and on or before the Restricted Shares vest, and at any other time as reasonably requested by the Company in accordance with applicable tax laws (including, without limitation, in connection with the payment of any Retained Distributions), Participant hereby authorizes any required withholding from the shares issuable to Participant and/or otherwise agree to make adequate provision in cash for any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or any parent or subsidiary that arise in connection with Participant’s Restricted Shares (the “
Withholding Taxes
”). Specifically, pursuant to Section 3.3(b), Participant has agreed to a “same day sale” commitment with a broker-dealer that is a member of the Financial Industry Regulatory Authority (a “
FINRA Dealer
”) whereby Participant has irrevocably agreed to sell a portion of the shares in connection with Participant’s Restricted Shares to satisfy the Withholding Taxes and whereby the FINRA Dealer committed to forward the proceeds necessary to satisfy the Withholding Taxes directly to the Company and/or its parents or subsidiaries. If, for any reason, such “same day sale” commitment pursuant to Section 3.3(b) does not result in sufficient
|
(b)
|
Participant hereby acknowledges and agrees to the following:
|
(i)
|
Participant hereby appoints such FINRA Dealer appointed by the Company for purposes of this Section 3.3(b) as Participant’s agent (the “
Agent
”), and authorize the Agent:
|
(A)
|
To sell on the open market at the then prevailing market price(s), on Participant’s behalf, as soon as practicable on or after each date on which the shares underlying Participant’s Restricted Shares vest, the number (rounded up to the next whole number) of the shares to be delivered to Participant in connection with the vesting of those shares sufficient to generate proceeds to cover (A) the Withholding Taxes that Participant is required to pay pursuant to the Plan and this Agreement as a result of the shares vesting (or being issued, as applicable) and (B) all applicable fees and commissions due to, or required to be collected by, the Agent with respect thereto; and
|
(B)
|
To remit any remaining funds to Participant.
|
(ii)
|
Participant hereby authorizes the Company and the Agent to cooperate and communicate with one another to determine the number of shares that must be sold pursuant to this Section 3.3(b).
|
(iii)
|
Participant understands that the Agent may effect sales as provided in this Section 3.3(b) in one or more sales and that the average price for executions resulting from bunched orders will be assigned to Participant’s account. In addition, Participant acknowledges that it may not be possible to sell shares underlying Participant’s Restricted Shares as provided by in this Section 3.3(b) due to (A) a legal or contractual restriction applicable to Participant or the Agent, (B) a market disruption, or (C) rules governing order execution priority on the national exchange where the shares may be traded. In the event of the Agent’s inability to sell shares underlying Participant’s Restricted Shares, Participant will continue to be responsible for the timely payment to the Company of all Withholding Taxes and any other federal, state, local and foreign taxes that are required by Applicable Laws and regulations to be withheld, including but not limited to those amounts specified in this Section 3.3(b).
|
(iv)
|
Participant acknowledges that regardless of any other term or condition of this Section 3.3(b), the Agent will not be liable to Participant for (A) special, indirect,
|
(v)
|
Participant hereby agrees to execute and deliver to the Agent any other agreements or documents as the Agent reasonably deems necessary or appropriate to carry out the purposes and intent of this Section 3.3(b). The Agent is a third-party beneficiary of this Section 3.3(b).
|
(vi)
|
Participant hereby agrees that if Participant has signed the Grant Notice at a time that Participant is in possession of material non-public information, unless Participant informs the Company in writing within five business days following the date Participant ceases to be in possession of material non-public information that Participant is not in agreement with the provisions of this Section 3.3(b), Participant not providing such written determination shall be a determination and agreement that Participant has agreed to the provisions set forth in this Section 3.3(b) on such date as Participant has ceased to be in possession of material non-public information.
|
(i)
|
This Section 3.3(b) shall terminate not later than the date on which all withholding taxes arising in connection with the vesting of Participant’s Restricted Shares have been satisfied.
|
(c)
|
Participant acknowledges that Participant is ultimately liable and responsible for all taxes owed in connection with the Restricted Shares, regardless of any action the Company or any Subsidiary takes with respect to any tax withholding obligations that arise in connection with the Restricted Shares. Neither the Company nor any Subsidiary makes any representation or undertaking regarding the treatment of any tax withholding in connection with the awarding, vesting or payment of the Restricted Shares or the subsequent sale of the Restricted Shares. The Company and the Subsidiaries do not commit and are under no obligation to structure this Award to reduce or eliminate Participant’s tax liability.
|
4.
|
RESTRICTIVE LEGENDS AND TRANSFERABILITY
|
4.1
|
Legends.
|
4.2
|
Transferability.
|
5.
|
OTHER PROVISIONS
|
5.1
|
Adjustments.
|
5.2
|
Notices.
|
5.3
|
Titles.
|
5.4
|
Conformity to Securities Laws.
|
5.5
|
Successors and Assigns.
|
5.6
|
Limitations Applicable to Section 16 Persons.
|
5.7
|
Entire Agreement.
|
5.8
|
Agreement Severable.
|
5.9
|
Limitation on Participant’s Rights.
|
5.10
|
Not a Contract of Employment.
|
5.11
|
Counterparts.
|
Participant:
|
|
Grant Date:
|
|
Target Number of PRSUs:
|
|
Vesting Commencement Date:
|
|
Vesting Schedule:
|
So long as Participant remains continuously a Service Provider, the total number of Performance Restricted Share Units which shall vest on the first, second, third and fourth anniversaries of the Vesting Commencement Date will be determined in accordance with the vesting conditions specified on Attachment I to this Grant Notice (the “
PRSU Vesting Criteria
”), and upon a Change in Control, the Performance Restricted Share Units shall vest and become exercisable in full immediately prior to such Change in Control.
|
Mandatory Sale to Cover
Withholding Taxes:
|
As a condition to acceptance of this award, to the fullest extent permitted under the Plan and Applicable Laws, withholding taxes and other tax related items will be satisfied through the sale of a number of the shares subject to the Award as determined in accordance with Section 3.2 of the Agreement and the remittance of the cash proceeds to the Company. Under the Agreement, the Company is authorized and directed by the Participant to make payment from the cash proceeds of this sale directly to the appropriate taxing authorities in an amount equal to the taxes required to be withheld.
The mandatory sale of shares to cover withholding taxes and tax related items is imposed by the Company on the Participant in connection with the receipt of this Award, and it is intended to comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act and be interpreted to meet the requirements of Rule 10b5-1(c).
|
ENDAVA
|
|
PARTICIPANT
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
:
|
Name
|
|
[Participant Name]
|
|
|
|
|
|
Title:
|
|
|
1.
|
GENERAL
|
1.1
|
Award of PRSUs.
|
1.2
|
Incorporation of Terms of Plan.
|
1.3
|
Unsecured Promise.
|
2.
|
VESTING; FORFEITURE AND SETTLEMENT
|
2.1
|
Vesting; Forfeiture.
|
(a)
|
The PRSUs will vest according to the vesting schedule in the Grant Notice except that any fraction of a PRSU that would otherwise be vested will be accumulated and will vest only when a whole PRSU has accumulated. In the event of Participant’s Termination of Service for any reason, all unvested PRSUs will immediately and automatically be cancelled and forfeited, except as otherwise determined by the Administrator or provided in a binding written agreement between Participant and the Company.
|
2.2
|
Settlement.
|
(a)
|
PRSUs will be paid in Shares or cash at the Company’s option as soon as administratively practicable after the vesting of the applicable PRSU, but in no event more than sixty (60) days after the PRSU’s vesting date. Notwithstanding the foregoing, the Company may delay any payment under this Agreement that the Company reasonably determines would violate Applicable Laws until the earliest date the Company reasonably determines the making of the payment will not cause such a violation.
|
(b)
|
If a PRSU is paid in cash, the amount of cash paid with respect to the PRSU will equal the Fair Market Value of a Share on the day immediately preceding the payment date.
|
(c)
|
If a PRSU is paid in Shares, Participant may be required to pay the nominal value thereof in the same manner as provided for Withholding Taxes below.
|
3.
|
TAXATION AND TAX WITHHOLDING
|
3.1
|
Representation.
|
3.2
|
Tax Withholding.
|
(a)
|
On each vesting date, and on or before the time Participant receives a distribution of the shares underlying the PRSUs, and at any other time as reasonably requested by the Company in accordance with applicable tax laws, Participant hereby authorizes any required withholding from the shares issuable to Participant and/or otherwise agree to make adequate provision in cash for any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or any parent or subsidiary that arise in connection with Participant’s PRSU (the “
Withholding Taxes
”). Specifically, pursuant to Section 3.2(b), Participant has agreed to a “same day sale” commitment with a broker-dealer that is a member of the Financial Industry Regulatory Authority (a “
FINRA Dealer
”) whereby Participant has irrevocably agreed to sell a portion of the shares to be delivered in connection with Participant’s PRSUs to satisfy the Withholding Taxes and whereby the FINRA Dealer committed to forward the proceeds necessary to satisfy the Withholding Taxes directly to the Company and/or its parents or subsidiaries. If, for any reason, such “same day sale” commitment pursuant to Section 3.2(b) does not result in sufficient proceeds to satisfy the Withholding Taxes or would be prohibited by Applicable Laws at the applicable time, Participant hereby authorizes the Company and/or the relevant parent or subsidiary, or their respective agents, at their discretion, to satisfy the obligations with regard to all Withholding Taxes by one or a combination of the following: (i) withholding from any compensation otherwise payable to Participant by the Company or any parent or subsidiary; (ii) causing Participant to tender a cash payment (which may be in the form of a check, electronic wire transfer or other method permitted by the Company); or (iii) withholding shares from the shares issued or otherwise issuable to Participant in connection with Participant’s PRSUs with a fair market value (measured as of the date shares are issued to Participant) equal to the amount of such Withholding Taxes; provided, however, that the number of such shares so withheld will not exceed the amount necessary to satisfy the Company’s required tax withholding obligations using the minimum statutory withholding rates for federal, state, local and, if applicable, foreign tax purposes, including payroll taxes, that are applicable to supplemental taxable income; and, provided, further, that to the extent necessary to qualify for an exemption from application of Section 16(b) of the Exchange Act, if applicable, such share withholding procedure will be subject to the prior approval of the Company’s Remuneration Committee.
|
(b)
|
Participant hereby acknowledges and agrees to the following:
|
(i)
|
Participant hereby appoints such FINRA Dealer appointed by the Company for purposes of this Section 3.2(b) as Participant’s agent (the “
Agent
”), and authorize the Agent:
|
(A)
|
To sell on the open market at the then prevailing market price(s), on Participant’s behalf, as soon as practicable on or after each date on which the shares underlying Participant’s PRSUs vest, the number (rounded up to the next whole number) of the shares to be delivered to Participant in connection with the vesting of those shares sufficient to generate proceeds to cover (A) the Withholding Taxes that Participant is required to pay pursuant to the Plan and this Agreement as a result of the shares vesting (or being issued, as applicable) and (B) all
|
(B)
|
To remit any remaining funds to Participant.
|
(ii)
|
Participant hereby authorizes the Company and the Agent to cooperate and communicate with one another to determine the number of shares that must be sold pursuant to this Section 3.2(b).
|
(iii)
|
Participant understands that the Agent may effect sales as provided in this Section 3.2(b) in one or more sales and that the average price for executions resulting from bunched orders will be assigned to Participant’s account. In addition, Participant acknowledges that it may not be possible to sell shares underlying Participant’s PRSUs as provided by in this Section 3.2(b) due to (A) a legal or contractual restriction applicable to Participant or the Agent, (B) a market disruption, or (C) rules governing order execution priority on the national exchange where the shares may be traded. In the event of the Agent’s inability to sell shares underlying Participant’s PRSUs, Participant will continue to be responsible for the timely payment to the Company of all Withholding Taxes and any other federal, state, local and foreign taxes that are required by Applicable Laws and regulations to be withheld, including but not limited to those amounts specified in this Section 3.2(b).
|
(iv)
|
Participant acknowledges that regardless of any other term or condition of this Section 3.2(b), the Agent will not be liable to Participant for (A) special, indirect, punitive, exemplary, or consequential damages, or incidental losses or damages of any kind, or (B) any failure to perform or for any delay in performance that results from a cause or circumstance that is beyond its reasonable control.
|
(v)
|
Participant hereby agrees to execute and deliver to the Agent any other agreements or documents as the Agent reasonably deems necessary or appropriate to carry out the purposes and intent of this Section 3.2(b). The Agent is a third-party beneficiary of this Section 3.2(b).
|
(vi)
|
Participant hereby agrees that if Participant has signed the Grant Notice at a time that Participant is in possession of material non-public information, unless Participant informs the Company in writing within five business days following the date Participant ceases to be in possession of material non-public information that Participant is not in agreement with the provisions of this Section 3.2(b), Participant not providing such written determination shall be a determination and agreement that Participant has agreed to the provisions set forth in this Section 3.2(b) on such date as Participant has ceased to be in possession of material non-public information.
|
(vii)
|
This Section 3.2(b) shall terminate not later than the date on which all withholding taxes arising in connection with the vesting of Participant’s PRSUs have been satisfied.
|
(c)
|
Participant acknowledges that Participant is ultimately liable and responsible for all taxes owed in connection with the PRSUs, regardless of any action the Company or any Subsidiary takes with respect to any tax withholding obligations that arise in connection with the PRSUs. Neither the Company nor any Subsidiary makes any representation or undertaking regarding the treatment of any tax withholding in connection with the awarding, vesting or payment of the PRSUs or the subsequent sale of Shares. The Company and the Subsidiaries do not commit and are under no obligation to structure the PRSUs to reduce or eliminate Participant’s tax liability.
|
4.
|
OTHER PROVISIONS
|
4.1
|
Adjustments.
|
4.2
|
Notices.
|
4.3
|
Titles.
|
4.4
|
Conformity to Securities Laws.
|
4.5
|
Successors and Assigns.
|
4.6
|
Limitations Applicable to Section 16 Persons.
|
4.7
|
Entire Agreement.
|
4.8
|
Agreement Severable.
|
4.9
|
Limitation on Participant’s Rights.
|
4.10
|
Not a Contract of Employment.
|
4.11
|
Counterparts.
|
Participant:
|
|
Grant Date:
|
|
Number of RSUs:
|
|
Vesting Commencement Date:
|
|
Vesting Schedule:
|
So long as Participant remains continuously a Service Provider, 25% of the total number of Restricted Share Units shall vest on the first, second, third and fourth anniversaries of the Vesting Commencement Date, and upon a Change in Control, the Restricted Share Units shall vest and become exercisable in full immediately prior to such Change in Control.
|
Mandatory Sale to Cover
Withholding Taxes:
|
As a condition to acceptance of this award, to the fullest extent permitted under the Plan and Applicable Laws, withholding taxes and other tax related items will be satisfied through the sale of a number of the shares subject to the Award as determined in accordance with Section 3.2 of the Agreement and the remittance of the cash proceeds to the Company. Under the Agreement, the Company is authorized and directed by the Participant to make payment from the cash proceeds of this sale directly to the appropriate taxing authorities in an amount equal to the taxes required to be withheld.
The mandatory sale of shares to cover withholding taxes and tax related items is imposed by the Company on the Participant in connection with the receipt of this Award, and it is intended to comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act and be interpreted to meet the requirements of Rule 10b5-1(c).
|
ENDAVA
|
|
PARTICIPANT
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
:
|
Name
|
|
[Participant Name]
|
|
|
|
|
|
Title:
|
|
|
1.
|
GENERAL
|
1.1
|
Award of RSUs.
|
1.2
|
Incorporation of Terms of Plan.
|
1.3
|
Unsecured Promise.
|
2.
|
VESTING; FORFEITURE AND SETTLEMENT
|
2.1
|
Vesting; Forfeiture.
|
2.2
|
Settlement.
|
(a)
|
RSUs will be paid in Shares or cash at the Company’s option as soon as administratively practicable after the vesting of the applicable RSU, but in no event more than sixty (60) days after the RSU’s vesting date. Notwithstanding the foregoing, to the extent permitted under Applicable Laws, the Company may delay any payment under this Agreement that the Company reasonably determines would violate Applicable Laws until the earliest date the Company reasonably determines the making of the payment will not cause such a violation.
|
(b)
|
If an RSU is paid in cash, the amount of cash paid with respect to the RSU will equal the Fair Market Value of a Share on the day immediately preceding the payment date.
|
(c)
|
If an RSU is paid in Shares, Participant may be required to pay the nominal value thereof in the same manner as provided for Withholding Taxes below.
|
3.
|
TAXATION AND TAX WITHHOLDING
|
3.1
|
Representation.
|
3.2
|
Tax Withholding.
|
(a)
|
On each vesting date, and on or before the time Participant receives a distribution of the shares underlying the RSUs, and at any other time as reasonably requested by the Company in accordance with applicable tax laws, Participant hereby authorizes any required withholding from the shares issuable to Participant and/or otherwise agree to make adequate provision in cash for any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or any parent or subsidiary that arise in connection with Participant’s RSU (the “
Withholding Taxes
”). Specifically, pursuant to Section 3.2(b), Participant has agreed to a “same day sale” commitment with a broker-dealer that is a member of the Financial Industry Regulatory Authority (a “
FINRA Dealer
”) whereby Participant has irrevocably agreed to sell a portion of the shares to be delivered in connection with Participant’s RSUs to satisfy the Withholding Taxes and whereby the FINRA Dealer committed to forward the proceeds necessary to satisfy the Withholding Taxes directly to the Company and/or its parents or subsidiaries. If, for any reason, such “same day sale” commitment pursuant to Section 3.2(b) does not result in sufficient proceeds to satisfy the Withholding Taxes or would be prohibited by Applicable Laws at the applicable time, Participant hereby authorizes the Company and/or the relevant parent or subsidiary, or their respective agents, at their discretion, to satisfy the obligations with regard to all Withholding Taxes by one or a combination of the following: (i) withholding from any compensation otherwise payable to Participant by the Company or any parent or subsidiary; (ii) causing Participant to tender a cash payment (which may be in the form of a check, electronic wire transfer or other method permitted by the Company); or (iii) withholding shares from the shares issued or otherwise issuable to Participant in connection with Participant’s RSUs with a fair market value (measured as of the date shares are issued to Participant) equal to the amount of such Withholding Taxes; provided, however, that the number of such shares so withheld will not exceed the amount necessary to satisfy the Company’s required tax withholding obligations using the minimum statutory withholding rates for federal, state, local and, if applicable, foreign tax purposes, including payroll taxes, that are applicable to supplemental taxable income; and, provided, further, that to the extent necessary to qualify for an exemption from application of Section 16(b) of the Exchange Act, if applicable, such share withholding procedure will be subject to the prior approval of the Company’s Remuneration Committee.
|
(b)
|
Participant hereby acknowledges and agrees to the following:
|
(i)
|
Participant hereby appoints such FINRA Dealer appointed by the Company for purposes of this Section 3.2(b) as Participant’s agent (the “
Agent
”), and authorize the Agent:
|
(A)
|
To sell on the open market at the then prevailing market price(s), on Participant’s behalf, as soon as practicable on or after each date on which the shares underlying Participant’s RSUs vest, the number (rounded up to the next whole number) of the shares to be delivered to Participant in connection with the vesting of those shares sufficient to generate proceeds to cover (A) the Withholding Taxes that Participant is required to pay pursuant to the Plan and this Agreement as a result of the shares vesting (or being issued, as applicable) and (B) all
|
(B)
|
To remit any remaining funds to Participant.
|
(ii)
|
Participant hereby authorizes the Company and the Agent to cooperate and communicate with one another to determine the number of shares that must be sold pursuant to this Section 3.2(b).
|
(iii)
|
Participant understands that the Agent may effect sales as provided in this Section 3.2(b) in one or more sales and that the average price for executions resulting from bunched orders will be assigned to Participant’s account. In addition, Participant acknowledges that it may not be possible to sell shares underlying Participant’s RSUs as provided by in this Section 3.2(b) due to (A) a legal or contractual restriction applicable to Participant or the Agent, (B) a market disruption, or (C) rules governing order execution priority on the national exchange where the shares may be traded. In the event of the Agent’s inability to sell shares underlying Participant’s RSUs, Participant will continue to be responsible for the timely payment to the Company of all Withholding Taxes and any other federal, state, local and foreign taxes that are required by Applicable Laws and regulations to be withheld, including but not limited to those amounts specified in this Section 3.2(b).
|
(iv)
|
Participant acknowledges that regardless of any other term or condition of this Section 3.2(b), the Agent will not be liable to Participant for (A) special, indirect, punitive, exemplary, or consequential damages, or incidental losses or damages of any kind, or (B) any failure to perform or for any delay in performance that results from a cause or circumstance that is beyond its reasonable control.
|
(v)
|
Participant hereby agrees to execute and deliver to the Agent any other agreements or documents as the Agent reasonably deems necessary or appropriate to carry out the purposes and intent of this Section 3.2(b). The Agent is a third-party beneficiary of this Section 3.2(b).
|
(vi)
|
Participant hereby agrees that if Participant has signed the Grant Notice at a time that Participant is in possession of material non-public information, unless Participant informs the Company in writing within five business days following the date Participant ceases to be in possession of material non-public information that Participant is not in agreement with the provisions of this Section 3.2(b), Participant not providing such written determination shall be a determination and agreement that Participant has agreed to the provisions set forth in this Section 3.2(b) on such date as Participant has ceased to be in possession of material non-public information.
|
(vii)
|
This Section 3.2(b) shall terminate not later than the date on which all withholding taxes arising in connection with the vesting of Participant’s RSUs have been satisfied.
|
(c)
|
Participant acknowledges that Participant is ultimately liable and responsible for all taxes owed in connection with the RSUs, regardless of any action the Company or any Subsidiary takes with respect to any tax withholding obligations that arise in connection with the RSUs. Neither the Company nor any Subsidiary makes any representation or undertaking regarding the treatment of any tax withholding in connection with the awarding, vesting or payment of the RSUs or the subsequent sale of Shares. The Company and the Subsidiaries do not commit and are under no obligation to structure the RSUs to reduce or eliminate Participant’s tax liability.
|
4.
|
OTHER PROVISIONS
|
4.1
|
Adjustments.
|
4.2
|
Notices.
|
4.3
|
Titles.
|
4.4
|
Conformity to Securities Laws.
|
4.5
|
Successors and Assigns.
|
4.6
|
Limitations Applicable to Section 16 Persons.
|
4.7
|
Entire Agreement.
|
4.8
|
Agreement Severable.
|
4.9
|
Limitation on Participant’s Rights.
|
4.10
|
Not a Contract of Employment.
|
4.11
|
Counterparts.
|
ENDAVA
|
|
2018 SHARESAVE PLAN
|
|
|
Page
|
|
1.
|
INTERPRETATION
|
1
|
|
|
|
|
|
2.
|
PERIOD OF OPERATION OF THE PLAN
|
4
|
|
|
|
|
|
3.
|
ISSUE OF INVITATIONS
|
4
|
|
|
|
|
|
4.
|
BOARD DECISIONS REGARDING ISSUE OF INVITATIONS
|
4
|
|
|
|
|
|
5.
|
INVITATIONS MUST BE ISSUED TO ALL ELIGIBLE EMPLOYEES
|
5
|
|
|
|
|
|
6.
|
CONTENT OF INVITATIONS TO APPLY FOR OPTIONS
|
5
|
|
|
|
|
|
7.
|
APPLICATIONS FOR OPTIONS
|
5
|
|
|
|
|
|
8.
|
EXPECTED REPAYMENT MUST EQUAL AGGREGATE EXERCISE PRICE
|
6
|
|
|
|
|
|
9.
|
SCALING DOWN
|
6
|
|
|
|
|
|
10.
|
GRANT OF OPTIONS
|
7
|
|
|
|
|
|
11.
|
OPTION CERTIFICATES
|
7
|
|
|
|
|
|
12.
|
OVERALL LIMITS ON GRANTS
|
8
|
|
|
|
|
|
13.
|
EXERCISE OF OPTIONS: GENERAL RULES
|
8
|
|
|
|
|
|
14.
|
EXERCISE AFTER PLAN-RELATED EMPLOYMENT ENDS
|
9
|
|
|
|
|
|
15.
|
EXERCISE AFTER THE OPTION HOLDER'S DEATH
|
10
|
|
|
|
|
|
16.
|
LAPSE OF OPTIONS
|
10
|
|
|
|
|
|
17.
|
EXERCISE OF OPTIONS: PROCESS
|
11
|
|
|
|
|
|
18.
|
RELATIONSHIP WITH EMPLOYMENT CONTRACT
|
11
|
|
|
|
|
|
19.
|
EXERCISE OF OPTIONS ON TAKEOVER OR OTHER CORPORATE EVENT
|
12
|
|
|
|
|
|
20.
|
ROLLOVER OF OPTIONS
|
14
|
|
|
|
|
|
21.
|
VARIATION OF SHARE CAPITAL
|
14
|
|
|
|
|
|
22.
|
NOTICES
|
15
|
|
|
|
|
|
23.
|
ADMINISTRATION AND AMENDMENT
|
16
|
|
|
|
|
|
24.
|
GOVERNING LAW
|
17
|
|
|
|
|
|
25.
|
JURISDICTION
|
17
|
|
|
|
|
|
26.
|
THIRD PARTY RIGHTS
|
17
|
|
|
|
|
|
27.
|
DATA PRIVACY
|
17
|
|
1.
|
Interpretation
|
1.1
|
The following definitions and rules of interpretation apply in the Plan.
|
(a)
|
the Company; and
|
(b)
|
any Eligible Company specified by the Board (at the relevant time) to be a Constituent Company.
|
(a)
|
is an employee (but not a director) of a Constituent Company;
|
(b)
|
is an executive director of a Constituent Company who is required to devote at least 25 hours per week (excluding meal breaks) to their duties;
|
(c)
|
has earnings from the office or employment within (a) or (b) above that are general earnings (or would be, if there were any) subject to section 15 of ITEPA 2003;
|
(d)
|
on the relevant Grant Date, meets any qualifying period of continuous service with an Eligible Company (not exceeding five years before the Grant Date) that the Board may from time to time specify under rule 4.5;
|
(e)
|
any other employee or executive director of a Constituent Company who is nominated to participate by the Board.
|
(a)
|
if Shares are to be newly issued to satisfy the exercise of the Option, may not be less than the nominal value of a Share; and
|
(b)
|
may not be less than 80% of the Market Value of a Share on the relevant Invitation Date.
|
(a)
|
in relation to any Option for which the Repaid Amount under the linked Savings Contract will be taken as including a bonus, the aggregate of the maximum amount of contributions repayable under the Savings Contract and the amount of any bonus and/or interest payable under the Savings Contract at the Bonus Date; and
|
(b)
|
in relation to any Option for which the Repaid Amount under the linked Savings Contract will be taken not to include any bonus, the maximum amount of contributions repayable under the Savings Contract.
|
(a)
|
the calendar year; or
|
(b)
|
if it ends later than the relevant calendar year, the 12 month period for which the company that employs the Option Holder is obliged to pay tax.
|
1.1.
|
Rule headings shall not affect the interpretation of the Plan.
|
1.2.
|
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
|
1.3.
|
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
|
1.4.
|
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
|
1.5.
|
A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
|
1.6.
|
A reference to
writing
or
written
includes fax and email.
|
1.7.
|
Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
|
1.8.
|
A reference to the Plan or to any other agreement or document referred to in the Plan is a reference to the Plan or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of the Plan) from time to time.
|
1.9.
|
References to rules are to the rules of the Plan.
|
1.10.
|
Any words following the terms
including
,
include
,
in particular
,
for example
or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
|
2.
|
Period of operation of the Plan
|
(a)
|
the Adoption Date; and
|
(b)
|
the tenth anniversary of the Adoption Date.
|
3.
|
Issue of invitations
|
3.1
|
Subject to rule 2 invitations to apply for Options may be issued at any time.
|
3.2
|
Invitations to apply for Options must not be issued at any time if it would be in breach of Applicable Laws.
|
4.
|
Board decisions regarding issue of invitations
|
4.1
|
whether or not Repaid Amounts will be taken to include a bonus;
|
4.2
|
whether to invite applications for three-year Options or five-year Options (or Options of such other standard periods as may then be available under the HM Treasury specifications for certified savings arrangements), or to offer a choice between those Option periods;
|
4.3
|
the minimum monthly contribution to be made under a Savings Contract linked to any Option granted as a result of the invitations. This must be between £5 and £10 (or any other minimum or maximum amounts specified in the HM Treasury specifications or Schedule 3 from time to time);
|
4.4
|
the maximum number, if any, of Shares over which Options may be granted on this occasion;
|
4.5
|
the minimum qualifying period of service, if any, with an Eligible Company for the purposes of defining who will be an Eligible Employee. This may not be longer than five years or any other maximum period then specified in paragraph 6(2)(b) of Schedule 3;
|
5.
|
Invitations must be issued to all Eligible Employees
|
6.
|
Content of invitations to apply for Options
|
6.1
|
Invitations to apply for Options must be in a form approved by the Board and must:
|
(a)
|
comply with rule 6.2;
|
(b)
|
include or be accompanied by invitations to apply to enter into appropriate Savings Contracts; and
|
(c)
|
include a statement that each invitation is subject to these rules, the relevant Savings Contract prospectus and the SAYE Code and that those provisions will prevail over any conflicting statement.
|
6.2
|
Each invitation must specify (without limitation):
|
(a)
|
the minimum monthly contribution determined by the Board under rule 4.3;
|
(b)
|
the Exercise Price, or the method by which that Exercise Price will be notified to Eligible Employees;
|
(c)
|
whether Repaid Amounts will be taken to include a bonus;
|
(d)
|
whether applications may be made for three-year Options or five-year Options (or Options of such other standard periods as may then be available under the HM Treasury savings arrangement specifications) or whether there is a choice between those Option periods;
|
(e)
|
any limit on the number of Shares that may be placed under Option under rule 4.4, and, if there is such a limit, that applications will be scaled down in accordance with rule 9 if applications are received in excess of the limit;
|
(f)
|
that, to be considered for the grant of Options, completed applications should be received by the Board, or any person nominated to receive applications on behalf of the Board, by 5pm on the day falling 21 days after the Invitation Date; and
|
(g)
|
any minimum qualifying period of service which applies for the purpose of determining who is an Eligible Employee.
|
6.3
|
Any accidental failure or omission to deliver an invitation to any Eligible Employee will not invalidate the grant of Options.
|
7.
|
Applications for Options
|
(a)
|
state the period of the Option applied for;
|
(b)
|
incorporate or be accompanied by a completed application form to enter into a Savings Contract, in which the applicant agrees to make a monthly contribution of a specified amount;
|
(c)
|
state that, when aggregated with contributions made by the applicant under any other savings contracts linked to Schedule 3 SAYE option schemes, the proposed contribution will not exceed the maximum then permitted by paragraph 25(3)(a) of Schedule 3;
|
(d)
|
if a limit has been specified under rule 4.4, state that, if applications are scaled down, applicants agree to the amendment or withdrawal of their applications in accordance with rule 9;
|
(e)
|
authorise the Company to deduct the appropriate monthly contribution from the applicant's pay and pay those deductions to the Savings Contract provider;
|
(f)
|
include the applicant's agreement to be bound by the terms of the Plan; and
|
(g)
|
state that:
|
(i)
|
the application is subject to these rules, the relevant Savings Contract prospectus and the SAYE Code; and
|
(ii)
|
those provisions will prevail over any conflicting statement.
|
8.
|
Expected Repayment must equal aggregate Exercise Price
|
8.1
|
The Expected Repayment under a Savings Contract must, as nearly as possible, equal the amount required to be paid to exercise the linked Option in full.
|
8.2
|
Each application under rule 7 will be treated as being for an Option over the largest whole number of Shares that can be acquired at the relevant Exercise Price with the Expected Repayment under the linked Savings Contract.
|
9.
|
Scaling Down
|
9.1
|
If the Board has specified a limit under rule 4.4 for a particular set of invitations and, in response to those invitations, the Board receives applications for Options over a total number of Shares which exceeds that limit, the Board shall scale down applications as set out in this rule 9.
|
9.2
|
Applications for Options shall be scaled down using the first of the methods in this rule 9 that will ensure that the limit the Board has specified under rule 4.4 is not exceeded.
|
9.3
|
The methods to be used to scale down applications are as follows:
|
(a)
|
if Repaid Amounts were intended to be taken to include a bonus, each application will instead be treated as an application for an Option under which Repaid Amounts will not be taken to include a bonus;
|
(b)
|
Repaid Amounts will not be taken to include a bonus and the amount by which the monthly savings contribution specified in each application exceeds £50 will be reduced pro rata; and
|
(c)
|
Repaid Amounts will not be taken to include a bonus and the amount by which the monthly savings contribution specified in each application exceeds the minimum contribution amount specified under rule 4.3 will be reduced pro rata.
|
9.4
|
If scaling down cannot be achieved by any of the methods set out in rule 9.3:
|
(a)
|
the Board may decide not to continue with scaling down and decide instead that no Options will be granted as a result of the relevant invitations; or
|
(b)
|
if the Board decides to continue with scaling down, applicants will be selected by lot, and each selected applicant will be taken to apply for an Option of the shortest period and a monthly savings contribution of the minimum contribution amount that are specified in the invitation.
|
10.
|
Grant of Options
|
10.1
|
An Option can only be granted to a person who is an Eligible Employee on the Grant Date.
|
10.2
|
Subject to rule 10.1 and rule 9.4, the Board must grant an Option to each person who has submitted a valid application under rule 7.
|
10.3
|
Each Option must be granted over the number of Shares for the relevant application determined in accordance with rule 8 and, if appropriate rule 9.
|
10.4
|
The Board must notify Option Holders at the Grant Date whether or not Repaid Amounts will be taken to include any bonus. This will be determined at the time of grant of each Option in accordance with:
|
(a)
|
the determination of the Board under rule 4.1; and
|
(b)
|
if the relevant applications were scaled down, the application of rule 9.
|
10.5
|
Options must be granted:
|
(a)
|
unless applications were scaled down under rule 9, not later than 30 days after the earliest date by reference to which Market Value was determined for the purpose of setting the Exercise Price; and
|
(b)
|
if applications were scaled down under rule 9, not later than 42 days after the earliest date by reference to which Market Value was determined for the purpose of setting the Exercise Price.
|
10.6
|
Options must not be granted at any time when that grant is prohibited by, or in breach of, any Applicable Laws.
|
10.7
|
Options are granted by the Company in a manner approved by the Board.
|
10.8
|
A single grant instrument (a deed poll) may be used to grant any number of Options.
|
10.9
|
The Company must not require any amount to be paid in consideration of the grant of an Option.
|
11.
|
Option Certificates
|
11.1
|
The Board must issue to each Option Holder an Option Certificate (in a form approved by the Board) as soon as possible after the Grant Date.
|
11.2
|
Each Option Certificate must set out (without limitation):
|
(a)
|
the Grant Date of the Option;
|
(b)
|
the number and class of the Shares over which the Option is granted;
|
(c)
|
the Exercise Price;
|
(d)
|
that the Option may be exercised from the Bonus Date of the Savings Contract linked to the Option, unless the Option lapses or becomes exercisable under these rules before that date;
|
(e)
|
that the Option will lapse on the date falling six months after the Bonus Date of the Savings Contract linked to the Option, unless it has been exercised or has lapsed under these rules before then (or a later lapse date applies under rule 16);
|
(f)
|
a statement that:
|
(i)
|
the Option is subject to these rules and the SAYE Code;
|
(ii)
|
those provisions prevail over any conflicting statement relating to the Option's terms; and
|
(g)
|
a statement specifying whether or not the Shares are subject to any Relevant Restriction and, if so, details of the Relevant Restriction.
|
12.
|
Overall limits on grants
|
13.
|
Exercise of Options: general rules
|
13.1
|
Subject to rule 13.3, rule 14 and rule 19, an Option may only be exercised:
|
(a)
|
when the Option Holder is an Eligible Employee; and
|
(b)
|
at any time within six months after the Bonus Date of the Savings Contract linked to that Option.
|
13.2
|
An Option cannot be exercised when exercise would be prohibited by Applicable Laws.
|
13.3
|
An Option Holder who is a director or employee of an Associated Company may exercise an Option at any time within six months after the Bonus Date of the Savings Contract linked to that Option.
|
13.4
|
An Option Holder who is subject to taxation in the USA (or their personal representatives) may exercise an Option under any rule of the Plan in the period ending on the 15th day of the third month following the end of the Taxable Year in which the Option first becomes exercisable, if that day falls before the date on which the relevant exercise period would otherwise end under these rules.
|
13.5
|
If a Repaid Amount is insufficient to exercise the Option linked to the relevant Savings Contract in full:
|
(a)
|
the aggregate Exercise Price paid to exercise the Option may not exceed the Repaid Amount; and
|
(b)
|
the number of Shares acquired on exercise of the Option may not exceed the number obtained by dividing the Repaid Amount by the Exercise Price for the Option and, if the result of that division is not a whole number, rounding it down to the nearest whole number.
|
14.
|
Exercise after Plan-related Employment ends
|
14.1
|
An Option Holder who has ceased to hold Plan-related Employment for one of the reasons listed in rule 14.2 may exercise an Option at any time in the period ending on the earliest to occur of:
|
(a)
|
the date falling six months after the date on which the Plan-related Employment ceased; and
|
(b)
|
the date falling six months after the Bonus Date of the Savings Contract linked to that Option.
|
14.2
|
Options may be exercised as set out in rule 14.1 if Plan-related Employment ends for one of the following reasons:
|
(a)
|
injury;
|
(b)
|
disability;
|
(c)
|
Redundancy;
|
(d)
|
retirement;
|
(e)
|
a relevant transfer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006;
|
(f)
|
if the Option Holder holds office or is employed in a company which is an associated company (which has the meaning given in paragraph 35(4) of Schedule 3, and not the meaning given to "Associated Company" in Rule 1.1), that company ceasing to be an associated company by reason of a change of control. For the purposes of this rule, "control" has the meaning given in section 450 to 451 of the Corporation Tax Act 2010 and not the meaning given to "Control" in Rule 1.1.
|
14.3
|
An Option Holder who ceases to hold Plan-related Employment for any reason other than one listed in rule 14.2 may exercise an Option granted more than three years before the date on which Plan-related Employment ceased at any time in the period ending on the earliest to occur of:
|
(a)
|
the date falling six months after the date on which the Plan-related Employment ceased; and
|
(b)
|
the date falling six months after the Bonus Date of the Savings Contract linked to that Option.
|
14.4
|
An Option Holder will not be treated as ceasing to hold Plan-related Employment until that Option Holder ceases to hold any office or employment with:
|
(a)
|
the Company;
|
(b)
|
any Eligible Company or other company that is controlled by the Company; or
|
(c)
|
any company that:
|
(i)
|
controls the Company; or
|
(ii)
|
is controlled by a person or persons who also control the Company.
|
15.
|
Exercise after the Option Holder's death
|
(a)
|
if the Option Holder died before the Bonus Date of the Savings Contract linked to that Option, the date falling 12 months after the date of death; or
|
(b)
|
if the Option Holder died on or within six months after the Bonus Date of the Savings Contract linked to that Option, the date falling 12 months after that Bonus Date.
|
16.
|
Lapse of Options
|
16.1
|
Options may not be transferred or assigned or have any charge or other security interest created over them. An Option will lapse if the relevant Option Holder attempts to do any of those things. The transmission of an Option to an Option Holder's personal representatives on the death of the Option Holder will not cause an Option to lapse.
|
16.2
|
An Option will lapse on the earliest of the following:
|
(a)
|
any attempted action by the Option Holder falling within rule 16.1;
|
(b)
|
the date falling six months after the Bonus Date of the Savings Contract linked to the Option, if the Option Holder is alive at that time;
|
(c)
|
when the Option Holder's Plan-related Employment ceases, if the Option may not then be exercised after cessation under any part of rule 13 and the Option Holder is alive at that time;
|
(d)
|
unless non-payment arises when the Option may be exercised under rule 14 or rule 15 or when the Option may be exercised or exchanged under rule 19, the seventh occasion on which the Option Holder omits to make a payment under the Savings Contract linked to the Option;
|
(e)
|
unless notice is given when the Option may be exercised under rule 14 or rule 15 or when the Option may be exercised or exchanged under rule 19, the Option Holder giving notice to terminate that Savings Contract;
|
(f)
|
at the end of any period during which the Option may be exercised under rule 14, unless that period ended on the Option Holder's death;
|
(g)
|
if the Option Holder has died:
|
(i)
|
before the Bonus Date of the Savings Contract linked to the relevant Option, the date falling 12 months after the date of death; or
|
(ii)
|
on or within six months after the Bonus Date of the Savings Contract linked to the relevant Option, the date falling 12 months after that Bonus Date;
|
(h)
|
the time specified for the lapse of the Option under rule 19; and
|
(i)
|
the bankruptcy of the Option Holder.
|
16.3
|
Where any part of rule 16.2 refers to the end of an exercise period, the end of the period must be determined without reference to rule 13.4, if it applies.
|
17.
|
Exercise of Options: process
|
17.1
|
An Option may be exercised by the Option Holder giving a written exercise notice to the Company, that must:
|
(a)
|
set out the number of Shares over which the Option Holder wishes to exercise the Option. If that number exceeds the number over which the Option may be validly exercised at the time:
|
(i)
|
the Option shall be treated as exercised only in respect of that lesser number; and
|
(ii)
|
any excess amount paid to exercise the Option must be refunded;
|
(b)
|
be made using a form approved by the Board; and
|
(c)
|
if the Company so requires, be accompanied by the relevant Option Certificate.
|
17.2
|
An exercise notice must be accompanied by a payment of an amount equal to the Exercise Price multiplied by the number of Shares specified in the notice, that is, or is derived from, the relevant Repaid Amount. If the Savings Contract provider permits, payment may take the form of a valid direction to the Savings Contract provider to repay to the Company the whole amount due to the Option Holder under the Savings Contract linked to the relevant Option.
|
17.3
|
Any exercise notice will be invalid to the extent that it is inconsistent with the Option Holder's rights and obligations under these rules and the relevant Option;
|
17.4
|
The Company may permit the Option Holder to correct any defect in an exercise notice (but is not obliged to do so). The date of any corrected exercise notice will be the date of the correction.
|
17.5
|
Shares must be allotted and issued (or transferred, as appropriate) within 30 days after a valid Option exercise, subject to the other rules of the Plan.
|
17.6
|
Except for any rights determined by reference to a date before the date of allotment, Shares allotted and issued in satisfaction of the exercise of an Option will rank equally in all respects with the other shares of the same class in issue at the date of allotment.
|
17.7
|
Shares transferred in satisfaction of the exercise of an Option must be transferred free of any lien, charge or other security interest, and with all rights attaching to them, other than any rights determined by reference to a date before the date of transfer.
|
17.8
|
If the Shares are listed or traded on any stock exchange, the Company must apply to the appropriate body for any newly issued Shares allotted on exercise of an Option to be listed or admitted to trading on that exchange.
|
18.
|
Relationship with employment contract
|
18.1
|
The rights and obligations of any Option Holder under the terms of the office or employment with any company will not be affected by being an Option Holder.
|
18.2
|
The value of any benefit realised under the Plan by Option Holders will not be taken into account in determining any pension or similar entitlements.
|
18.3
|
Option Holders and the directors and employees of Constituent Companies and Associated Companies (past and present) have no rights to compensation or damages on account of any loss in respect of the Plan where such loss arises (or is claimed to arise), in whole or in part, from termination of office or employment with any company. This exclusion of liability applies however termination of office or employment is caused and however compensation or damages may be claimed.
|
18.4
|
Option Holders and the directors and employees of Constituent Companies and Associated Companies (past and present) have no rights to compensation or damages on account of any loss in respect of the Plan (however the relevant circumstances are caused, and however compensation or damages may be claimed) where such loss arises (or is claimed to arise), in whole or in part, from:
|
(a)
|
any company ceasing to be a Constituent Company;
|
(b)
|
any company ceasing to be an Associated Company;
|
(c)
|
the transfer of any business from a Constituent Company to any person which is neither a Constituent Company nor an Associated Company;
|
(d)
|
any change to invitations made under the Plan, including any variation of their terms or timing, or their complete suspension or termination;
|
(e)
|
the lapse of any Option;
|
(f)
|
any failure by the Board to nominate an Eligible Company to be a Constituent Company; or
|
(g)
|
any failure by the Board to make an invitation to apply for an Option to any person who is not at the relevant time an Eligible Employee, where it is in the Board's discretion to do so.
|
19.
|
Exercise of Options on takeover or other corporate event
|
19.1
|
For the purposes of rule 19 and rule 20, a Relevant Event means:
|
(a)
|
a person (the Controller) obtaining Control of the Company as a result of:
|
(i)
|
making a general offer to acquire the whole of the issued share capital of the Company (except for any capital already held by the Controller or any person connected with the Controller) that is made on a condition such that, if it is satisfied, the person making the offer will have Control of the Company; or
|
(ii)
|
making a general offer to acquire all the shares in the Company (except for any shares already held by the Controller or any person connected with the Controller) that are of the same class as the Shares; or
|
(b)
|
the court sanctioning a compromise or arrangement under section 899 of the Companies Act 2006 that is applicable to or affects:
|
(i)
|
all the ordinary share capital of the Company or all the shares of the same class as the shares to which the Option relates; or
|
(ii)
|
all the shares, or all the shares of that same class, which are held by a class of shareholders identified otherwise than by reference to their employment or directorships or their participation in a Schedule 3 SAYE option scheme; or
|
(c)
|
shareholders becoming bound by a non-UK reorganisation (as defined in paragraph 47A of Schedule 3) that is applicable to or affects:
|
(i)
|
all the ordinary share capital of the Company or all the shares of the same class as the shares to which the Option relates; or
|
(ii)
|
all the shares, or all the shares of that same class, which are held by a class of shareholders identified otherwise than by reference to their employment or directorships or their participation in a Schedule 3 SAYE option scheme; or
|
(d)
|
a person becoming bound or entitled to acquire Shares under sections 979 to 985 of the Companies Act 2006.
|
19.2
|
Subject to rule 20, if a Relevant Event occurs, an Option may be exercised:
|
(a)
|
within six months of a Relevant Event occurring under rule 19.1(a), rule 19.1(b), or rule 19.1(c);
|
(b)
|
at any time after a Relevant Event occurring under rule 19.1(d), for as long as that person remains so bound or entitled.
|
19.3
|
If, as a result of a change of Control in the circumstances set out below, Shares will no longer satisfy the requirements of Part 4 of Schedule 3, Options may be exercised within the period of 20 days following the change of Control. The circumstances are:
|
(a)
|
a Relevant Event specified in rule 19.1(a); or
|
(b)
|
a change of Control occurs as a result of a Relevant Event specified in rule 19.1(b), rule 19.1(c) or rule 19.1(d).
|
19.4
|
If the Board reasonably expects a Relevant Event to occur, the Board may make arrangements permitting Options to be exercised during a period of 20 days ending with the Relevant Event. If an Option is exercised under this rule 19.4, it will be treated as having been exercised in accordance with rule 19.2.
|
19.5
|
If the Board makes arrangements for the exercise of Options under rule 19.4:
|
(a)
|
unless the Board determines otherwise any Option not exercised in accordance with those arrangements will lapse on the date of Relevant Event; and
|
(b)
|
if the Relevant Event does not occur within 20 days of the date of purported exercise, the Option shall be treated as not having been exercised.
|
19.6
|
If a Relevant Event takes place in the course of any corporate reconstruction or reorganisation under which the ultimate beneficial ownership of the business of the Group Companies will remain the same, and the company that obtains Control offers to grant New Options (as defined below) in accordance with rule 20.1, then the Board may determine that:
|
(a)
|
Options may not be exercised; and
|
(b)
|
all Old Options shall lapse at the end of the Rollover Period to the extent that they are not released under rule 20.1.
|
19.7
|
In this rule 19 (but not rule 20.1), a person (P) will be deemed to have obtained Control of a company if P, and others acting with P, have obtained Control of it together.
|
19.8
|
If the Company passes a resolution for voluntary winding up, any Option may be exercised within six months after the resolution is passed, and it will lapse at the end of that period.
|
19.9
|
The Board must notify Option Holders of any event that may trigger the exercise of Options under this rule 19 within a reasonable period after the Board becomes aware of it.
|
20.
|
Rollover of Options
|
20.1
|
If as a result of a Relevant Event a company has obtained Control of the Company, each Option Holder may, by agreement with that company (
Acquiring Company
) within the Rollover Period, release each Option (
Old Option
) for a replacement option (
New Option
) as set out in this rule 20.
|
20.2
|
A New Option must:
|
(a)
|
be over shares in the Acquiring Company (or some other company falling within paragraph 39(2)(b) of Schedule 3) that satisfy the requirements of paragraphs 18 to 20 and 22 of Schedule 3;
|
(b)
|
be a right to acquire such number of shares as have, immediately after grant of the New Option, a total Market Value substantially the same as the total Market Value of the Shares subject to the Old Option immediately before its release;
|
(c)
|
have an exercise price per share such that the total price payable on complete exercise of the New Option is substantially the same as the total Exercise Price payable on complete exercise of the Old Option; and
|
(d)
|
be on terms otherwise identical to the Old Option immediately before the Old Option's release.
|
20.3
|
For the purposes of this rule 20,
Rollover Period
has the meaning given in paragraph 38(3) of Schedule 3.
|
20.4
|
A New Option granted under rule 20.1 will be treated as having been acquired at the same time as the relevant Old Option for all other purposes of the Plan.
|
20.5
|
The Plan will be interpreted in relation to any New Options as if references to:
|
(a)
|
the
Company
(except for those in the definitions of Constituent Company and Eligible Company) were references to the Acquiring Company (or to any other company whose shares are subject to the New Options, as the context may require); and
|
(b)
|
the
Shares
were references to the shares subject to the New Options.
|
20.6
|
The Company will remain the scheme organiser of the Plan (as defined in paragraph 2(2) of Schedule 3) following the release of Options and the grant of New Options under rule 20.1.
|
20.7
|
The Acquiring Company must issue (or procure the issue of) an Option Certificate for each New Option as soon as reasonably practical.
|
21.
|
Variation of share capital
|
21.1
|
If there is a variation of the share capital of the Company (whether that variation is a capitalisation issue (other than a scrip dividend), rights issue, consolidation, subdivision or reduction of capital or otherwise), which affects (or may affect) the value of Options, the Board may adjust the number and
|
21.2
|
An adjustment under rule 21.1 must meet the following requirements:
|
(a)
|
the total Market Value of Shares subject to the Option must be substantially the same immediately after the variation of share capital as immediately before the variation of share capital;
|
(b)
|
the total amount payable on the exercise of any Option immediately after the variation of share capital must be substantially the same as immediately before the variation of share capital; and
|
(c)
|
the Exercise Price for a Share to be newly issued on the exercise of an Option must not be reduced below that Share's nominal value (unless the Board resolves to capitalise, from reserves, an amount equal to the amount by which the total nominal value of the relevant Shares exceeds the total adjusted Exercise Price, and to apply such amount to pay up the relevant Shares in full).
|
22.
|
Notices
|
22.1
|
In this rule 22:
|
(a)
|
appropriate address
means:
|
(i)
|
in the case of the Company, its registered office;
|
(ii)
|
in the case of an Eligible Employee or Option Holder, their home address;
|
(iii)
|
if the Option Holder has died, and notice of the appointment of personal representatives has been given to the Company, any contact address they have specified in such notice; and
|
(b)
|
appropriate email address
means:
|
(i)
|
in the case of the Company, the email address of the Company Secretary;
|
(ii)
|
in the case of an Eligible Employee or Option Holder, if they are permitted to receive personal emails at work, their work email address;
|
22.2
|
Any notice or other communication given under or in connection with the Plan shall be in writing and shall be:
|
(a)
|
delivered by hand or by pre-paid first-class post or other next working day delivery service at the appropriate address;
|
(b)
|
sent by fax to the fax number notified in writing by the recipient to the sender; or
|
(c)
|
sent by email to the appropriate email address.
|
22.3
|
Any notice or other communication given under this rule 22 shall be deemed to have been received:
|
(a)
|
if delivered by hand, on signature of a delivery receipt, or at the time the notice is left at the proper address;
|
(b)
|
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting, or at the time recorded by the delivery service;
|
(c)
|
if sent by fax, at 9.00 am on the next Business Day after transmission; and
|
(d)
|
if sent by email, at 9.00 am on the next Business Day after sending.
|
22.4
|
This rule 22 does not apply to:
|
(a)
|
the service of any notice of exercise pursuant to rule 17.1; and
|
(b)
|
the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
|
23.
|
Administration and amendment
|
23.1
|
The Board shall direct the administration of the Plan.
|
23.2
|
The Board may amend the Plan from time to time, but:
|
(a)
|
the Board may not amend a Key Feature if the effect would be that the Plan would no longer be a Schedule 3 SAYE option scheme. If the Board amends a Key Feature, the Company shall make a declaration under paragraph 40B of Schedule 3 that the Plan continues to meet the requirements of Parts 2 to 7 of Schedule 3;
|
(b)
|
while Shares are listed on the New York Stock Exchange, the Board may not make any amendment to rule 12 without the prior approval of shareholders.
|
23.3
|
The Board may establish further savings-related share option plans to operate in overseas territories (
overseas plans
) that are governed by rules similar to the rules of the Plan, but modified to take account of applicable tax, social security, employment, company, exchange control, trust or securities (or any other relevant) law, regulation or practice, provided that:
|
(a)
|
all overseas plans are subject to the limitation on awards set out in rule 12;
|
(b)
|
only employees of Eligible Companies who are resident in (or otherwise subject to the tax laws of) the relevant territory are entitled to benefit under any overseas plan; and
|
(c)
|
no employee has an entitlement to awards under any overseas plan greater than the maximum entitlement of an Eligible Employee under the Plan.
|
23.4
|
The cost of establishing and operating the Plan will be borne by the Constituent Companies in proportions determined by the Board.
|
23.5
|
The Company must ensure that, in order to satisfy the exercise of all Options, at all times:
|
(a)
|
it has sufficient unissued or treasury Shares available; or
|
(b)
|
arrangements are in place for any third party to transfer issued Shares,
|
23.6
|
Any decision under the Plan, and whether to consider making such a decision, shall be entirely at the discretion of the Board.
|
23.7
|
The Board will determine any question of interpretation and settle any dispute arising under the Plan. In such matters the Board's decision will be final.
|
23.8
|
In making any decision or determination, or exercising any discretion under the rules, the Board shall act fairly and reasonably and in good faith.
|
23.9
|
The Company has no obligation to notify any Option Holder:
|
(a)
|
if an Option is due to lapse; or
|
(b)
|
when an Option is due to, or has, become exercisable.
|
23.10
|
The Company has no obligation to provide Option Holders with copies of any materials sent to the holders of Shares.
|
24.
|
Governing law
|
25.
|
Jurisdiction
|
25.1
|
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Plan or its subject matter or formation (including non-contractual disputes or claims).
|
25.2
|
Each party irrevocably consents to any process in any legal action or proceedings under rule 25.1 above being served on it in accordance with the provisions of the Plan relating to service of notices. Nothing contained in the Plan shall affect the right to serve process in any other manner permitted by law.
|
26.
|
Third party rights
|
26.1
|
A person who is not a party to the Option shall not have any rights under or in connection with it as a result of the Contracts (Rights of Third Parties) Act 1999 except where such rights arise under any provision of the Plan for any employer or former employer of the Option Holder which is not a party.
|
26.2
|
Rule 26.1 does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
|
27.
|
Data privacy
|
27.1
|
As a condition for receiving an Option, each Option Holder acknowledges that the Company and any Eligible Company and any Associated Company may collect, use and transfer, in electronic or other form, personal data as described in this section among the Company and any Eligible Company and any Associated Company exclusively for implementing, administering and managing the Option Holder’s participation in the Plan. The Company (as above) may hold certain personal information about a Option Holder, including the Option Holder’s name, address and telephone number; birthdate; social security, insurance number or other identification number; salary; nationality; job title(s); any Shares held in the Company or (as above); and Option details, to implement, manage and administer the Plan and Options (the “
Data
”). The Company (as above) may transfer the Data amongst themselves as necessary to implement, administer and manage an Option Holder’s participation in the Plan, and the Company (as above) may transfer the Data to third parties assisting the Company with Plan implementation, administration and management. These recipients may be located in the Option Holder’s country, or elsewhere, and the Option Holder’s country may have different data privacy laws and protections than the recipients’ country. By accepting an Option, each Option Holder acknowledges that such recipients may receive, possess, use, retain and transfer the Data, in electronic or other form, to implement, administer and manage the Option Holder’s participation in the Plan, including any required Data transfer to a broker or other third party with whom the Company or the Option Holder may elect to deposit any Shares. The Data related to an Option Holder will be held only as long as necessary to implement, administer, and manage the Option Holder’s participation in the Plan. An Option Holder may, at any time, view the Data that the Company holds
|
27.2
|
For the purpose of operating the Plan in the European Union, the Company will collect and process information relating to Eligible Employees and Option Holders in accordance with the privacy notice which is provided to each Eligible Employee and Option Holder.
|
1.1
|
Without prejudice to any indemnity to which you may otherwise be entitled pursuant to Article 153 of the Articles, you shall be indemnified by the Company against all liabilities, costs, charges and expenses incurred by you in the execution and discharge of your duties to the Company and any “Associated Company” of the Company (as defined by the Act for these purposes), including any liability incurred by you in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to be done or omitted by you as an officer of the Company or an Associated Company provided that no such indemnity shall extend to any liability arising out of your fraud or dishonesty or by you obtaining any personal profit or advantage to which you were not entitled. In addition, the Act prohibits this indemnity extending to:
|
(A)
|
any liability incurred by you to the Company or any Associated Company of the Company;
|
(B)
|
any fine imposed in any criminal proceedings;
|
(C)
|
any sum payable to a regulatory authority by way of a penalty in respect of your personal non-compliance with any requirement of a regulatory nature howsoever arising;
|
(D)
|
any amount for which you have become liable in defending any criminal proceedings in which you are convicted and such conviction has become final;
|
(E)
|
any amount for which you have become liable in defending any civil proceedings brought by the Company or any Associated Company of the Company in which a final judgment has been given against you; and
|
(F)
|
any amount for which you have become liable in connection with any application under sections 661(3) or (4) or 1157 of the Act in which the court refuses to grant you relief and such refusal has become final,
|
1.2
|
Without prejudice and in addition to any indemnity to which you may otherwise be entitled pursuant to Article 153 of the Articles you shall be indemnified by the Company against all liabilities, costs, charges and expenses incurred by you in connection with the Company’s activities as a trustee of an occupational pension scheme (as defined by section 750(5) of the Finance Act 2004) established under a trust provided that no such indemnity shall extend to any liability arising out of your fraud or dishonesty or the obtaining by you of any personal profit or advantage to which you were not entitled and you shall be entitled to be indemnified for:
|
(A)
|
any fine imposed in any criminal proceedings,
|
(B)
|
any sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature howsoever arising, and
|
(C)
|
any amount for which you have become liable in defending any criminal proceedings in which you are convicted and the conviction has become final.
|
1.3
|
The Company will, upon a reasonable request from you accompanied by actual or estimates of costs from those appointed to defend you, provide funds (either directly or indirectly) to you to meet expenditure incurred or to be incurred by you in any proceedings (whether civil or criminal) brought by any person or in relation to any investigation or action to be taken by a regulatory authority which relate to anything done or omitted or alleged to have been done or omitted by you as a director and/or officer of the Company or any Associated Company of the Company in respect of which it is alleged you have been guilty of negligence, default, breach of duty or breach of trust, provided that you will be obliged to repay any such amount no later than:
|
(A)
|
in the event that you are convicted in proceedings, the date when the conviction becomes final,
|
(B)
|
in the event that judgment is given against you in proceedings, the date when the judgment becomes final (except that such amount need not be repaid to the extent that such expenditure is recoverable hereunder or under any other valid indemnity given to you by the Company), or
|
(C)
|
in the event that the court refuses to grant you relief on any application under sections 144(3) or (4) or 727 of the UK Companies Act 1985 or sections 661(3) or (4) or 1157 of the Act, the date when the refusal becomes final.
|
1.4
|
This indemnity does not authorise any indemnity which would be prohibited or rendered void by any provision of the Act or by any other provision of law.
|
1.5
|
The Company hereby waives (to the maximum extent permitted the provisions of the Act or by any other provision of law) all and any claims that it may have against you as a result of, and in connection with, your tenure as a director or officer of the Company, whether actual or contingent,
|
1.6
|
You agree to give written notice to the Company as soon as reasonably practical after receipt of any demand relating to any claim under this indemnity (or becoming aware of circumstances which are reasonably be expected to give rise to a demand relating to a claim) giving full details and providing copies of all relevant correspondence and you agree to keep the Company fully informed of the progress of any claim, including providing all such information in relation to any claim or losses or any other costs, charges or expenses incurred as the Company may reasonably request, and shall take all such action as the Company may reasonably request to avoid, dispute, resist, appeal, compromise or defend any claim.
|
1.7
|
For the avoidance of doubt:
|
(a)
|
if a company ceases to be a subsidiary of the Company after the date of this Deed, the Company shall only be liable to indemnify you in respect of liabilities in relation to that company which arose before the date on which that company ceased to be a subsidiary of the Company; and
|
(b)
|
as director or officer of any company which becomes a subsidiary of the Company after the date of this Deed, you shall be indemnified only in respect of liabilities arising after the date on which that company became a subsidiary of the Company.
|
1.8
|
This Deed shall remain in force until such time as any relevant limitation periods for bringing Claims against you have expired, or for so long as you remain liable for any losses, notwithstanding that you may have ceased to be a director or officer of the Company or any of its subsidiaries.
|
1.9
|
Any dispute or claim arising out of or in connection with this indemnity and waiver (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and you and the Company irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this appointment or its subject matter or formation (including non-contractual disputes or claims).
|
Executed as a deed by
|
|
|
…………………………………………..
|
for and on behalf of
|
ENDAVA PLC
|
|
In the presence of:
|
|
|
…………………………………………..
|
Signature and name of witness
|
|
|
Executed as a deed by [Name of Director or Officer]
|
|
…………………………………………..
|
Signature
|
|
|
In the presence of:
|
|
|
…………………………………………..
|
Signature and name of witness
|
LR1. Date of lease
|
8 July,
2014
|
LR2. Title number(s)
|
LR2.1 Landlord's title number(s)
Title number(s) out of which this Lease is granted. Leave blank if title not registered EGL543245 |
LR2.2 Other title numbers
Title number(s) against which entries of matters referred to in LR9, LR10, LR11 and LR13 are to be made) None |
|
LR3. Parties to this Lease
|
Landlord
GIDE LOYRETIE NOUEL LLP (Registration No. OC335508) whose registered office is at 125 Old Broad Street, London EC2N 1AR |
Tenant
ENDAVA (UK) LIMITED (Company Registration No. 03919935) whose registered office is at 125 Old Broad Street, London EC2N 1AR |
|
Other parties
ENDAVA LIMITED (Company Registration No. 05722669) whose registered office is at 125 Old Broad Street, London EC2N 1AR |
|
LR4. Property
|
In the case of a conflict between this clause and the remainder of this Lease then, for the purposes of registration, this clause shall prevail.
|
See the definition of "Premises" in clause 1 of this Lease.
|
|
LR5. Prescribed statements etc.
|
LR5.1 Statements prescribed under rules 179 (dispositions in favour of a charity), 180 under the Leasehold Reform, Housing and Urban Development Act 1993) of the Land Registration Rules 2003.
None
|
|
LR5.2 This lease is made under, or by reference to, provisions of:
None |
LR6. Term for which the Property is leased
|
The term specified in this Lease in the Underlease Particulars.
|
LR7. Premium
|
None
|
LR8. Prohibitions or restrictions on disposing of this Lease
|
This lease contains a provision that prohibits or restricts dispositions.
|
LR9. Rights of acquisition etc.
|
LR9.1 Tenant's contractual rights to renew this Lease, to acquire the reversion or another lease of the Property, or to acquire an interest in other land
None |
LR9.2 Tenant's covenant to (or offer to) surrender this Lease
None |
|
LR9.3 Landlord's contractual rights to acquire this Lease
None |
|
LR10. Restrictive covenants given in this Lease by the Landlord in respect of land other than the Property
|
None
|
LR11. Easements
|
LR11.1 Easements granted by this Lease for the benefit of the Property
The easements specified in Schedule 2 [ Easements and Rights Granted ] of this Lease. |
LR11.2 Easements granted or reserved by this Lease over the Property for the benefit of other property
The easements specified in Schedule 3 [ Exceptions and Reservations ] of this Lease. |
|
LR12. Estate rentcharge burdening the Property
|
None
|
LR13. Application for standard form of restriction
|
None
|
LR14. Declaration of trust where there is more than one person comprising the Tenant
|
None
|
DATE:
|
July 8, 2014
|
LANDLORD:
|
GIDE LOYRETTE NOUEL LLP
(Company Registration OC335508) whose registered office is at 125 Old Broad Street, London EC2N 1AR
|
TENANT:
|
ENDAVA (UK) LIMITED
(Company Registration No. 03919935) whose registered office is at 125 Old Broad Street, London EC2N 1AR
|
GUARANTOR:
|
ENDAVA LIMITED
(Company Registration No. 05722669) whose registered office is at 125 Old Broad Street, London EC2N 1AR
|
PREMISES:
|
Part Level 13 (East), 125 Old Broad Street, London EC2
|
TERM COMMENCEMENT DATE:
|
22 June 2015
|
TERM EXPIRY DATE:
|
20 July 2022
|
INITIAL RENT:
|
£314,940 per annum (exclusive of VAT)
|
RENT COMMENCEMENT DATE:
|
22 September 2015
|
RENT REVIEW DATE:
|
23 July 2018
|
PERMITTED USE:
|
Class B1(a) of the Schedule to the Town and Country Planning (Use Classes) Order 1987
|
LANDLORD'S/TENANT'S OPTION TO BREAK:
|
Mutual Break
|
LANDLORD AND TENANT ACT 1954:
|
Excluded
|
INTEREST ON LATE PAYMENTS:
|
4% above base rate of Royal Bank of Scotland Plc
|
Clause
|
Page
|
|
|
|
|
1
|
Definitions
|
1
|
2
|
Interpretation
|
4
|
3
|
Demise and Rents
|
5
|
4
|
Tenant's Obligations
|
6
|
5
|
Landlord's Obligations
|
14
|
6
|
Services
|
14
|
7
|
Insurance
|
14
|
8
|
Guarantee and Guarantor's Indemnity
|
14
|
9
|
Other Agreements and Declarations
|
16
|
10
|
Prejudicial Information
|
21
|
11
|
Severance
|
22
|
|
|
|
Schedules
|
|
|
|
|
|
Schedule 1 (The Premises)
|
23
|
|
Schedule 2 (Easements and Rights Granted)
|
24
|
|
Schedule 3 (Exceptions and Reservations)
|
25
|
|
Schedule 4 (Covenants etc.)
|
26
|
|
Schedule 5 (Insurance and Repair of Damage)
|
27
|
|
Schedule 6 (Rent and Rent Review)
|
30
|
|
|
|
|
Execution
|
|
|
|
|
|
Execution Page
|
32
|
(1)
|
GIDE LOYRETTE NOUEL LLP
(Company Registration No. OC335508) whose registered office is at 125 Old Broad Street, London EC2N 1AR (the "
Landlord
")
|
(2)
|
ENDAVA (UK) LIMITED
(Company Registration No . 03919935) whose registered office is at 125 Old Broad Street, London EC2N 1AR (the "
Tenant
")
|
(3)
|
ENDAVA LIMITED
(Company Registration No. 05722669) whose registered office is at 125 Old Broad Street, London EC2N lAR (the "
Guarantor
")
|
1
|
DEFINITIONS
|
(a)
|
an act or omission of any person acting on behalf of or in connection with any organisation with activities directed towards the overthrowing or influencing of Her Majesty's Government in the United Kingdom or any other government de jure or de facto by force or violence; and/or
|
(b)
|
any other like act or omission which at the relevant time is commonly regarded in the global insurance market as an act of terrorism and which is an exclusion of coverage in the policy or policies of insurance for the Building effected by the Landlord.
|
(a)
|
the Retail areas; and
|
(b)
|
the Car Park;
|
(a)
|
tenant's fixtures and fittings; and
|
(b)
|
any tenant's plant whether within or outside the boundaries of the Premises.
|
2
|
INTERPRETATION
|
2.1
|
Where a party comprises more than one person, obligations of that party take effect as joint and several obligations.
|
2.2
|
An obligation by the Tenant not to do (or omit) any act or thing also operates as an obligation not to permit or suffer it to be done (or omitted) and to prevent (or as the case may be) to require it being done.
|
2.3
|
References to:
|
(a)
|
any Clause or Schedule are references to the relevant Clause or Schedule of this Lease and any reference to a Sub-clause or paragraph is a reference to that Sub-clause or paragraph of the Clause or schedule in which the reference appears and headings shall not affect the construction of this Lease;
|
(b)
|
any right of or obligation to permit the Landlord to enter the Premises shall also be construed, subject to the proviso to Clause 4.9
(Entry by the Landlord),
as entitling the Landlord to remain on the Premises with or without equipment and permitting such right to be exercised by all persons authorised by the Landlord and where appropriate will also be exercisable by the Superior Landlord and all persons authorised by him;
|
(c)
|
any consent or approval of the Landlord, or words to similar effect, mean a consent in writing signed by or on behalf of the Landlord and given before the act requiring consent or approval and any such reference which states that the consent or approval will not be unreasonably withheld also means that it will not be unreasonably delayed and such obligation includes where necessary an obligation to obtain the consent or approval in writing of the Superior Landlord;
|
(d)
|
the Premises (except in the definition of Premises and in Clause 4.15
(Dealings with the
lease))
extend, where the context permits, to any part of the Premises;
|
(e)
|
a specific Enactment includes every statutory modification, consolidation and re-enactment and statutory extension of it for the time being in force, except in relation to the Town and Country Planning (Use Classes) Order 1987, which shall be interpreted exclusively by reference to the original provisions of Statutory Instrument 1987 No 764 whether or not it may have been revoked or modified;
|
(f)
|
the last year of the Term includes the final year of the Term if this Lease determines otherwise than by passing of time and references to the expiry of the Term include that type of determination;
|
(g)
|
rents or other sums being due from the Tenant to the Landlord mean that they are exclusive of any VAT; and
|
(h)
|
the Tenant's obligations mean the Tenant's obligations under this Lease and under every agreement which is supplemental or collateral to this Lease.
|
2.4
|
The information contained in the "Underlease Particulars" shall not affect the construction of this Lease and has been included for convenience only.
|
2.5
|
The expression "this Lease" means this Lease and any document which is supplemental hereto or which is collateral herewith or which is entered into pursuant to or in accordance with the terms hereof.
|
3
|
DEMISE AND RENTS
|
4
|
TENANT'S OBLIGATIONS
|
4.1
|
Rent
|
4.2
|
VAT
|
(a)
|
the Landlord obtains credit for such VAT pursuant to sections 24, 25 and 26 Value Added Tax Act 1994 or any regulations made under them; or
|
(b)
|
the VAT is taken into account in the Service Charge.
|
4.3
|
Outgoings
|
(a)
|
To pay all rates and other outgoings assessed on the Premises or on their owner or occupier during the Term (and a proper proportion, reasonably determined by the Landlord as being attributable to the Premises, of any rates and other outgoings assessed on the Premises in common with other premises or on their owners or occupiers) excluding, without prejudice to the rent sixthly reserved and to Clause 4.2 (
VAT
) any tax payable by the Landlord as a result of any actual or implied dealing with the reversion of this Lease or of the Landlord's receipt of income.
|
(b)
|
To pay all charges for water gas and electricity (including meter rents) consumed in the Premises during the Term.
|
4.4
|
Compliance with Enactments
|
4.5
|
Official communications
|
4.6
|
Repair
|
4.7
|
Decoration and general condition
|
(a)
|
To keep the Premises clean and in the last year of the Term, to redecorate and treat the Premises with appropriate materials in a good and workmanlike manner and in a colour scheme and with materials approved by the Landlord but the Tenant shall not be obliged to redecorate or treat the Premises if the need to do so is caused by any of the Insured Risks, to the extent that the insurance money is not rendered irrecoverable or insufficient because of some act or default of the Tenant or of any person deriving title from it or their respective servants or agents.
|
(b)
|
Without prejudice to the generality of Clause 4.7(a) to clean as frequently as reasonably necessary the interior of the window glazing in the Premises.
|
4.8
|
Refuse
|
4.9
|
Entry by the Landlord
|
(a)
|
investigate whether the Tenant has complied with its obligations;
|
(b)
|
take any measurement or valuation of the Premises;
|
(c)
|
inspect and carry out work to the Building which, otherwise, could not be inspected or carried out;
|
(d)
|
read any electricity water and other check meters installed within the Premises;
|
(e)
|
within the last six months of the Term affix and retain on the Premises, without interference but in a position which does not materially affect their amenity, a notice for their disposal and to allow the Landlord to show the Premises to prospective purchasers and their agents or, during the last six months of the Term, to prospective tenants and their agents;
|
(f)
|
enable the Landlord to comply with the covenants on his part and the conditions contained in the Superior Lease; and
|
(g)
|
to exercise the rights described in Schedule 3
(Exceptions and Reservations),
|
4.10
|
Remedying breaches
|
(a)
|
To comply with any notice requiring the Tenant to remedy any breach of its obligations.
|
(b)
|
If the Tenant does not comply with any such notice within a reasonable time, to permit the Landlord to enter the Premises to remedy the breach, as the Tenant's agent.
|
(c)
|
To pay to the Landlord, as a debt and on demand, all the costs and expenses properly incurred by the Landlord in exercising its rights under this Clause.
|
4.11
|
Preserving rights
|
(a)
|
At the Landlord's cost to preserve all rights of light and other easements belonging to the Premises and not to give any acknowledgement that they are enjoyed by consent.
|
(b)
|
Otherwise than at the Landlord's cost not to do or omit anything which might subject the Premises to any new easement and to notify the Landlord, without any delay, of any encroachment which might have that effect.
|
4.12
|
Alterations
|
(a)
|
Not to carry out:
|
(i)
|
any Development;
|
(ii)
|
any works to or affecting any structural element of the Building;
|
(iii)
|
any work affecting the external appearance of the Premises or the Building;
|
(iv)
|
any replacement of the blinds on the inside of the external windows of the said premises other than with blinds of the same appearance and design;
|
(v)
|
the erection of any structure on the Premises.
|
(b)
|
Not to make any other alteration or addition to the Premises without the Landlord's consent which shall not be unreasonably withheld.
|
(c)
|
Not to make any alterations or additions to the electrical wiring and installations within the Premises which would result in a loading on such wiring or installations beyond that which they are designed to bear and not to make any other alterations or additions to the electrical wiring and installations in the Premises to the extent that they are comprised within the Service Media otherwise than in accordance with the conditions laid down by the Institution of Electrical Engineers and/or other regulations of the relevant statutory undertaker.
|
(d)
|
Not without the Landlord's consent which shall not be unreasonably withheld install or maintain within the Premises any equipment or systems providing Wireless Data Services in such a manner as is likely to have an adverse effect on other tenant's equipment or systems within the Building or the Service Media.
|
4.13
|
Use
|
(a)
|
for any purpose which causes a nuisance, disturbance or obstruction to any person or property;
|
(b)
|
for any public auction or public meeting or for any noxious, noisy, or immoral activity, or for residential purposes and not to transact any business on the Common Parts or the Additional Common Parts; or
|
(c)
|
(without prejudice to the preceding paragraphs of this Clause) except for the Permitted Use.
|
4.14
|
Signs, aerials etc.
|
4.15
|
Dealings with the lease
|
(a)
|
In Clause 4.15
(Dealings with the lease),
any reference to a transfer includes an assignment.
|
(b)
|
Not to transfer, mortgage, charge, hold on trust for another, underlet or otherwise part with possession of part only of the Premises.
|
(c)
|
Not to transfer, mortgage, charge, hold on trust for another, underlet or otherwise part with possession of the whole of the Premises, except that the Tenant may transfer the whole of the Premises if, before the transfer is completed, the Tenant complies with the conditions described in Clause 4.15(d).
|
(d)
|
(Transfer). Not to transfer the whole of the Premises without complying with the following conditions (which are specified for the purposes of section 19(1A) of the Landlord and Tenant Act 1927 and which operate without prejudice to the Landlord's right to withhold consent on any reasonable ground):
|
(i)
|
that the Tenant if reasonably required by the Landlord enters into an authorised guarantee agreement, as defined in section 16 of the Landlord and Tenant (Covenants) Act 1995, with the Landlord in a form which the Landlord reasonably requires; and
|
(ii)
|
that any guarantor of the Tenant's obligations if reasonably required by the Landlord guarantees to the Landlord that the Tenant will comply with the authorised guarantee agreement in a form which the Landlord reasonably requires; and
|
(iii)
|
that the Tenant has paid to the Landlord all rents reserved and other sums properly due under this Lease prior to the date of assignment; and
|
(iv)
|
that there ore no breaches of the Tenant's covenants contained in this Lease prior to the date of the assignment; and
|
(v)
|
that, subject as provided in paragraph (iv) and if the Landlord so reasonably requires, the proposed transferee procures one, but not both, of the following:
|
(A)
|
covenants with the Landlord by an additional guarantor or guarantors approved by the Landlord (who shall act reasonably in giving its approval), in terms reasonably required by the Landlord; or
|
(B)
|
a deposit with the Landlord of an amount in cleared funds equal to one half of the then current yearly rent first reserved by this Lease and an amount equal to VAT on that amount, on terms which the Landlord reasonably requires; and
|
(vi)
|
if the proposed transfer is to a Group Company; and
|
(A)
|
if the Tenant's obligations, or any of them, are guaranteed by another Group Company, that such Group Company covenants with the Landlord in terms reasonably required by the Landlord; or
|
(B)
|
if the Tenant's obligations are not guaranteed by another Group Company and if the transferee is not, in the Landlord's reasonable opinion, of equal financial standing to the Tenant, that the proposed transferee procures covenants by a Group Company other than the Tenant and the transferee and which is, in the Landlord's reasonable opinion, of equal financial standing to the Tenant, in a form which the Landlord reasonably requires; and
|
(C)
|
whether or not paragraph (4)(a) or (4)(b) applies, if the Tenant's obligations, or any of them, are secured by a security deposit, the proposed transferee procures a deposit with the Landlord of the amount and on terms described in paragraph (3)(b); and
|
(vii)
|
that the Landlord's consent, which will not be unreasonably withheld, is obtained to, and within three months before, the transfer.
|
(e)
|
(Sharing occupation). Not to share the occupation of the Premises or any part of them except that the Tenant may share occupation with a person which is, but only for so long as it remains, a Group Company provided the Tenant does not grant any such person sharing occupation exclusive possession nor create any relationship of landlord and tenant, nor otherwise transfer or create a legal estate, and the Tenant shall notify the Landlord of the identity of each person in occupation.
|
4.16
|
Notifying Landlord of dealings with the lease
|
4.17
|
Payment of cost of notices, consents etc.
|
(a)
|
the preparation and service of a notice under section 146 Law of Property Act 1925, or in contemplation of any proceedings under sections 146 or 147 of that Act, notwithstanding that forfeiture is avoided otherwise than by relief granted by the court;
|
(b)
|
every step taken during or within a reasonable time after the expiry of the Term (being in any event no longer than 12 months thereafter) in connection with the enforcement of the Tenant's obligations, including the service or proposed service of all notices and schedules of dilapidations and reasonable consultants' fees incurred in monitoring any action taken to remedy any breach of the Tenant's obligations; and
|
(c)
|
every application for consent or approval under this Lease, even if the application is withdrawn or properly refused.
|
4.18
|
Installing machinery in the Premises
|
(a)
|
the efficiency of the heating, ventilation, air conditioning and cooling systems installed in the Building to be diminished or impaired in any way; or
|
(b)
|
any interference or other intrusive effect on any other part of the Building or other adjoining property or persons outside the Premises.
|
4.19
|
Obstruction/overloading
|
(a)
|
or damage any part of the Building or the Footpath or exercise any of the rights granted by this Lease in a way which causes an actionable nuisance or a material disturbance;
|
(b)
|
any means of escape;
|
(c)
|
or discharge any deleterious matter into:
|
(i)
|
any conduit serving the Premises and, to the extent they lie within the Premises, to keep them clear and functioning properly; or
|
(ii)
|
any Service Media;
|
(d)
|
or stop-up or obscure any openings of the Premises;
|
(e)
|
any notice erected on the Premises, including any erected by the Landlord in accordance with its powers under this Lease,
|
4.20
|
Goods delivery/parking
|
4.21
|
Complying with Planning Law and compensation
|
(a)
|
Without prejudice to Clause 4.4
(Compliance with Enactments)
to comply with the provisions and requirements of Planning Law relating to or affecting:
|
(i)
|
the Premises;
|
(ii)
|
any operations works acts or things carried out executed done or omitted on the Premises;
|
(iii)
|
the use of the Premises;
|
(iv)
|
the use of (and the exercise of any other rights hereunder in respect of) any other parts of the Building.
|
(b)
|
Subject to the provisions of paragraph 4.21(c) of this Sub-clause as often as occasion requires during the Term at the Tenant's expense to obtain and if appropriate renew all planning permissions (and serve all notices) required under Planning Law in respect of the Premises whether for carrying out by the Tenant of any operations or the institution or continuance by the Tenant of any use of the Premises or any part thereof or otherwise.
|
(c)
|
Not without the Landlord's consent to apply for any planning permission relating to the Premises (and not to apply for any such planning permission relating to any other part of the Building) but so that subject to compliance with paragraph 4.21(e) of this Sub-clause the Landlord's consent shall not be unreasonably withheld to the making of a planning application in respect of the Premises relating to any operations or use or other thing (if any) which assuming it to be implemented in accordance with Planning Law would otherwise not be in breach of the provisions of this Lease.
|
(d)
|
If the Landlord so requires in connection with any relevant proposal by the Tenant to apply for a determination under section 192 Town and Country Planning Act 1990.
|
(e)
|
If the Landlord consents in principle to any application by the Tenant for planning permission to submit a draft of the application to the Landlord for its approval and to give effect to its reasonable requirements in respect thereof and if and to the extent the Landlord so requires to lodge the application with the relevant authority in the joint names of the Landlord and the Tenant and in duplicate.
|
(f)
|
Not to implement any planning permission before the Landlord has acknowledged that its terms are acceptable nor before the Landlord has received any cash or other security which it reasonably requires for compliance with any conditions imposed by the planning permission.
|
(g)
|
Unless the Landlord otherwise directs to complete before the expiry of the Term all works on the Premises required as a condition of any planning permission implemented by the Tenant or by any person claiming under or through it.
|
(h)
|
If the Tenant receives or is entitled to receive any statutory compensation under any Enactment in relation to its interest in the Premises the Tenant shall on any determination of its interest prior to the expiry of this Lease by effluxion of time forthwith make such provision as is just and equitable for the Landlord to receive its due benefit from such compensation.
|
4.22
|
Indemnifying the Landlord
|
(a)
|
as soon as reasonably practicable give the Tenant written notice and full details of any claim;
|
(b)
|
consider written representations made by the Tenant relating to any claim;
|
(c)
|
not settle or compromise any claim without having given the Tenant reasonable opportunity to make representations to the Landlord; and
|
(d)
|
use all reasonable endeavours to mitigate as far as practicable any loss or cost incurred or caused to it as a result of any such claim.
|
4.23
|
Notifying defects in the Premises
|
(a)
|
an obligation on the Landlord to do, or refrain from doing, anything in relation to the Premises; or
|
(b)
|
any duty of care, or the need to discharge such duty, imposed by the Defective Premises Act 1972,
|
4.24
|
Dangerous and contaminative materials
|
4.25
|
Returning the Premises to the Landlord
|
(a)
|
On the termination of the tenancy created by this Lease to remove:
|
(i)
|
all chattels, tenant's fixtures and fittings, furniture and belongings; and
|
(ii)
|
all alterations and additions made to the Premises at any time by the Tenant or by any person deriving title from it
|
(b)
|
The Tenant irrevocably authorises the Landlord to remove and dispose of any chattels which may be left in the Premises after the Tenant has quit them (without being obliged to obtain any consideration for the disposal) and the Tenant irrevocably declares that any such chattels will stand abandoned by it.
|
4.26
|
Regulations and Covenants
|
(a)
|
all reasonable regulations made by the Landlord or the Superior Landlord from time to time and notified to the Tenant in writing for the good management of the Building and the Footpath so long as the regulations are made in the interests of good estate management and do not conflict with any express right of the Tenant under this Lease provided always that if there shall be any inconsistency between the terms of this Lease and any of the said regulations then the terms of this Lease shall prevail.
|
(b)
|
all covenants and other matters affecting the Premises and not to interfere with any rights, easements or other matters affecting the Premises including in each case, but not limited to, those contained or referred to in the documents referred to in Schedule 4
(Covenants etc.)
save for those contained or referred to in entry no. 6 in the property register of title number NGL857873 dated the date of this Lease .
|
4.27
|
Security and access
|
4.28
|
Land Registry
|
(a)
|
To make due application to the Land Registry for the cancellation of any notice of, or relating to, this Lease or any document supplemental or collateral to it as and when such notice is no longer relevant or required to protect the interest of the Tenant or any permitted undertenant and, on request, to supply the Landlord with a copy of the application.
|
(b)
|
For the purpose of securing the Tenant's obligation in Clause 4.28(a) the Tenant hereby
|
4.29
|
Superior Lease
|
5
|
LANDLORD'S OBLIGATIONS
|
5.1
|
Quiet enjoyment
|
5.2
|
Superior Lease
|
(a)
|
The Landlord shall pay the rents due pursuant to the Superior Lease and on the request and at the expense of the Tenant the Landlord shall take all reasonable steps to enforce the covenants on the part of the Superior Landlord contained in the Superior Lease.
|
(b)
|
The Landlord shall take all reasonable steps (but which shall not require the Landlord to commence court proceedings) at the Tenant's expense to obtain the consent of the Superior Landlord whenever the Tenant makes application for any consent required under this Lease where the consent of both the Landlord and the Superior Landlord is needed by virtue of this Lease and the Superior Lease subject to the Tenant providing sufficient information (at its own cost) to the Landlord in order to make such an application and the Tenant providing all reasonable assistance generally to the Landlord in making such an application.
|
5.3
|
Warranties
|
(a)
|
this obligation shall only apply if the Landlord would be entitled to claim and seek redress from the contractor or relevant member of the professional team from whom it has been given a collateral warranty; and
|
(b)
|
on the basis that the Landlord is obliged to use reasonable endeavours to make a claim as aforesaid (and shall not be obliged to commence legal action to do so); and
|
(c)
|
the contractor or relevant member of the professional team is not insolvent (or has otherwise not ceased to trade).
|
6
|
SERVICES
|
6.1
|
Subject to payment by the Tenant of the Service Charge Expenditure the Landlord will use all reasonable endeavours to enforce the Superior Landlord's obligations contained in schedules 5 and 6 of the Superior Lease relating to the provision of the Services.
|
6.2
|
The Landlord will provide the Tenant with a copy of the service charge certificate provided to it under the terms of the Superior Lease as soon as reasonably practicable following receipt of it from the Superior Landlord.
|
7
|
INSURANCE
|
8
|
GUARANTEE AND GUARANTOR'S INDEMNITY
|
8.1
|
The rents reserved by this Underlease shall be duly paid and that all the Tenant's obligations contained in it shall be performed and observed in the manner and at the times herein specified and that if there is any default in paying the rents or in performing and observing the Tenant's obligations (notwithstanding any time or indulgence granted by the Landlord to the Tenant or compromise neglect or forbearance on the part of the Landlord in enforcing the observance and performance of the Tenant's obligations in this Underlease or any refusal by the Landlord to accept rents tendered by or on behalf of the Tenant) the Guarantor will observe and perform the obligations in respect of which the Tenant shall be in default and will on demand and on a full indemnity basis pay to the Landlord an amount equivalent to the rents or other amounts not paid and/or any loss damage costs charges expenses or any other liability incurred or suffered by the Landlord as a result of the default (and in the event of non-payment shall pay interest at the Stipulated Rate from the date of demand to the Guarantor until the date of payment) and will otherwise indemnify and hold harmless the Landlord against all actions claims costs damages demands expenses losses and proceedings arising from or incurred by the Landlord as a result of such non-performance or non-observance.
|
8.2
|
If any liquidator or other person having power to do so disclaims this Underlease or if it shall be forfeited or if the Tenant ceases to exist and if the Landlord by written notice served within three months after the date of disclaimer or forfeiture or the Landlord having actual knowledge of the cesser of existence of the Tenant (each a
"Trigger Event"
) requires the Guarantor to enter as tenant thereunder into a lease and any supplemental documents of the Premises for a term computed from the date of the Trigger Event to the date on which the Term would have expired by effluxion of time and at the same rents and subject to the same covenants stipulations conditions and provisions as are reserved by and contained in this Underlease immediately before the Trigger Event (the said new lease and the rights and liabilities thereunder to take effect as from the date of such Trigger Event) and the Guarantor shall execute and deliver to the Landlord a counterpart of it and indemnify the Landlord upon demand against the costs incurred on the grant of the new lease.
|
8.3
|
The liability of the Guarantor hereunder shall not be released reduced affected or prejudiced by reason of:
|
(a)
|
any variation or waiver of or addition to the terms of this Underlease or any of them agreed between the Landlord and the Tenant; or
|
(b)
|
the surrender by the Tenant of part of the Premises (in which event the liability of the Guarantor shall continue in relation to the Tenant's obligations in respect of the part of the Premises not so surrendered); or
|
(c)
|
any legal limitation immunity disability incapacity occurrence of insolvency or the winding-up of the Tenant; or
|
(d)
|
(without limitation to the foregoing) any other act or thing by which (but for this provision) the Guarantor would have been discharged or released (in each case in whole or in part) from liability under this guarantee and indemnity
|
8.4
|
If this Underlease is forfeited or the Tenant ceases to exist and for any reason the Landlord does not require the Guarantor to accept a new Underlease of the Premises in accordance with Clause 8.2 the Guarantor shall pay to the Landlord on demand (in addition to any other loss damage costs charges expenses or other liability which the Guarantor may be required to make good hereunder and without prejudice to any other rights of the Landlord) an amount equal to the rents which would have been payable hereunder but for such Trigger Event (so far as such rents do not otherwise continue to be payable) for the period commencing on the date of such Trigger Event and ending on whichever is the earlier of the date one year after the date of such Trigger Event and the date (if any) upon which rent is first payable in respect of the whole of the Premises on a reletting thereof.
|
8.5
|
Without prejudice to the rights of the Landlord against the Tenant the Guarantor shall be a principal obligor in respect of its obligations under this Clause and not merely a surety and accordingly the Guarantor shall not be discharged nor shall its liability hereunder be affected by any act or thing or means whatsoever by which its said liability would not have been discharged if it had been a primary debtor.
|
8.6
|
The Guarantor shall pay all charges (including legal and other costs on a full indemnity basis) incurred by the Landlord in relation to the Landlord's enforcement of this guarantee and indemnity against the Guarantor or for enforcing payment by the Guarantor of amounts indemnified by it hereunder.
|
8.7
|
The Landlord may at its option enforce the terms of this guarantee and indemnity against the Guarantor without having first enforced the covenants and terms of this Underlease against the Tenant and also without first having recourse to any other rights or security which the Landlord may have obtained in relation to this Underlease.
|
8.8
|
The Guarantor shall not be entitled to participate in any security held by the Landlord in respect of the obligations of the Tenant under this Underlease or to any right of subrogation in respect of any such security until all the obligations owed to the Landlord by the Tenant and the Guarantor hereunder have been fully and unconditionally fulfilled and discharged.
|
8.9
|
The Guarantor shall not claim in any liquidation bankruptcy composition or scheme of arrangement in respect of the Tenant in competition with the Landlord and if and to the extent that it receives the same shall remit to (and until remission shall hold in trust for) the Landlord all and any monies received from any liquidator trustee receiver or out of any composition or arrangement or from any supervisor thereof until all the obligations of the Tenant and the Guarantor hereunder owed to the Landlord have been fully and unconditionally fulfilled and discharged.
|
8.10
|
This guarantee and indemnity shall enure for the benefit of the Landlord's successors in title under this Underlease without the necessity for any assignment thereof.
|
9
|
OTHER AGREEMENTS AND DECLARATIONS
|
9.1
|
Forfeiture and re-entry
|
(a)
|
any rent is unpaid for twenty-one days after becoming payable (whether the rent has been demanded or not); or
|
(b)
|
there is any other material breach of the Tenant's obligations; or
|
(c)
|
the guarantee by any guarantor of the Tenant's obligations is or becomes wholly or partly unenforceable for any reason; or
|
(d)
|
if the Tenant or any guarantor of the Tenant's obligations (or if more than one person any one of them):
|
(i)
|
being a company enters into liquidation whether compulsory or voluntary (except for the purpose of amalgamation or reconstruction of a solvent company on terms previously agreed by the Landlord such agreement not to be unreasonably withheld), or has a provisional liquidator appointed, or has a receiver or manager (including an administrative receiver) appointed, or is subject to an application to Court for an administration order by petition, or becomes subject to an administration order, or becomes subject to a company voluntary arrangement under Part I of the Insolvency Act 1986, or a scheme of arrangement under Section 425 of the Companies Act 1985, or is deemed unable to pay its debts under Section 123 of the Insolvency Act 1986, or is otherwise deemed insolvent under the provisions of the Insolvency Act 1986; or
|
(ii)
|
being a company incorporated outside the United Kingdom, is the subject of any proceedings or event analogous to those referred to in this Clause in the country of its incorporation or elsewhere or shall otherwise cease for any other reason to be or remain liable under this Lease or shall cease
|
(iii)
|
being an individual, is the subject of a bankruptcy petition or bankruptcy order, or of any application or order or appointment under Part VIII of the Insolvency Act 1986 relating to individual voluntary arrangements under Section 273 or Section 286 Insolvency Act 1986 or otherwise becomes bankrupt or insolvent or dies; or
|
(iv)
|
being a company or an individual enters into or makes any proposal to its creditors for a composition in satisfaction of its debts or a scheme of arrangement of its affairs;
|
(e)
|
if the Landlord exercises its right to re-enter the premises demised by the Second Lease and forfeit the Second Lease;
|
9.2
|
Letting scheme, use and easements
|
9.3
|
Common Parts and Service Media
|
(a)
|
The Common Parts and the Service Media remain under the exclusive control and management of the Superior Landlord who may, if it shall be in keeping with the principles of good estate management, alter, divert, substitute, stop up or remove any of them, leaving available for use by the Tenant reasonable and sufficient means of access to and egress from, and servicing for, the Premises provided that as a result of such change the use and enjoyment of the Premises and its access thereto through the Common Parts on a 24 hour basis shall not be materially adversely affected.
|
(b)
|
The Landlord shall not be liable for any closure of any of the Common Parts or stoppage or severance affecting any of the Service Media due to any cause beyond the Landlord's control provided the Landlord takes all reasonable steps to procure that the Superior Landlord remedy the closure stoppage or severance as quickly as reasonably possible.
|
9.4
|
Service of notices
|
(a)
|
In addition to any other method of service, any notice which is served under this Lease shall be validly served if it is served in accordance with section 196 Law of Property Act 1925, as amended by the Recorded Delivery Service Act 1962.
|
(b)
|
If the Landlord Tenant or any guarantor comprises more than one person, it shall be sufficient if notice is served on one of them, but a notice duly served on the Tenant will not need to be served on any guarantor.
|
9.5
|
Landlord's liability
|
(a)
|
(without prejudice to the provisions of Clause 9.3
(Common Parts and Service Media)
any closure of any of the Common Parts or stoppage or severance affecting any of the Service Media due to any cause beyond the control of the Landlord or the Superior Landlord (acting reasonably);
|
(b)
|
any act omission or negligence of any of the Landlord's or the Superior Landlord's employees servants or agents in or about the performance or purported performance of any of the Services or for any loss accident damage or injury which may at any time during the Term be suffered by the Tenant or by any person claiming through it or by its or their employees servants agents invitees or licensees in any such case beyond any sum which may be recovered under any policy or policies of insurance maintained by the Superior Landlord.
|
9.6
|
Arbitration fees
|
9.7
|
Rateable value appeals
|
9.8
|
No warranty as to use
|
9.9
|
No warranty as to security
|
9.10
|
Construction (Design and Management) Regulations 2007
|
(a)
|
In this Clause:
|
(i)
|
the expression "
Regulations
" means the Construction (Design and Management) Regulations 2007 (as amended, re-enacted or consolidated from time to time) and any expressions appearing in this Clause which are defined in the Regulations have the same meaning; and
|
(ii)
|
the expression "
relevant work
" means any construction work which is undertaken by the Tenant or by a person claiming under it pursuant to an obligation or a right (whether or not requiring the Landlord's consent) under this Lease and for the purposes of the Regulations the Tenant irrevocably acknowledges that it, and not the Landlord, arranges the design, carrying out and construction of relevant work.
|
(b)
|
The Tenant hereby elects to be treated, and the Landlord consents to the Tenant being treated, as the only client in respect of any relevant work under Regulation 8 of the Regulations.
|
(c)
|
The Tenant shall:
|
(i)
|
comply and procure compliance with the Regulations in respect of any relevant works;
|
(ii)
|
without prejudice to Clauses 9.10(b) and (A) provide such assistance and advice to the Landlord as necessary to allow it to discharge its residual obligations following the election referred to in Clause 9.10(b), under Regulation 8 of the Regulations;
|
(iii)
|
not seek to withdraw, terminate or in any manner derogate either from its obligations under this Clause 9.10(c) or from the election under Clause 9.10(c).
|
(d)
|
The Tenant shall promptly provide to the Landlord a full and complete copy of the health and safety file for all relevant work and (no later than the expiry or sooner determination of this Lease) the original health and safety file "health and safety file" in both cases as defined in the Regulations.
|
(e)
|
The provisions of this Clause shall apply notwithstanding that any consent issued by the Landlord in respect of any relevant work does not refer to the said provisions or to the Regulations.
|
9.11
|
Landlord's rights to apportion
|
9.12
|
Application of 1995 Act
|
9.13
|
Tenant's Break Clause
|
(a)
|
Subject to all of the pre-conditions in Clause 9.13(b) being satisfied on the Break Date and the Tenant having served a prior written notice to terminate this Lease on the Landlord not less than nine months prior to the Break Date, the Tenant may terminate this Lease following which the Term will then terminate on the Break Date but without prejudice to any claim by the Landlord in respect of any antecedent breach of any covenant or obligation of the Tenant or any condition under this Lease .
|
(b)
|
The pre-conditions are that:
|
(i)
|
the Rent plus any VAT on it due up to and including the Break Date has been paid in full to the Landlord and the other rents reserved by Clause 3
(Demise and Rents)
of this Lease which were demanded in writing from the Tenant (save for rents which are the subject of a bona fide dispute) at least 14 days before the Break Date have been paid in full to the Landlord; and
|
(ii)
|
neither the Tenant nor any third parties remain in occupation of any part of the Premises; or
|
(iii)
|
there are no continuing subleases of the Premises.
|
(c)
|
Time is of the essence for the purposes of this Clause.
|
(d)
|
If the Tenant does not exercise its right under Clause 9.13(a) to terminate the lease on the Break Date and provided that:
|
(i)
|
up to and including the Break Date, the Tenant has promptly paid in full to the Landlord the Rent plus any VAT on it and the other rents reserved under Clause 3
(Demise and Rents)
of this Lease which were demanded in writing from the Tenant
(save for rents which are the subject of a bona fide dispute); and
|
(ii)
|
at the Break Date there is not subsisting a material breach of any of the tenant covenants or conditions of this Lease;
|
(e)
|
If the Tenant:
|
(i)
|
serves a valid prior written notice under Clause 9.13(a) to terminate this Lease on the Break Date but it failed to comply with any of the pre-conditions for the break set out at Clause 9.13(b);
|
(ii)
|
does not serve notice to terminate this Lease on the Break Date but it fails to comply with the pre-conditions for the rent concession at Clause 9.13(d);
|
(f)
|
If this Lease terminates in accordance with Clause 9.13 then, within 14 days after the Break Date, the Landlord shall refund to the Tenant the Rent or any other rents reserved pursuant to Clause 3 which the Tenant has paid in advance for any period beyond the expiry of the notice.
|
(g)
|
Within 30 days from the date of such termination the Landlord will carry out a reconciliation in respect of the Service Charge and notify the Tenant of any underpayment or overpayment. Any underpayment by the Tenant will be paid by the Tenant to the Landlord within 14 days of such reconciliation and any overpayment by the Tenant will be refunded to the Tenant within 14 days of such reconciliation.
|
9.14
|
Landlord's Break Clause
|
(a)
|
Subject the Landlord having served a prior written notice to terminate this Lease on the Tenant not less than nine months prior to the Break Date, the Landlord may terminate this Lease following which the Term will then terminate on the Break Date but without prejudice to any claim by the Tenant in respect of any antecedent breach of any covenant or obligation of the Landlord or any condition under this Lease.
|
(b)
|
Time is of the essence for the purposes of this Clause.
|
9.15
|
Exclusion of the Security of Tenure
|
(a)
|
The Landlord has served on the Tenant a notice dated 27 June 2014 in the form set out or substantially in the form, set out in Schedule 1 to the Order in relation to the tenancy created by this Lease.
|
(b)
|
The Tenant or a person duly authorised by the Tenant has in relation to that notice made a statutory declaration dated 7 July 2014 in the form, or substantially in the form, set out in paragraph 8 of Schedule 2 to the Order.
|
(c)
|
Where that declaration was made by a person other than the Tenant, the Tenant confirms that the declarant was duly authorised by the Tenant to make the declaration on the Tenant's behalf.
|
(d)
|
The Landlord and the Tenant confirm that the notice and declaration referred to in the previous Clauses were respectively served on and made by the Tenant or the duly authorised person before the Tenant became contractually bound to enter into the tenancy created by this Lease under an agreement dated 15 June 2009 and made between (1) the Landlord (2) the Tenant and (3) the Guarantor.
|
(e)
|
There is no agreement for lease to which this Lease gives effect.
|
(f)
|
The parties agree that the provisions of sections 24 to 28 (inclusive) of the 1954 Act are excluded in relation to the tenancy created by this Lease.
|
(g)
|
The Landlord has served on the Guarantor a notice dated 27 June 2014 in the form set out or substantially in the form, set out in Schedule 1 to the Order in relation to the tenancy created by this Lease.
|
(h)
|
The Guarantor or a person duly authorised by the Guarantor has in relation to that notice made a statutory declaration dated 7 July 2014 in the form, or substantially in the form, set out in paragraph 8 of Schedule 2 to the Order.
|
(i)
|
Where that declaration was made by a person other than the Guarantor, the Guarantor confirms that the declarant was duly authorised by the Guarantor to make the declaration on the Guarantor's behalf.
|
9.16
|
Exclusion of Third Party Rights
|
9.17
|
Sustainability
|
(a)
|
co-operate and use all reasonable endeavours to agree (and thereafter comply with) an energy management plan to aid the sustainability of resource use at the Building;
|
(b)
|
co-operate and use all reasonable endeavours to agree and operate initiatives to reduce, reuse and/or recycle waste from the Premises and the Building;
|
(c)
|
maintain and share energy data and other information reasonably required to monitor the energy and resource consumption at the Premises and the Building;
|
(d)
|
use reasonable endeavours to ensure that the Services are performed and the Premises and Building used in accordance with the energy management plan (if any) and in such a way as to and to agree to improvements to the Services which would reasonably improve energy efficiency;
|
9.18
|
Jurisdiction
|
10
|
PREJUDICIAL INFORMATION
|
10.1
|
Application of this Clause
|
(a)
|
more than one party to this Lease applies or causes application to be made, (even though independently from any other applicant but in relation to the same prejudicial information) to designate, or further designate, it as an exempt information document in relation to that prejudicial information; and
|
(b)
|
this Lease is, and for so long as it remains, designated as an exempt information document as a result of any application to the registrar,
|
10.2
|
Designation may not be withdrawn
|
(a)
|
may apply or cause application to be made for, or consent to, the removal of the designation referred to in Clause 10.1(a); or
|
(b)
|
is in breach of Clause 10.2(a) by transferring its interest in the Premises.
|
10.3
|
Response to applications for publication
|
(a)
|
If any applicant receives notice under Rule 137(3) concerning an application for an official copy of the prejudicial information referred to in Clause 9.1(a), it shall forthwith copy the notice to each other applicant and each applicant shall take all reasonable steps to object to the application.
|
(b)
|
Each applicant shall notify each other applicant of the steps taken, including representations made, under Clause 10.3(a).
|
10.4
|
Confidentiality
|
(a)
|
No party shall publish or cause or permit to be published any prejudicial information:
|
(i)
|
referred to in Clause 10.1(a); or
|
(ii)
|
which that party is notified by any other party as being the subject of an application for separate designation of this Lease or of any document supplemental or collateral to it as an exempt information document, except that publication may be made as required by law and to a person having a genuine interest in it in connection with a disposal of that party's interest in the Premises and to its and that person's advisers.
|
(b)
|
Clause 10.4(a)(i) applies to any non-applicant party only if the nature of the prejudicial information has been notified to it.
|
10.5
|
Continued liability
|
10.6
|
Land Registration Rules
|
11
|
SEVERANCE
|
11.1
|
If any court or competent authority finds that any provision of this Lease (or part of any provision) is invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Lease shall not be affected.
|
11.2
|
If any invalid, unenforceable or illegal provision of this Lease would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
|
1
|
the interior coverings and interior facing materials of those parts of the external walls of the Building bounding the said premises and of the columns within the said premises and of the walls within the Building separating them from other parts of the Building;
|
2
|
the fixed floor coverings and all materials lying between the upper surface of the structural floor slab and the floor surface;
|
3
|
the suspended ceilings and plasterboard ceiling margins, (including all materials forming part of them; the light fittings and diffusers, terminal air supply and extract grilles) and the ceiling void located directly above the suspended ceiling but beneath the lower surface of the structural slab;
|
4
|
all non-load bearing walls and partitions lying within the said premises;
|
5
|
the doors and door frames within, and on the boundaries of, the said premises (excluding the lift doors);
|
6
|
the blinds on the inside of the external windows of the said premises;
|
7
|
subject to the exclusion in paragraph 11 of this Schedule, the window glazing and window frames and other fenestration within the said premises; and
|
8
|
all superior landlord's and landlord's plant and other apparatus and conducting media in the Building which are designed to serve the said premises exclusively (but subject to the exclusion in paragraph 12 of this Schedule) but exclude:
|
9
|
all Service Media;
|
10
|
the load bearing structure of the Building including the load bearing structure of the roofs, foundations, external and internal walls and columns and the structural slabs of the ceilings and floors;
|
11
|
the external surfaces of the Building (except the external surfaces of any doors and door frames referred to in paragraph 5) and the whole of the window glazing and window frames and other fenestration constructed in the external walls and in the other boundaries of the said premises; and
|
12
|
the Superior Landlord's base build mechanical, electrical, public health & HVAC services located within the ceiling void directly above the suspended ceiling but beneath the lower surface of the structural slab comprising inter alia the fan coil units and associated controls, chilled water and condensate pipework, fresh air supply & extract ductwork, foul & surface water drainage systems, the lighting control system, emergency batteries, electrical distribution system, the category A smoke and heat detection equipment and fire sprinkler and life safety systems.
|
1
|
The right in connection with the Permitted Use, subject to Clause 9.3
(Common Parts and
Service Media):
|
(a)
|
for the Tenant, its servants and duly authorised agents and visitors, to use the Common Parts and (but in emergency only) all means of escape;
|
(b)
|
to connect to and to use the Service Media and the free passage from and to the Premises through the Service Media and all conducting media serving the Premises; and
|
(c)
|
to use the Loading Bay and the compactor in the Loading Bay.
|
(d)
|
to use a due proportion of the tenants' risers in the Building reasonably allocated by the Landlord and subject to the rights of any third party occupiers the right to enter and remain upon so much as is necessary of other parts of the Building on giving reasonable prior notice (except in the case of emergency but subject to the further proviso at the end of this Schedule) with or without workmen, plant and equipment in order to access such risers to install, repair, maintain, decorate, replace and renew and clean the Premises and conducting media exclusively serving the Premises, and the Tenant shall make good all damage caused to the satisfaction of the Landlord.
|
2
|
The right of support, shelter and protection for the Premises from the other parts of the Building as are enjoyed by the Premises at the date of this Lease .
|
3
|
The right to connect into and to use the house internal telephone system and the house satellite system.
|
4
|
The right to enter the Refuse Area and to place refuse in containers provided for the purpose in the Refuse Area.
|
5
|
The right at the cost of the Tenant to have displayed the name or trading style of the Tenant on the signboard in the entrance lobby of the Offices and in the lift lobby on the floor of the Premises for the display of a single tenants name in a style commensurate with the Landlord and the Superior Landlord's signage in the Offices and in such location as shall be approved by the Landlord and the Superior Landlord (in each case such approval not to be unreasonably withheld or delayed).
|
6
|
A right of way on foot only for all reasonable purposes connected with the use and enjoyment of the Premises over the Footpath.
|
7
|
The non-exclusive right to use the showers in basement level 1 as are from time to time provided together with the right of access to and egress from such showers from the Premises and the Car Park on a 24 hours basis.
|
1
|
The right, at reasonable times on reasonable prior notice (except in an emergency), to enter the Premises as often as may be necessary for all the purposes for which the Tenant agrees to permit entry elsewhere in this Lease and only to the extent that entry to the Premises is necessary for this purpose for all purposes in connection with carrying out the Services or complying with any Enactment.
|
2
|
The right to use and to deal in any way with any Service Media located in or accessible only through the Premises for the benefit of any other part of the Building or any adjacent or neighbouring land provided that the supply of services to the Premises in accordance with paragraph 2 of schedule 5 of the Superior Lease is not thereby adversely affected.
|
3
|
The right to erect and maintain scaffolding on a temporary basis and only to the extent necessary on or against any part of the Building so long as reasonable and sufficient means of accessing and servicing the Premises are maintained and so long as security to the Premises is not compromised.
|
4
|
All rights of light, air and other easements and rights (but without prejudice to those expressly granted by this Lease) enjoyed by the Premises from or over any other part or parts of the Building or any adjacent or neighbouring land.
|
5
|
The right to build alter or extend (whether vertically or laterally) any building notwithstanding that the access of light and air or either of them to the Premises and the lights windows and openings thereof may be affected.
|
6
|
The right, at reasonable times on reasonable prior notice (except in emergency), for any security staff employed by the Superior Landlord or its agents to enter the Premises if it shall be considered necessary or desirable so to do for the security of the Building.
|
7
|
All of the exceptions and reservations contained or referred to in the Superior Lease and all rights reserved to the Superior Landlord pursuant to schedule 3 of the Superior Lease.
|
8
|
The right granted under the Second Lease for the Tenant, its servants and duly authorised agents and visitors, to use the Additional Common Parts.
|
1
|
Definition and Interpretation
|
1.1
|
In this schedule:
|
(a)
|
any Uninsured Damage; and
|
(b)
|
any damage or destruction:
|
(i)
|
in respect of which the insurance is vitiated by the Tenant (unless the Tenant promptly pays to the Landlord the amount of insurance monies rendered irrecoverable); or
|
(ii)
|
caused by any type of waste or any act or omission of the Tenant in breach of the Tenant's obligations; or
|
(iii)
|
to the extent it exclusively relates to any demountable partitioning and wall or floor surface coverings installed in the Premises other than at the Landlord's or the Superior Landlord's cost or to any tenant's trade fixtures and fittings or chattels.
|
(c)
|
is not insured because insurance is not available in the London insurance market; or
|
(d)
|
is not insured or fully insured by reason of an exclusion, limitation, term or condition (but not an excess) contained in or imposed by the relevant insurance policy;
|
1.2
|
References in this schedule to "
vitiated
" or "
vitiated by the Tenant
" include any event occurring by the act or default of the Tenant or any person deriving title under or through the Tenant or their respective employees agents and visitors and "vitiation" has a corresponding interpretation.
|
2
|
Landlord's Obligations
|
2.1
|
To use all reasonable endeavours to enforce the Superior Landlord's obligations relating to insurance contained in schedule 8 of the Superior Lease.
|
2.2
|
On request to supply the Tenant (but not more frequently than once in any period of twelve months) with details of such insurance.
|
2.3
|
To procure that the Tenant is informed, on the Landlord or their agents becoming aware of the same, of any material change in the ambit quantum or terms of cover in any policy of insurance applying to the Premises.
|
2.4
|
To use all reasonable endeavours to procure that the Superior Landlord uses all reasonable obligations to procure that the interest of the Tenant is noted on the policy of insurance either specifically or by a general noting of interest of tenants under the conditions of the policy.
|
3
|
Tenant's Obligations
|
3.1
|
To pay to the landlord a yearly sum (and proportionately for any period less than a year) equal to the due proportion attributable to the Premises of the insurance costs paid to the Superior Landlord.
|
3.2
|
Not to do or omit to do anything by which any insurance policy relating to the Building of which the Tenant has been provided with particulars is vitiated.
|
3.3
|
To comply with all requirements and reasonable recommendations of the insurers and to provide and maintain in good working order and keep unobstructed appropriate fire fighting equipment and fire notices on the Premises.
|
3.4
|
To notify the Landlord without delay of the incidence of any Damage and of any other event which ought reasonably to be brought to the attention of insurers.
|
3.5
|
Where the Tenant makes any alteration or addition to the Premises or the Building which the Landlord or the Superior Landlord is required to insure to provide to the Landlord as soon as reasonably practical a written independent current insurance (VAT exclusive) valuation of the work for reinstatement purposes.
|
3.6
|
If the Tenant or any person deriving title under or through it is at any time entitled to the benefit of any insurance of the Premises, to cause all money paid under such insurance to be applied in making good the loss or damage in respect of which it was paid.
|
3.7
|
If the insurance is vitiated by the Tenant, forthwith to pay to the Landlord the amount of any insurance money rendered irrecoverable.
|
3.8
|
If there is any deficiency in any insurance money received by the Landlord or the Superior Landlord in respect of the replacement of any damage or destruction because the Tenant has failed to comply with its obligations under paragraph 3.4 or if any insurance valuation provided under that paragraph is shown (even allowing for reasonable inflation) to have been too low at the time it was given, to pay the Landlord the amount of the deficiency by reason of these matters in the insurance money.
|
3.9
|
To pay to the Landlord on demand an amount equal to the total of all excess sums which the insurers are not liable to pay out on any insurance claim in respect of the Premises and which the Landlord or the Superior Landlord has paid in repairing Damage to the Premises.
|
4
|
Rent Cesser
|
4.1
|
This paragraph 4.1 applies if:
|
(a)
|
there is Damage or Uninsured Damage rendering the Premises incapable of occupation and use or inaccessible; and
|
(b)
|
in the case of Damage the insurance has not been vitiated by the Tenant.
|
4.2
|
The rents first and secondly reserved by this Lease or a fair proportion of them (having regard to the nature and extent of the Damage or Uninsured Damage sustained and to any extent that the insurance has been vitiated by the Tenant) shall be suspended and cease to be payable from the date when the Damage or Uninsured Damage occurs until the date on which the Premises are made fit for occupation and use and accessible.
|
4.3
|
Any dispute about the suspension of rent shall be referred to the award of a single arbitrator to be appointed in default of agreement on the application of the Landlord or the Tenant to the President for the time being of the Royal Institution of Chartered Surveyors in accordance with the Arbitration Act 1996.
|
4.4
|
The Premises are not to be treated as incapable of occupation and use by reason only that tenant's fixtures and fittings have not been reinstated.
|
5
|
Option to Determine Following Damage
|
5.1
|
If following Damage rendering the Premises incapable of occupation and use or inaccessible the Superior Landlord has not commenced the reinstatement of the Premises in accordance with paragraph 2.7 of schedule 8 of the Superior Lease by the third anniversary of the date on which the Damage occurs then (subject to paragraphs 5.3 and 5.4) the Landlord or the Tenant may on service of notice in writing given to the other at any time following such third anniversary (unless the Landlord or the Superior Landlord has in the meantime commenced such reinstatement) forthwith determine this Lease (but without prejudice to any claim by either party in respect of any antecedent breach of covenant).
|
5.2
|
The right for the Landlord to determine this Lease under paragraph 5.1 is conditional upon the Landlord having used all reasonable endeavours to procure that the Superior Landlord obtains all necessary consents to carry out the works of reinstatement of the Premises with all due diligence.
|
5.3
|
The right for the Tenant to determine this Lease under paragraph 5.1 or 5.2 is conditional upon the insurance not having been vitiated by the Tenant any person deriving title from the Tenant or their respective employees agents or visitors unless the Tenant has paid the amount due in accordance with paragraph 3.6.
|
6
|
Uninsured Damage
|
6.1
|
If there is Uninsured Damage and the Superior Landlord serves a notice in writing (an "Election Notice") on the Landlord at any time following the date on which Uninsured Damage occurs electing to rebuild or reinstate the Premises paragraph 2.7 of schedule 8 of the Superior Lease shall apply as if the Uninsured Damage had been Damage and paragraph 5 shall apply as if the Uninsured Damage had been Damage but substituting for the third anniversary of the date on which Damage occurred the corresponding anniversary of the date on which the Election Notice is served.
|
6.2
|
If the Superior Landlord has not served on the Landlord an Election Notice within 12 months following the date on which Uninsured Damage occurs (time being of the essence) in accordance with paragraph 6.1 either the Landlord or the Tenant may on service of notice in writing given to the other at any time thereafter (unless in the meantime the Superior Landlord gives an Election Notice) forthwith determine this Lease (but without prejudice to any claim by either party in respect of any antecedent breach of covenant).
|
7
|
Retention of Insurance Proceeds
|
1
|
In
this schedule the following expressions have the respective meanings:
|
(a)
|
the Permitted Use and the Premises comply with Planning Law and every other Enactment and that the lessee may lawfully implement and carry on the Permitted Use;
|
(b)
|
the Premises are fit for immediate occupation and operation of the Permitted Use;
|
(c)
|
no work has been carried out to the Premises which has diminished their rental value;
|
(d)
|
in case the Building or any part of it or the essential means of access to it has been destroyed or damaged the Building or such essential means of access has been fully restored;
|
(e)
|
the Premises have been completed to the standard described in the Specification and as so completed comply with every Enactment;
|
(f)
|
all tenant's fixtures and fittings have been removed and the Premises have been made good immediately prior to the Rent Review Date;
|
(g)
|
the Net Internal Area of the Premises is 5,249 square feet / 487,648 square metres, but disregarding any effect on rent of:
|
(i)
|
the fact that the Tenant or any underlessee or other occupier or their respective predecessors in title has been or is in occupation of the Premises;
|
(ii)
|
any goodwill attached to the Premises by the carrying on in them of the business of the Tenant or any underlessee or other occupier or their respective predecessors in title;
|
(iii)
|
any works carried out to the Premises before or during the Term by the Tenant or any permitted underlessee or other occupier otherwise than in pursuance of any obligation to the Landlord (save in compliance with statutory obligations);
|
(iv)
|
the fact that the Tenant is in occupation of any other part of the Building.
|
2
|
The yearly rent first reserved and payable under this Lease for each year of the Term until the Rent Review Date is the Initial Rent.
|
3
|
The yearly rent first reserved and payable from the Rent Review Date until the expiry of the Term shall be the higher of:
|
3.1
|
the Initial Rent (ignoring any rent cesser under Schedule 5
(Insurance and Repair of
Damage));
and
|
3.2
|
the Review Rent.
|
4
|
If the Landlord and the Tenant shall not have agreed the Review Rent by the date three months before the Rent Review Date it shall (without prejudice to the ability of the Landlord and Tenant to agree it at any time) be assessed as follows:
|
4.1
|
the Review Surveyor shall (in the case of agreement about his appointment) be appointed by the Landlord or the Tenant to assess the Review Rent or (in the absence of agreement at any time about his appointment) be nominated to assess the Review Rent by or on behalf of the President for the time being of the Royal Institution of Chartered Surveyors on the application (which shall not be made before the date three months before the Rent Review Date) of the Landlord or the Tenant;
|
4.2
|
the Review Surveyor shall act as an arbitrator and the arbitration shall be conducted in accordance with the Arbitration Act 1996 ("
the Act
"), and the Landlord and the Tenant agree that:
|
(a)
|
upon written request from the Landlord or the Tenant the arbitrator shall assess the Review Rent with a hearing and not solely upon written submissions;
|
(b)
|
for the purposes of section 53 of the Act the seat of the arbitration is in England and Wales; and
|
(c)
|
for the purposes of section 54(1) of the Act the date of the award is to be the earlier of 10 working days after notification to the parties by the arbitrator that the award is ready and available for publication subject to payment of the arbitrator's fees and expenses in full and the date of the award if the arbitrator's fees have been paid in full before then;
|
4.3
|
if the Review Surveyor refuses to act, or is or becomes incapable of acting or dies, the Landlord or the Tenant may apply to the President for the appointment of another Review Surveyor.
|
5
|
If the Review Rent has not been agreed or assessed by the Rent Review Date the Tenant shall:
|
5.1
|
continue to pay the Initial Rent on account; and
|
5.2
|
pay the Landlord, within 28 days after the agreement or assessment of the Review Rent, any amount by which the Review Rent for the period commencing on the Rent Review Date and ending on the quarter day following the date of payment exceeds the Initial Rent paid on account for the same period, plus interest (but calculated at 4% per annum below the Stipulated Rate) for each instalment of rent due on and after the Rent Review Date on the difference between what would have been paid on that rent day had the Review Rent been fixed and the amount paid on account (the interest being payable from the date on which the instalment was due up to the date of payment of the shortfall).
|
6
|
If any Enactment restricts the right to review rent or to recover an increase in rent otherwise payable then, when the restriction is released, the Landlord ·may, at any time within six months after the date of release, give to the Tenant not less than one month's notice requiring an additional rent review as at the next following quarter day, which shall for the purposes of this Lease be the Rent Review Date.
|
7
|
Time is not of the essence in this Schedule.
|
SIGNED
as a
DEED
by
|
)
|
|
ENDAVA LIMITED
|
)
|
|
acting by two directors or a
|
)
|
|
director and the company secretary
|
)
|
|
|
|
|
Director:
|
|
|
|
|
|
Director/Secretary:
|
|
|
|
|
|
1.0
|
Curtain Walling System
|
1.1
|
General
|
1.2
|
Glazing
|
•
|
Hermetically sealed double glazed units with black spacer and carrier frame. Removal or replacement from external side.
|
•
|
Inner pane: Laminated glass with PVB interlayer.
|
•
|
Outer pane: Clear toughened float glass with a neutral high performance coating.
|
1.3
|
Acoustic Properties
|
•
|
Between internal and external surfaces of curtain walling: 45dB
|
•
|
Between adjoining floors abutting curtain walling: 50dB
|
•
|
Between adjoining rooms on the same floor abutting curtain walling: 50dB
|
2.0
|
Internal Finishes
|
2.1
|
Entrance Hall and Lift Lobbies
|
|
|
|
2.2
|
Reception Desks
|
Front and Top:
|
12mm low iron black float glass, polished all round with uv bonded joints.
|
End panels:
|
Polished 'mirror' stainless steel, radius to exposed corners.
|
2.3
|
Doors and Joinery
|
3.0
|
Building Services
|
3.1
|
Electrical Supply
|
3.2
|
Standby Power
|
•
|
Passenger lifts to ground, and remain out of service.
|
•
|
Fire Fighting Lifts
|
•
|
Fire fighting stair lighting
|
•
|
CCTV
|
•
|
External/Car Parks/loading bay access control
|
•
|
Fire and Voice Alarm systems
|
•
|
Sump pumps
|
3.3
|
Lighting
|
•
|
Office and lift lobby areas: linear fluorescent luminaires with louvers
|
•
|
Plant rooms and car parks: sealed fluorescent luminaires
|
•
|
Staircases and lobbies: compact fluorescent luminaires
|
|
|
|
3.4
|
Small Power
|
3.6
|
Vertical Transportation ,
|
|
|
|
3.7
|
Life Safety Systems
|
4.0
|
Building Management System
|
|
|
|
6.0
|
Fire Detection and Alarm Systems
|
7.0
|
Sprinkler System
|
8.0
|
Toilet Core Fit-Out
|
|
|
|
1.0
|
Ceiling System
|
Nominal floor to ceiling height of:
|
|
4,145mm at Level 1.
|
|
|
2,475mm at Level 2 to 20 & 23.
|
|
|
3,000mm at Level 21, 22, 24 & 25.
|
|
|
2,400mm at Level 26.
|
LRl. Date of lease
|
8 July, 2014
|
LR2. Title number(s)
|
LR2.1 Landlord's title number(s)
Title number(s) out of which this Lease is
granted. Leave blank if title not registered
EGL543245
|
LR2.2 Other title numbers
Title number(s) against which entries of matters referred
to
in LR9, LR10, LR11 and LR13 are
to
be made)
None
|
|
LR3. Parties to this Lease
|
Landlord
GIDE LOYRETIE NOUEL LLP (Registration No. OC335508) whose registered office is at 125 Old Broad Street, London EC2N 1AR
|
Tenant
ENDAVA (UK) LIMITED (Company Registration No. 03919935) whose registered office is at 125 Old Broad Street, London EC2N 1AR
|
|
Other parties
ENDAVA LIMITED (Company Registration No. 05722669) whose registered office is at 125 Old Broad Street, London EC2N 1AR
|
|
LR4. Property
|
In the case of a conflict between this clause and the remainder of this Lease then, for the purposes of registration, this clause shall prevail.
|
See the definition of "Premises" in clause 1 of this Lease.
|
|
LR5. Prescribed statements etc.
|
LR5.1 Statements prescribed under rules 179 (dispositions in favour of a charity), 180 under the Leasehold Reform, Housing and Urban Development Act 1993) of the Land Registration Rules 2003.
None
|
|
LR5.2
This lease is made under, or by reference to, provisions of:
None
|
LR6. Term for which the Property is leased
|
The term specified in this Lease in the Underlease Particulars.
|
LR7. Premium
|
None
|
LR8. Prohibitions or restrictions on disposing of this Lease
|
This lease contains a provision that prohibits or restricts dispositions.
|
LR9. Rights of acquisition etc.
|
LR9.1 Tenant's contractual rights to renew this Lease, to acquire the reversion or another lease of the Property, or to acquire an interest in other land
None
|
LR9.2 Tenant's covenant to (or offer to) surrender this Lease
None
|
|
LR9.3 Landlord's contractual rights to acquire this Lease
None
|
|
LR10. Restrictive covenants given in this Lease by the Landlord in respect of land other than the Property
|
None
|
LR11. Easements
|
LR11.1 Easements granted by this Lease for the benefit of the Property
The easements specified in Schedule 2
(Easements and Rights Granted)
of this Lease.
|
LR11.2 Easements granted or reserved by this Lease over the Property for the benefit of other property
The easements specified in Schedule 3
(Exceptions and Reservations)
of this Lease.
|
|
LR12. Estate rentcharge burdening the Property
|
None
|
LR13. Application for standard form of restriction
|
None
|
LR14. Declaration of trust where there is more than one person comprising the Tenant
|
None
|
DATE:
|
8 July 2014
|
LANDLORD:
|
GIDE LOYRETTE NOUEL LLP
(Company Registration No. OC335508) whose registered office is at 125 Old Broad Street, London EC2N 1AR
|
TENANT:
|
ENDAVA (UK) LIMITED
(Company Registration No. 03919935) whose registered office is at 125 Old Broad Street, London EC2N 1AR
|
GUARANTOR:
|
ENDAVA LIMITED
(Company Registration No. 05722669) whose registered office is at 125 Old Broad Street, London EC2N 1AR
|
PREMISES:
|
Part Level 13 (West), 125 Old Broad Street, London EC2
|
TERM COMMENCEMENT DATE:
|
8 July 2014
|
TERM EXPIRY DATE:
|
20 July 2022
|
INITIAL RENT:
|
£352,020 per annum (exclusive of VAT)
|
RENT COMMENCEMENT DATE:
|
8 November 2014
|
RENT REVIEW DATE:
|
23 July 2018
|
PERMITTED USE:
|
Class B1(a) of the Schedule to the Town and Country Planning (Use Classes) Order 1987
|
LANDLORD'S/TENANT'S OPTION TO BREAK:
|
Mutual Break
|
LANDLORD AND TENANT ACT 1954:
|
Excluded
|
INTEREST ON LATE PAYMENTS:
|
4% above base rate of Royal Bank of Scotland Plc
|
Clause
|
Page
|
|
|
|
|
|
|
1
|
Definitions
|
1
|
|
2
|
Interpretation
|
4
|
|
3
|
Demise and Rents
|
6
|
|
4
|
Tenant's Obligations
|
6
|
|
5
|
Landlord's Obligations
|
15
|
|
6
|
Services
|
16
|
|
7
|
Insurance
|
16
|
|
8
|
Guarantee and Guarantor's Indemnity
|
16
|
|
9
|
Other Agreements and Declarations
|
18
|
|
10
|
Prejudicial Information
|
23
|
|
11
|
Severance
|
24
|
|
|
|
|
|
Schedules
|
|
||
|
|
|
|
Schedule 1 (The Premises)
|
25
|
|
|
Schedule 2 (Easements and Rights Granted)
|
26
|
|
|
Schedule 3 (Exceptions and Reservations)
|
27
|
|
|
Schedule 4 (Covenants etc.)
|
28
|
|
|
Schedule 5
|
29
|
|
|
Part A Additional Service Charge
|
29
|
|
|
Part B Services
|
31
|
|
|
Schedule 6 (Insurance and Repair of Damage)
|
32
|
|
|
Schedule 7 (Rent and Rent Review)
|
36
|
|
|
|
|
|
|
Execution
|
|
||
|
|
|
|
Execution Page
|
39
|
|
(1)
|
GIDE LOYRETTE NOUEL LLP
(Company Registration No. OC335508) whose registered office is at 125 Old Broad Street, London EC2N 1AR (the "
Landlord
")
|
(2)
|
ENDAVA (UK) LIMITED
(Company Registration No. 03919935) whose registered office is at 125 Old Broad Street, London EC2N 1AR (the "
Tenant
")
|
(3)
|
ENDAVA LIMITED
(Company Registration No. 05722669) whose registered office is at 125 Old Broad Street, London EC2N 1AR (the "
Guarantor
")
|
1
|
DEFINITIONS
|
(a)
|
an act or omission of any person acting on behalf of or in connection with any organisation with activities directed towards the overthrowing or influencing of Her Majesty's Government in the United Kingdom or any other government de jure or de facto by force or violence; and/or
|
(b)
|
any other like act or omission which at the relevant time is commonly regarded in the global insurance market as an act of terrorism and which is an exclusion of coverage in the policy or policies of insurance for the Building effected by the Landlord.
|
(a)
|
the Retail Areas; and
|
(b)
|
the Car Park;
|
2
|
INTERPRETATION
|
2.1
|
Where a party comprises more than one person, obligations of that party take effect as joint and several obligations.
|
2.2
|
An obligation by the Tenant not to do (or omit) any act or thing also operates as an obligation not to permit or suffer it to be done (or omitted) and to prevent (or as the case may be) to require it being done.
|
2.3
|
References to:
|
(a)
|
any Clause or Schedule are references to the relevant Clause or Schedule of this Lease and any reference to a Sub-clause or paragraph is a reference to that Sub-clause or paragraph of the Clause or schedule in which the reference appears and headings shall not affect the construction of this Lease;
|
(b)
|
any right of or obligation to permit the Landlord to enter the Premises shall also be construed, subject to the proviso to Clause 4.9
(Entry by the Landlord),
as entitling the Landlord to remain on the Premises with or without equipment and permitting such right to be exercised by all persons authorised by the Landlord and where appropriate will also be exercisable by the Superior Landlord and all persons authorised by him;
|
(c)
|
any consent or approval of the Landlord, or words to similar effect, mean a consent in writing signed by or on behalf of the Landlord and given before the act requiring consent or approval and any such reference which states that the consent or approval will not be unreasonably withheld also means that it will not be unreasonably delayed and such obligation includes where necessary an obligation to obtain the consent or approval in writing of the Superior Landlord;
|
(d)
|
the Premises (except in the definition of Premises and in Clause 4.15
(Dealings with the
lease))
extend, where the context permits, to any part of the Premises;
|
(e)
|
a specific Enactment includes every statutory modification, consolidation and re-enactment and statutory extension of it for the time being in force, except in relation to the Town and Country Planning (Use Classes) Order 1987, which shall be interpreted exclusively by reference to the original provisions of Statutory Instrument 1987 No 764 whether or not it may have been revoked or modified;
|
(f)
|
the last year of the Term includes the final year of the Term if this Lease determines otherwise than by passing of time and references to the expiry of the Term include that type of determination;
|
(g)
|
rents or other sums being due from the Tenant to the Landlord mean that they are exclusive of any VAT; and
|
(h)
|
the Tenant's obligations mean the Tenant's obligations under this Lease and under every agreement which is supplemental or collateral to this Lease.
|
2.4
|
The information contained in the "Underlease Particulars" shall not affect the construction of this Lease and has been included for convenience only.
|
2.5
|
The expression "this Lease" means this Lease and any document which is supplemental hereto or which is collateral herewith or which is entered into pursuant to or in accordance with the terms hereof.
|
3
|
DEMISE AND RENTS
|
4
|
TENANT'S OBLIGATIONS
|
4.1
|
Rent
|
4.2
|
VAT
|
(a)
|
the Landlord obtains credit for such VAT pursuant to sections 24, 25 and 26 Value Added Tax Act 1994 or any regulations made under them; or
|
(b)
|
the VAT is taken into account in the Service Charge.
|
4.3
|
Outgoings
|
(a)
|
To pay all rates and other outgoings assessed on the Premises or on their owner or occupier during the Term (and a proper proportion, reasonably determined by the Landlord as being attributable to the Premises, of any rates and other outgoings assessed on the Premises in common with other premises or on their owners or occupiers) excluding, without prejudice to the rent sixthly reserved and to Clause 4.2 (
VAT
) any tax payable by the Landlord as a result of any actual or implied dealing with the reversion of this Lease or of the Landlord's receipt of income.
|
(b)
|
To pay all charges for water gas and electricity (including meter rents) consumed in the Premises during the Term.
|
4.4
|
Compliance with Enactments
|
4.5
|
Official communications
|
4.6
|
Repair
|
4.7
|
Decoration and general condition
|
(a)
|
To keep the Premises clean and in the last year of the Term, to redecorate and treat the Premises with appropriate materials in a good and workmanlike manner and in a colour scheme and with materials approved by the Landlord but the Tenant shall not be obliged to redecorate or treat the Premises if the need to do so is caused by any of the Insured Risks, to the extent that the insurance money is not rendered irrecoverable or insufficient because of some act or default of the Tenant or of any person deriving title from it or their respective servants or agents.
|
(b)
|
Without prejudice to the generality of Clause 4.7(a) to clean as frequently as reasonably necessary the interior of the window glazing in the Premises.
|
4.8
|
Refuse
|
4.9
|
Entry by the Landlord
|
(a)
|
investigate whether the Tenant has complied with its obligations;
|
(b)
|
take any measurement or valuation of the Premises;
|
(c)
|
inspect and carry out work to the Building which, otherwise, could not be inspected or carried out;
|
(d)
|
read any electricity water and other check meters installed within the Premises;
|
(e)
|
within the last six months of the Term affix and retain on the Premises, without interference but in a position which does not materially affect their amenity, a notice for their disposal and to allow the Landlord to show the Premises to prospective purchasers and their agents or, during the last six months of the Term, to prospective tenants and their agents;
|
(f)
|
enable the Landlord to comply with the covenants on his part and the conditions contained in the Superior Lease; and
|
(g)
|
to exercise the rights described in Schedule 3 (Exceptions and Reservations),
|
4.10
|
Remedying breaches
|
(a)
|
To comply with any notice requiring the Tenant to remedy any breach of its obligations.
|
(b)
|
If the Tenant does not comply with any such notice within a reasonable time, to permit the Landlord to enter the Premises to remedy the breach, as the Tenant's agent.
|
(c)
|
To pay to the Landlord, as a debt and on demand, all the costs and expenses properly incurred by the Landlord in exercising its rights under this Clause.
|
4.11
|
Preserving rights
|
(a)
|
At the Landlord's cost to preserve all rights of light and other easements belonging to the Premises and not to give any acknowledgement that they are enjoyed by consent.
|
(b)
|
Otherwise than at the Landlord's cost not to do or omit anything which might subject the Premises to any new easement and to notify the Landlord, without any delay, of any encroachment which might have that effect.
|
4.12
|
Alterations
|
(a)
|
Not to carry out:
|
(i)
|
any Development;
|
(ii)
|
any works to or affecting any structural element of the Building;
|
(iii)
|
any work affecting the external appearance of the Premises or the Building;
|
(iv)
|
any replacement of the blinds on the inside of the external windows of the said premises other than with blinds of the same appearance and design;
|
(v)
|
the erection of any structure on the Premises.
|
(b)
|
Not to make any other alteration or addition to the Premises without the Landlord's consent which shall not be unreasonably withheld.
|
(c)
|
Not to make any alterations or additions to the electrical wiring and installations within the Premises which would result in a loading on such wiring or installations beyond that which they are designed to bear and not to make any other alterations or additions to the electrical wiring and installations in the Premises to the extent that they are comprised within the Service Media otherwise than in accordance with the conditions laid down by the Institution of Electrical Engineers and/or other regulations of the relevant statutory undertaker.
|
(d)
|
Not without the Landlord's consent which shall not be unreasonably withheld install or maintain within the Premises any equipment or systems providing Wireless Data Services in such a manner as is likely to have an adverse effect on other tenant's equipment or systems within the Building or the Service Media.
|
(e)
|
The parties agree that the terms of the Licence to Alter dated 22 December 2010 and made between (1) 125 OBS (Nominees 1) Limited and 125 OBS (Nominees 2) Limited (2) Gide Loyrette Nouel LLP (3) Endava (UK) Limited (4) Pierre Raoul-Duval and Christopher Eck (acting on behalf of Gide Loyrette Nouel AARPI) and (5) Endava Limited and any other licences to do works or make alterations to the Premises granted to the Tenant under the Existing Lease shall be preserved and interpreted as though they are supplemental to this Lease and the Tenant covenants to comply with any reinstatement provisions in such documents at the end of the Term.
|
4.13
|
Use
|
(a)
|
for any purpose which causes a nuisance, disturbance or obstruction to any person or property;
|
(b)
|
for any public auction or public meeting or for any noxious, noisy, or immoral activity, or for residential purposes and not to transact any business on the Common Parts or the Additional Common Parts; or
|
(c)
|
(without prejudice to the preceding paragraphs of this Clause) except for the Permitted Use.
|
4.14
|
Signs, aerials etc.
|
4.15
|
Dealings with the lease
|
(a)
|
In Clause 4.15
(Dealings with the lease
), any reference to a transfer includes an assignment.
|
(b)
|
Not to transfer, mortgage, charge, hold on trust for another, underlet or otherwise part with possession of part only of the Premises.
|
(c)
|
Not to transfer, mortgage, charge, hold on trust for another, underlet or otherwise part with possession of the whole of the Premises, except that the Tenant may:
|
(i)
|
transfer the whole of the Premises if, before the transfer is completed, the Tenant complies with the conditions described in Clause 4.15(d); and
|
(ii)
|
underlet the whole of the Premises if, before the underletting is completed, the Tenant complies with the conditions described in Clause 4.15(e);
|
(d)
|
(Transfer). Not to transfer the whole of the Premises without complying with the following conditions (which are specified for the purposes of section 19(1A) of the Landlord and Tenant Act 1927 and which operate without prejudice to the Landlord'sright to withhold consent on any reasonable ground):
|
(i)
|
that the Tenant if reasonably required by the Landlord enters into an authorised guarantee agreement, as defined in section 16 of the Landlord and Tenant (Covenants) Act 1995, with the Landlord in a form which the Landlord reasonably requires; and
|
(ii)
|
that any guarantor of the Tenant'sobligations if reasonably required by the Landlord guarantees to the Landlord that the Tenant will comply with the authorised guarantee agreement in a form which the Landlord reasonably requires; and
|
(iii)
|
that the Tenant has paid to the Landlord all rents reserved and other sums properly due under this Lease prior to the date of assignment; and
|
(iv)
|
that there are no breaches of the Tenant's covenants contained in this Lease prior to the date of the assignment; and
|
(v)
|
that, subject as provided in paragraph (iv) and if the Landlord so reasonably requires, the proposed transferee procures one, but not both, of the following:
|
(A)
|
covenants with the Landlord by an additional guarantor or guarantors approved by the Landlord (who shall act reasonably in giving its approval), in terms reasonably required by the Landlord; or
|
(B)
|
a deposit with the Landlord of an amount in cleared funds equal to one half of the then current yearly rent first reserved by this Lease and an amount equal to VAT on that amount, on terms which the Landlord reasonably requires; and
|
(vi)
|
if the proposed transfer is to a Group Company; and
|
(A)
|
if the Tenant's obligations, or any of them, are guaranteed by another Group Company, that such Group Company covenants with the Landlord in terms reasonably required by the Landlord; or
|
(B)
|
if the Tenant's obligations are not guaranteed by another Group Company and if the transferee is not, in the Landlord's reasonable opinion, of equal financial standing to the Tenant, that the proposed transferee procures covenants by a Group Company other than the Tenant and the transferee and which is, in the Landlord's reasonable opinion, of equal financial standing to the Tenant, in a form which the Landlord reasonably requires; and
|
(C)
|
whether or not paragraph (4)(a) or (4)(b) applies, if the Tenant's obligations, or any of them, are secured by a security deposit, the proposed transferee procures a deposit with the Landlord of the amount and on terms described in paragraph (3)(b); and
|
(vii)
|
Prior to the expiry of the Existing Lease the Tenant may not assign the whole of the Premises without also assigning the Existing Lease to the same assignee at the same time. The assignment of the Existing Lease shall be governed by the terms of the Existing Lease.
|
(viii)
|
that the Landlord's consent, which will not be unreasonably withheld, is obtained to, and within three months before, the transfer.
|
(e)
|
(Underletting).
|
(i)
|
Not to underlet the whole of the Premises except:
|
(A)
|
to a person who has covenanted with the Landlord and the Superior Landlord:
|
(1)
|
to observe the Tenant's obligations in this Lease and the Landlord's obligations as tenant under the Superior Lease to the extent they relate to the Premises (other than the payment of rents); and
|
(2)
|
not to transfer any part of the Premises or to underlet or otherwise part with possession or share the occupation of the Premises or any part of them;
|
(B)
|
by reserving as a yearly rent, without payment of a fine or premium, an amount equal to the then open market rack rental value of the Premises to be payable by equal quarterly instalments in advance on the usual quarter days and by reserving, as additional rents, amounts equal to and payable at the same times as the other rents reserved by this Lease provided that if in the Superior Landlord or Landlord's reasonable opinion the proposed yearly rent is not equal to the open market rent as required above but the Landlord and/or the Superior Landlord is nevertheless willing to provide its consent to a proposed underletting it shall be entitled to include in any licence to underlet a statement that the Landlord and/or the Superior Landlord does not accept the yearly rent being reserved is equal to the open market rent for the Premises;
|
(C)
|
by a form of underlease which:
|
(1)
|
requires the principal rent reserved by it to be reviewed upwards only at five yearly intervals on dates which do not need to be the same as the Review Date provided that the date for review would mean that the rent under the underlease would be reviewed within 12 months prior to or after the Review Date which will occur during the sub-term, in accordance with the same principles which apply to rent reviews under this Lease;
|
(2)
|
requires the underlessee to observe the Tenant's obligations in this Lease and the Landlord's obligations as tenant under the Superior Lease (other than the obligation to pay rents under this Lease) to the extent they relate to the premises;
|
(3)
|
contains:
|
(I)
|
a condition for re-entry by the underlessor on breach of any obligation by the underlessee;
|
(II)
|
an unqualified covenant not to transfer the whole of the Premises or any part of them or to underlet or otherwise part with possession or share the occupation of the Premises or any part of them;
|
(D)
|
with the Superior Landlord and the Landlord's consent, issued within three months before completion of the underletting, which consent (subject to compliance with the foregoing conditions precedent) shall not be unreasonably withheld.
|
(ii)
|
To enforce the observance by any underlessee of the provisions of the underlease and not expressly or impliedly to waive any breach of them, not to vary the terms of any underlease.
|
(iii)
|
Not to agree any reviewed rent payable under an underlease and, if the rent review under any underlease is to be determined by an independent person, not to agree his appointment, in either case without the Landlord's and the Superior Landlord's consent which shall not be unreasonably withheld; and to procure that any representations which the Landlord and the Superior Landlord may wish to make in relation to the rent review are duly submitted to the independent person and to provide the Landlord and the Superior Landlord promptly, when the same are available, with copies of any representations made on the Tenant's or the underlessee's behalf in relation to the rent review.
|
(f)
|
(Sharing occupation). Not to share the occupation of the Premises or any part of them except that the Tenant may share occupation with a person which is, but only for so long as it remains, a Group Company provided the Tenant does not grant any such person sharing occupation exclusive possession nor create any relationship of landlord and tenant, nor otherwise transfer or create a legal estate, and the Tenant shall notify the Landlord of the identity of each person in occupation.
|
4.16
|
Notifying Landlord of dealings with the lease
|
4.17
|
Payment of cost of notices, consents etc.
|
(a)
|
the preparation and service of a notice under section 146 Law of Property Act 1925, or in contemplation of any proceedings under sections 146 or 147 of that Act, notwithstanding that forfeiture is avoided otherwise than by relief granted by the court;
|
(b)
|
every step taken during or within a reasonable time after the expiry of the Term (being in any event no longer than 12 months thereafter) in connection with the enforcement of the Tenant's obligations, including the service or proposed service of all notices and schedules of dilapidations and reasonable consultants' fees incurred in monitoring any action taken to remedy any breach of the Tenant's obligations; and
|
(c)
|
every application for consent or approval under this Lease, even if the application is withdrawn or properly refused.
|
4.18
|
Installing machinery in the Premises
|
(a)
|
the efficiency of the heating, ventilation, air conditioning and cooling systems installed in the Building to be diminished or impaired in any way; or
|
(b)
|
any interference or other intrusive effect on any other part of the Building or other adjoining property or persons outside the Premises.
|
4.19
|
Obstruction/overloading
|
(a)
|
or damage any part of the Building or the Footpath or exercise any of the rights granted by this Lease in a way which causes an actionable nuisance or a material disturbance;
|
(b)
|
any means of escape;
|
(c)
|
or discharge any deleterious matter into:
|
(i)
|
any conduit serving the Premises and, to the extent they lie within the Premises, to keep them clear and functioning properly; or
|
(ii)
|
any Service Media;
|
(d)
|
or stop-up or obscure any openings of the Premises;
|
(e)
|
any notice erected on the Premises, including any erected by the Landlord in accordance with its powers under this Lease,
|
4.20
|
Goods delivery/parking
|
4.21
|
Complying with Planning Law and compensation
|
(a)
|
Without prejudice to Clause 4.4
(Compliance with Enactments)
to comply with the provisions and requirements of Planning Law relating to or affecting:
|
(i)
|
the Premises;
|
(ii)
|
any operations works acts or things carried out executed done or omitted on the Premises;
|
(iii)
|
the use of the Premises;
|
(iv)
|
the use of (and the exercise of any other rights hereunder in respect of) any other parts of the Building.
|
(b)
|
Subject to the provisions of paragraph 4.21(c) of this Sub-clause as often as occasion requires during the Term at the Tenant's expense to obtain and if appropriate renew all planning permissions (and serve all notices) required under Planning Law in respect of the Premises whether for carrying out by the Tenant of any operations or the institution or continuance by the Tenant of any use of the Premises or any part thereof or otherwise.
|
(c)
|
Not without the Landlord's consent to apply for any planning permission relating to the Premises (and not to apply for any such planning permission relating to any other part of the Building) but so that subject to compliance with paragraph 4.21(e) of this Sub-clause the Landlord's consent shall not be unreasonably withheld to the making of a planning application in respect of the Premises relating to any operations or use or other thing (if any) which assuming it to be implemented in accordance with Planning Law would otherwise not be in breach of the provisions of this Lease.
|
(d)
|
If the Landlord so requires in connection with any relevant proposal by the Tenant to apply for a determination under section 192 Town and Country Planning Act 1990.
|
(e)
|
If the Landlord consents in principle to any application by the Tenant for planning permission to submit a draft of the application to the Landlord for its approval and to give effect to its reasonable requirements in respect thereof and if and to the extent the Landlord so requires to lodge the application with the relevant authority in the joint names of the Landlord and the Tenant and in duplicate.
|
(f)
|
Not to implement any planning permission before the Landlord has acknowledged that its terms are acceptable nor before the Landlord has received any cash or other security which it reasonably requires for compliance with any conditions imposed by the planning permission.
|
(g)
|
Unless the Landlord otherwise directs to complete before the expiry of the Term all works on the Premises required as a condition of any planning permission implemented by the Tenant or by any person claiming under or through it.
|
(h)
|
If the Tenant receives or is entitled to receive any statutory compensation under any Enactment in relation to its interest in the Premises the Tenant shall on any determination of its interest prior to the expiry of this Lease by effluxion of time forthwith make such provision as is just and equitable for the Landlord to receive its due benefit from such compensation.
|
4.22
|
Indemnifying the Landlord
|
(a)
|
as soon as reasonably practicable give the Tenant written notice and full details of any claim;
|
(b)
|
consider written representations made by the Tenant relating to any claim;
|
(c)
|
not settle or compromise any claim without having given the Tenant reasonable opportunity to make representations to the Landlord; and
|
(d)
|
use all reasonable endeavours to mitigate as far as practicable any loss or cost incurred or caused to it as a result of any such claim.
|
4.23
|
Notifying defects in the Premises
|
(a)
|
an obligation on the Landlord to do, or refrain from doing, anything in relation to the Premises; or
|
(b)
|
any duty of care, or the need to discharge such duty, imposed by the Defective Premises Act 1972,
|
4.24
|
Dangerous and contaminative materials
|
4.25
|
Returning the Premises to the Landlord
|
(a)
|
On the termination of the tenancy created by this Lease to remove :
|
(i)
|
all chattels, tenant's fixtures and fittings, furniture and belongings; and
|
(ii)
|
all alterations and additions made to the Premises at any time by the Tenant or by any person deriving title from it and quietly to yield up the Premises so that they are reinstated and restored to category A specification in accordance with the Specification and in the condition decorative order and layout otherwise required by this Lease and any licences or consents issued under it and to make good any damage so caused in a proper and workmanlike manner to the Landlord's reasonable satisfaction and to return all keys to the Landlord provided that the Tenant may request the Landlord no later than seven months prior to the expiry of the Term to notify the Tenant of any such items that the Landlord does not require reinstating in accordance with this Clause but any such decision as to what items are not to be reinstated and restored in accordance with the Specification shall be at the discretion of the Landlord and provided that if the Landlord has not served on the Tenant a schedule of disrepair or dilapidation within 3 months from the end of the Term then the Tenant is deemed to have yielded
|
(b)
|
The Tenant irrevocably authorises the Landlord to remove and dispose of any chattels which may be left in the Premises after the Tenant has quit them (without being obliged to obtain any consideration for the disposal) and the Tenant irrevocably declares that any such chattels will stand abandoned by it.
|
4.26
|
Regulations and Covenants
|
(a)
|
all reasonable regulations made by the Landlord or the Superior Landlord from time to time and notified to the Tenant in writing for the good management of the Building and the Footpath so long as the regulations are made in the interests of good estate management and do not conflict with any express right of the Tenant under this Lease provided always that if there shall be any inconsistency between the terms of this Lease and any of the said regulations then the terms of this Lease shall prevail.
|
(b)
|
all covenants and other matters affecting the Premises and not to interfere with any rights, easements or other matters affecting the Premises including in each case, but not limited to, those contained or referred to in the documents referred to in Schedule 4
(Covenants etc.)
save for those contained or referred to in entry no. 6 in the property register of title number NGL857873 dated the date of this Lease.
|
4.27
|
Security and access
|
4.28
|
Land Registry
|
(a)
|
To make due application to the Land Registry for the cancellation of any notice of, or relating to, this Lease or any document supplemental or collateral to it as and when such notice is no longer relevant or required to protect the interest of the Tenant or any permitted undertenant and, on request, to supply the Landlord with a copy of the application.
|
(b)
|
For the purpose of securing the Tenant's obligation in Clause 4.28(a) the Tenant hereby irrevocably appoints the Landlord and its successors in title severally as attorney of the Tenant and in its name (and with power to appoint the Landlord's solicitors as substitute attorney) to make any application referred to in that Clause, but only if the Tenant is in breach of obligation to apply itself.
|
4.29
|
Superior Lease
|
5
|
LANDLORD'S OBLIGATIONS
|
5.1
|
Quiet enjoyment
|
5.2
|
Superior Lease
|
(a)
|
The Landlord shall pay the rents due pursuant to the Superior Lease and on the request and at the expense of the Tenant the Landlord shall take all reasonable steps to enforce the covenants on the part of the Superior Landlord contained in the Superior Lease.
|
(b)
|
The Landlord shall take all reasonable steps (but which shall not require the Landlord to commence court proceedings) at the Tenant's expense to obtain the consent of the Superior Landlord whenever the Tenant makes application for any consent required under this Lease where the consent of both the Landlord and the Superior Landlord is needed by virtue of this Lease and the Superior Lease subject to the Tenant providing sufficient information (at its own cost) to the Landlord in order to make such an application and the Tenant providing all reasonable assistance generally to the Landlord in making such an application.
|
5.3
|
Warranties
|
(a)
|
this obligation shall only apply if the Landlord would be entitled to claim and seek redress from the contractor or relevant member of the professional team from whom it has been given a collateral warranty; and
|
(b)
|
on the basis that the Landlord is obliged to use reasonable endeavours to make a claim as aforesaid (and shall not be obliged to commence legal action to do so); and
|
(c)
|
the contractor or relevant member of the professional team is not insolvent (or has otherwise not ceased to trade).
|
6
|
SERVICES
|
6.1
|
Subject to payment by the Tenant of the Service Charge Expenditure, the Additional Service Charge and to the provisions of Schedule 5 the Landlord will use all reasonable endeavours to enforce the Superior Landlord's obligations contained in schedules 5 and 6 of the Superior Lease relating to the provision of the Services and to provide the Additional Services.
|
6.2
|
The Landlord will provide the Tenant with a copy of the service charge certificate provided to it under the terms of the Superior Lease as soon as reasonably practicable following receipt of it from the Superior Landlord.
|
7
|
INSURANCE
|
8
|
GUARANTEE AND GUARANTOR'S INDEMNITY
|
8.1
|
The rents reserved by this Underlease shall be duly paid and that all the Tenant's obligations contained in it shall be performed and observed in the manner and at the times herein specified and that if there is any default in paying the rents or in performing and observing the Tenant's obligations (notwithstanding any time or indulgence granted by the Landlord to the Tenant or compromise neglect or forbearance on the part of the Landlord in enforcing the observance and performance of the Tenant's obligations in this Underlease or any
|
8.2
|
If any liquidator or other person having power to do so disclaims this Underlease or if it shall be forfeited or if the Tenant ceases to exist and if the Landlord by written notice served within three months after the date of disclaimer or forfeiture or the Landlord having actual knowledge of the cesser of existence of the Tenant (each a
"Trigger Event")
requires the Guarantor to enter as tenant thereunder into a lease and any supplemental documents of the Premises for a term computed from the date of the Trigger Event to the date on which the Term would have expired by effluxion of time and at the same rents and subject to the same covenants stipulations conditions and provisions as are reserved by and contained in this Underlease immediately before the Trigger Event (the said new lease and the rights and liabilities thereunder to take effect as from the date of such Trigger Event) and the Guarantor shall execute and deliver to the Landlord a counterpart of it and indemnify the Landlord upon demand against the costs incurred on the grant of the new lease.
|
8.3
|
The liability of the Guarantor hereunder shall not be released reduced affected or prejudiced by reason of:
|
(a)
|
any variation or waiver of or addition to the terms of this Underlease or any of them agreed between the Landlord and the Tenant; or
|
(b)
|
the surrender by the Tenant of part of the Premises (in which event the liability of the Guarantor shall continue in relation to the Tenant's obligations in respect of the part of the Premises not so surrendered); or
|
(c)
|
any legal limitation immunity disability incapacity occurrence of insolvency or the winding-up of the Tenant; or
|
(d)
|
(without limitation to the foregoing) any other act or thing by which (but for this provision) the Guarantor would have been discharged or released (in each case in whole or in part) from liability under this guarantee and indemnity
|
8.4
|
If this Underlease is forfeited or the Tenant ceases to exist and for any reason the Landlord does not require the Guarantor to accept a new Underlease of the Premises in accordance with Clause 8.2 the Guarantor shall pay to the Landlord on demand (in addition to any other loss damage costs charges expenses or other liability which the Guarantor may be required to make good hereunder and without prejudice to any other rights of the Landlord) an amount equal to the rents which would have been payable hereunder but for such Trigger Event (so far as such rents do not otherwise continue to be payable) for the period commencing on the date of such Trigger Event and ending on whichever is the earlier of the date one year after the date of such Trigger Event and the date (if any) upon which rent is first payable in respect of the whole of the Premises on a reletting thereof.
|
8.5
|
Without prejudice to the rights of the Landlord against the Tenant the Guarantor shall be a principal obligor in respect of its obligations under this Clause and not merely a surety and accordingly the Guarantor shall not be discharged nor shall its liability hereunder be affected by any act or thing or means whatsoever by which its said liability would not have been discharged if it had been a primary debtor.
|
8.6
|
The Guarantor shall pay all charges (including legal and other costs on a full indemnity basis) incurred by the Landlord in relation to the Landlord's enforcement of this guarantee and indemnity against the Guarantor or for enforcing payment by the Guarantor of amounts indemnified by it hereunder.
|
8.7
|
The Landlord may at its option enforce the terms of this guarantee and indemnity against the Guarantor without having first enforced the covenants and terms of this Underlease against the Tenant and also without first having recourse to any other rights or security which the Landlord may have obtained in relation to this Underlease.
|
8.8
|
The Guarantor shall not be entitled to participate in any security held by the Landlord in respect of the obligations of the Tenant under this Underlease or to any right of subrogation in respect of any such security until all the obligations owed to the Landlord by the Tenant and the Guarantor hereunder have been fully and unconditionally fulfilled and discharged.
|
8.9
|
The Guarantor shall not claim in any liquidation bankruptcy composition or scheme of arrangement in respect of the Tenant in competition with the Landlord and if and to the extent that it receives the same shall remit to (and until remission shall hold in trust for) the Landlord all and any monies received from any liquidator trustee receiver or out of any composition or arrangement or from any supervisor thereof until all the obligations of the Tenant and the Guarantor hereunder owed to the Landlord have been fully and unconditionally fulfilled and discharged.
|
8.10
|
This guarantee and indemnity shall enure for the benefit of the Landlord's successors in title under this Underlease without the necessity for any assignment thereof.
|
9
|
OTHER AGREEMENTS AND DECLARATIONS
|
9.1
|
Forfeiture and re-entry
|
(a)
|
any rent is unpaid for twenty-one days after becoming payable (whether the rent has been demanded or not); or
|
(b)
|
there is any other material breach of the Tenant's obligations; or
|
(c)
|
the guarantee by any guarantor of the Tenant's obligations is or becomes wholly or partly unenforceable for any reason; or
|
(d)
|
if the Tenant or any guarantor of the Tenant's obligations (or if more than one person any one of them):
|
(i)
|
being a company enters into liquidation whether compulsory or voluntary (except for the purpose of amalgamation or reconstruction of a solvent company on terms previously agreed by the Landlord such agreement not to be unreasonably withheld), or has a provisional liquidator appointed, or has a receiver or manager (including an administrative receiver) appointed, or is subject to an application to Court for an administration order by petition, or becomes subject to an administration order, or becomes subject to a company voluntary arrangement under Part I of the Insolvency Act 1986, or a scheme of arrangement under Section 425 of the Companies Act 1985, or is deemed unable to pay its debts under Section 123 of the Insolvency Act 1986, or is otherwise deemed insolvent under the provisions of the Insolvency Act 1986; or
|
(ii)
|
being a company incorporated outside the United Kingdom, is the subject of any proceedings or event analogous to those referred to in this Clause in the country of its incorporation or elsewhere or shall otherwise cease for any other reason to be or remain liable under this Lease or shall cease for any reason to maintain its corporate existence (other than by merger consolidation or other similar corporate transaction in which the surviving corporation assumes or takes over the liabilities of the Tenant under this Lease); or
|
(iii)
|
being an individual, is the subject of a bankruptcy petition or bankruptcy order, or of any application or order or appointment under Part VIII of the Insolvency Act 1986 relating to individual voluntary arrangements under Section 273 or Section 286 Insolvency Act 1986 or otherwise becomes bankrupt or insolvent or dies; or
|
(iv)
|
being a company or an individual enters into or makes any proposal to its creditors for a composition in satisfaction of its debts or a scheme of arrangement of its affairs;
|
(e)
|
if the Landlord exercises its right to re-enter the premises demised by the Second Lease, except where the Second Lease has been lawfully assigned to a third party assignee which is not a Group Company of the Tenant or the Guarantor;
|
(f)
|
if the Landlord exercises its right to re-enter the Premises and forfeit the Existing Lease;
|
(g)
|
if the Landlord exercises its right to re-enter the premises demised by the Second Lease and forfeit the Second Lease;
|
9.2
|
Letting scheme, use and easements
|
9.3
|
Common Parts and Service Media
|
(a)
|
The Common Parts and the Service Media remain under the exclusive control and management of the Superior Landlord who may, if it shall be in keeping with the principles of good estate management, alter, divert, substitute, stop up or remove any of them, leaving available for use by the Tenant reasonable and sufficient means of access to and egress from, and servicing for, the Premises provided that as a result of such change the use and enjoyment of the Premises and its access thereto through the Common Parts on a 24 hour basis shall not be materially adversely affected.
|
(b)
|
The Landlord shall not be liable for any closure of any of the Common Parts or stoppage or severance affecting any of the Service Media due to any cause beyond the Landlord's control provided the Landlord takes all reasonable steps to procure that the Superior Landlord remedy the closure stoppage or severance as quickly as reasonably possible.
|
9.4
|
Service of notices
|
(a)
|
In addition to any other method of service, any notice which is served under this Lease shall be validly served if it is served in accordance with section 196 Law of Property Act 1925, as amended by the Recorded Delivery Service Act 1962.
|
(b)
|
If the Landlord Tenant or any guarantor comprises more than one person, it shall be sufficient if notice is served on one of them, but a notice duly served on the Tenant will not need to be served on any guarantor.
|
9.5
|
Landlord's liability
|
(a)
|
without prejudice to the provisions of Clause 9.3
(Common Parts and Service Media)
any closure of any of the Common Parts or stoppage or severance affecting any of the Service Media due to any cause beyond the control of the Landlord or the Superior Landlord (acting reasonably);
|
(b)
|
any act omission or negligence of any of the Landlord's or the Superior Landlord's employees servants or agents in or about the performance or purported performance of any of the Services or for any loss accident damage or injury which may at any time during the Term be suffered by the Tenant or by any person claiming
|
9.6
|
Arbitration fees
|
9.7
|
Rateable value appeals
|
9.8
|
No warranty as to use
|
9.9
|
No warranty as to security
|
9.10
|
Construction (Design and Management) Regulations 2007
|
(a)
|
In this Clause :
|
(i)
|
the expression
"Regulations"
means the Construction (Design and Management) Regulations 2007 (as amended, re-enacted or consolidated from time to time) and any expressions appearing in this Clause which are defined in the Regulations have the same meaning; and
|
(ii)
|
the expression
"relevant work"
means any construction work which is undertaken by the Tenant or by a person claiming under it pursuant to an obligation or a right (whether or not requiring the Landlord's consent) under this Lease and for the purposes of the Regulations the Tenant irrevocably acknowledges that it, and not the Landlord, arranges the design, carrying out and construction of relevant work.
|
(b)
|
The Tenant hereby elects to be treated, and the Landlord consents to the Tenant being treated, as the only client in respect of any relevant work under Regulation 8 of the Regulations.
|
(c)
|
The Tenant shall:
|
(i)
|
comply and procure compliance with the Regulations in respect of any relevant works;
|
(ii)
|
without prejudice to Clauses 9.10(b) and (A) provide such assistance and advice to the Landlord as necessary to allow it to discharge its residual obligations following the election referred to in Clause 9.10(b), under Regulation 8 of the Regulations;
|
(iii)
|
not seek to withdraw, terminate or in any manner derogate either from its obligations under this Clause 9.10(c) or from the election under Clause 9.10(c).
|
(d)
|
The Tenant shall promptly provide to the Landlord a full and complete copy of the health and safety file for all relevant work and (no later than the expiry or sooner determination of this Lease) the original health and safety file "health and safety file" in both cases as defined in the Regulations.
|
(e)
|
The provisions of this Clause shall apply notwithstanding that any consent issued by the Landlord in respect of any relevant work does not refer to the said provisions or to the Regulations.
|
9.11
|
Landlord's rights to apportion
|
9.12
|
Application of 1995 Act
|
9.13
|
Tenant's Break Clause
|
(a)
|
Subject to all of the pre-conditions in Clause 9.13(b) being satisfied on the Break Date and the Tenant having served a prior written notice to terminate this Lease on the Landlord not less than nine months prior to the Break Date, the Tenant may terminate this Lease following which the Term will then terminate on the Break Date but without prejudice to any claim by the Landlord in respect of any antecedent breach of any covenant or obligation of the Tenant or any condition under this Lease.
|
(b)
|
The pre-conditions are that:
|
(i)
|
the Rent plus any VAT on it due up to and including the Break Date has been paid in full to the Landlord and the other rents reserved by Clause 3
(Demise and Rents)
of this Lease which were demanded in writing from the Tenant (save for rents which are the subject of a bona fide dispute) at least 14 days before the Break Date have been paid in full to the Landlord; and
|
(ii)
|
neither the Tenant nor any third parties remain in occupation of any part of the Premises; or
|
(iii)
|
there are no continuing subleases of the Premises.
|
(c)
|
Time is of the essence for the purposes of this Clause .
|
(d)
|
If the Tenant does not exercise its right under Clause 9.13(a) to terminate the lease on the Break Date and provided that:
|
(i)
|
up to and including the Break Date, the Tenant has promptly paid in full to the Landlord the Rent plus any VAT on it and the other rents reserved under Clause 3
(Demise and Rents)
of this Lease which were demanded in writing from the Tenant
(save for rents which are the subject of a bona fide dispute); and
|
(ii)
|
at the Break Date there is not subsisting a material breach of any of the tenant covenants or conditions of this Lease;
|
(e)
|
If the Tenant:
|
(i)
|
serves a valid prior written notice under Clause 9.13(a) to terminate this Lease on the Break Date but it failed to comply with any of the pre-conditions for the break set out at Clause 9.13(b);
|
(ii)
|
does not serve notice to terminate this Lease on the Break Date but it fails to comply with the pre-conditions for the rent concession at Clause 9.13(d);
|
(f)
|
If this Lease terminates in accordance with Clause 9.13 then, within 14 days after the Break Date, the Landlord shall refund to the Tenant the Rent or any other rents reserved pursuant to Clause 3 which the Tenant has paid in advance for any period beyond the expiry of the notice.
|
(g)
|
Within 30 days from the date of such termination the Landlord will carry out a reconciliation in respect of the Service Charge and notify the Tenant of any underpayment or overpayment. Any underpayment by the Tenant will be paid by the Tenant to the Landlord within 14 days of such reconciliation and any overpayment by the Tenant will be refunded to the Tenant within 14 days of such reconciliation.
|
9.14
|
Landlord's Break Clause
|
(a)
|
Subject the Landlord having served a prior written notice to terminate this Lease on the Tenant not less than nine months prior to the Break Date, the Landlord may terminate this Lease following which the Term will then terminate on the Break Date but without prejudice
|
(b)
|
Time is of the essence for the purposes of this Clause.
|
9.15
|
Exclusion of the Security of Tenure
|
(a)
|
The Landlord has served on the Tenant a notice dated 27 June 2014 in the form set out or substantially in the form, set out in Schedule 1 to the Order in relation to the tenancy created by this Lease.
|
(b)
|
The Tenant or a person duly authorised by the Tenant has in relation to that notice made a statutory declaration dated 7 July 2014 in the form, or substantially in the form, set out in paragraph 8 of Schedule 2 to the Order.
|
(c)
|
Where that declaration was made by a person other than the Tenant, the Tenant confirms that the declarant was duly authorised by the Tenant to make the declaration on the Tenant's behalf.
|
(d)
|
The Landlord and the Tenant confirm that the notice and declaration referred to in the previous Clauses were respectively served on and made by the Tenant or the duly authorised person before the Tenant became contractually bound to enter into the tenancy created by this Lease under an agreement dated 15 June 2009 and made between (1) the Landlord (2) the Tenant and (3) the Guarantor.
|
(e)
|
There is no agreement for lease to which this Lease gives effect.
|
(f)
|
The parties agree that the provisions of sections 24 to 28 (inclusive) of the 1954 Act are excluded in relation to the tenancy created by this Lease.
|
(g)
|
The Landlord has served on the Guarantor a notice dated 27 June, 2014 in the form set out or substantially in the form, set out in Schedule 1 to the Order in relation to the tenancy created by this Lease.
|
(h)
|
The Guarantor or a person duly authorised by the Guarantor has in relation to that notice made a statutory declaration dated 7 July 2014 in the form, or substantially in the form, set out in paragraph 8 of Schedule 2 to the Order.
|
(i)
|
Where that declaration was made by a person other than the Guarantor, the Guarantor confirms that the declarant was duly authorised by the Guarantor to make the declaration on the Guarantor's behalf.
|
9.16
|
Exclusion of Third Party Rights
|
9.17
|
Sustainability
|
(a)
|
co-operate and use all reasonable endeavours to agree (and thereafter comply with) an energy management plan to aid the sustainability of resource use at the Building;
|
(b)
|
co-operate and use all reasonable endeavours to agree and operate initiatives to reduce, reuse and/or recycle waste from the Premises and the Building;
|
(c)
|
maintain and share energy data and other information reasonably required to monitor the energy and resource consumption at the Premises and the Building;
|
(d)
|
use reasonable endeavours to ensure that the Services are performed and the Premises and Building used in accordance with the energy management plan (if any) and in such a way as to and to agree to improvements to the Services which would reasonably improve energy efficiency;
|
9.18
|
Jurisdiction
|
10
|
PREJUDICIAL INFORMATION
|
10.1
|
Application of this Clause
|
(a)
|
more than one party to this Lease applies or causes application to be made, (even though independently from any other applicant but in relation to the same prejudicial information) to designate, or further designate, it as an exempt information document in relation to that prejudicial information; and
|
(b)
|
this Lease is, and for so long as it remains, designated as an exempt information document as a result of any application to the registrar,
|
10.2
|
Designation may not be withdrawn
|
(a)
|
may apply or cause application to be made for, or consent to, the removal of the designation referred to in Clause 10.1(a); or
|
(b)
|
is in breach of Clause 10.2(a) by transferring its interest in the Premises.
|
10.3
|
Response to applications for publication
|
(a)
|
If any applicant receives notice under Rule 137(3) concerning an application for an official copy of the prejudicial information referred to in Clause 9.1(a), it shall forthwith copy the notice to each other applicant and each applicant shall take all reasonable steps to object to the application.
|
(b)
|
Each applicant shall notify each other applicant of the steps taken, including representations made, under Clause 10.3(a).
|
10.4
|
Confidentiality
|
(a)
|
No party shall publish or cause or permit to be published any prejudicial information:
|
(i)
|
referred to in Clause 10.1(a); or
|
(ii)
|
which that party is notified by any other party as being the subject of an application for separate designation of this Lease or of any document supplemental or collateral to it as an exempt information document,
|
(b)
|
Clause 10.4(a)(i) applies to any non-applicant party only if the nature of the prejudicial information has been notified to it.
|
10.5
|
Continued liability
|
10.6
|
Land Registration Rules
|
11
|
SEVERANCE
|
11.1
|
If any court or competent authority finds that any provision of this Lease (or part of any provision) is invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Lease shall not be affected.
|
11.2
|
If any invalid, unenforceable or illegal provision of this Lease would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
|
1
|
the interior coverings and interior facing materials of those parts of the external walls of the Building bounding the said premises and of the columns within the said premises and of the walls within the Building separating them from other parts of the Building;
|
2
|
the fixed floor coverings and all materials lying between the upper surface of the structural floor slab and the floor surface;
|
3
|
the suspended ceilings and plasterboard ceiling margins, (including all materials forming part of them; the light fittings and diffusers, terminal air supply and extract grilles) and the ceiling void located directly above the suspended ceiling but beneath the lower surface of the structural slab;
|
4
|
all non-load bearing walls and partitions lying within the said premises;
|
5
|
the doors and door frames within, and on the boundaries of, the said premises (excluding the lift doors);
|
6
|
the blinds on the inside of the external windows of the said premises;
|
7
|
subject to the exclusion in paragraph 11 of this Schedule, the window glazing and window frames and other fenestration within the said premises; and
|
8
|
all superior landlord's and landlord's plant and other apparatus and conducting media in the Building which are designed to serve the said premises exclusively (but subject to the exclusion in paragraph 12 of this Schedule)
|
9
|
all Service Media;
|
10
|
the load bearing structure of the Building including the load bearing structure of the roofs, foundations, external and internal walls and columns and the structural slabs of the ceilings and floors;
|
11
|
the external surfaces of the Building (except the external surfaces of any doors and door frames referred to in paragraph 5) and the whole of the window glazing and window frames and other fenestration constructed in the external walls and in the other boundaries of the said premises; and
|
12
|
the Superior Landlord's base build mechanical, electrical, public health & HVAC services located within the ceiling void directly above the suspended ceiling but beneath the lower surface of the structural slab comprising inter alia the fan coil units and associated controls, chilled water and condensate pipework, fresh air supply & extract ductwork, foul & surface water drainage systems, the lighting control system, emergency batteries, electrical distribution system, the category A smoke and heat detection equipment and fire sprinkler and life safety systems.
|
1
|
The right in connection with the Permitted Use, subject to Clause 9.3
(Common Parts and
Service Media):
|
(a)
|
for the Tenant, its servants and duly authorised agents and visitors, to use the Common Parts and (but in emergency only) all means of escape;
|
(b)
|
to connect to and to use the Service Media and the free passage from and to the Premises through the Service Media and all conducting media serving the Premises; and
|
(c)
|
to use the Loading Bay and the compactor in the Loading Bay.
|
(d)
|
to use a due proportion of the tenants' risers in the Building reasonably allocated by the Landlord and subject to the rights of any third party occupiers the right to enter and remain upon so much as is necessary of other parts of the Building on giving reasonable prior notice (except in the case of emergency but subject to the further proviso at the end of this Schedule) with or without workmen, plant and equipment in order to access such risers to install, repair, maintain, decorate, replace and renew and clean the Premises and conducting media exclusively serving the Premises, and the Tenant shall make good all damage caused to the satisfaction of the Landlord.
|
2
|
The right of support, shelter and protection for the Premises from the other parts of the Building as are enjoyed by the Premises at the date of this Lease.
|
3
|
The right to connect into and to use the house internal telephone system and the house satellite system.
|
4
|
The right to enter the Refuse Area and to place refuse in containers provided for the purpose in the Refuse Area.
|
5
|
The right at the cost of the Tenant to have displayed the name or trading style of the Tenant on the signboard in the entrance lobby of the Offices and in the lift lobby on the floor of the Premises for the display of a single tenants name in a style commensurate with the Landlord and the Superior Landlord's signage in the Offices and in such location as shall be approved by the Landlord and the Superior Landlord (in each case such approval not to be unreasonably withheld or delayed).
|
6
|
A right of way on foot only for all reasonable purposes connected with the use and enjoyment of the Premises over the Footpath.
|
7
|
The non-exclusive right to use the showers in basement level 1 as are from time to time provided together with the right of access to and egress from such showers from the Premises and the Car Park on a 24 hours basis.
|
8
|
The right for the Tenant, its servants and duly authorised agents and visitors, to use the Additional Common Parts in common with the other occupiers of Level 13 of the Building.
|
1
|
The right, at reasonable times on reasonable prior notice (except in an emergency), to enter the Premises as often as may be necessary for all the purposes for which the Tenant agrees to permit entry elsewhere in this Lease and only to the extent that entry to the Premises is necessary for this purpose for all purposes in connection with carrying out the Services or complying with any Enactment.
|
2
|
The right to use and to deal in any way with any Service Media located in or accessible only through the Premises for the benefit of any other part of the Building or any adjacent or neighbouring land provided that the supply of services to the Premises in accordance with paragraph 2 of schedule 5 of the Superior Lease is not thereby adversely affected.
|
3
|
The right to erect and maintain scaffolding on a temporary basis and only to the extent necessary on or against any part of the Building so long as reasonable and sufficient means of accessing and servicing the Premises are maintained and so long as security to the Premises is not compromised.
|
4
|
All rights of light, air and other easements and rights (but without prejudice to those expressly granted by this Lease) enjoyed by the Premises from or over any other part or parts of the Building or any adjacent or neighbouring land.
|
5
|
The right to build alter or extend (whether vertically or laterally) any building notwithstanding that the access of light and air or either of them to the Premises and the lights windows and openings thereof may be affected.
|
6
|
The right, at reasonable times on reasonable prior notice (except in emergency), for any security staff employed by the Superior Landlord or its agents to enter the Premises if it shall be considered necessary or desirable so to do for the security of the Building.
|
7
|
All of the exceptions and reservations contained or referred to in the Superior Lease and all rights reserved to the Superior Landlord pursuant to schedule 3 of the Superior Lease.
|
1
|
Definitions
|
(a)
|
the proportion will be calculated primarily on the basis of the Net Internal Area of the Premises as a proportion of the Net Internal Area of the Superior Lease Premises; but
|
(b)
|
if such comparison becomes inappropriate the Landlord may adopt such other method of calculation as is fair and reasonable in the circumstances (including if appropriate the attribution of all such expenditure to the Premises) and if this is adopted by the Landlord, the Tenant may request copies of the accounts and other documents as may reasonably be necessary to show the method of calculation.
|
2
|
Provision of the Additional Services
|
2.1
|
The Landlord covenants with the Tenant to use all reasonable to endeavours to provide the Additional Services during Normal Business Hours and to use all reasonable endeavours to procure that the Superior Landlord provides the Services outside Normal Business Hours when these are previously requested by the Tenant and at the Tenant's own cost.
|
2.2
|
The Landlord shall not be liable to the Tenant in respect of:
|
(a)
|
any failure or interruption in any of the Additional Services by reason of necessary repair maintenance or replacement of any installations or apparatus or their damage or destruction or by reason of mechanical or
|
(b)
|
any act omission or negligence of any person undertaking the Additional Services or any of them on behalf of the Landlord
|
(c)
|
the failure of the Superior Landlord to provide any of the Services.
|
2.3
|
The Landlord may withhold add to extend vary or alter the Additional Services or any of them from time to time PROVIDED THAT in so doing the Landlord complies with the principles of good estate management and acts reasonably in all the circumstances.
|
3
|
Payment
|
3.1
|
The Tenant shall pay to the Landlord on account of the Additional Service Charge on each quarter day one quarter of the Provisional Additional Service Charge.
|
3.2
|
If the Additional Service Charge for any Accounting Period:-
|
(a)
|
exceeds the Provisional Additional Service Charge payments made on account of the Additional Service Charge the excess will be paid by the Tenant to the Landlord within ten working days of a written demand
|
(b)
|
is less than such payments on account the overpayment will be allowed by the Landlord to the Tenant as a credit against rents to become due or (in the Accounting Period ending on or after the expiry of the Term) will be repaid by the Landlord to the Tenant within ten working days after certification of the statement of Annual Expenditure for that Accounting Period.
|
3.3
|
The Tenant shall pay to the Landlord interest at the Stipulated Rate on any sum owed to the Landlord which is not received by the Landlord on the due date (or in the case of sums due only on demand within 14 days after demand) calculated for the period commencing on the due payment date and ending on the date the sum (and interest) is received by the Landlord.
|
4
|
Service Charge Certificate
|
4.1
|
As soon as practicable and in any event within three months after the expiry of every Accounting Period the Landlord shall prepare and submit to the Tenant a statement of the Annual Expenditure for that Accounting Period containing a fair summary of the expenditure referred to in it and showing the Additional Service Charge for that Accounting Period and upon such statement being certified by the Landlord's surveyor or its managing agents or accountants it will be conclusive evidence for the purposes of this Lease of all matters of fact referred to in the statement (except in the case of manifest error).
|
4.2
|
The Landlord may include in any such statement such proper provision for expenditure in any subsequent year as the Landlord acting reasonably may from time to time consider appropriate.
|
4.3
|
Any omission by the Landlord to include in any such statement any sum expended or liability incurred in that Accounting Period will not preclude the Landlord from including such sum or the amount of such liability in an account for any subsequent year.
|
1
|
Performing the Landlord's obligations under Clause 6
(Services)
and paragraph 2.1 of Part A of this Schedule and paragraphs 2.1 and 2.4 of this Lease.
|
2
|
Equipping furnishing, carpeting, redecorating and repairing from time to time the Additional Common Parts.
|
3
|
Cleaning the Additional Common Parts.
|
4
|
Providing equipping and operating amenities in the Additional Common Parts for persons visiting the Additional Common Parts.
|
5
|
Providing maintaining repairing and renewing directional signs name boards and other notices in or upon the Additional Common Parts.
|
6
|
Complying with all Acts of Parliament relating in any way to the Additional Common Parts its occupation or use and with any notice from any competent authority.
|
7
|
Employing staff or independent contractors or labour for the provision of the Additional Services.
|
8
|
Providing such further services as may from time to time be consistent with the principles of good estate management and/or preserving the amenities of the Additional Common Parts.
|
9
|
Any other reasonable and proper expenses incurred by the Landlord in respect of the Additional Common Parts.
|
1
|
Definition and Interpretation
|
1.1
|
In this schedule:
|
(a)
|
any Uninsured Damage; and
|
(b)
|
any damage or destruction:
|
(i)
|
in respect of which the insurance is vitiated by the Tenant (unless the Tenant promptly pays to the Landlord the amount of insurance monies rendered irrecoverable); or
|
(ii)
|
caused by any type of waste or any act or omission of the Tenant in breach of the Tenant's obligations; or
|
(iii)
|
to the extent it exclusively relates to any demountable partitioning and wall or floor surface coverings installed in the Premises other than at the Landlord's or the Superior Landlord's cost or to any tenant's trade fixtures and fittings or chattels.
|
(c)
|
is not insured because insurance is not available in the London insurance market; or
|
(d)
|
is not insured or fully insured by reason of an exclusion, limitation, term or condition (but not an excess) contained in or imposed by the relevant insurance policy;
|
1.2
|
References in this schedule to "
vitiated
" or "
vitiated by the Tenant
" include any event occurring by the act or default of the Tenant or any person deriving title under or through the Tenant or their respective employees agents and visitors and "vitiation" has a corresponding interpretation.
|
2
|
Landlord's Obligations
|
2.1
|
To use all reasonable endeavours to enforce the Superior Landlord's obligations relating to insurance contained in schedule 8 of the Superior Lease.
|
2.2
|
On request to supply the Tenant (but not more frequently than once in any period of twelve months) with details of such insurance.
|
2.3
|
To procure that the Tenant is informed, on the Landlord or their agents becoming aware of the same, of any material change in the ambit quantum or terms of cover in any policy of insurance applying to the Premises.
|
2.4
|
To use all reasonable endeavours to procure that the Superior Landlord uses all reasonable obligations to procure that the interest of the Tenant is noted on the policy of insurance either specifically or by a general noting of interest of tenants under the conditions of the policy.
|
3
|
Tenant's Obligations
|
3.1
|
To pay to the landlord a yearly sum (and proportionately for any period less than a year) equal to the due proportion attributable to the Premises of the insurance costs paid to the Superior Landlord.
|
3.2
|
Not to do or omit to do anything by which any insurance policy relating to the Building of which the Tenant has been provided with particulars is vitiated.
|
3.3
|
To comply with all requirements and reasonable recommendations of the insurers and to provide and maintain in good working order and keep unobstructed appropriate fire fighting equipment and fire notices on the Premises.
|
3.4
|
To notify the Landlord without delay of the incidence of any Damage and of any other event which ought reasonably to be brought to the attention of insurers.
|
3.5
|
Where the Tenant makes any alteration or addition to the Premises or the Building which the Landlord or the Superior Landlord is required to insure to provide to the Landlord as soon as reasonably practical a written independent current insurance (VAT exclusive) valuation of the work for reinstatement purposes.
|
3.6
|
If the Tenant or any person deriving title under or through it is at any time entitled to the benefit of any insurance of the Premises, to cause all money paid under such insurance to be applied in making good the loss or damage in respect of which it was paid.
|
3.7
|
If the insurance is vitiated by the Tenant, forthwith to pay to the Landlord the amount of any insurance money rendered irrecoverable.
|
3.8
|
If there is any deficiency in any insurance money received by the Landlord or the Superior Landlord in respect of the replacement of any damage or destruction because the Tenant has failed to comply with its obligations under paragraph 3.4 or if any insurance valuation provided under that paragraph is shown (even allowing for reasonable inflation) to have been too low at the time it was given, to pay the Landlord the amount of the deficiency by reason of these matters in the insurance money.
|
3.9
|
To pay to the Landlord on demand an amount equal to the total of all excess sums which the insurers are not liable to pay out on any insurance claim in respect of the Premises and which the Landlord or the Superior Landlord has paid in repairing Damage to the Premises.
|
4
|
Rent Cesser
|
4.1
|
This paragraph 4.1 applies if:
|
(a)
|
there is Damage or Uninsured Damage rendering the Premises incapable of occupation and use or inaccessible; and
|
(b)
|
in the case of Damage the insurance has not been vitiated by the Tenant.
|
4.2
|
The rents first and secondly reserved by this Lease or a fair proportion of them (having regard to the nature and extent of the Damage or Uninsured Damage sustained and to any extent that the insurance has been vitiated by the Tenant) shall be suspended and cease to be payable from the date when the Damage or Uninsured Damage occurs until the date on which the Premises are made fit for occupation and use and accessible.
|
4.3
|
Any dispute about the suspension of rent shall be referred to the award of a single arbitrator to be appointed in default of agreement on the application of the Landlord or the Tenant to the President for the time being of the Royal Institution of Chartered Surveyors in accordance with the Arbitration Act 1996.
|
4.4
|
The Premises are not to be treated as incapable of occupation and use by reason only that tenant's fixtures and fittings have not been reinstated.
|
5
|
Option to Determine Following Damage
|
5.1
|
If following Damage rendering the Premises incapable of occupation and use or inaccessible the Superior Landlord has not commenced the reinstatement of the Premises in accordance with paragraph 2.7 of schedule 8 of the Superior Lease by the third anniversary of the date on which the Damage occurs then (subject to paragraphs 5.3 and 5.4) the Landlord or the Tenant may on service of notice in writing given to the other at any time following such third anniversary (unless the Landlord or the Superior Landlord has in the meantime commenced such reinstatement) forthwith determine this Lease (but without prejudice to any claim by either party in respect of any antecedent breach of covenant).
|
5.2
|
The right for the Landlord to determine this Lease under paragraph 5.1 is conditional upon the Landlord having used all reasonable endeavours to procure that the Superior Landlord obtains all necessary consents to carry out the works of reinstatement of the Premises with all due diligence .
|
5.3
|
The right for the Tenant to determine this Lease under paragraph 5.1 or 5.2 is conditional upon the insurance not having been vitiated by the Tenant any person deriving title from the ) Tenant or their respective employees agents or visitors unless the Tenant has paid the amount due in accordance with paragraph 3.6.
|
6
|
Uninsured Damage
|
6.1
|
If there is Uninsured Damage and the Superior Landlord serves a notice in writing (an "
Election Notice
") on the Landlord at any time following the date on which Uninsured Damage occurs electing to rebuild or reinstate the Premises paragraph 2.7 of schedule 8 of the Superior Lease shall apply as if the Uninsured Damage had been Damage and paragraph 5 shall apply as if the Uninsured Damage had been Damage but substituting for the third anniversary of the date on which Damage occurred the corresponding anniversary of the date on which the Election Notice is served.
|
6.2
|
If the Superior Landlord has not served on the Landlord an Election Notice within 12 months following the date on which Uninsured Damage occurs (time being of the essence) in accordance with paragraph 6.1 either the Landlord or the Tenant may on service of notice in writing given to the other at any time thereafter (unless in the meantime the Superior Landlord gives an Election Notice) forthwith determine this Lease (but without prejudice to any claim by either party in respect of any antecedent breach of covenant) .
|
7
|
Retention of Insurance Proceeds
|
1
|
In this schedule the following expressions have the respective meanings:
|
(a)
|
the Permitted Use and the Premises comply with Planning Law and every other Enactment and that the lessee may lawfully implement and carry on the Permitted Use;
|
(b)
|
the Premises are fit for immediate occupation and operation of the Permitted Use;
|
(c)
|
no work has been carried out to the Premises which has diminished their rental value;
|
(d)
|
in case the Building or any part of it or the essential means of access to it has been destroyed or damaged the Building or such essential means of access has been fully restored;
|
(e)
|
the Premises have been completed to the standard described in the Specification and as so completed comply with every Enactment;
|
(f)
|
all tenant's fixtures and fittings have been removed and the Premises have been made good immediately prior to the Rent Review Date;
|
(g)
|
the Net Internal Area of the Premises is 5,867 square feet/545.062 square meters, but disregarding any effect on rent of:
|
(i)
|
the fact that the Tenant or any underlessee or other occupier or their respective predecessors in title has been or is in occupation of the Premises;
|
(ii)
|
any goodwill attached to the Premises by the carrying on in them of the business of the Tenant or any underlessee or other occupier or their respective predecessors in title;
|
(iii)
|
any works carried out to the Premises before or during the Term by the Tenant or any permitted underlessee or other occupier otherwise than in pursuance of any obligation to the Landlord (save in compliance with statutory obligations);
|
(iv)
|
the fact that the Tenant is in occupation of any other part of the Building.
|
2
|
The yearly rent first reserved and payable under this Lease for each year of the Term until the Rent Review Date is the Initial Rent.
|
3
|
The yearly rent first reserved and payable from the Rent Review Date until the expiry of the Term shall be the higher of:
|
3.1
|
the Initial Rent (ignoring any rent cesser under Schedule 6
(Insurance and Repair of
Damage));
and
|
3.2
|
the Review Rent.
|
4
|
If the Landlord and the Tenant shall not have agreed the Review Rent by the date three months before the Rent Review Date it shall (without prejudice to the ability of the Landlord and Tenant to agree it at any time) be assessed as follows:
|
4.1
|
the Review Surveyor shall (in the case of agreement about his appointment) be appointed by the Landlord or the Tenant to assess the Review Rent or (in the absence of agreement at any time about his appointment) be nominated to assess the Review Rent by or on behalf of the President for the time being of the Royal Institution of Chartered Surveyors on the application (which shall not be made before the date three months before the Rent Review Date) of the Landlord or the Tenant;
|
4.2
|
the Review Surveyor shall act as an arbitrator and the arbitration shall be conducted in accordance with the Arbitration Act 1996 ("
the Act
"), and the Landlord and the Tenant agree that:
|
(a)
|
upon written request from the Landlord or the Tenant the arbitrator shall assess the Review Rent with a hearing and not solely upon written submissions;
|
(b)
|
for the purposes of section 53 of the Act the seat of the arbitration is in England and Wales; and
|
(c)
|
for the purposes of section 54(1) of the Act the date of the award is to be the earlier of 10 working days after notification to the parties by the arbitrator that the award is ready and available for publication subject to payment of the arbitrator's fees and expenses in full and the date of the award if the arbitrator's fees have been paid in full before then;
|
4.3
|
if the Review Surveyor refuses to act, or is or becomes incapable of acting or dies, the Landlord or the Tenant may apply to the President for the appointment of another Review Surveyor.
|
5
|
If the Review Rent has not been agreed or assessed by the Rent Review Date the Tenant shall:
|
5.1
|
continue to pay the Initial Rent on account; and
|
5.2
|
pay the Landlord, within 28 days after the agreement or assessment of the Review Rent, any amount by which the Review Rent for the period commencing on the Rent Review Date and ending on the quarter day following the date of payment exceeds the Initial Rent paid on account for the same period, plus interest (but calculated at 4% per annum below the Stipulated Rate) for each instalment of rent due on and after the Rent Review Date on the difference between what would have been paid on that rent day had the Review Rent been fixed and the amount paid on account (the interest being payable from the date on which the instalment was due up to the date of payment of the shortfall).
|
6
|
If any Enactment restricts the right to review rent or to recover an increase in rent otherwise payable then, when the restriction is released, the Landlord may, at any time within six months after the date of release, give to the Tenant not less than one month's notice requiring an additional rent review as at the next following quarter day, which shall for the purposes of this Lease be the Rent Review Date.
|
7
|
Time is not of the essence in this Schedule.
|
SIGNED
as a
DEED
by
|
)
|
|
ENDAVA LIMITED
|
)
|
|
acting by two directors or a
|
)
|
|
director and the company secretary
|
)
|
|
|
|
|
Director:
|
|
|
|
|
|
Director/Secretary:
|
|
|
125 OLD BROAD STREET
|
||
RENT REVIEW / REINSTATEMENT SPECIFICATION - 05 DECEMBER 2007
|
||
|
1.0
|
Curtain "Walling" system
|
1.1
|
General
|
1.2
|
Glazing
|
•
|
Hermetically sealed double glazed units with black spacer and carrier frame. Removal or replacement from external side.
|
•
|
Inner pane: Laminated glass with PVB interlayer.
|
•
|
Outer pane: Clear toughened float glass with a neutral high performance coating.
|
1.3
|
Acoustic Properties
|
•
|
Between internal and external surfaces of curtain walling: 45dB
|
•
|
Between adjoining floors abutting curtain walling: 50dB
|
•
|
Between adjoining rooms on the same floor abutting curtain walling: 50dB
|
125 OLD BROAD STREET
|
||
RENT REVIEW / REINSTATEMENT SPECIFICATION - 05 DECEMBER 2007
|
||
|
2.0
|
Internal Finishes
|
2.1
|
Entrance Hall and Lift Lobbies
|
2.2
|
Reception Desks
|
Front and Top:
|
12 mm low iron black float glass, polished all around with uv
bonded joints.
|
|
|
End panels:
|
Polished 'mirror' stainless steel, radius to exposed corners.
|
2.3
|
Doors and Joinery
|
125 OLD BROAD STREET
|
||
RENT REVIEW / REINSTATEMENT SPECIFICATION - 05 DECEMBER 2007
|
||
|
3.0
|
Building Services
|
3.1
|
Electrical Supply
|
3.2
|
Standby Power
|
•
|
Passenger lifts to ground, and remain out of service.
|
•
|
Fire Fighting Lifts
|
•
|
Fire fighting stair lighting
|
•
|
CCTV
|
•
|
External/Car Parks/loading bay access control
|
•
|
Fire and Voice Alarm systems
|
•
|
Sump pumps
|
3.3
|
Lighting
|
•
|
Office and lift lobby areas: linear fluorescent luminaires with louvers
|
•
|
Plant rooms and car parks: sealed fluorescent luminaires
|
•
|
Staircases and lobbies: compact fluorescent luminaires
|
125 OLD BROAD STREET
|
||
RENT REVIEW / REINSTATEMENT SPECIFICATION - 05 DECEMBER 2007
|
||
|
3.4
|
Small Power
|
3.5
|
Data & Telephone
|
3.6
|
Vertical Transportation
|
125 OLD BROAD STREET
|
||
RENT REVIEW / REINSTATEMENT SPECIFICATION - 05 DECEMBER 2007
|
||
|
125 OLD BROAD STREET
|
||
RENT REVIEW / REINSTATEMENT SPECIFICATION - 05 DECEMBER 2007
|
||
|
3.7
|
Life Safety Systems
|
4.0
|
Building Management System
|
5.0
|
Security System
|
125 OLD BROAD STREET
|
||
RENT REVIEW / REINSTATEMENT SPECIFICATION - 05 DECEMBER 2007
|
||
|
6.0
|
Fire Detection and Alarm Systems
|
7.0
|
Sprinkler System
|
8.0
|
Toilet Core Fit-Out
|
125 OLD BROAD STREET
|
||
RENT REVIEW / REINSTATEMENT SPECIFICATION - 05 DECEMBER 2007
|
||
|
9.0
|
Sustainability
|
125 OLD BROAD STREET
|
||
RENT REVIEW / REINSTATEMENT SPECIFICATION - 05 DECEMBER 2007
|
||
|
1.0
|
Ceiling System
|
Nominal floor to ceiling height of:
|
4,145mm at Level 1
|
|
2,475mm at Level 2 to 20 & 23
|
|
3,000mm at level 21, 22, 24 & 25
|
|
2,400mm at level 26
|
125 OLD BROAD STREET
|
||
RENT REVIEW / REINSTATEMENT SPECIFICATION - 05 DECEMBER 2007
|
||
|
2.0
|
Lighting
|
125 OLD BROAD STREET
|
||
RENT REVIEW / REINSTATEMENT SPECIFICATION - 05 DECEMBER 2007
|
||
|
3.0
|
Window Blinds
|
4.0
|
Decorative Finishes
|
5.0
|
Raised Floor
|
125 OLD BROAD STREET
|
||
RENT REVIEW / REINSTATEMENT SPECIFICATION - 05 DECEMBER 2007
|
||
|
6.0
|
Carpet
|
7.0
|
Statutory Signs
|
EMEA 115097674
|
|
|
|
|
|
Page
|
|
1.
|
Definitions and Interpretation
|
1
|
|
|
2.
|
The Facility
|
36
|
|
|
3.
|
Purpose
|
38
|
|
|
4.
|
Conditions of Utilisation
|
39
|
|
|
5.
|
Utilisation
|
41
|
|
|
6.
|
Optional Currencies
|
42
|
|
|
7.
|
Ancillary Facilities
|
42
|
|
|
8.
|
Existing Facility Increase and Establishment of Incremental Facilities
|
46
|
|
|
9.
|
Repayment
|
53
|
|
|
10.
|
Prepayment and Cancellation
|
55
|
|
|
11.
|
Interest
|
58
|
|
|
12.
|
Interest Periods
|
59
|
|
|
13.
|
Changes to the Calculation of Interest
|
60
|
|
|
14.
|
Fees
|
62
|
|
|
15.
|
Tax Gross Up and Indemnities
|
64
|
|
|
16.
|
Increased Costs
|
72
|
|
|
17.
|
Other Indemnities
|
74
|
|
|
18.
|
Mitigation by the Lenders
|
76
|
|
|
19.
|
Costs and Expenses
|
77
|
|
|
20.
|
Guarantee and Indemnity
|
78
|
|
|
21.
|
Representations
|
84
|
|
|
22.
|
Information Undertakings
|
89
|
|
|
23.
|
Financial Covenants
|
94
|
|
|
24.
|
General Undertakings
|
100
|
|
|
25.
|
Events of Default
|
107
|
|
|
26.
|
Changes to the Lenders
|
111
|
|
|
27.
|
Changes to the Obligors
|
115
|
|
|
28.
|
Role of the Agent, the Arranger and Others
|
119
|
|
|
29.
|
The Security Agent
|
128
|
|
|
30.
|
Conduct of Business by the Finance Parties
|
140
|
|
|
31.
|
Sharing among the Finance Parties
|
140
|
|
|
32.
|
Payment Mechanics
|
143
|
|
|
33.
|
Set‑Off
|
146
|
|
|
34.
|
Notices
|
146
|
|
|
35.
|
Calculations and Certificates
|
148
|
|
|
|
|
Page
|
|
36.
|
Partial Invalidity
|
148
|
|
|
37.
|
Remedies and Waivers
|
148
|
|
|
38.
|
Amendments and Waivers
|
148
|
|
|
39.
|
Confidential Information
|
150
|
|
|
40.
|
Confidentiality of Funding Rates and Reference Bank Quotations
|
152
|
|
|
41.
|
Counterparts
|
154
|
|
|
42.
|
Contractual recognition of bail-in
|
155
|
|
|
43.
|
Governing Law
|
155
|
|
|
44.
|
Enforcement
|
155
|
|
|
|
|
|
|
|
Schedule 1
|
The Original Parties
|
157
|
|
|
Part 1
|
The Original Obligors
|
157
|
|
|
Part 2
|
The Original Lenders
|
158
|
|
|
|
|
|
|
|
Schedule 2
|
Conditions Precedent
|
159
|
|
|
Part 1
|
Conditions Precedent to Initial Utilisation
|
159
|
|
|
Part 2
|
Conditions Precedent Required to be Delivered by an Additional Obligor
|
163
|
|
|
|
|
|
|
|
Schedule 3
|
Utilisation Request
|
165
|
|
|
|
|
|
|
|
Schedule 4
|
Form of Transfer Certificate
|
166
|
|
|
|
|
|
|
|
Schedule 5
|
Form of Assignment Agreement
|
169
|
|
|
|
|
|
|
|
Schedule 6
|
Form of Accession Letter
|
172
|
|
|
|
|
|
|
|
Schedule 7
|
Form of Resignation Letter
|
174
|
|
|
|
|
|
|
|
Schedule 8
|
Form of Compliance Certificate
|
175
|
|
|
|
|
|
|
|
Schedule 9
|
Existing Security
|
176
|
|
|
|
|
|
|
|
Schedule 10
|
Timetables
|
177
|
|
|
|
|
|
|
|
Schedule 11
|
Form of Increase Confirmation
|
178
|
|
|
|
|
|
|
|
Schedule 12
|
Agreed Security Principles
|
181
|
|
|
|
|
|
|
|
Schedule 13
|
Form of Incremental Facility/Existing Facility Increase Notice
|
187
|
|
|
|
|
|
|
|
Schedule 14
|
Form of New Lender Certificate
|
191
|
|
(1)
|
ENDAVA LIMITED
(the “
Company
”);
|
(2)
|
The Subsidiaries
of the Company listed in Part 1 of Schedule 1 (
The Original Parties
) as original borrowers (together with the Company the “
Original Borrowers
”);
|
(3)
|
The Subsidiaries
of the Company listed in Part 1 of Schedule 1 (
The Original Parties
) as original guarantors (together with the Company the “
Original Guarantors
”);
|
(4)
|
HSBC BANK PLC
as mandated lead arranger (the “
Arranger
”);
|
(5)
|
The Financial Institutions
listed in Part 2 of Schedule 1 (
The Original Parties
) as lenders (the “
Original Lenders
”);
|
(6)
|
HSBC BANK PLC
as agent of the other Finance Parties (the “
Agent
”); and
|
(7)
|
HSBC BANK PLC
as security trustee for the Secured Parties (the “
Security Agent
”).
|
1.
|
Definitions and Interpretation
|
1.1
|
Definitions
|
(a)
|
the Original Lender or any Affiliate of an Original Lender;
|
(b)
|
a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of BBB- or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa3 or higher by Moody’s Investors Service Limited or a comparable rating from an internationally recognised credit rating agency; or
|
(c)
|
any other bank of financial institution approved by the Agent.
|
(a)
|
the Agent’s spot rate of exchange; or
|
(b)
|
(if the Agent does not have an available spot rate of exchange) any other publicly available spot rate of exchange selected by the Agent (acting reasonably),
|
(a)
|
the principal amount under each overdraft facility and on-demand short term loan facility (net of any Available Credit Balance);
|
(b)
|
the face amount of each guarantee, bond and letter of credit under that Ancillary Facility; and
|
(c)
|
the amount fairly representing the aggregate exposure (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility,
|
(a)
|
in relation to the Revolving Facility, the period from and including the date of this Agreement to and including the date falling one Month prior to the Termination Date; and
|
(b)
|
in relation to any Incremental Facility, the period specified as such in the Incremental Facility/Existing Facility Increase Notice relating to that Incremental Facility.
|
(a)
|
the Base Currency Amount of its participation in any outstanding Loans under that Facility and the aggregate of its (and its Affiliate’s) Ancillary Commitments under that Facility; and
|
(b)
|
in relation to any proposed Utilisation or proposed Ancillary Facility, the Base Currency Amount of its participation in any Loans or its (or its Affiliate’s) participation in any new Ancillary Facility that are due to be made under that Facility on or before the proposed Utilisation Date,
|
(a)
|
in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request) as adjusted to reflect any repayment or prepayment of a Loan; and
|
(b)
|
in relation to an Ancillary Commitment, the amount specified as such in the notice delivered to the Agent by the Company pursuant to Clause 7.2 (
Availability
) (or, if the amount specified is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent's Spot Rate of Exchange on the date which is three Business Days before the Ancillary Commencement Date for that Ancillary Facility or, if later, the date the Agent receives the notice of the Ancillary Commitment in accordance with the terms of this Agreement), as adjusted to reflect any reduction of an Ancillary Facility.
|
(a)
|
the interest (excluding Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
(b)
|
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
(a)
|
in relation to the period beginning on the date of this Agreement and ending on 30 June 2018, the Base Case Model to be delivered by the Company to the Agent pursuant to Clause 4.1 (
Initial conditions precedent
); and
|
(b)
|
in relation to any other period, any budget delivered by the Company to the Agent in respect of that period pursuant to Clause 20.4 (
Budget
).
|
(a)
|
(in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency; or
|
(b)
|
(in relation to any date for payment or purchase of euro) any TARGET Day.
|
(a)
|
that cash is repayable within 30 days after the relevant date of calculation;
|
(b)
|
repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Group or of any other person whatsoever or on the satisfaction of any other condition;
|
(c)
|
there is no Security over that cash except for Transaction Security or any Permitted Security constituted by a netting or set-off arrangement entered into by members of the Group in the ordinary course of their banking arrangements; and
|
(d)
|
the cash is freely and (except as mentioned in paragraph (a) above) immediately available to be applied in repayment or prepayment of the Facility.
|
(a)
|
certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank;
|
(b)
|
any investment in marketable debt obligations issued or guaranteed by the government of the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State (other than Greece or Cyprus) or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;
|
(c)
|
commercial paper not convertible or exchangeable to any other security:
|
(i)
|
for which a recognised trading market exists:
|
(ii)
|
issued by an issuer incorporated in the United States of America, the United Kingdom, any member state of the European Economic Area or any Participating Member State (other than Greece or Cyprus);
|
(iii)
|
which matures within one year of the relevant date of calculation;
|
(iv)
|
which has a credit rating of either A-1 or higher by Standard & Poor’s Rating Services or by Fitch Ratings Ltd or A3 or higher by Moody’s Investors Service Limited, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligation, an equivalent rating;
|
(d)
|
sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);
|
(e)
|
any investment in money market funds which (i) have a credit rating of either BBB+ or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa1 or higher by Moody’s Investors Service Limited, (ii) which invest substantially all their assets insecurities of the type described in paragraphs (a) to (d) above and (iii) can be turned into cash on not more than 30 days’ notice;
|
(f)
|
any other debt security approved by the Agent,
|
(a)
|
any member of the Group or any of its advisers; or
|
(b)
|
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
|
(i)
|
information that:
|
(A)
|
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 39 (
Confidential Information
); or
|
(B)
|
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
(C)
|
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
|
(ii)
|
any Funding Rate or Reference Bank Quotation.
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
(b)
|
the occurrence of any other event which results in a disruption (of a technical or systems‑related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
|
(i)
|
from performing its payment obligations under the Finance Documents; or
|
(ii)
|
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
(a)
|
air (including, without limitation, air within natural or man‑made structures, whether above or below ground);
|
(b)
|
water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
|
(c)
|
land (including, without limitation, land under water).
|
(a)
|
the pollution or protection of the Environment;
|
(b)
|
the conditions of the workplace; or
|
(c)
|
the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste.
|
(a)
|
in relation to an Incremental Facility the later of:
|
(i)
|
the proposed Establishment Date specified in the relevant Incremental Facility/Existing Facility Increase Notice; and
|
(ii)
|
the date on which the Agent executes the relevant Incremental Facility/Existing Facility Increase Notice; and
|
(b)
|
in relation to an increase of Commitments the date on which the relevant Incremental Facility/Existing Facility Increase Notice is executed by the Agent.
|
(a)
|
the applicable Screen Rate as of the Specified Time for euro and for a period equal in length to the Interest Period of that Loan; or
|
(b)
|
as otherwise determined pursuant to Clause 13.1 (
Unavailability of Screen Rate
),
|
(a)
|
in respect of a Lender, the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five
|
(b)
|
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
|
(a)
|
sections 1471 to 1474 of the Code or any associated regulations;
|
(b)
|
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
|
(c)
|
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a)
|
in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
(b)
|
in relation to a “withholdable payment” described in section 1473(1)(A)(ii) of the Code (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
|
(c)
|
in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,
|
(a)
|
any letter or letters between the Arranger and the Company (or the Agent and the Company or the Security Agent and the Company) setting out any of the fees referred to in Clause 14 (
Fees
);
|
(b)
|
any agreement setting out fees payable to a Finance Party referred to in Clause 14.5 (
Interest, commission and fees
on
Ancillary Facilities
);and
|
(c)
|
any agreement setting out fees payable in respect of an Incremental Facility referred to in Clause 8.11 (
Incremental Facility and Increase Commitment fees
).
|
(a)
|
moneys borrowed;
|
(b)
|
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
(c)
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument (excluding, in each case, Trade Instruments);
|
(d)
|
the amount of any liability in respect of any Finance Lease;
|
(e)
|
receivables sold or discounted (other than any receivables (i) to the extent they are sold on a non‑recourse basis (other than customary recourse for non-recourse receivables financings) or (ii) to the extent that the transaction results in the relevant receivables being derecognised from the consolidated balance sheet of the Company));
|
(f)
|
any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;
|
(g)
|
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);
|
(h)
|
any counter‑indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution (excluding, in each case, Trade Instruments) in respect of an underlying liability of an entity which is not a member of the Group which liability would fall within one of the other paragraphs of this definition;
|
(i)
|
any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question; or (ii) the agreement is in respect of the supply of assets or services and payment is overdue by more than 120 days after the due date of payment;
|
(j)
|
any amount raised by the issue of shares that are redeemable prior to the Termination Date; and
|
(k)
|
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h) above.
|
(a)
|
in relation to a Lender which is an Incremental Facility Lender, the amount in the Base Currency set opposite its name under the heading “Incremental Facility Commitment” in the relevant Incremental Facility/Existing Facility Increase Notice and the amount of any other Incremental Facility Commitment relating to the relevant Incremental Facility transferred to it under this Agreement or assumed by it in accordance with Clause 2.3 (
Increase
); and
|
(b)
|
in relation to an Incremental Facility and any other Lender, the amount in the Base Currency of any Incremental Facility Commitment relating to that Incremental Facility transferred to it under this Agreement or assumed by it in accordance with Clause 2.3 (
Increase
),
|
(a)
|
being provided later in time; or
|
(b)
|
(if the relevant Obligor's original obligation to grant the relevant Security, guarantee, indemnity or other assurance against loss in respect of the relevant Facility was expressly subject to the Agreed Security Principles), any difference in Borrowers and resulting different application of those Agreed Security Principles; or
|
(c)
|
any difference in Borrowers and resulting different application of any relevant guarantee limitation).
|
(a)
|
the Total Incremental Facility Commitments;
|
(b)
|
the Margin;
|
(c)
|
the level of commitment fee payable pursuant to Clause 14.1 (
Commitment fee
) in respect of that Incremental Facility and the level and payment terms of any other fees payable to all Lenders under that Incremental Facility;
|
(d)
|
the Borrower(s) to which that Incremental Facility is to be made available;
|
(e)
|
the Availability Period; and
|
(f)
|
the termination date, which must be the same date as the Revolving Facility Termination Date,
|
(a)
|
the forecast model;
|
(b)
|
the budget presentation for financial year 2018;
|
(c)
|
the analysis of financial year 2017 revenue and adjusted EBITDA by entity;
|
(d)
|
the presentation made to investors in June 2017 in the non deal roadshow;
|
(e)
|
the contract expiry profile for top 10 customers;
|
(f)
|
Romanian grant projections; and
|
(g)
|
Endava’s exposure to geography political risk,
|
(a)
|
any patents, petty patents, trademarks, service marks, trade names, domain names, rights in designs, software rights, utility models, database rights, copyrights, rights in the nature of copyright, and all other forms of intellectual or industrial property;
|
(b)
|
any rights in or to inventions, formulae, confidential or secret processes and information, know-how and similar rights, goodwill and any other rights and assets of a similar nature; and
|
(c)
|
any other right to use, or application to register or protect, any of the items listed in paragraphs (a) or (b) above,
|
(a)
|
the most recent applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
|
(b)
|
the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
|
(a)
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
|
(b)
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
|
(a)
|
the principle that certain remedies may be granted or refused at the discretion of the court, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors and secured creditors;
|
(b)
|
the time barring of claims under applicable limitation laws (including the Limitation Acts) and defences of acquiescence, set off or counterclaim and the possibility that an undertaking to assume liability for or to indemnify a person against non-payment of stamp duty may be void;
|
(c)
|
the principle that in certain circumstances Security granted by way of fixed charge may be recharacterised as a floating charge or that Security purported to be constituted as an assignment may be recharacterised as a charge;
|
(d)
|
the principle that additional interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;
|
(e)
|
the principle that a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant;
|
(f)
|
the principle that the creation or purported creation of Security over any contract or agreement which is subject to a prohibition on transfer, assignment or charging may be void, ineffective or invalid and may give rise to a breach of the contract or agreement over which Security has purportedly been created;
|
(g)
|
the principle that a court may not give effect to any parallel debt provisions, covenants to pay the Security Agent or other similar provisions;
|
(h)
|
the principle that certain remedies in relation to regulated entities may require further approval from government or regulatory bodies or pursuant to agreements with such bodies;
|
(i)
|
similar principles, rights and defences under the laws of any relevant jurisdiction;
|
(j)
|
the principles of private and procedural laws of the Relevant Jurisdiction which affect the enforcement of a foreign court judgment; and
|
(k)
|
any other matters which are set out as qualifications or reservations (however described) in the Legal Opinions.
|
(a)
|
any Original Lender; and
|
(b)
|
any bank, financial institution, trust, fund or other entity which has become a Party as a “Lender” in accordance with Clause 2.2 (
Increase
), Clause 8 (
Existing Facility Increase and Establishment of Incremental Facilities
) or Clause 26 (
Changes to the Lenders
),
|
(a)
|
the applicable Screen Rate as of the Specified Time on the Quotation Day for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; or
|
(b)
|
as otherwise determined pursuant to Clause 13.1 (
Unavailability of Screen Rate
),
|
(a)
|
in respect of the Revolving Facility Loan, the rate per annum calculated in accordance with Clause 11.2 (
Margin adjustments
); and
|
(b)
|
in respect of any Incremental Facility Loan, the percentage rate per annum specified as such in the Incremental Facility/Existing Facility Increase Notice relating to the Incremental Facility under which that Incremental Facility Loan is made or is to be made.
|
(a)
|
the business, assets or financial condition of the Group taken as a whole;
|
(b)
|
the ability of the Obligors taken as a whole to perform their payment obligations under the Finance Documents or their obligations under Clause 23 (
Financial Covenants
); or
|
(c)
|
subject to the Legal Reservations and Perfection Requirements, the validity or enforceability of, or the effectiveness or ranking of any security interest granted or purported to be granted pursuant to, any Finance Document in any way which is materially adverse to the interests of the Lenders under the finance documents taken as a whole.
|
(a)
|
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
(b)
|
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
(c)
|
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
|
(a)
|
an acquisition by a member of the Group of an asset sold, leased, transferred or otherwise disposed of by another member of the Group in circumstances constituting a Permitted Disposal;
|
(b)
|
an acquisition which is or forms part of a Permitted Transaction;
|
(c)
|
an acquisition of shares or securities pursuant to a Permitted Share Issue;
|
(d)
|
the acquisition of Velocity Partners provided that:
|
(i)
|
the purchase price for such acquisition does not exceed $60,500,000; and
|
(ii)
|
prior to legally committing to make such acquisition the Company delivers to the Agent (in form and substance satisfactory to the Majority Lenders) final forms of:
|
(A)
|
the FDD Report which is addressed to or capable of being relied upon by the Reliance Parties; and
|
(B)
|
any other third party due diligence reports commissioned by the Company in respect of the relevant target company, which are addressed to or capable of being relied on by the Reliance Parties (unless the relevant report provider has a general policy of not providing this reliance or addressing reports to reliance parties other than the entity which is the client of such report provider);
|
(e)
|
an acquisition of securities which are Cash Equivalent Investments provided that subject to the Agreed Security Principles and applicable to Obligors only, such Cash Equivalent Investments became subject to the Transaction Security;
|
(f)
|
the incorporation, establishment or acquisition of a company or entity which on incorporation, establishment or acquisition becomes a member of the Group, but only if that company is incorporated with limited liability and has not previously traded and does not have any material liabilities on incorporation, establishment or acquisition;
|
(g)
|
any acquisition of (A) all or the majority of the issued share capital of a limited liability company or other limited liability entity; and/or or (B) a business or undertaking carried on as a going concern (each such company, entity, business and/or undertaking being an “
Acquired Entity
” where the total consideration for such acquisition transaction (including deferred consideration) when aggregated with the total consideration for all other acquisitions falling under this paragraph (f) in the same financial year does not exceed the Permitted Acquisition Limit, but only if:
|
(i)
|
no Default is continuing on the date on which a legally binding commitment is entered into for the relevant acquisition and no Event of Default would occur as a result of the acquisition;
|
(ii)
|
the Acquired Entity is engaged in a business substantially the same as or complementary to that carried on by the Group;
|
(iii)
|
the Acquired Entity is incorporated or established in a OECD Member State and the Acquired Entity does not appear on a Sanctions List and is not or subject to Sanctions;
|
(iv)
|
the Company has delivered to the Agent at least 5 Business Days before legally committing to make such acquisition a certificate signed by 2 directors of the Company to which is attached a copy of the latest audited accounts (or if not available, management accounts) of the target company or entity or business, such certificate to:
|
(A)
|
confirm (and append calculations showing in reasonable detail) that the Company projects, on the basis of reasonable assumptions, and having regard to recent historic performance, that for the 12 Months following the proposed acquisition the Group will continue to be in compliance with its obligations under Clause 23.2 (
Financial Covenants
);
|
(B)
|
demonstrate that the earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Adjusted EBITDA) of the target company (on a consolidated basis where it owns subsidiaries which are to form part of the acquisition) or business, on the basis of reasonable assumptions and having regard to recent historic performance, will be a positive figure summing up the 12 Months following the proposed acquisition excluding re-organisation costs;
|
(v)
|
in respect only of acquisitions where the total consideration, for such acquisition transaction (including deferred consideration) is equal to or greater than £15,000,000 (or its equivalent in any other currency) if required by the Agent
|
(A)
|
attaching the final forms of any legal and financial due diligence reports commissioned by a member of the Group in connection with the acquisition, which are addressed
to
or capable of being relied upon by, the Reliance Parties (unless the relevant report provider has a general policy of not providing this reliance or addressing reports to reliance parties other than the entity which is the client of such report provider); and
|
(B)
|
attaching the final forms of any other third party due diligence reports commissioned by
the
Company for the acquisition (in each case on a non-reliance basis, and, where requested by the relevant report provider, hold harmless basis); and
|
(vi)
|
the acquisition does not expose the Group to any obligation to contribute to a defined benefit pension scheme (or any analogous contribution to a pension fund) which is the subject of a Contribution Notice; and
|
(h)
|
any acquisition to which the Majority Lenders have given their prior written consent.
|
(a)
|
made by any member of the Group in the ordinary course of trading of the disposing entity;
|
(b)
|
of any asset by a member of the Group (the “
Disposing Company
”) to another member of the Group (the “
Acquiring Company
”) but if:
|
(i)
|
the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor;
|
(ii)
|
the Disposing Company had given Security over the asset, the Acquiring Company must give equivalent Security over that asset; and
|
(iii)
|
the Disposing Company is a Guarantor, the Acquiring Company must be a Guarantor guaranteeing at all times an amount no less than that guaranteed by the Disposing Company;
|
(c)
|
of all of the shares in and/or business of Endava Technology SRL on arm’s length terms to a third party purchaser;
|
(d)
|
of assets subject of a Finance Lease or a sale and leaseback, in each case to the counterparties under such arrangements and as permitted by the terms of this Agreement;
|
(e)
|
assets in exchange for other assets comparable or superior as to type, value and quality;
|
(f)
|
receivables on a non‑recourse basis (other than customary recourse for non‑recourse receivables financings or to the extent that the transaction results in the relevant receivables being derecognised from the consolidated balance sheet of the Company);
|
(g)
|
of obsolete or redundant vehicles, plant and equipment for cash;
|
(h)
|
of cash and Cash Equivalent Investments in a manner not otherwise prohibited by this Agreement;
|
(i)
|
to a Joint Venture, to the extent permitted by Clause 24.18 (
Joint Ventures
);
|
(j)
|
constituted by a licence of intellectual property rights in the ordinary course of business permitted by Clause 24.11 (
Intellectual property
);
|
(k)
|
arising as a result of any Permitted Security, Permitted Transaction or Permitted Share Issue;
|
(l)
|
any other disposal approved in writing by the Agent (acting on the instructions of the Majority Lenders); and
|
(m)
|
of assets for cash where the higher of the book value and the net consideration receivable (when aggregated with the higher of the book value and net consideration receivable for any other such disposal not allowed under any preceding paragraphs) does not exceed £3,000,000 (or its equivalent) in any financial year of the Company.
|
(a)
|
any dividend distribution or other payment at any time, provided that:
|
(i)
|
the Net Leverage Ratio (pro forma for the dividend or distribution to be paid) does not at the most recent Test Date exceed 2.00:1; and
|
(ii)
|
the amount paid out does not exceed 50% of Consolidated EBITDA for the Relevant Period ending on the most recent Test Date;
|
(b)
|
any dividend made by a member of the Group (other than the Company) provided that, to the extent that such dividend is paid to a shareholder that is not a member of the Group, such payment shall only be permitted if an equivalent payment (based on relative shareholdings) is made to all other shareholders who are members of the Group at the same time.
|
(a)
|
arising under a Finance Document, a Permitted Loan, or a Permitted Guarantee, or a Permitted Transaction or any Permitted Treasury Transaction;
|
(b)
|
in respect of which a letter of credit or guarantee has been issued under an Ancillary Facility;
|
(c)
|
to which the Majority Lenders have given their prior written consent;
|
(d)
|
under finance or capital leases of vehicles, plant, equipment or computers, provided that the aggregate capital value of all such items so leased under outstanding leases by members of the Group does not exceed £3,000,000 (or its equivalent in other currencies) at any time;
|
(e)
|
any earn out arrangement, purchase price adjustment, deferred consideration, indemnification or other arrangement or similar obligation entered into in relation to a Permitted Disposal or Permitted Acquisition or purchase of any other assets;
|
(f)
|
under local working capital and overdraft facilities provided to members of the Group in an aggregate amount which does not exceed £500,000 (or its equivalent in other currencies) in aggregate for the Group at any time;
|
(g)
|
(i) incurred in the ordinary course of business in respect of obligations of any member of the Group to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services and (ii) in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
|
(h)
|
arising in relation to the credit line provided by Banca Transilvania to Endava Romania SRL provided such financial indebtedness does not exceed EUR1,350,000;
|
(i)
|
not permitted by the preceding paragraphs and the outstanding principal amount of which does not exceed at any time £1,000,000 (or its equivalent in other currencies) in aggregate for the Group.
|
(a)
|
any guarantee under the Finance Documents;
|
(b)
|
the endorsement of negotiable instruments in the ordinary course of trade;
|
(c)
|
any performance or similar bond guaranteeing performance by a member of the Group under any contract entered into in the ordinary course of business;
|
(d)
|
any guarantee of a Joint Venture to the extent permitted by Clause 24.18 (
Joint Ventures
);
|
(e)
|
any guarantee permitted under Clause 24.16 (
Financial indebtedness
);
|
(f)
|
the guarantee under the umbrella agreement dated 22 November 2016 between Endava (UK) Limited and Worldpay which guarantees payments for Endava Technology SRL
|
(g)
|
any indemnity given in the ordinary course of the documentation of an acquisition or disposal transaction which is a Permitted Acquisition or Permitted Disposal which indemnity is in a customary form and subject to customary limitations;
|
(h)
|
any guarantee which, if it were a loan, would be a Permitted Loan (other than under paragraph (h) of the definition of Permitted Loan) to the extent the issuer of the relevant guarantee would have been entitled to make a loan in an equivalent amount under the definition of Permitted Loan to the person whose obligations are being guaranteed;
|
(i)
|
guarantees of Treasury Transactions which are not prohibited under this Agreement and of local working capital and overdraft facilities which are not prohibited under this Agreement;
|
(j)
|
guarantees to landlords and counter-indemnities in favour of financial institutions which have guaranteed rent obligations of a member of the Group or guarantees or counter-indemnities for the lease obligations of suppliers, customers, franchisees and licensees provided that the aggregate principle amount outstanding under all such guarantees does not exceed £4,000,000 (or its equivalent in other currencies);
|
(k)
|
guarantees and indemnities given in favour of directors and officers of any member of the Group in respect of activities involved in carrying out their function as such;
|
(l)
|
any guarantee given in respect of cash pooling, netting or set-off arrangements permitted pursuant to paragraph (c) Clause 24.3 (
Negative Pledge
);
|
(m)
|
indemnities given to professional advisers and consultants in the ordinary course of business on their standard or usual terms;
|
(n)
|
guarantees given to creditors of members of the Group pursuant to Permitted Reorganisations and capital reductions;
|
(o)
|
guarantees by:
|
(i)
|
any member of the Group which is not an Obligor in respect of obligations or Permitted Financial Indebtedness of another member of the Group which is not an Obligor;
|
(ii)
|
any member of the Group in respect of obligations or Financial Indebtedness of an Obligor; and
|
(iii)
|
an Obligor in respect of obligations or Permitted Financial Indebtedness of a member of the Group which is not an Obligor (A) to the extent such guarantee was existing at the date of this Agreement or (B) the aggregate amount outstanding of all such guarantees does not exceed £500,000 (or its equivalent in other currencies);
|
(p)
|
guarantees to which the Agent (on the instructions if the Majority Lenders) has given prior written consent;
|
(q)
|
customary indemnities contained in mandate, engagement and commitment letters, facility agreements, purchase agreements and indentures, in each case entered into in respect of Permitted Financial Indebtedness or in contemplation of indebtedness which, if entered into, would constitute Permitted Financial Indebtedness; and
|
(r)
|
any other guarantees, the aggregate principal outstanding amount guaranteed by which (when aggregated with all such other guarantees) does not exceed £500,000 at any time.
|
(a)
|
incorporated, or established, and carries on business substantially the same as that carried on by the Group; and
|
(b)
|
in any financial year of the Company, the aggregate of:
|
(i)
|
all amounts subscribed for shares in, lent to, or invested in all such Joint Ventures by any member of the Group;
|
(ii)
|
the contingent liabilities of any member of the Group under any guarantee given in respect of the liabilities of any such Joint Venture; and
|
(iii)
|
the market value of any assets transferred by any member of the Group to any such Joint Venture,
|
(a)
|
any trade credit extended by any member of the Group to its customers on normal commercial terms and in the ordinary course of its trading activities;
|
(b)
|
Financial Indebtedness which is referred to in the definition of, or otherwise constitutes, Permitted Financial Indebtedness (other than under paragraph (a) of that definition) and any loan made by any member of the Group in order to fund a payment to be made under a Finance Document;
|
(c)
|
a loan made to a Joint Venture to the extent permitted under Clause 24.18 (
Joint Ventures
);
|
(d)
|
a loan comprising deferred consideration in connection with a Permitted Disposal or a Permitted Acquisition and any loan entered into in connection with a Permitted Transaction;
|
(e)
|
a loan made by an Obligor to another member of the Group which is not an Obligor so long as the aggregate amount of all such loans at any time outstanding does not exceed £3,000,000 (or its equivalent in other currencies);
|
(f)
|
a loan made by a member of the Group which is an Obligor to another member of the Group which is an Obligor; and a loan made by a member of the Group which is not an Obligor to another member of the Group (provided that, if such other member of the Group is an Obligor, the aggregate amount of all such loans at any time outstanding does not exceed £3,000,000 (or its equivalent in other currencies);
|
(g)
|
a loan made by a member of the Group to an employee or director of any member of the Group if the amount of that loan when aggregated with the amount of all loans to employees and directors by members of the Group does not exceed £500,000 (or its equivalent in other currencies) at any time; and
|
(h)
|
any loan or Financial Indebtedness in respect of which any member of the Group is a creditor not otherwise permitted by the preceding paragraphs, where the outstanding principle amount of all such loans or Financial Indebtedness in aggregate does not exceed at any time £1,000,000 (or its equivalent in other currencies).
|
(a)
|
any member of the Group which is not an Obligor so long as any payments or assets distributed as a result of such liquidation or reorganisation are distributed to other members of the Group; or
|
(b)
|
any Obligor so long as any payments or assets distributed as a result of such liquidation or reorganisation are distributed to an entity which is already itself an Obligor or becomes an Obligor in accordance with this Agreement prior to or at the same time as such distribution takes place in each case (if a Guarantor) in the same jurisdiction as that original Obligor or in a jurisdiction that enables it to guarantee at all times an amount no less than the original Obligor.
|
(a)
|
shares by the Company pursuant to a Qualifying IPO;
|
(b)
|
ordinary shares by the Company to its shareholders and employees (pursuant to any enterprise management incentive plans) and which by their terms are not redeemable; and
|
(c)
|
shares by a member of the Group which is a Subsidiary to its immediate Holding Company where (if the existing shares of the Subsidiary are the subject of the Transaction Security) the newly-issued shares also become subject to the Transaction Security on the same terms and provided that if shares are issued by a member of the Group which is not an Obligor to an Obligor for cash, the aggregate amount subscribed by all Obligors for shares in other members of the Group which are not Obligors (net of the amount of cash for shares issued by any Obligor to a member of the Group which is not an Obligor) does not exceed £3,000,000 (or its equivalent in another currency) over the life of the Facility.
|
(a)
|
any disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security or Quasi‑Security given, or other transaction or liability arising, under or step taken in connection with the Finance Documents or for engaging advisors in relation to a Qualifying IPO;
|
(b)
|
any transaction or arrangement entered into pursuant to any Permitted Reorganisation;
|
(c)
|
any tax sharing arrangements or the formation and maintenance of any consolidated group for tax, accounting or cash pooling or management purposes in the ordinary course of business;
|
(d)
|
transactions (other than (i) any sale, lease, license, transfer or other disposal and (ii) the granting or creation of Security or the incurring or permitting to subsist of Financial Indebtedness) conducted in the ordinary course of trading on arm's length terms;
|
(e)
|
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and that are not entered into for investment or speculative purposes including but not limited to hedging arrangements with the Original Lender;
|
(f)
|
any buyback of shares in a member of the Group up to an aggregate of 3.5% of the total issued shares in such member of the Group; and
|
(g)
|
the acquisition and disposal of shares and share options in Endava Limited by the employee benefit trust and borrowings incurred and incentive arrangements entered into in respect of the operations of such employee benefit trust and the acquisition and disposal of shares thereby, where in respect of acquisitions, individual acquisitions are in an amount less than £1,000,000 (or its equivalent in another currency) and the
|
(i)
|
(if the currency is sterling) the first day of that period;
|
(ii)
|
(if the currency is euro) two TARGET Days before the first day of that period; or
|
(iii)
|
(if the currency is RON), two Business Days before the first day of that period,
|
(a)
|
the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks:
|
(i)
|
in relation to LIBOR as either:
|
(A)
|
if:
|
(1)
|
the Reference Bank is a contributor to the applicable Screen Rate; and
|
(2)
|
it consists of a single figure,
|
(B)
|
in any other case, the rate at which the relevant Reference Bank could fund itself in the relevant currency for the relevant period with reference to the unsecured wholesale funding market; or
|
(ii)
|
in relation to EURIBOR:
|
(A)
|
(other than where paragraph (B) below applies) as the rate at which the relevant Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in euro within the Participating Member States for the relevant period; or
|
(B)
|
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or
|
(iii)
|
in relation to ROBOR:
|
(A)
|
(other than where paragraph (B) below applies) as the rate at which the relevant Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in RON within the unsecured wholesale funding market for the relevant period; or
|
(B)
|
if different, as the rate (if any applied to the relevant Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.)
|
(a)
|
its Original Jurisdiction; and
|
(b)
|
the jurisdiction where any asset subject to or intended to be subject to the Transaction Security is situated or whose laws govern the perfection of any of the Transaction Security Document entered into by it.
|
(a)
|
listed on, or owned or controlled by a person listed on, a Sanctions List, or a person acting on behalf of such a person;
|
(b)
|
located in or organised under the laws or resident of a country or territory that is, or whose government is, the subject of country- or territory-wide Sanctions, or a person who is owned or controlled by, or acting on behalf of such a person; or
|
(c)
|
otherwise a subject of Sanctions.
|
(a)
|
in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Revolving Commitment” in Part 2 of Schedule 1 (
The Original Parties
) and the amount of any other Revolving Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (
Increase
); and
|
(b)
|
in relation to any other Lender, the amount in the Base Currency of any Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (
Increase
),
|
(a)
|
the date falling 36 Months after the date hereof; and
|
(b)
|
the date to which the Revolving Facility Termination Date is extended pursuant to Clause 9.2 (Extension
Option
).
|
(i)
|
the applicable Screen Rate as of the Specified Time for RON and for a period equal in length to the Interest Period of that Loan; or
|
(ii)
|
as otherwise determined pursuant to Clause 13.1 (
Unavailability of Screen Rate
), and if, in either case, the rate is less than zero, ROBOR shall be deemed to be zero.
|
(a)
|
made or to be made on the same day that a maturing Loan is due to be repaid under that same Facility;
|
(b)
|
the aggregate amount of which is equal to or less than the amount of the maturing Loan;
|
(c)
|
in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 6.2 (
Unavailability of a Currency
)); and
|
(d)
|
made or to be made to the same Borrower for the purpose of refinancing that maturing Loan.
|
(a)
|
the trade facilities line of up to €9,000,000 issued by HSBC Bank plc to the Company in favour of Endava Romania SRL; and
|
(b)
|
the property related guarantees of up to €500,000 issued by HSBC Bank plc to the Company in favour of Endava Romania SRL.
|
(a)
|
the Security Council of the United Nations;
|
(b)
|
the United States of America;
|
(c)
|
the European Union;
|
(d)
|
the UK;
|
(e)
|
Hong Kong; and
|
(f)
|
the governments and official institutions or agencies of any of paragraphs (a) to (e) above, including OFAC, the US Department of State, the Hong Kong Monetary Authority and Her Majesty’s Treasury.
|
(a)
|
in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed (before any correction, recalculation or republication by the administrator) on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate;
|
(b)
|
in relation to EURIBOR, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and
|
(c)
|
for Romanian Leu, the ‘Romanian interbank offered rate’ administered by the National Bank of Romania (or any other person which takes over the administration of that rate) for the relevant period displayed on the Thomson Reuters screen under the heading ‘ROBOR’ (or any replacement Thomson Reuters pages which displays that rate),
|
(a)
|
£50,000,000;
|
(b)
|
$12,100,000; and
|
(c)
|
€9,500,000,
|
(a)
|
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b)
|
the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a)
|
a Borrower which is resident for tax purposes in the US; or
|
(b)
|
an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.
|
(a)
|
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
|
(b)
|
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
|
1.2
|
Construction
|
(a)
|
Unless a contrary indication appears, any reference in this Agreement to:
|
(i)
|
the “
Agent
”, the “
Arranger
”, any “
Finance Party
”, any “
Lender
”, any “
Obligor
”, any “
Party
”, any “
Secured Party
”, the “
Security Agent
” or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with this Agreement;
|
(ii)
|
“
assets
” includes present and future properties, revenues and rights of every description;
|
(iii)
|
a “
Finance Document
” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
|
(iv)
|
a “
group of Lenders
” includes all the Lenders;
|
(v)
|
“
indebtedness
” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
(vi)
|
a “
person
” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
|
(vii)
|
a “
regulation
” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self‑regulatory or other authority or organisation;
|
(viii)
|
a provision of law is a reference to that provision as amended or re‑enacted; and
|
(ix)
|
a time of day is a reference to London time.
|
(b)
|
The determination of the extent to which a rate is “
for a period equal in length
” to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
|
(c)
|
Section, Clause and Schedule headings are for ease of reference only.
|
(d)
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(e)
|
A Default (other than an Event of Default) is “
continuing
” if it has not been remedied or waived and an Event of Default is “
continuing
” if it has not been waived.
|
(f)
|
A Borrower providing "
cash cover
" for an Ancillary Facility means a Borrower paying an amount to an interest-bearing account in the name of the Borrower and the following conditions being met:
|
(i)
|
the account is with the Ancillary Lender for which that cash cover is to be provided;
|
(ii)
|
until no amount is or may be outstanding under that Ancillary Facility, withdrawals from the account may only be made to pay the relevant Finance Party amounts due and payable to it under this Agreement in respect of that Ancillary Facility; and
|
(iii)
|
the Borrower has executed a security document over that account, in form and substance satisfactory to the Finance Party with which that account is held, creating a first ranking security interest over that account.
|
(g)
|
A Borrower “
repaying
” or “
prepaying
” Ancillary Outstandings means:
|
(i)
|
the maximum amount payable under the Ancillary Facility being reduced or cancelled in accordance with its terms; or
|
(ii)
|
the Ancillary Lender being satisfied that it has no further liability under that Ancillary Facility,
|
(h)
|
Any “
Sanctions Authority
” shall be construed so as to include any assignee, transferee or successor in title of that Sanctions Authority and any other person which takes over the administration, enforcement and/or supervising functions of that Sanctions Authority.
|
(i)
|
A “novation” includes
novatie prin schimbare de obligatie
, as provided under Article 1609 paragraph (1) of the Romanian Civil Code,
novatie prin schimbare de debitor
, as provided under Article 1609 paragraph (2) of the Romanian Civil Code and
novatie prin schimbare de creditor
, as provided under Article 1609 paragraph (3) of the Romanian Civil Code;
|
(j)
|
Any “security”, “lien” or “security interest” includes
ipoteca (mobiliara sau imobiliara), gaj, alta
garantie
reala,
garantie
reala mobiliara, fideiusiune, alta garantie personala
(including
cautiune reala
),
garantie financiara, scrisoare de garantie, scrisoare de confort, , cesiune in scop de garantie, servitute, sarcina,drept de uz in favoarea unui tert, drept de uzufruct in favoarea unui tert, privilegiu, drept de preferinta, drept de retentie, drept de prim refuz, drept de preemptiune, pact de optiune, clauza de inalienabilitate
;
|
(k)
|
With respect to any Romanian Obligor, the expropriation, attachment, sequestration, distress or execution or other process shall include “
expropriere
”, “
poprire
”, “
sechestru
”, “
naţionalizare
”, “executare
silita
”, “
confiscare
”, “
rechiziţie
” and similar proceedings; and
|
(l)
|
With respect to any Romanian Obligor: (a) “bankruptcy” or “insolvency” includes
insolventa, reorganizare judiciara, faliment
(as regulated by,
inter alia
, the Romanian Insolvency Law); (b) being “bankrupt” or “insolvent” includes being in
faliment
or being in a state of
insolventa
(
within the meaning of,
inter alia
, the Romanian Insolvency Law); (c) “insolvency or similar proceedings”, “examinership, administration or reorganisation”, “being unable or admits inability to pay its debts”, “commencement of negotiations with a view to rescheduling any of its indebtedness” includes being in a state of
insolventa, procedura de insolventa, reorganizare judiciara, faliment
,
insolventa iminenta, mandat ad-hoc, concordat preventiv
(within the meaning of,
inter alia
, the Romanian Insolvency Law)
and stare de insolvabilitate
(within the meaning of the Romanian Civil Code); (d) a “liquidator”, “receiver”, “administrator”, “administrative receiver”, “examinership”, “compulsory manager” or “similar officer” includes
judecator sindic
,
administrator
,
administrator judiciar
,
administrator special
,
practician in insolventa
,
administrator-sechestru
,
custode
,
mandatar ad-hoc
,
administrator concordatar
or
lichidator
; (e) “winding up”, “or “dissolution” includes
lichidare
and
dizolvare
; and (f) a “moratorium” and “composition, compromise, assigment or similar arrangement with any creditor”, includes
mandat ad-hoc
and
concordat preventiv
,
|
1.3
|
Currency Symbols and Definitions
|
1.4
|
Dutch Terms
|
(a)
|
audited in relation to financial statements means that the financial statements have been audited by a registered accountant under section 2:393 of the Dutch Civil Code and that the registered accountant has issued an audit opinion certifying that the financial statements provide a true and fair view;
|
(b)
|
a person includes a natural person, a legal person (within the meaning of sections 2:1 to 2:3 inclusive of the Dutch Civil Code), a general partnership (
vennootschap onder
|
(c)
|
a director means a
statutair bestuurder
;
|
(d)
|
a necessary action to authorise where applicable, includes without limitation:
|
(i)
|
a resolution from the management board (
bestuur
) approving the Finance Documents and the transactions contemplated thereby;
|
(ii)
|
a resolution from the general meeting of shareholders (
algemene vergadering
van aandeelhouders
) approving the resolutions from the management board and the Finance Documents and the transactions contemplated thereby;
|
(iii)
|
a resolution from the supervisory board (
raad van commissarissen
) approving the resolutions from the management board and the Finance Documents and the transactions contemplated thereby;
|
(iv)
|
any action required to comply with the Works Councils Act of the Netherlands (
Wet op de Ondernemingsraden
);
|
(v)
|
obtaining an unconditional positive advice (advies) from the competent works council(s) and, if such advice is not unconditional, accompanied with a confirmation from the Company that the conditions set by the works council are and will be complied with;
|
(e)
|
gross negligence means
grove schuld
;
|
(f)
|
a security interest includes any mortgage right (
hypotheekrecht
), right of pledge (
pandrecht
), retention of title arrangement (
eigendomsvoorbehoud
), privilege (
voorrecht
), right of retention (recht
van retentie
), right to reclaim goods (
recht van
reclame
), and, in general, any right in rem (
beperkt recht
), created for the purpose of granting security (
goederenrechtelijk zekerheidsrecht
);
|
(g)
|
wilful misconduct means
opzet
;
|
(h)
|
a winding-up, administration, reorganisation or dissolution (and any of those terms) includes a Dutch entity being declared bankrupt (
failliet verklaard
) or dissolved (
ontbonden
);
|
(i)
|
a moratorium includes
surseance
van
betaling
and granted a moratorium includes
surseance verleend
;
|
(j)
|
a composition means
akkoord aanbieden
;
|
(k)
|
insolvency proceedings for the purposes of Clause 25.7 (
Insolvency proceedings
) include:
|
(i)
|
bankruptcy (
faillissement
), suspension of payments (
surseance van betaling
), emergency procedure (
noodregeling
) or any other procedure having the effect that the entity to which it applies loses the free management or ability to dispose of its property (irrespective of whether the procedure is provisional or final); and
|
(ii)
|
dissolution (
ontbinding
) or any other procedure having the effect that the entity to which it applies ceases to exist;
|
(l)
|
indemnify means
vrijwaren
;
|
(m)
|
negligence means
schuld
;
|
(n)
|
any step or procedure taken in connection with the inability or suspension of payments, receivership or analogous process includes a Dutch entity having filed a notice under section 36 of the Dutch Tax Collection Act (
Invorderingswet 1990
) or section 60 of the Social Insurance Financing Act of the Netherlands (
Wet Financiering Sociale Verzekeringen
) in conjunction with section 36 of the Tax Collection Act (
Invorderingswet 1990
);
|
(o)
|
an administrative receiver includes a
curator
;
|
(p)
|
an administrator includes a
bewindvoerder
;
|
(q)
|
an attachment includes a
beslag
;
|
(r)
|
a merger includes a
juridische fusie
;
|
(s)
|
a demerger includes a
juridische splitsing
; and
|
(t)
|
financial assistance means any action or contemplated action prohibited by, for a
naamloze vennootschap
, section 2:98c of the Dutch Civil Code.
|
1.5
|
Third Party Rights
|
(a)
|
Unless expressly provided to the contrary in a Finance Document a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “
Third Parties Act
”) to enforce or to enjoy the benefit of any term of this Agreement.
|
(b)
|
Subject to Clause 38.3 (
Other exceptions
) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.
|
1.6
|
Basket adjustment
|
(a)
|
If any Compliance Certificate delivered with any financial statements delivered under Clause 22(a)(i) (
Financial Statements
) (or following a Qualifying IPO with any financial statements delivered under Clause 22(a)(ii)) (
Financial Statements
) or any notice delivered by the Company to the Agent (and counter-signed by the Agent provided that the Agent is obliged to countersign such notice on receipt and such counter-signature is provided for the purposes of acknowledgement only and shall not constitute a consent right in favour of the Agent) following a Permitted Acquisition (an “
EBITDA Acquisition Notice
”) demonstrates that Adjusted EBITDA for the Relevant Period ending on the most recent Test Date (and in the case of an EBITDA Acquisition Notice, calculated on a pro forma basis to take into account the earnings before interest, tax, depreciation and amortisation of the entity or business acquired as a result of such Permitted Acquisition (calculated on the same basis as Consolidated EBITDA) for the same period)) is increased from the projected level of Consolidated EBITDA in the Base Case Model for that period (being the “
Percentage Increase
”), then the Company may elect in the relevant Compliance Certificate or EBITDA Acquisition Notice (as the case may be) to increase any or all numerical “baskets” in the Specified Provisions (as defined below) from the amount of such “baskets” immediately prior to such increase by the Percentage Increase as specified in the relevant Compliance Certificate or EBITDA Acquisition Notice (as the case may be) with effect from the date on which the relevant Compliance Certificate or EBITDA Acquisition Notice (as the case may be) is delivered (and, in the case of an EBITDA Acquisition Notice, counter-signed by the Agent provided that the Agent is obliged to countersign such notice on receipt and such counter-signature is provided for the purposes of acknowledgement only and shall not constitute a consent right in favour of the Agent), provided that the Company shall
|
(b)
|
The “
Specified Provisions
” are the fixed numerical baskets in:
|
(i)
|
the definition of Permitted Disposal;
|
(ii)
|
the definition of Permitted Financial Indebtedness;
|
(iii)
|
the definition of Permitted Guarantee;
|
(iv)
|
the definition of Permitted Joint Venture;
|
(v)
|
the definition of Permitted Loan; and
|
(vi)
|
paragraph (c) of Clause 24.3 (
Negative Pledge
).
|
2.
|
The Facility
|
2.1
|
The Facility
|
(a)
|
Subject to the terms of this Agreement, the Lenders make available to the Borrowers a multicurrency revolving loan facility in an aggregate amount equal to the Total Commitments.
|
(b)
|
Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make all or any part of its Commitments available to any Borrower as an Ancillary Facility.
|
2.2
|
Incremental Facilities
|
2.3
|
Increase
|
(a)
|
The Company may by giving prior notice to the Agent after the effective date of a cancellation of the Commitment of a Lender in accordance with:
|
(i)
|
Clause 10.1 (
Illegality
); or
|
(ii)
|
Paragraph (a) of Clause 10.6 (
Right of replacement or repayment and cancellation in relation to a single Lender
),
|
(iii)
|
the increased Commitments will be assumed by one or more Eligible Institutions (each an “
Increase Lender
”) each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender in respect of those Commitments;
|
(iv)
|
each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume;
|
(v)
|
each Increase Lender shall become a Party as a “Lender” and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume;
|
(vi)
|
the Commitments of the other Lenders shall continue in full force and effect; and
|
(vii)
|
any increase in the Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the Agent executes an otherwise duly completed Increase Confirmation delivered to it by the relevant Increase Lender.
|
(b)
|
The Agent shall, subject to paragraph (c) below, as soon as reasonably practicable after receipt by it of a duly completed Increase Confirmation appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Increase Confirmation.
|
(c)
|
The Agent shall only be obliged to execute an Increase Confirmation delivered to it by an Increase Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender.
|
(d)
|
Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender.
|
(e)
|
The Company may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a letter between the Company and the Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph (e).
|
(f)
|
Neither the Agent nor any Lender shall have any obligation to find an Increase Lender and in no event shall any Lender whose Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.
|
(g)
|
Clause 26.6 (
Limitation of Responsibility of Existing Lenders
) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:
|
(i)
|
an “
Existing Lender
” were references to all the Lenders immediately prior to the relevant increase;
|
(ii)
|
the “
New Lender
” were references to that “
Increase Lender
”; and
|
(iii)
|
a “
re-transfer
” and “
re-assignment
” were references to respectively a “
transfer
” and “
assignment
”.
|
2.4
|
Finance Parties’ Rights and Obligations
|
(a)
|
The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b)
|
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part
|
(c)
|
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
|
2.5
|
Obligors' Agent
|
(a)
|
Each Obligor (other than the Company) by its execution of this Agreement or an Accession Letter irrevocably appoints the Company (acting through one or more authorised signatories) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:
|
(i)
|
the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to agree any Incremental Facility Terms and to deliver any Incremental Facility/Existing Facility Increase Notice, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and
|
(ii)
|
each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,
|
(b)
|
Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors' Agent or given to the Obligors' Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors' Agent and any other Obligor, those of the Obligors' Agent shall prevail.
|
(c)
|
For purposes of the Romanian Civil Code, the appointment by each Romanian Obligor of the Company to act as its agent is deemed to be in effect for the entire life of this Agreement and is not to be interpreted as being of an unlimited duration.
|
3.
|
Purpose
|
3.1
|
Purpose
|
3.2
|
Monitoring
|
4.
|
Conditions of Utilisation
|
4.1
|
Initial Conditions Precedent
|
(a)
|
No Borrower may deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Part 1 of Schedule 2 (
Conditions Precedent
) in form and substance reasonably satisfactory to the Agent (acting reasonably). The Agent shall notify the Company and the Lenders promptly upon being so satisfied.
|
(b)
|
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
4.2
|
Further Conditions Precedent
|
(a)
|
in the case of a Rollover Loan, the Agent has not taken any action under Clause 25.16 (
Acceleration
), no Event of Default is continuing under any of Clauses 25.1 (
Non-payment
), 25.6 (Insolvency) or 25.7 (
Insolvency Proceedings
) and no Event of Default would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and
|
(b)
|
the Repeating Representations to be made by each Obligor are true in all material respects.
|
4.3
|
Conditions relating to Optional Currencies
|
(a)
|
A currency will constitute an Optional Currency in relation to a Loan if:
|
(i)
|
it is USD, EUR or RON; or
|
(ii)
|
it is readily available and freely convertible into the Base Currency in the wholesale market for that currency on the Quotation Day and the Utilisation Date for that Loan; or
|
(iii)
|
it has been approved by the Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Agent of the relevant Utilisation Request for that Loan.
|
(b)
|
If the Agent has received a written request from the Company for a currency to be approved under paragraph (a)(iii) above, the Agent will confirm to the Company by the Specified Time:
|
(i)
|
whether or not the Lenders have granted their approval; and
|
(ii)
|
if approval has been granted, the minimum amount for any subsequent Utilisation in that currency.
|
4.4
|
Maximum Number of Loans
|
(a)
|
A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation:
|
(i)
|
where there are no Incremental Facilities established, 11 or more Loans would be outstanding; or
|
(ii)
|
where there are Incremental Facilities established, for each £10,000,000 original Incremental Facility Commitment established, an additional 1 Loan shall be added to the limitation referred to in paragraph (a)(i) above.
|
(b)
|
Any Loan made by a single Lender under Clause 6.2 (
Unavailability of a Currency
) shall not be taken into account in this Clause 4.4.
|
4.5
|
Limitations
|
(a)
|
The aggregate amount of all Loans and Ancillary Facilities which are not used to issue the Romanian Ancillaries and/or the Velocity Partners LC shall not exceed (in aggregate) an amount equal to £50,000,000 plus any increase in any Existing Facility under Clause 8 (
Existing Facility Increase and Establishment of Incremental Facilities
) plus any Incremental Facility established under Clause 8 (
Existing Facility Increase and Establishment of Incremental Facilities
).
|
(b)
|
The aggregate amount of Ancillary Facilities which may be used to issue the Romanian Ancillaries, shall not exceed €9,500,000 and the aggregate amount of Ancillary Facilities which may be used to issue the Velocity Partners LC, shall not exceed USD12,100,000.
|
5.
|
Utilisation
|
5.1
|
Delivery of a Utilisation Request
|
5.2
|
Completion of a Utilisation Request
|
(a)
|
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i)
|
the Utilisation Request specifies the Facility to be drawn;
|
(ii)
|
the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;
|
(iii)
|
the currency and amount of the Utilisation comply with Clause 5.3 (
Currency and Amount
); and
|
(iv)
|
the proposed Interest Period complies with Clause 12 (
Interest Periods
).
|
(b)
|
Only one Loan may be requested in each Utilisation Request.
|
5.3
|
Currency and Amount
|
(a)
|
The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.
|
(b)
|
The amount of the proposed Loan must be:
|
(i)
|
if the currency selected is the Base Currency, a minimum of £500,000 or, if less, the relevant Available Facility; or
|
(ii)
|
if the currency selected is USD, a minimum of $500,000 or, if less, the relevant Available Facility; or
|
(iii)
|
if the currency selected in EUR, a minimum of EUR 500,000 or, if less, the relevant Available Facility, or
|
(iv)
|
if the currency selected in RON, a minimum of RON 500,000 or, if less, the relevant Available Facility; or
|
(v)
|
if the currency selected is an Optional Currency other than EUR, USD or RON, the minimum amount specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.3 (
Conditions relating to Optional Currencies
) or, if less, the Available Facility; and
|
(vi)
|
in any event such that its Base Currency Amount is less than or equal to the relevant Available Facility.
|
5.4
|
Lenders’ Participation
|
(a)
|
If the conditions set out in this Agreement have been met and subject to Clause 9.1 (Repayment
of Loans
), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
|
(b)
|
The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its relevant Available Commitment to the relevant Available Facility immediately prior to making the Loan.
|
(c)
|
The Agent shall determine the Base Currency Amount of each Loan which is to be made in an Optional Currency and shall notify each relevant Lender of the amount, currency and the Base Currency Amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 32.1 (
Payments to the Agent
), in each case by the Specified Time.
|
5.5
|
Cancellation of Commitment
|
(a)
|
The Revolving Facility Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for the Revolving Facility.
|
(b)
|
The Incremental Facility Commitments relating to an Incremental Facility which, at that time, are unutilised, shall be immediately cancelled at the end of the Availability Period for that Incremental Facility.
|
6.
|
Optional Currencies
|
6.1
|
Selection of Currency
|
6.2
|
Unavailability of a Currency
|
(a)
|
a Lender notifies the Agent that the Optional Currency requested is not readily available to it in the amount required; or
|
(b)
|
a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,
|
6.3
|
Participation in a Loan
|
7.
|
Ancillary Facilities
|
7.1
|
Type of Facility
|
(a)
|
an overdraft facility;
|
(b)
|
a guarantee, bonding, documentary or stand-by letter of credit facility;
|
(c)
|
a short term loan facility;
|
(d)
|
a derivatives facility;
|
(e)
|
a foreign exchange facility; or
|
(f)
|
any other facility or accommodation required in connection with the business of the Group and which is agreed by the Company with an Ancillary Lender.
|
7.2
|
Availability
|
(a)
|
If the Company and a Lender agree and except as otherwise provided in this Agreement, the Lender may provide all or part of any of its Commitments as an Ancillary Facility. A Lender must act reasonably in considering any request by the Company for the establishment of an Ancillary Facility.
|
(b)
|
An Ancillary Facility shall not be made available unless, not later than five Business Days prior to the Ancillary Commencement Date for an Ancillary Facility, the Agent has received from the Company:
|
(i)
|
a notice in writing of the establishment of an Ancillary Facility and specifying:
|
(A)
|
the proposed Borrower(s) (or Affiliates of a Borrower) which may use the Ancillary Facility;
|
(B)
|
the proposed Ancillary Commencement Date and expiry date of the Ancillary Facility;
|
(C)
|
the proposed type of Ancillary Facility to be provided;
|
(D)
|
the proposed Ancillary Lender;
|
(E)
|
the proposed Ancillary Commitment, the maximum amount of the Ancillary Facility and, in the case of a Multi-account Overdraft, its Designated Gross Amount and its Designated Net Amount; and
|
(F)
|
the proposed currency of the Ancillary Facility (if not denominated in the Base Currency); and
|
(ii)
|
any other information which the Agent may reasonably request in connection with the Ancillary Facility.
|
(c)
|
The Agent shall promptly notify the Ancillary Lender and the other Lenders of the establishment of an Ancillary Facility.
|
(d)
|
Subject to compliance with paragraph (b) above:
|
(i)
|
the Lender concerned will become an Ancillary Lender; and
|
(ii)
|
the Ancillary Facility will be available,
|
7.3
|
Terms of Ancillary Facilities
|
(a)
|
Except as provided below, the terms of any Ancillary Facility will be those agreed by the Ancillary Lender and the Company.
|
(b)
|
Those terms:
|
(i)
|
must be based upon normal commercial terms at that time (except as varied by this Agreement);
|
(ii)
|
may allow only Borrowers (or Affiliates of Borrowers nominated pursuant to Clause 7.8 (Affiliates of Borrowers)) to use the Ancillary Facility;
|
(iii)
|
may not allow the Ancillary Outstandings to exceed the Ancillary Commitment;
|
(iv)
|
may not allow a Lender's Ancillary Commitment to exceed that Lender's Available Commitment relating to the Revolving Facility or any applicable Incremental Facility (before taking into account the effect of the Ancillary Facility on that Available Commitment); and
|
(v)
|
must require that the Ancillary Commitment is reduced to zero, and that all Ancillary Outstandings are repaid not later than the Revolving Facility Termination Date (or such earlier date as the Revolving Facility Commitment or the Incremental Facility Commitment (as applicable) of the relevant Ancillary Lender (or its Affiliate) is reduced to zero).
|
(c)
|
If there is any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for:
|
(i)
|
Clause 35.3 (
Day count convention
) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility;
|
(ii)
|
an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail to the extent required to permit the netting of balances on those accounts; and
|
(iii)
|
where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document, in which case that term of this Agreement shall not prevail.
|
(d)
|
Interest, commission and fees on Ancillary Facilities are dealt with in Clause 14.5 (
Interest,
commission
and fees on Ancillary Facilities
).
|
7.4
|
Repayment of Ancillary Facility
|
(a)
|
An Ancillary Facility shall cease to be available on the Revolving Facility Termination Date or such earlier date on which its expiry date occurs or on which it is cancelled in accordance with the terms of this Agreement.
|
(b)
|
If an Ancillary Facility expires or is cancelled in accordance with its terms the Ancillary Commitment of the Ancillary Lender shall be reduced to zero (but for the avoidance of doubt, the corresponding commitment of that Lender shall continue (and its corresponding Available Commitment shall increase by the amount of the Ancillary Commitment so cancelled).
|
(c)
|
No Ancillary Lender may demand repayment or prepayment of any Ancillary Outstandings prior to the expiry date of the relevant Ancillary Facility unless:
|
(i)
|
required to reduce the Gross Outstandings of a Multi-account Overdraft to or towards an amount equal to its Net Outstandings;
|
(ii)
|
the Total Revolving Facility Commitments have been cancelled in full or all outstanding Utilisations under the Revolving Facility have become due and payable in accordance with the terms of this Agreement;
|
(iii)
|
it becomes unlawful in any applicable jurisdiction for the Ancillary Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in its Ancillary Facility (or it becomes unlawful for any Affiliate of the Ancillary Lender for the Ancillary Lender to do so); or
|
(iv)
|
both:
|
(A)
|
the Available Commitments relating to the Revolving Facility or an Incremental Facility (as applicable); and
|
(B)
|
the notice of the demand given by the Ancillary Lender,
|
(d)
|
If a Revolving Facility Loan or Incremental Facility Loan is made to repay Ancillary Outstandings in full, the relevant Ancillary Commitment shall be reduced to zero.
|
7.5
|
Limitation on Ancillary Outstandings
|
(a)
|
the Ancillary Outstandings under any Ancillary Facility shall not exceed the Ancillary Commitment applicable to that Ancillary Facility; and
|
(b)
|
in relation to a Multi-account Overdraft:
|
(i)
|
the Ancillary Outstandings shall not exceed the Designated Net Amount applicable to that Multi-account Overdraft; and
|
(ii)
|
the Gross Outstandings shall not exceed the Designated Gross Amount applicable to that Multi-account Overdraft.
|
7.6
|
Information
|
7.7
|
Affiliates of Lenders as Ancillary Lenders
|
(a)
|
Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Lender. In such case, the Lender and its Affiliate shall be treated as a single Lender whose Revolving Facility Commitment or (as applicable) Incremental Facility Commitment is the amount set out opposite the relevant Lender's name in Part 1 of Schedule 1 (
The Original Parties
) and/or the amount of any Revolving Facility Commitment or (as applicable) Incremental Facility Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement.
|
(b)
|
The Company shall specify any relevant Affiliate of a Lender in any notice delivered by the Company to the Agent pursuant to paragraph (b) of Clause 7.2 (
Availability
).
|
(c)
|
If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender, its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document.
|
(d)
|
Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Lender and the relevant Ancillary Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.
|
7.8
|
Affiliates of Borrowers
|
(a)
|
Subject to the terms of this Agreement, an Affiliate of a Borrower may with the approval of the relevant Lender become a borrower with respect to an Ancillary Facility.
|
(b)
|
The Company shall specify any relevant Affiliate of a Borrower in any notice delivered by the Company to the Agent pursuant to paragraph (b)(i) of Clause 7.2 (
Availability
).
|
(c)
|
If a Borrower ceases to be a Borrower under this Agreement in accordance with Clause 27.3 (
Resignation
of
a Borrower
), its Affiliate shall cease to have any rights under this Agreement or any Ancillary Document.
|
(d)
|
Where this Agreement or any other Finance Document imposes an obligation on a Borrower under an Ancillary Facility and the relevant Borrower is an Affiliate of a Borrower which is not a party to that document, the relevant Borrower shall ensure that the obligation is performed by its Affiliate.
|
(e)
|
Any reference in this Agreement or any other Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Finance Document shall be construed to include a reference to any Affiliate of a Borrower being under no obligations under any Finance Document or Ancillary Document.
|
7.9
|
Revolving Facility Commitment amounts
|
(a)
|
its Ancillary Commitment; or
|
(b)
|
the Ancillary Commitment of its Affiliate.
|
7.10
|
Amendments and Waivers – Ancillary Facilities
|
8.
|
Existing Facility Increase and Establishment of Incremental Facilities
|
8.1
|
Selection of Incremental Facility and/or Existing Facility Increase Lenders
|
(a)
|
Definitions: In this Agreement:
|
(a)
|
invites each Lender to participate in a proposed Incremental Facility or Existing Facility Increase (as the case may be); and
|
(b)
|
in the case of any Incremental Facility, sets out the proposed Incremental Facility Commitments applicable to that Incremental Facility and in respect of any Existing Facility, sets out the Facility it is proposed will be increased and the size of the proposed Existing Facility Increase.
|
(b)
|
Invitation to
all
Lenders
: The Company shall solicit potential Incremental Facility Lenders for any proposed Incremental Facility or Eligible Lenders for any proposed Existing Facility Increase, by delivery of a Facility Proposal to the Agent and each Lender.
|
(c)
|
Lender's offer
: Any Lender which wishes to become an Incremental Facility Lender in respect of an Incremental Facility or Lender in respect of any Existing Facility Increase (in each case as proposed in the relevant Facility Proposal), shall notify the Company and the Agent of:
|
(i)
|
in the case of a proposed Incremental Facility, the proposed Incremental Facility Terms that it unconditionally offers to make available in respect of that proposed Incremental Facility (each an “
Incremental Facility Proposal
”); or
|
(ii)
|
in the case of any Existing Facility Increase, the proposed Commitments that it unconditionally offers to make available,
|
(d)
|
Expiry of Lender's offer
: Each Participating Lender's offer under paragraph (c) above (as adjusted, if applicable, pursuant to paragraph (f) below) in respect of an Incremental Facility or Existing Facility Increase (as the case may be) shall, unless otherwise agreed by all the Participating Lenders under that Facility Proposal, expire on the earlier of:
|
(i)
|
the day falling 20 Business Days after the last day of the Solicitation Period relating to that Facility Proposal; and
|
(ii)
|
the date of any Incremental Facility/Existing Facility Increase Notice delivered in respect of that proposed Incremental Facility or proposed Existing Facility Increase.
|
(e)
|
Consideration of Lenders’ offers
: (This paragraph is applicable to a proposed Incremental Facility only and does not apply to any proposed Existing Facility Increase.) If the proposed Incremental Facility Terms offered by the Participating Lenders pursuant to paragraph (c) above in respect of an Incremental Facility proposed in an Incremental Facility Proposal are not acceptable to the Company, the Company may decline the proposed Incremental Facility Commitment offered by that Participating Lender and that Participating Lender shall cease to be a Participating Lender. To the extent that a Participating Lender has proposed Incremental Facility Terms (excluding the amount of its Incremental Facility Commitment) acceptable to the Company, that Participating Lender and any other Participating Lender which has offered the same terms (excluding the amount of its Incremental Facility Commitment), shall become “
Acceptable Participating Lenders
”.
|
(f)
|
Scaleback of Lenders' offers
: If the aggregate amount of the proposed Incremental Facility Commitments offered by the Acceptable Participating Lenders pursuant to paragraph (c) above in respect of an Incremental Facility proposed in an Incremental Facility Proposal exceeds the Proposed Facility Size set out in that Incremental Facility Proposal, or the proposed additional Commitment offered by Lenders, pursuant to paragraph (c) above in respect of an Existing Facility Increase exceeds the proposed amount of the Existing Facility Increase those proposed Incremental Facility Commitments or increases in Commitments (as the case may be) shall be reduced to the extent necessary such that (i) in the case of a proposed Incremental Facility, each such Acceptable Participating Lender's Incremental Facility Proportion relating to that Proposed Facility Size is no greater than the proportion borne by the aggregate of its Commitments to the aggregate of the Commitments of all of the Lenders which are Acceptable Participating Lenders in respect of that Incremental Facility Proposal; and (ii) in the case of an Existing Facility Increase, each such Lender additional Commitment is no greater than the proportion borne by the aggregate of its Commitments to the aggregate of the Commitments of all of the lenders who are wishing to participate in the Existing Facility Increase.
|
(g)
|
Wider invitation if further shortfall
: If there is an Incremental Facility Shortfall relating to a Proposed Facility Size set out in an Incremental Facility Proposal or if Lenders do not offer additional Commitments in an amount at least equal to a proposed Existing Facility Increase (as the case may be), the Company may, in any manner, invite any Eligible Institution to offer proposed Incremental Facility Commitments in respect of the Incremental Facility proposed in that Incremental Facility or additional Commitments, (as the case may be). An Eligible Institution may offer proposed Incremental Facility Commitments on such Incremental Facility Terms as it sees fit.
|
(h)
|
Amendment and
withdrawal: The Company may amend any Incremental Facility Proposal or proposal for an Existing Facility Increase or withdraw an Incremental Facility Proposal or proposal for an Existing Facility Increase at any time.
|
(i)
|
Effect of withdrawal
: Withdrawal of an Incremental Facility Proposal or proposal for an Existing Facility Increase (as the case may be) shall terminate the process set out in this Clause 8.1. Accordingly any Incremental Facility proposed in that Incremental Facility Proposal shall be withdrawn and that Incremental Facility shall not be established and any Existing Facility Increase proposal shall be withdrawn and no Existing Facility Increase shall occur.
|
8.2
|
Delivery of Incremental Facility/Existing Facility Increase Notice
|
(a)
|
in the case of each Incremental Facility, each relevant Incremental Facility Lender (which shall be the relevant Acceptable Participating Lenders and/or an Eligible Institution pursuant to paragraph (g) above) may request the establishment of an Incremental Facility; and/or
|
(b)
|
each relevant Lender and/or Eligible Institution pursuant to paragraph (g) above may request an increase in Commitments,
|
8.3
|
Maximum number of Incremental Facilities and Existing Facility Increases
|
8.4
|
Restrictions on Incremental Facility Terms
|
(a)
|
Currency
: Any Incremental Facility shall be denominated in the Base Currency.
|
(b)
|
Size
: The aggregate Total Incremental Facility Commitments shall not, at any time, when aggregated with any increase in Commitments under an Existing Facility made pursuant to this Clause 8, exceed £40,000,000.
|
8.5
|
Restrictions on Existing Facility Increase
|
(a)
|
Same Terms
: Any Existing Facility Increase shall be established as an increase in Commitments to an Existing Facility and all other terms and condition of the relevant Existing Facility shall apply.
|
(b)
|
Size
: The aggregate of all Commitments established under all Existing Facility Increases shall not at any time, when aggregated with any Incremental Facility Commitments exceed £40,000,000.
|
8.6
|
Conditions to establishment
|
(a)
|
The establishment of an Incremental Facility or increase in Commitments pursuant to an Existing Facility Increase will only be effected in accordance with Clause 8.7 (
Establishment
) if:
|
(i)
|
on the date of the Incremental Facility/Existing Facility Increase Notice, no Default is continuing or would result from the establishment of the proposed Incremental Facility or increase in Commitments (as the case may be);
|
(ii)
|
each Incremental Facility Lender or Existing Facility Increase Lender (as the case may be), to the extent not already a Lender hereunder delivers a New Lender Certificate to the Agent and the Company.
|
(iii)
|
the Agent has received in form and substance satisfactory to it:
|
(A)
|
such documents (if any) as are reasonably necessary as a result of the establishment of that Incremental Facility or increase in Commitments (as the case may be) to maintain the effectiveness of the Security, guarantees, indemnities and other assurance against loss provided to the Finance Parties pursuant to the Finance Documents; and
|
(B)
|
(in the case only of an Incremental Facility only) any applicable Incremental Facility Supplemental Security.
|
(b)
|
Paragraph (a)(iv)(A) above shall be subject to the Agreed Security Principles to the same extent that the relevant Obligor's obligation to grant the relevant Security, guarantee, indemnity or other assurance against loss was subject to the Agreed Security Principles.
|
(c)
|
The Agent shall notify the Company and the Lenders promptly upon being satisfied under paragraph (a)(iv) above.
|
8.7
|
Establishment
|
(a)
|
If the conditions set out in this Agreement have been met the establishment of an Incremental Facility is or the increase commitments are effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Incremental Facility/Existing Facility Increase Notice;
|
(b)
|
The Agent shall only be obliged to execute an Incremental Facility/Existing Facility Increase Notice delivered to it by the Company once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the establishment of the relevant Incremental Facility.
|
(c)
|
On the Establishment Date:
|
(i)
|
subject to the terms of this Agreement, in the case of an Incremental Facility, the Incremental Facility Lenders make available a Base Currency revolving
|
(ii)
|
each Incremental Facility Lender or Existing Facility Increase Lender (as the case may be) shall assume all the obligations of a Lender corresponding to the Incremental Facility Commitment or the additional Commitment (as the case may be) (the “
Assumed Commitment
”) specified opposite its name in the Incremental Facility/Existing Facility Increase Notice as if it had been an Original Lender in respect of that Assumed Commitment;
|
(iii)
|
each of the Obligors and each Incremental Facility Lender or Existing Facility Increase Lender (as the case may be) shall assume obligations towards one another and/or acquire rights against one another as the Obligors and that Incremental Facility Lender or Existing Facility Increase Lender (as the case may be) would have assumed and/or acquired had that Incremental Facility Lender or Existing Facility Increase Lender (as the case may be) been an Original Lender in respect of the Assumed Commitment;
|
(iv)
|
each Incremental Facility Lender or Existing Facility Increase Lender (as the case may be) and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Incremental Facility Lender or Existing Facility Increase Lender (as the case may be) and those Finance Parties would have assumed and/or acquired had the Incremental Facility Lender been an Original Lender in respect of the Assumed Commitment; and
|
(v)
|
each Incremental Facility Lender or Existing Facility Increase Lender (as the case may be) shall become a Party as a “Lender”.
|
8.8
|
Notification of establishment
|
8.9
|
Prior amendments binding
|
8.10
|
Limitation of responsibility
|
(a)
|
an “
Existing Lender
” were references to all the Lenders immediately prior to the Establishment Date;
|
(b)
|
the “
New Lender
” were references to an “
Incremental Facility Lender
” or an “
Acceptable Eligible Lender
” (as the case may be); and
|
(c)
|
a “
re-transfer
” and “
re-assignment
” were references respectively to a “
transfer
” and “
assignment
”.
|
8.11
|
Incremental Facility and Increase Commitment Fees
|
(a)
|
pay to any Incremental Facility Lender under an Incremental Facility or any Existing Facility Increase Lender who participates in and Existing Facility Increase a fee in the amount and at the times agreed between the Company and that Lender in a Fee Letter or otherwise;
|
(b)
|
pay to any arranger of any Incremental Facility or increase in Commitments a fee in the amount and at the times agreed between the Company and that arranger in a Fee Letter or otherwise.
|
9.
|
Repayment
|
9.1
|
Repayment of Loans
|
(a)
|
Each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period.
|
(b)
|
Without prejudice to each Borrower’s obligation under paragraph (a) above, if:
|
(i)
|
one or more Loans are to be made available to a Borrower:
|
(A)
|
on the same day that a maturing Loan is due to be repaid by that Borrower;
|
(B)
|
in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 6.2 (
Unavailability of a Currency
)); and
|
(C)
|
in whole or in part for the purpose of refinancing the maturing Loan; and
|
(ii)
|
the proportion borne by each Lender’s participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender’s participation in the new Loans to the aggregate amount of those new Loans,
|
(1)
|
if the amount of the maturing Loan exceeds the aggregate amount of the new Loans:
|
(I)
|
the relevant Borrower will only be required to make a payment under Clause 32.1 (
Payments to the Agent
) in an amount in the relevant currency equal to that excess; and
|
(II)
|
each Lender’s participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Loan and that Lender will not be required to make a payment under Clause 32.1 (
Payments to the Agent
) in respect of its participation in the new Loans; and
|
(2)
|
if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans:
|
(I)
|
the relevant Borrower will not be required to make a payment under Clause 32.1 (
Payments to the Agent
); and
|
(II)
|
each Lender will be required to make a payment under Clause 32.1 (
Payments to the Agent
) in respect of its participation in the new Loans only to the extent that
|
9.2
|
Extension Option in Relation to the Revolving Facility
|
(a)
|
The Company may by notice to the Agent (the
Initial Extension Request
) at any time from the date falling 24 months of the date of this Agreement to and including the date falling 30 months of the date of this Agreement request that the Revolving Facility Termination Date be extended by a period of one year (the
First Extension
) to the date falling 48 Months after the date of this Agreement.
|
(b)
|
Subject to the occurrence of the First Extension in paragraph (a) above, the Company may by notice to the Agent (the
Second Extension Request
), at any time from the date falling 36 months of the date of this Agreement to and including the date falling 42 months of the date of this Agreement, request that the Revolving Facility Termination Date with respect to the Lenders who have agreed to the Initial Extension Request, be extended for a further period of one year to the date falling 60 months after the date of this Agreement.
|
(c)
|
The Agent must promptly notify the Lenders of any Initial Extension Request and any Second Extension Request (an
Extension Request
).
|
(d)
|
Each Lender may, in its sole discretion, agree to an Extension Request. Each Lender that agrees to an Extension Request by the date falling 21 days from the notification of the Extension Request under paragraph (c) above, will notify the Company and the Agent of such agreement and will extend its Revolving Facility Commitments from the then current Revolving Facility Termination Date to the new Revolving Facility Termination Date under the Extension Request which it has agreed to. If a Lender agrees to any extension, the Revolving Facility Termination Date will be extended accordingly in respect of that Lender.
|
(e)
|
If any Lender declines to agree or fails to replay to an Extension Request within the time frame specified in paragraph (d) above (each a
Non-Extending Lender
), it will be deemed to have refused that Extension Request and its Revolving Facility Commitments will not be extended.
|
(f)
|
The Agent shall by the date falling 25 days from the date of an Extension Request then notify the Company and the Lenders, identifying in that notification which Lenders have agreed to (and which Lenders have refused) that Extension Request, and shall specify the Revolving Facility Termination Date applicable to each Lender.
|
(g)
|
The Borrowers shall repay all amounts then outstanding under the Revolving Facility and owed to:
|
(i)
|
each Non-Extending Lender which declines or is deemed to have refused the First Extension, on the date falling 36 Months after the date of this Agreement;
|
(ii)
|
each Non-Extending Lender which declines or is deemed to have refused the Second Extension, on the date falling 48 Months after the date of this Agreement; and
|
(iii)
|
each other Lender, on the Revolving Facility Termination Date,
|
10.
|
Prepayment and Cancellation
|
10.1
|
Illegality
|
(a)
|
that Lender shall promptly notify the Agent upon becoming aware of that event;
|
(b)
|
upon the Agent notifying the Company, the Available Commitments of that Lender will be immediately cancelled; and
|
(c)
|
to the extent that the Lender’s participation has not been transferred pursuant to paragraph (d) of Clause 10.6 (
Right of replacement or repayment and cancellation in relation to a single Lender
), each Borrower shall repay that Lender’s participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Commitment shall be cancelled in the amount of the participations repaid.
|
10.2
|
Change of Control
|
(a)
|
Subject to paragraph (b) below, if any person or group of persons acting in concert gains control of the Company:
|
(i)
|
the Company shall promptly notify the Agent upon becoming aware of that event;
|
(ii)
|
a Lender shall not be obliged to fund a Utilisation (except for a Rollover Loan); and
|
(iii)
|
if a Lender so requires and notifies the Agent within 5 days of the Company notifying the Agent of the event, the Agent shall, by not less than 30 days’ notice to the Company, cancel the Commitments of that Lender and declare the participation of that Lender in all outstanding Loans and Ancillary Facilities, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Commitments of that Lender and its Ancillary Facilities will be cancelled and all such outstanding Loans, Ancillary Outstandings and amounts will become immediately due and payable.
|
(b)
|
For the purpose of paragraph (a) above, any person or persons acting in concert shall not be deemed to have gained control of the Company if it or they acquire shares in the Company or a Holding Company thereof pursuant to a Qualifying IPO and such shares acquired do not exceed 30 per cent of the voting shares in the Company.
|
10.3
|
Voluntary Cancellation
|
10.4
|
Voluntary prepayment of Loans
|
10.5
|
Mandatory Cancellation
|
(a)
|
To the extent that the liability under the Romanian Ancillaries is permanently reduced without a claim being made thereon (and such reduction is acceptable to the beneficiary of the Romanian Ancillaries) the Ancillary Facility under which the Romanian Ancillaries has been issued shall be reduced by a corresponding amount and the corresponding Commitment shall also be reduced and cancelled.
|
(b)
|
To the extent that the liability under the Velocity Partners LC is permanently reduced without a chain being made thereon (and such reduction is acceptable to the beneficiary of the Velocity Partners LC) the Ancillary Facility under which the Velocity Partners LC has been issued shall be reduced by a corresponding amount and the corresponding Commitment shall also be reduced and cancelled.
|
10.6
|
Right of Replacement or Repayment and Cancellation in relation to a Single Lender
|
(a)
|
If:
|
(i)
|
any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 15.2 (
Tax Gross‑Up
); or
|
(ii)
|
any Lender claims indemnification from the Company under Clause 15.3 (
Tax Indemnity
) or Clause 16.1 (
Increased Costs
),
|
(b)
|
On receipt of a notice of cancellation referred to in paragraph (a) above, the Commitments of that Lender shall immediately be reduced to zero.
|
(c)
|
On the last day of each Interest Period which ends after the Company has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Loan is outstanding shall repay that Lender’s participation in that Loan.
|
(d)
|
If:
|
(i)
|
any of the circumstances set out in paragraph (a) above apply to a Lender; or
|
(ii)
|
an Obligor becomes obliged to pay any amount in accordance with Clause 10.1 (
Illegality
) to any Lender,
|
(e)
|
The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:
|
(i)
|
the Company shall have no right to replace the Agent;
|
(ii)
|
neither the Agent nor any Lender shall have any obligation to find a replacement Lender;
|
(iii)
|
in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and
|
(iv)
|
the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer.
|
(f)
|
A Lender shall perform the checks described in paragraph (e)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Company when it is satisfied that it has complied with those checks.
|
10.7
|
Restrictions
|
(a)
|
Any notice of cancellation or prepayment given by any Party under this Clause 10 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
(b)
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
|
(c)
|
Unless a contrary indication appears in this Agreement, any part of any Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.
|
(d)
|
The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(e)
|
Subject to Clause 2.2 (
Increase
), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(f)
|
If the Agent receives a notice under this Clause 10 it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.
|
(g)
|
If all or part of any Lender’s participation in a Loan is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (
Further Conditions Precedent
)), an amount of that Lender’s Commitment (equal to the Base Currency Amount of the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.
|
10.8
|
Application of prepayments
|
11.
|
Interest
|
11.1
|
Calculation of Interest
|
(a)
|
Margin; and
|
(b)
|
LIBOR or, in relation to any Loan in euro, EURIBOR or, in relation to a Loan in RON, ROBOR.
|
11.2
|
Margin adjustments – Revolving Facility
|
(a)
|
Until the delivery of the Compliance Certificate in respect of the period ending 31 December, 2017, the Margin in respect of Revolving Facility will be 0.80% per annum.
|
(b)
|
Subject to the other provisions of this sub-clause, the Margin in respect of Revolving Facility Loans will be calculated by reference to the table below and the information set out in the most recently delivered Compliance Certificate and financial statements for the relevant person:
|
Column 1
Net Leverage Ratio
|
Column 2
Margin in respect of Revolving Facility Loans
(per cent. per annum)
|
Equal to or greater than 2.00:1
|
1.40
|
Equal to or greater than 1.50:1 but less than 2.00:1
|
1.10
|
Equal to or greater than 1.00:1 but less than 1.50:1
|
0.95
|
Less than 1.00:1
|
0.80
|
(c)
|
Any change in the Margin in respect of Revolving Facility Loans will, subject to paragraph (d) below, apply to each Revolving Facility Loan on the date falling three Business Days following receipt by the Agent of the Compliance Certificate and financial statements and have effect until delivery to the Agent of the next Compliance Certificate and financial statements.
|
(d)
|
If, following receipt by the Agent of the Compliance Certificate related to the relevant annual consolidated financial statements, that Compliance Certificate does not confirm the basis for a reduced Margin, then paragraph (b) of Clause 11.3 (
Payment of Interest
) shall apply and the Margin for that Loan shall be the percentage per annum determined using the table above and the revised Net Leverage Ratio calculated using the figures in that Compliance Certificate.
|
(e)
|
For so long as an Event of Default has occurred and is continuing, the Margin in respect of Revolving Facility Loans will be the highest rate, being 1.40% per annum.
|
11.3
|
Payment of Interest
|
(a)
|
The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six‑monthly intervals after the first day of the Interest Period).
|
(b)
|
If the Compliance Certificate received by the Agent which relates to the relevant annual consolidated financial statements shows that a higher Margin should have applied during a certain period, then the Company shall (or shall ensure the relevant Borrower shall) promptly pay to the Agent any amounts necessary to put the Agent and the Lenders in the position they would have been in had the appropriate rate of the Margin applied during such period.
|
11.4
|
Default Interest
|
(a)
|
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is 1.00 per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non‑payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 11.4 shall be immediately payable by the Obligor on demand by the Agent.
|
(b)
|
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
|
(i)
|
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
|
(ii)
|
the rate of interest applying to the overdue amount during that first Interest Period shall be 1.00 per cent. per annum higher than the rate which would have applied if the overdue amount had not become due.
|
(c)
|
Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
|
11.5
|
Notification of Rates of Interest
|
(a)
|
The Agent shall promptly notify the Lenders and the relevant Borrower of the determination of a rate of interest under this Agreement.
|
(b)
|
The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.
|
12.
|
Interest Periods
|
12.1
|
Selection of Interest Periods
|
(a)
|
A Borrower (or the Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan.
|
(b)
|
Subject to this Clause 12, a Borrower (or the Company) may select an Interest Period of 1, 3 or 6 Months, or of any other period agreed between the Company, the Agent and all the Lenders.
|
(c)
|
An Interest Period for a Loan under a Facility shall not extend beyond the Termination Date for that Facility.
|
(d)
|
Each Interest Period for a Loan shall start on the Utilisation Date.
|
(e)
|
A Loan has one Interest Period only.
|
13.
|
Changes to the Calculation of Interest
|
13.1
|
Unavailability of Screen Rate
|
(a)
|
Interpolated
Screen
Rate
: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR or, if applicable, RON, for the Interest Period of a Loan, the applicable LIBOR or ROBOR or EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.
|
(b)
|
Shortened Interest Period
: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR or, if applicable, ROBOR for:
|
(i)
|
the currency of a Loan; or
|
(ii)
|
the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,
|
(c)
|
Shortened Interest Period and Historic Screen Rate
: If the Interest Period of a Loan is, after giving effect to paragraph (b) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no Screen Rate is available for LIBOR or, if applicable EURIBOR or, if applicable ROBOR for:
|
(i)
|
the currency of that Loan; or
|
(ii)
|
the Interest Period of that Loan and it is not possible to calculate the Interpolated Screen Rate,
|
(d)
|
Shortened Interest Period and Interpolated Historic Screen Rate
: If paragraph (c) above applies but no Historic Screen Rate is available for the Interest Period of the Loan, the applicable LIBOR or EURIBOR or ROBOR shall be the Interpolated Historic Screen Rate for a period equal in length to the Interest Period of that Loan.
|
(e)
|
Reference Bank Rate
: If paragraph (d) above applies but it is not possible to calculate the Interpolated Historic Screen Rate, the Interest Period of that Loan shall, if it has been shortened pursuant to paragraph (b) above, revert to its previous length and the applicable LIBOR or EURIBOR or ROBOR shall be the Reference Bank Rate as of the Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan.
|
(f)
|
Cost of funds
: If paragraph (e) above applies but no Reference Bank Rate is available for the relevant currency or Interest Period there shall be no LIBOR or EURIBOR or ROBOR for that Loan and Clause 13.4 (
Cost of funds
) shall apply to that Loan for that Interest Period.
|
13.2
|
Calculation of Reference Bank Rate
|
(a)
|
Subject to paragraph (b) below, if LIBOR or EURIBOR or ROBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.
|
(b)
|
If at or about noon on the Quotation Day none or only one of the Reference Banks supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.
|
13.3
|
Market Disruption
|
13.4
|
Cost of Funds
|
(a)
|
If this Clause 13.4 applies, the rate of interest on the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
|
(i)
|
the Margin; and
|
(ii)
|
the rate notified by that Lender to the Agent as soon as practicable and in any event by close of business on the date falling 5 Business Days after the Quotation Day (or, if earlier, on the date falling 5 Business Days before the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.
|
(b)
|
If this Clause 13.4 applies and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
|
(c)
|
Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.
|
13.5
|
Notification to Company
|
13.6
|
Break Costs
|
(a)
|
Each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
|
(b)
|
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
|
14.
|
Fees
|
14.1
|
Commitment Fee
|
(a)
|
The Company shall pay to the Agent (for the account of each Lender):
|
(i)
|
in relation to the Revolving Facility, a fee in the Base Currency computed at the rate of 40 per cent. of the applicable Margin per annum on that Lender’s Available Commitment in relation to the Revolving Facility for the Availability Period in relation to the Revolving Facility; and
|
(ii)
|
in relation to an Incremental Facility, the percentage rate per annum specified in the Incremental Facility/Existing Facility Increase Notice relating to that Incremental Facility on that Lender’s Available Commitment in relation to that Incremental Facility for the Availability Period for that Incremental Facility.
|
(b)
|
The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the relevant Availability Period, on the last day of the relevant Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.
|
14.2
|
Arrangement Fee
|
14.3
|
Agency Fee
|
(a)
|
The Company shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.
|
(b)
|
The fees, commissions and expenses payable to the Agent for services rendered and the performance of its obligations under this Agreement shall not be abated by any remuneration or other amounts or profits receivable by the Agent (or by any of its associates) in connection with any transaction effected by the Agent with or for the Lenders or the Company.
|
14.4
|
Security Agent Fee
|
(a)
|
The Company shall pay to the Security Agent (for its own account) a security agent fee in the amount and at the times agreed in a Fee Letter.
|
(b)
|
The fees, commission and expenses payable to the Security Agent for services rendered and the performance of its obligations under this Agreement shall not be abated by any remuneration or other amounts or profits receivable by the Security Agent (or by any of its associates) in connection with any transaction effected by the Security Agent with or for the Lenders or the Company.
|
14.5
|
Interest, commission and fees on Ancillary Facilities
|
14.6
|
Utilisation Fee
|
(a)
|
The Company shall pay to the Agent (for the account of each Lender under the Revolving Facility) in relation to the Revolving Facility:
|
(i)
|
a fee in the Base Currency computed at the rate of 0.15 per cent. per annum on that Lender’s participation in any Loan drawn under the Revolving Facility for any period during which between 33⅓% and 66⅔% of the Revolving Facility Commitments have been utilised by the way of Revolving Facility Loans; and
|
(ii)
|
a fee in the Base Currency computed at the rate of 0.30 per cent. per annum on that Lender’s participation in any Loan drawn under the Revolving Facility for any period during which more than 66⅔% of the Revolving Facility Commitments have been utilised by way of Revolving Facility Loans.
|
(b)
|
The accrued utilisation fee is payable on the last day of each successive period of three Months which ends during the relevant Availability Period, on the last day of the relevant Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.
|
(c)
|
For the avoidance of doubt no utilisation fee shall accrue or be payable for any period during which less than 33⅓% of the Revolving Facility Commitments have been utilised by way of Revolving Facility Loans.
|
15.
|
Tax Gross Up and Indemnities
|
15.1
|
Definitions
|
(a)
|
In this Agreement:
|
(A)
|
where the Borrower is a Borrower as at the relevant Transfer Date or Increase Date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of that Transfer Date or Increase Date; or
|
(B)
|
where the Borrower is not a Borrower as at the relevant Transfer Date or Increase Date, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower.
|
(i)
|
a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:
|
(A)
|
a Lender:
|
(1)
|
which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or
|
(2)
|
in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or
|
(B)
|
a Lender which is:
|
(1)
|
a company resident in the United Kingdom for United Kingdom tax purposes;
|
(2)
|
a partnership each member of which is:
|
(I)
|
a company so resident in the United Kingdom; or
|
(II)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA;
|
(3)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or
|
(C)
|
a Treaty Lender; or
|
(ii)
|
a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.
|
(i)
|
a company resident in the United Kingdom for United Kingdom tax purposes;
|
(ii)
|
a partnership each member of which is:
|
(D)
|
a company so resident in the United Kingdom; or
|
(E)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
|
(iii)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.
|
(i)
|
is treated as a resident of a Treaty State for the purposes of the Treaty;
|
(ii)
|
does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and
|
(iii)
|
fulfils any other conditions which must be fulfilled under the Treaty by residents of that Treaty State in order for such residents to obtain full exemption from taxation on interest imposed by the United Kingdom, including completion of any procedural formalities.
|
(b)
|
Unless a contrary indication appears, in this Clause 15 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination (acting in good faith).
|
15.2
|
Tax Gross‑Up
|
(a)
|
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b)
|
The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Company and that Obligor.
|
(c)
|
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
(d)
|
A payment shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by the United Kingdom, if on the date on which the payment falls due:
|
(i)
|
the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or published concession of any relevant taxing authority; or
|
(ii)
|
the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of “Qualifying Lender”; and
|
(A)
|
an officer of HM Revenue & Customs has given (and not revoked) a direction (a “
Direction
”) under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment or from the Company a certified copy of that Direction; and
|
(B)
|
the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or
|
(iii)
|
the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of “Qualifying Lender” and:
|
(A)
|
the relevant Lender has not given a Tax Confirmation to the Company; and
|
(B)
|
the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Company, on the basis that the Tax Confirmation would have enabled the Company to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or
|
(iv)
|
the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (g) or (iv) (as applicable) below.
|
(e)
|
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(f)
|
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
(g)
|
(i) Subject to paragraph (ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co‑operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.
|
(ii)
|
Nothing in clause (i) above shall require a Treaty Lender to:
|
(A)
|
register under the HMRC DT Treaty Passport scheme; or
|
(B)
|
apply the HMRC DT Treaty Passport scheme to any utilisation if it has so registered.
|
(iii)
|
A Treaty Lender which is not an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the Transfer Certificate, Assignment Agreement or Increase Confirmation which its executes on becoming a Party as a Lender and, having done so, that Lender shall be deemed to have fully satisfied its obligation(s) pursuant to paragraph (i) above.
|
(iv)
|
If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(i) above and a Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:
|
(A)
|
that Borrower DTTP Filing has been rejected by HM Revenue & Customs; or
|
(B)
|
HM Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing,
|
(h)
|
If a Lender has confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph (g)(iii) above:
|
(i)
|
such confirmation shall constitute notification by such Lender to the Company and each Borrower that the Lender wishes the HMRC DT Treaty Passport scheme to apply to this Agreement and that pursuant to such scheme each Borrower must comply with its obligations under clauses (ii) and (iii) below;
|
(ii)
|
each Original Borrower shall, to the extent that such Lender is a Lender under a Facility made available to that Borrower pursuant to clause 2.1 (The Facilities), file a duly completed Form DTTP2 in respect of such Lender with H.M. Revenue & Customs within 30 days of the date of this Agreement (in the case of an Original Lender) or the relevant Transfer Date (in the case of a New Lender), respectively; and
|
(iii)
|
each Additional Borrower shall, to the extent that such Lender is a Lender under a Facility made available to that Additional Borrower pursuant to clause 2.1 (The Facilities), file a duly completed Form DTTP2 in respect of such Lender with H.M. Revenue & Customs within 30 days of becoming an Additional Borrower.
|
(i)
|
A Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Agent for delivery to the relevant Lender.
|
(j)
|
A UK Non‑Bank Lender shall promptly notify the Company and the Agent if there is any change in the position from that set out in the Tax Confirmation.
|
15.3
|
Tax Indemnity
|
(a)
|
The Company shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(b)
|
Paragraph (a) above shall not apply:
|
(i)
|
with respect to any Tax assessed on a Finance Party:
|
(A)
|
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B)
|
under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(ii)
|
to the extent a loss, liability or cost:
|
(A)
|
is compensated for by an increased payment under Clause 15.2 (
Tax Gross‑Up
);
|
(B)
|
would have been compensated for by an increased payment under Clause 15.2 (
Tax Gross‑Up
) but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 15.2 (
Tax Gross‑Up
) applied;
|
(C)
|
relates to a FATCA Deduction required to be made by a Party; or
|
(D)
|
relates to Bank Levy.
|
(c)
|
A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Company.
|
(d)
|
A Protected Party shall, on receiving a payment from an Obligor under this Clause 15.3, notify the Agent.
|
15.4
|
Tax Credit
|
(a)
|
a Tax Credit is attributable to:
|
(i)
|
an increased payment of which that Tax Payment forms part;
|
(ii)
|
that Tax Payment; or
|
(iii)
|
a Tax Deduction in consequence of which that Tax Payment was required; and
|
(b)
|
that Finance Party has obtained and utilised that Tax Credit,
|
15.5
|
Lender status confirmation
|
(a)
|
not a Qualifying Lender;
|
(b)
|
a Qualifying Lender (other than a Treaty Lender); or
|
(c)
|
a Treaty Lender.
|
15.6
|
Stamp Taxes
|
15.7
|
VAT
|
(a)
|
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (subject to such Finance Party promptly providing an appropriate VAT invoice to that Party).
|
(b)
|
If VAT is or becomes chargeable on any supply made by any Finance Party (the “
Supplier
”) to any other Finance Party (the “
Recipient
”) under a Finance Document, and any Party other than the Recipient (the “
Relevant Party
”) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
|
(i)
|
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
|
(ii)
|
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
(c)
|
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d)
|
Any reference in this Clause 15.7 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to any member of such group which is responsible for accounting for, or paying, VAT on behalf of such group, or on behalf of any or all of the members thereof.
|
(e)
|
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other
|
15.8
|
FATCA information
|
(a)
|
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i)
|
confirm to that other Party whether it is:
|
(A)
|
a FATCA Exempt Party; or
|
(B)
|
not a FATCA Exempt Party;
|
(ii)
|
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and
|
(iii)
|
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.
|
(b)
|
If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c)
|
Paragraph (a) above shall not oblige any Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i)
|
any law or regulation;
|
(ii)
|
any fiduciary duty; or
|
(iii)
|
any duty of confidentiality.
|
(d)
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
(e)
|
If a Borrower is a US Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
|
(i)
|
where an Original Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii)
|
where a Borrower is a US Tax Obligor on a date on which any other Lender becomes a Party as a Lender, that date;
|
(iii)
|
the date a new US Tax Obligor accedes as a Borrower; or
|
(iv)
|
where a Borrower is not a US Tax Obligor, the date of a request from the Agent,
|
(A)
|
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
|
(B)
|
any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
|
(f)
|
The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the relevant Borrower.
|
(g)
|
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower.
|
(h)
|
The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.
|
15.9
|
FATCA Deduction
|
(a)
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
(b)
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Company and the Agent and the Agent shall notify the other Finance Parties.
|
16.
|
Increased Costs
|
16.1
|
Increased Costs
|
(a)
|
Subject to Clause 16.3 (
Exceptions
) the Company shall, within three Business Days of a demand by the Agent, pay (or procure that there is paid) for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of :
|
(i)
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation after the date of this Agreement;
|
(ii)
|
compliance with any law or regulation made after the date of this Agreement; or
|
(iii)
|
the implementation or application of, or compliance with, Basel III or CRD IV, or any law or regulation which implements Basel III or CRD IV.
|
(b)
|
In this Agreement:
|
(i)
|
“
Increased Costs
” means:
|
(A)
|
a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;
|
(B)
|
an additional or increased cost; or
|
(C)
|
a reduction of any amount due and payable under any Finance Document,
|
(ii)
|
“
Basel III
” means:
|
(A)
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
|
(B)
|
the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and
|
(C)
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.
|
(iii)
|
“
CRD IV
” means (a) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU No 648/2012) and (b) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC.
|
16.2
|
Increased Cost Claims
|
(a)
|
A Finance Party intending to make a claim pursuant to Clause 16.1 (
Increased Costs
) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Company.
|
(b)
|
Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.
|
16.3
|
Exceptions
|
(a)
|
Clause 16.1 (
Increased Costs
) does not apply to the extent any Increased Cost is:
|
(i)
|
attributable to a Tax Deduction required by law to be made by an Obligor;
|
(ii)
|
attributable to any Bank Levy;
|
(iii)
|
attributable to a FATCA Deduction required to be made by a Party;
|
(iv)
|
compensated for by Clause 15.3 (
Tax Indemnity
) (or would have been compensated for under Clause 15.3 (
Tax Indemnity
) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 15.3 (
Tax Indemnity
) applied);
|
(v)
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
|
(vi)
|
attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) (“
Basel II
”) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates; or
|
(b)
|
In this Clause 16.3, a reference to a “Tax Deduction” has the same meaning given to that term in Clause 15.1 (
Definitions
).
|
16.4
|
Claims
|
(a)
|
A Finance Party intending to make a claim for an Increased Cost must notify the Agent of the circumstances giving rise to and the amount of the claim, following which the Agent will promptly notify the Company.
|
(b)
|
Each Finance Party must, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Cost.
|
17.
|
Other Indemnities
|
17.1
|
Currency Indemnity
|
(a)
|
If any sum due from an Obligor under the Finance Documents (a “
Sum
”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “
First Currency
”) in which that Sum is payable into another currency (the “
Second Currency
”) for the purpose of:
|
(i)
|
making or filing a claim or proof against that Obligor;
|
(ii)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b)
|
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
17.2
|
Other Indemnities
|
(a)
|
the occurrence of any Event of Default;
|
(b)
|
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 31 (
Sharing among Finance Parties
);
|
(c)
|
funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or
|
(d)
|
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Company.
|
17.3
|
Indemnity to the Agent
|
(a)
|
any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:
|
(i)
|
investigating any event which it reasonably believes is a Default (provided the Agent has first notified the Company that it intends to investigate a Default); or
|
(ii)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
(iii)
|
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and
|
(b)
|
any cost, loss or liability (including without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than by reason of the Agent’s gross negligence or wilful misconduct) in acting as Agent under the Finance Documents.
|
(c)
|
This indemnity given by the Obligor under or in connection with this Agreement is a continuing obligation, independent of the Obligors other obligations under or in connection with that or any other document and survives after that document is terminated. It is not necessary for a person to pay any amount or incur any expense before enforcing an indemnity under or in connection with this Agreement or any other document.
|
17.4
|
Indemnity to the Security Agent
|
(a)
|
Each Obligor jointly and severally shall promptly indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:
|
(i)
|
any failure by the Company to comply with its obligations under Clause 18 (
Costs and
Expenses);
|
(ii)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
|
(iii)
|
the taking, holding, protection or enforcement of the Transaction Security;
|
(iv)
|
the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;
|
(v)
|
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
|
(vi)
|
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; or
|
(vii)
|
acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Charged Property (other than by reason of the relevant Security Agent's, Receiver's or Delegate’s gross negligence or wilful misconduct).
|
(b)
|
The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Charged Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 17 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.
|
(c)
|
Each indemnity given by an Obligor under or in connection with a Finance Document is a continuing obligation, independent of the Obligor’s other obligations under or in connection with that or any other Finance Document and survives after that Finance Document is terminated. It is not necessary, for a Finance Party to pay any amount or incur any expense before enforcing an indemnity under or in connection with a Finance Document.
|
18.
|
Mitigation by the Lenders
|
18.1
|
Mitigation
|
(a)
|
Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 10.1 (
Illegality
), Clause 15 (
Tax Gross‑Up and Indemnities
) or Clause 16 (
Increased Costs
) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b)
|
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
18.2
|
Limitation of Liability
|
(a)
|
The Company shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 18.1 (
Mitigation
).
|
(b)
|
A Finance Party is not obliged to take any steps under Clause 18.1 (
Mitigation
) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
19.
|
Costs and Expenses
|
19.1
|
Transaction Expenses
|
(a)
|
the Transaction Security, this Agreement and any other documents referred to in this Agreement; and
|
(b)
|
any other Finance Documents executed after the date of this Agreement,
|
19.2
|
Amendment Costs
|
(a)
|
an Obligor requests an amendment, waiver or consent; or
|
(b)
|
an amendment is required pursuant to Clause 32.9 (
Change of currency
),
|
19.3
|
Enforcement Costs
|
20.
|
Guarantee and Indemnity
|
20.1
|
Guarantee and Indemnity
|
(a)
|
guarantees to each Finance Party punctual performance by each Borrower of all that Borrower’s obligations under the Finance Documents (other than any Excluded Swap Obligations);
|
(b)
|
undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
|
(c)
|
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 20 if the amount claimed had been recoverable on the basis of a guarantee.
|
20.2
|
Continuing Guarantee
|
20.3
|
Reinstatement
|
20.4
|
Waiver of Defences
|
(a)
|
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b)
|
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non‑presentation or non‑observance of any formality or other
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
(e)
|
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g)
|
any insolvency or similar proceedings.
|
20.5
|
Guarantor intent
|
20.6
|
Immediate Recourse
|
20.7
|
Appropriations
|
(a)
|
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and
|
(b)
|
hold in an interest‑bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 20.
|
20.8
|
Deferral of Guarantors’ Rights
|
(a)
|
to be indemnified by an Obligor;
|
(b)
|
to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents;
|
(c)
|
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
|
(d)
|
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 20.1 (
Guarantee and Indemnity
);
|
(e)
|
to exercise any right of set‑off against any Obligor; and/or
|
(f)
|
to claim or prove as a creditor of any Obligor in competition with any Finance Party.
|
20.9
|
Release of Guarantors’ Right of Contribution
|
(a)
|
that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and
|
(b)
|
each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.
|
20.10
|
Additional Security
|
20.11
|
Guarantee limitations
|
20.12
|
US Guarantee Limitations
|
(a)
|
Each US Obligor and each Finance Party (by its acceptance of the benefits of the guarantee under this Clause 20.12) hereby confirms that it is its intention that the guarantee under this Clause 20.12 shall not constitute a fraudulent transfer or conveyance for purposes of any bankruptcy, insolvency or similar law, the Uniform Fraudulent Conveyance Act or any similar federal, state or foreign law. To effectuate the foregoing intention, each US Obligor and each Finance Party (by its acceptance of the benefits of the guarantee under this Clause 20.12) hereby irrevocably agrees that the maximum aggregate amount of the obligations for which such US Obligor shall be liable under such guarantee shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other (contingent or otherwise) liabilities of such US Obligor that are relevant under such laws, and after giving effect to any rights to contribution pursuant to any agreement providing for equitable contribution among such US Obligor and the other Obligors, result in such obligations of such US Obligor not constituting a fraudulent transfer or conveyance.
|
(b)
|
Notwithstanding anything to the contrary in this Agreement or any other Finance Document, in no circumstances shall proceeds of any Security constituting an asset of a Guarantor which is not a Qualified ECP Guarantor be applied towards the payment of any Excluded Swap Obligations nor shall any guarantee provided by any Guarantor pursuant to any Finance Document guarantee any obligations which are Excluded Swap Obligations, notwithstanding the terms of such Finance Document (and in the case of any conflict between the terms of any Finance Document and this Clause 20.12, the terms of this Clause 20.12 shall prevail).
|
20.13
|
Romanian Guarantors Limitations and Confirmations
|
(a)
|
In addition to Clause 20.12 above and notwithstanding any other provisions of this Clause 20.13, the other provisions of this Agreement or any other Finance Document the guarantee, indemnity and other obligations and liabilities expressed to be assumed under any of the Finance Documents (including without limitation Transaction Security Documents) and in particular under this Clause 20.13 by a Romanian Obligor:
|
(i)
|
shall not include any obligation or liability which would create any obligation or liability of such Obligor to act in violation of:
|
(A)
|
mandatory Romanian corporate benefit rules (including rules on legal capacity and underlying cause of an agreement, as provided by articles 1179 and 1236 of the Romanian Civil Code); or
|
(B)
|
criminal, or otherwise, liability rules (article 272 paragraph (1) letters (b) and (c) of the Romanian Companies Law, regarding misuse of corporate assets, article 272 index 1 letter (b) of the Romanian Companies Law, regarding payments of dividends from fictive profits, article 273 letter (c) and article 144 index 4 of the Romanian Companies Law, to the extent applicable) restricting a company's and its founders' (in Romanian
fondatori
), directors' (in Romanian
administratori
), general manager's (in Romanian
directorul general
), supervisory board members' (in Romanian m
embrii consiliului de supraveghere
), directorate members' (in Romanian
membrii directoratului
) or legal representatives' (in Romanian
reprezentantii legali
), ability to provide or grant loans, guarantees or security interests in favour of other companies or its shareholders and their
|
(ii)
|
shall be limited to the aggregate of amounts which would ensure compliance by the Obligors incorporated in Romania with the requirements of Romanian Limitation Rules.
|
(b)
|
Each Romanian Obligor confirms that:
|
(i)
|
it concludes this Agreement on its behalf and in its own name, and not as a proxy, agent, trustee or fiduciary of another person;
|
(ii)
|
it has decided to enter into this Agreement based on its own review and consideration, after proper analysis of the benefits deriving from its entry into this Agreement and, where it has deemed necessary, with the expertise of specialised consultants (e.g. legal, financial, technical experts) which it has selected or agreed to. It does not rely on any written or oral communication from the Finance Parties as regards its decision to conclude this Agreement;
|
(iii)
|
it is capable of understanding, either directly or with the assistance of the foregoing consultants, and it understands and accepts the contents and effects of all the Clauses of this Agreement and the related rights and obligations, as well as their implications and legal effects;
|
(iv)
|
it has negotiated each Clause of this Agreement with the other parties, "negotiation" meaning the exchange of wording proposals until the reaching of a final agreement, as well as the acceptance without reservations of one Party's proposals by the other Parties, and this Agreement represents and reflects in their entirety its will (Romanian:
voinţa sa
); and
|
(v)
|
with a view to article 1175 of the Romanian Civil Code, this Agreement does not constitute an adhesion agreement (Romanian:
contract de adeziune
), being the result of the negotiation between the Parties and representing the full agreement of the Parties.
|
(c)
|
Each Romanian Obligor, in full awareness of the contents and nature of the transaction contemplated by this Agreement, hereby assumes the risk of change of the circumstances under which this Agreement is entered into, in accordance with article 1271 paragraph 3 letter (c) of the Romanian Civil Code, and hereby waives the right to raise defenses based on hardship (Romanian:
impreviziune
), force majeure (Romanian:
forţă majoră
) or unforeseeable event (Romanian:
caz fortuit
).
|
(d)
|
In addition to Clauses 20.4 (
Waiver of Defences)
and 20.8 (
Deferral of Guarantors’ Rights
) above, each Obligor incorporated in Romania expressly waives for the benefit of the Finance Parties the benefit of discussion and the benefit of division (Romanian:
beneficiul de discuţiune and beneficiul de diviziune
) as such terms are reflected by articles 2294 and 2298 of the Romanian Civil Code, to the maximum extent permitted by Romanian legislation. Each Romanian Obligor hereby explicitly waives any right to terminate the guarantees and indemnities provided in this Agreement (including, without limitation, under Clause 20 (
Guarantee and Indemnity
) in accordance with Article 2316 of the Romanian Civil Code for the entire duration of this Agreement.
|
(e)
|
For the purpose of articles 1202 - 1203 of the Romanian Civil Code, the clauses of this Agreement and the other Finance Documents have been discussed and negotiated and each Obligor incorporated in Romania expressly agrees with all the provisions in this
|
20.14
|
Keepwell
|
(a)
|
Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Obligor to honour all of its obligations under:
|
(i)
|
any hedging agreement; and
|
(ii)
|
Clause 20 (
Guarantee and Indemnity
) in respect of each other Obligor’s obligations under any hedging agreement,
|
(b)
|
The obligations of each Qualified ECP Guarantor under this Clause 20.14 shall remain in full force and effect until each Obligor’s obligations under any hedging agreement and under Clause 20.14 (
Guarantee and Indemnity
) in respect of each other Obligor’s obligations under any hedging agreement are fully discharged in accordance with the terms of the Finance Documents.
|
(c)
|
Each Qualified ECP Guarantor intends that this Clause 20.14 constitutes, and this Clause 20.14 shall be deemed to constitute, a “keepwell, support or other agreement” for the benefit of each other Obligor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
|
21.
|
Representations
|
21.1
|
Status
|
(a)
|
It is a corporation or limited liability corporation, duly incorporated or organised, as applicable, and validly existing under the law of its jurisdiction of incorporation or organisation, as applicable.
|
(b)
|
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
21.2
|
Binding Obligations
|
(a)
|
the obligations expressed to be assumed by it in each Finance Document to which it is a party are legal, valid, binding and enforceable obligations; and
|
(b)
|
(without limiting the generality of paragraph (a) above), each Transaction Security Document to which it is a party creates the security interests which that Transaction Security Document purports to create and those security interests are valid and effective.
|
21.3
|
Non‑Conflict with Other Obligations
|
(a)
|
any law or regulation applicable to it;
|
(b)
|
its constitutional documents; or
|
(c)
|
any agreement or instrument binding upon it or any of its assets, or constitute a default or termination event (howsoever described) under any such instrument or agreement, in each case to the extent to which it would have a Material Adverse Effect.
|
21.4
|
Power and Authority
|
(a)
|
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.
|
(b)
|
No limit on its powers will be exceeded as a result of the borrowing, grant of security or giving of guarantees or indemnities contemplated by the Finance Documents to which it is a party.
|
21.5
|
Validity and Admissibility in Evidence
|
(a)
|
Subject to the Legal Reservations and the Perfection Requirements, all Authorisations required or desirable:
|
(i)
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and
|
(ii)
|
to make the Finance Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,
|
(b)
|
All Authorisations required to enable it and each of its Subsidiaries to carry on its business, trade and ordinary activities have been obtained or effected and are in full force and effect where failure to do so would have a Material Adverse Effect.
|
21.6
|
Governing Law and Enforcement
|
(a)
|
the choice of English law as the governing law of each Finance Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions.
|
(b)
|
any judgment obtained in England in relation to a Finance Document expressed to be governed by English law will be recognised and enforced in its Relevant Jurisdictions.
|
21.7
|
Deduction of Tax
|
(a)
|
a Qualifying Lender:
|
(i)
|
falling within paragraph (i)(A) of the definition of “Qualifying Lender”; or
|
(ii)
|
except where a Direction has been given under section 931 of the ITA in relation to the payment concerned, falling within paragraph (i)(B) of the definition of “Qualifying Lender”; or
|
(iii)
|
falling within paragraph (ii) of the definition of “Qualifying Lender” or;
|
(b)
|
a Treaty Lender and the payment is a one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488).
|
21.8
|
No Filing or Stamp Taxes
|
(a)
|
registration of particulars of the Transaction Security Documents at the Companies Registration Office in England and Wales in accordance with Part 25 (Company Charges) of the Act or any regulations relating to the registration of charges made under, or applying the provisions of, the Act and payment of associated fees, which registrations, filings, taxes and fees will be made and paid promptly after the date of the relevant Finance Document; and
|
(b)
|
filing of UCC-1 financing statements in all applicable jurisdictions, which filings will be made promptly after the date hereof (or, in the case of the accession of a US Obligor hereto, the date of such accession).
|
21.9
|
Compliance with Tax laws
|
(a)
|
It has (and each of its Subsidiaries has) complied with Tax laws in all jurisdictions in which it is subject to Tax and has paid all Taxes due and payable by it and no claims are being asserted against it in respect of Taxes except in relation to Tax liabilities arising in the ordinary course of business, in relation to Tax liabilities which if not paid would not have a Material Adverse Effect or claims contested in good faith and in respect of which adequate provision has been made and disclosed in the latest financial statement or other information delivered to the Agent under this Agreement.
|
(b)
|
It is resident for Tax purposes only in the jurisdiction of its incorporation.
|
21.10
|
No Default
|
(a)
|
No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.
|
(b)
|
No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries’) assets are subject which might have a Material Adverse Effect.
|
21.11
|
No Misleading Information
|
(a)
|
Any factual information provided by any member of the Group for the purposes of the Base Case Model was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
|
(b)
|
The financial projections contained in the Base Case Model have been prepared on the basis of recent historical information and on the basis of reasonable assumptions.
|
(c)
|
The Base Case Model has been prepared in accordance with the Accounting Principles as applied to the Original Financial Statements.
|
(d)
|
The Information Package provided to the Finance Parties was true, complete and accurate in all material respects as at date it was provided and is not misleading in any respect.
|
21.12
|
Financial Statements
|
(a)
|
Its Original Financial Statements were prepared in accordance with Accounting Principles consistently applied.
|
(b)
|
Its Original Financial Statements fairly present its financial condition as at the end of the relevant financial year and its results of operations during the relevant financial year (consolidated in the case of the Company).
|
(c)
|
There has been no material adverse change in the business or consolidated financial condition of the Group since 31 December, 2016.
|
21.13
|
Pari Passu Ranking
|
21.14
|
No Proceedings
|
21.15
|
Insolvency
|
(a)
|
corporate action, legal proceeding or other procedure or step, in each case described in paragraph (a) of Clause 25.7 (
Insolvency proceedings
); or
|
(b)
|
creditors’ process described in Clause 25.8 (
Creditors’ process
),
|
21.16
|
Security and Financial Indebtedness
|
(a)
|
No Security or Quasi-Security exists over all or any of the present or future assets of it or any of its Subsidiaries other than as permitted by this Agreement.
|
(b)
|
Neither it nor any of its Subsidiaries has any Financial Indebtedness outstanding other than as permitted by this Agreement.
|
21.17
|
Legal and beneficial ownership
|
21.18
|
Intellectual Property Rights
|
(a)
|
owns or has licensed to it all Intellectual Property Rights which are material in the context of its (or such Subsidiaries’) business and which are required by it (or such Subsidiary) in order for it to carry on its business in all material respects as it is being or is proposed to be conducted and, so far as it is aware, it does not and will not (nor do or will any of its Subsidiaries) in carrying on its business, infringe any Intellectual Property Rights of any third party to such an extent as might have a Material Adverse Effect; and
|
(b)
|
has taken all actions (including payment of fees) required to maintain in full force and effect all registered Intellectual Property Rights owned by it which are material in the context of its (or such Subsidiaries’) business and which are required by it (or such Subsidiary) in order for it to carry on its business in all material respects as it is currently being conducted,
|
21.19
|
Anti-corruption law
|
21.20
|
Group Structure Chart
|
21.21
|
Guarantor Coverage
|
21.22
|
Sanctions
|
(a)
|
is a Restricted Party or is engaging in or has engaged in any transaction or conduct that could result in it becoming a Restricted Party;
|
(b)
|
is or ever has been subject to any claim, proceeding, formal notice or investigation with respect to Sanctions;
|
(c)
|
is engaging or has engaged in any transaction that evades or avoids, or has the purpose of evading or avoiding, or breaches or attempts to breach, directly or indirectly, any Sanctions applicable to it; or
|
(d)
|
has engaged or is engaging, directly or indirectly, in any trade, business or other activities with or for the benefit of any Restricted Party.
|
21.23
|
Pensions
|
(a)
|
Neither it nor any of its Subsidiaries is or has at any time been an employer (for the purposes of Sections 38 to 51 of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pensions Schemes Act 1993).
|
(b)
|
Neither it nor any of its Subsidiaries is or has at any time been “connected” with or an “associate” (as those terms are used in Sections 38 and 43 of the Pensions Act 2004) of such an employer.
|
21.24
|
Accounting Reference Date
|
21.25
|
Shares
|
(a)
|
The shares of any member of the Group which are subject to the Transaction Security are fully paid and not subject to any option to purchase or similar rights.
|
(b)
|
Subject to the Agreed Security Principles, the constitutional documents of each member of the Group whose shares are subject to the Transaction Security do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of the Transaction Security.
|
21.26
|
Good Title to Assets
|
21.27
|
Ranking
|
21.28
|
Centre of Main Interest and establishments
|
21.29
|
Repetition
|
(a)
|
on the date of each Utilisation Request and the first day of each Interest Period;
|
(b)
|
on the date of each Incremental Facility/Existing Facility Increase Notice;
|
(c)
|
on each Establishment Date; and
|
(d)
|
in the case of an Additional Obligor, on the day on which the company becomes (or it is proposed that the company becomes) an Additional Obligor.
|
22.
|
Information Undertakings
|
22.1
|
Financial Statements
|
(a)
|
The Company shall supply to the Agent in sufficient copies for all the Lenders:
|
(i)
|
as soon as the same become available, but in any event within 180 days after the end of each of its financial years its audited consolidated financial statements for that financial year;
|
(ii)
|
as soon as the same become available, but in any event within 180 days after the end of each half of each of its financial years its consolidated financial statements for that financial half year; and
|
(iii)
|
as soon as they become available, but in any event within 90 days after the end of each financial quarter ending on or about 31 March or 30 September, its consolidated financial statements for that financial quarter
|
(b)
|
Prior to the occurrence of a Qualifying IPO, the Company shall supply to the Agent in sufficient copies for all the Lenders as soon as they become available, but in any event within 180 days after the end of each of its financial years, to the extent available, the audited financial statements of each Obligor for that financial year.
|
22.2
|
Compliance Certificate
|
(a)
|
The Company shall supply to the Agent, with each set of financial statements delivered pursuant to paragraph (a)(i) and (ii) of Clause 22.1 (
Financial Statements
), a Compliance Certificate setting out (in reasonable detail):
|
(i)
|
computations as to compliance (or otherwise) with Clause 23 (
Financial covenants
); and
|
(ii)
|
confirmation of the applicable Margin,
|
(b)
|
Each Compliance Certificate delivered with financial statements delivered pursuant to paragraph (a) of Clause 22.1 (
Financial Statements
) shall include confirmation as to compliance (or otherwise) with paragraph (a) of Clause 24.15 (
Guarantors
).
|
(c)
|
Each Compliance Certificate shall be signed by a director of the Company (with financial responsibilities) and, if required to be delivered with the financial statements delivered pursuant to paragraph (a)(i) of Clause 22.1 (
Financial Statements
), shall be reported on by the Company’s auditors in the form agreed by the Company’s auditors, provided that if the Company’s auditors have a policy of not providing such reports then no such report shall be required and, if the Company’s auditors as a matter of practice require the Finance Parties to sign an engagement letter with them, the Finance Parties have entered into such engagement letter with the Company’s auditors.
|
22.3
|
Requirements as to Financial Statements
|
(a)
|
Each set of financial statements delivered by the Company pursuant to paragraphs (a) and (b) of Clause 22.1 (
Financial Statements
) shall be certified by a director of the Company as fairly presenting its financial condition as at the date as at which those financial statements were drawn up.
|
(b)
|
The Company shall procure that each set of financial statements delivered pursuant to paragraphs (a) and (b) of Clause 22.1 (
Financial Statements
) is prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in GAAP, the accounting practices or reference periods and its auditors deliver to the Agent:
|
(i)
|
a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which the Original Financial Statements were prepared; and
|
(ii)
|
sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether Clause 23 (
Financial Covenants
) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Obligors’ Original Financial Statements.
|
22.4
|
Budget
|
(a)
|
the Company shall supply to the Agent in sufficient copies for all the Lenders, as soon as the same become available but in any event within 30 days of the start of each of its financial years, an annual Budget for that financial year.
|
(b)
|
the Company shall ensure that each Budget:
|
(i)
|
includes a projected consolidated profit and loss, balance sheet and cashflow statement for the Group; and
|
(ii)
|
has been approved by the board of directors of the Company.
|
22.5
|
Information: Miscellaneous
|
(a)
|
all documents dispatched by the Company to:
|
(i)
|
prior to the occurrence of a Qualifying IPO, its shareholders (or any class of them) or its creditors generally; or
|
(ii)
|
following the occurrence of a Qualifying IPO, its creditors generally,
|
(b)
|
as soon as reasonably practicable after becoming aware of them, the details of any litigation, arbitration or administrative proceeding which are current against any member of the Group, and which has or, if adversely determined, is reasonably likely to have a Material Adverse Effect;
|
(c)
|
promptly, such further information as the Security Agent may reasonably require about the Charged Property and compliance of the Obligors with the terms of any Transaction Security Document; and
|
(d)
|
promptly, such further information regarding the financial condition, business and operations of any member of the Group as any Finance Party (through the Agent) may reasonably request.
|
22.6
|
Notification of Default
|
(a)
|
The Company shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) as soon as reasonably practicable after becoming aware of its occurrence (unless the Company is aware that a notification has already been provided by another Obligor).
|
(b)
|
Promptly upon a request by the Agent (acting on the instructions of the Majority Lenders), the Company shall supply to the Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
22.7
|
Use of Websites
|
(a)
|
The Company may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the “
Website Lenders
”) who accept this method of communication by posting this information onto an electronic website designated by the Company and the Agent (the “
Designated Website
”) if:
|
(i)
|
the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
(ii)
|
both the Company and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
(iii)
|
the information is in a format previously agreed between the Company and the Agent.
|
(b)
|
The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Company and the Agent.
|
(c)
|
The Company shall as soon as reasonably practicable after becoming aware of its occurrence notify the Agent if:
|
(i)
|
the Designated Website cannot be accessed due to technical failure;
|
(ii)
|
the password specifications for the Designated Website change;
|
(iii)
|
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
(iv)
|
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
(v)
|
the Company becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
(d)
|
Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Company shall comply with any such request within 15 Business Days.
|
22.8
|
Presentations
|
22.9
|
Alternative Reporting
|
22.10
|
Listing requirement disclosure
|
22.11
|
“Know Your Customer” Checks
|
(a)
|
If:
|
(i)
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
(ii)
|
any change in the status of an Obligor or the composition of the shareholders of an Obligor (or a Holding Company of an Obligor) after the date of this Agreement; or
|
(iii)
|
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b)
|
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent or the Security Agent (in each case for itself) in order for the Agent or the Security Agent (as the case may be) to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
(c)
|
The Company shall, by not less than 10 Business Days’ prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 27 (
Changes to the Obligors
).
|
(d)
|
Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Obligor obliges the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Obligor.
|
23.
|
Financial Covenants
|
23.1
|
Financial Definitions
|
(a)
|
including the operating profit before interest, tax, depreciation, and amortisation and impairment charges (calculated on the same basis as Consolidated EBITDA) of a member of the Group (or attributable to a business, undertaking or collection of assets) acquired during the Relevant Period for that part of the Relevant Period prior to its becoming a member of the Group or (as the case may be) prior to the acquisition of the business or assets; and
|
(b)
|
excluding the operating profit before interest, tax, depreciation, and amortisation and impairment charges (calculated on the same basis as Consolidated EBITDA) attributable to any member of the Group (or to any business, undertaking or collection of assets) disposed of during the Relevant Period for that part of the Relevant Period.
|
(a)
|
moneys borrowed and debit balances at banks or other financial institutions;
|
(b)
|
any acceptances under any acceptance credit or bill discount facility (or dematerialised equivalent);
|
(c)
|
any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument (excluding, in each case, Trade Instruments);
|
(d)
|
any Finance Lease;
|
(e)
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis (other than customary recourse for non-recourse receivables financings) and meet any requirements for de-recognition under the Accounting Principles);
|
(f)
|
any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution (excluding, in each case, Trade Instruments) in respect of an underlying liability of an entity which is not a member of the Group which liability would fall within one of the other paragraphs of this definition;
|
(g)
|
any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under the Accounting Principles;
|
(h)
|
any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question; or (ii) the agreement is in respect of the supply of assets or services and payment is overdue by more than 120 days after the due date of payment;
|
(i)
|
any amount raised under any other transaction (including any forward sale or purchase agreement, sale and sale back or sale and leaseback agreement) having the commercial
|
(j)
|
(without double counting) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i)(j) in this definition,
|
(k)
|
any derivative transaction entered into in connection with the protection against or benefit from fluctuation in any rate or price, except to the extent due and payable;
|
(l)
|
the amount of any liability in respect of pension obligations of the Group;
|
(m)
|
Borrowings owed by one member of the Group to another member of the Group; and
|
(n)
|
any Subordinated Debt.
|
(a)
|
receivables in relation to Tax;
|
(b)
|
Exceptional Items and other non-operating items;
|
(c)
|
insurance claims; and
|
(d)
|
any interest owing to the Group.
|
(a)
|
liabilities for Borrowings and Finance Charges;
|
(b)
|
liabilities for Tax;
|
(c)
|
Exceptional Items and other non-operating items;
|
(d)
|
insurance claims;
|
(e)
|
liabilities in relation to dividends declared but not paid by the Company or by a member of the Group in favour of a person which is not a member of the Group; and
|
(f)
|
amounts owed to any seller under or in connection with any Permitted Acquisition.
|
(a)
|
before deducting
any Finance Charges;
|
(b)
|
not including
any accrued interest receivable or received by any member of the Group;
|
(c)
|
before taking
into account any extraordinary items and any Exceptional Items (or any provision or release of any provision therefor);
|
(d)
|
after deducting
the amount of any profit (or adding back the amount of any loss) of any member of the Group which is attributable to minority interests;
|
(e)
|
plus or minus the Group’s share of the profits or losses (after finance costs and tax) of Non-Group Entities (
after deducting
the amount of any profit of any Non-Group Entity to the extent that the amount of the profit included in the financial statements of the Group exceeds the amount actually received in cash by the Group through distributions by the Non-Group Entity);
|
(f)
|
before taking into account
any unrealised gains or losses on any derivative instrument (other than any derivative instrument which is accounted for on a hedge accounting basis);
|
(g)
|
before taking into account
any gain arising from an upward revaluation of any other asset during such period but after adding back any amount relating to the impairment or negative revaluation of any asset during such period;
|
(h)
|
before taking into account
any realised and unrealised exchange gains and losses;
|
(i)
|
before taking into account any Pension Items;
|
(j)
|
excluding
the charge to profit represented by the expensing of stock options or employee incentive programmes;
|
(k)
|
excluding
any amount of deferred consideration incurred by a member of the Group;
|
(l)
|
after adding back any fees, costs amortisation or charges of a non-recurring nature relating to an equity offering (including any Qualifying IPO), investments, acquisitions or Financial Indebtedness permitted under the Finance Documents (whether or not successful and including in relation to the Facilities);
|
(m)
|
after adding back any loss against or deducting any gain over book value incurred by the Group on a disposal of any asset (other than the sale of trading stock or the sale of any Cash Equivalent Investments held by the Group in the ordinary course of business) during such period and after adding back any business interruption loss incurred which is covered by insurance;
|
(n)
|
after adding back that part of the total purchase price and acquisition related costs (including subsequent adjustments to purchase price) in relation to any Permitted Acquisition and any acquisition prior to the date of this Agreement to the extent (consistent with accounting practices applied by the Company at the date of this Agreement) charged or amortised in that period to, or against, the consolidated profit and loss account of the Group; and
|
(o)
|
after adding back (to the extent consistent with accounting practices applied by the Company at the date of this Agreement) that part of any acquired intangible charged or amortised in that period to, or against, the consolidated profit and loss account of the Group,
|
(a)
|
the restructuring of the activities of an entity and reversals of any provisions of the cost of restructuring;
|
(b)
|
disposals, revaluations or impairment of non-current assets; and
|
(c)
|
disposals of assets associated with discontinued operations.
|
(a)
|
excluding any upfront one-off or non-recurring fees or costs (including any arrangement fees, underwriting fees, amendment fees, repayment and prepayment premia, ticking fee and all fees, costs, expenses, stamp, registration and other similar Taxes incurred in connection a Permitted Acquisition and the refinancing of any indebtedness of the target group acquired) and any amortisation of such fees or costs;
|
(b)
|
taking no account of any unrealised gains or losses on any financial instruments other than any derivative instruments which are account for on a hedge accounting basis;
|
(c)
|
plus consideration given by the Group during that period, and relating to that period whether by way of discount or otherwise in connection with any acceptance credit, bill discounting, debt factoring or other like arrangement included in Borrowings;
|
(d)
|
excluding
capitalised interest costs on any Subordinated Debt;
|
(e)
|
including
the interest (but not the capital) element of payments in respect of Finance Leases;
|
(f)
|
(if not already taken into account)
deducting
the net amount receivable or
adding
the net amount payable by the member of the Group in relation to that Relevant Period under any hedging agreement of any kind; and
|
(g)
|
excluding
any interest cost or expected return on plan assets in relation to any post-employment benefit schemes;
|
(h)
|
if a Joint Venture is accounted for on a proportionate consolidation basis, after
adding
the Group’s share of the finance costs or interest receivable on the Joint Venture;
|
(i)
|
together with the amount of any cash dividends or distributions declared payable by any member of the Group to a person which is not a member of the Group in respect of that Relevant Period,
|
(a)
|
prior to the occurrence of a Qualifying IPO, each period of twelve months ending on or about a Quarter Date; and
|
(b)
|
on and from the occurrence of a Qualifying IPO, each period of twelve months ending on or about a Half Year Date.
|
(a)
|
prior to the occurrence of a Qualifying IPO, the last day of each financial quarter ending on or about a Quarter Date; and
|
(b)
|
on and from the occurrence of a Qualifying IPO, the last day of each financial half year ending on or about a Half Year Date.
|
(a)
|
excluding
any such obligations to any other member of the Group to the extent that such indebtedness is permitted by this Agreement;
|
(b)
|
including
, in the case of Finance Leases only, their capitalised value, and so that no amount shall be included or excluded more than once.
|
23.2
|
Financial covenants
|
(a)
|
Net Leverage Rat
i
o
: Total Net Debt as at any Test Date shall not be more than 2.5x Adjusted EBITDA for the Relevant Period ending on or about such Test Date;
|
(b)
|
Interest Cover
: Adjusted EBITDA for each Relevant Period ending on or about a Test Date shall not be less than 4.0x Net Finance Charges for such Relevant Period.
|
23.3
|
Financial testing
|
23.4
|
Equity cure
|
(a)
|
for the purposes of the Net Leverage Ratio, the full amount of any Equity Cure Injections so provided shall be included for the Relevant Period as if provided on the last date of such Relevant Period and Total Net Debt will be deemed reduced by the amount of the Equity Cure Injections; and
|
(b)
|
for the purposes of the Interest Cover Ratio, the full amount of any Equity Cure Injection so provided shall be included for the Relevant Period as if provided on the first day of such Relevant Period and Borrowings (as used in the calculation of “Finance Charges” for the purposes of the Interest Cover Ratio) shall be deemed reduced by the amount of the Equity Cure Injections,
|
(i)
|
the Company shall not be entitled to exercise any rights it may have to cure breaches of financial covenants on more than two occasions and Equity Cure Injections may not be made in consecutive financial quarters;
|
(ii)
|
any Equity Cure Injections so provided and any adjustments made under paragraphs (a) and/or (b) above shall be included in all relevant covenant calculations being:
|
(A)
|
in the case of the Net Leverage Ratio, the calculation in respect of the Relevant Period for which such Equity Cure Injection is made and any subsequent Relevant Period ending prior to the date on which the Equity Cure Injection is made; and
|
(B)
|
in the case of the Interest Cover Ratio, the calculation in respect of the Relevant Period and each subsequent Relevant Period ending on or about the next 3 consecutive Test Dates (in respect of that part of each subsequent Relevant Period which falls prior to the date on which the Equity Cure Injection is actually made;
|
(iii)
|
the Company provides a revised Compliance Certificate to the Agent setting out the revised financial covenants for the Relevant Period by giving effect to the adjustments in paragraphs (i) and/or (ii) above; and
|
(iv)
|
the proceeds of each Equity Cure Injection are applied within the 10 BD Period in prepayment of the Facilities.
|
24.
|
General Undertakings
|
24.1
|
Authorisations
|
24.2
|
Compliance with Laws
|
24.3
|
Negative Pledge
|
(a)
|
Subject to paragraph (c) below, no Obligor shall (and the Company shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets.
|
(b)
|
Subject to paragraph (c) below, no Obligor shall (and the Company shall ensure that no other member of the Group will):
|
(i)
|
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re‑acquired by an Obligor or any other member of the Group;
|
(ii)
|
sell, transfer or otherwise dispose of any of its receivables on recourse terms (other than customary recourse for non‑recourse receivables financings or to the extent that the transaction results in the relevant receivables being derecognised from the consolidated balance sheet of the Company);
|
(iii)
|
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set‑off or made subject to a combination of accounts; or
|
(iv)
|
enter into any other preferential arrangement having a similar effect,
|
(c)
|
Paragraphs (a) and (b) above do not apply to any Security or (as the case may be) Quasi‑Security, listed below:
|
(i)
|
the Transaction Security and any Security or Quasi‑Security listed in Schedule 9 (
Existing Security
);
|
(ii)
|
any netting or set‑off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit
|
(iii)
|
any payment or close out netting or set‑off arrangement pursuant to any Treasury Transaction or foreign exchange transaction entered into by a member of the Group which constitutes Permitted Financial Indebtedness, excluding, in each case, any Security or Quasi‑Security under a credit support arrangement in relation to a hedging transaction;
|
(iv)
|
any lien arising by operation of law and in the ordinary course of business;
|
(v)
|
Security in connection with any Finance Lease or any sale and leaseback transaction in each case as otherwise permitted under this Agreement;
|
(vi)
|
Security over cash paid into an escrow account by any third party or any member of the Group pursuant to any customary deposit or retention of purchase price arrangements entered into pursuant to any disposal or acquisition made by a member of the Group and which is permitted pursuant to Clause 24.4 (
Disposals
) or 24.17 (
Acquisitions
);
|
(vii)
|
any Security or Quasi‑Security over or affecting any asset acquired by a member of the Group after the date of this Agreement if:
|
(A)
|
the Security or Quasi‑Security was not created in contemplation of the acquisition of that asset by a member of the Group;
|
(B)
|
the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and
|
(C)
|
the Security or Quasi‑Security is removed or discharged within 6 months of the date of acquisition of such asset;
|
(viii)
|
any Security or Quasi‑Security over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security or Quasi‑Security is created prior to the date on which that company becomes a member of the Group, if:
|
(A)
|
the Security or Quasi‑Security was not created in contemplation of the acquisition of that company;
|
(B)
|
the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
|
(C)
|
the Security or Quasi‑Security is removed or discharged within 6 months of that company becoming a member of the Group;
|
(ix)
|
any Security or Quasi‑Security entered into pursuant to any Finance Document;
|
(x)
|
any Security or Quasi‑Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading and on the supplier’s standard or usual terms and not arising as a result of any default or omission by any member of the Group;
|
(xi)
|
any Security or Quasi‑Security arising as a consequence of any Finance Lease permitted under the terms of this Agreement;
|
(xii)
|
Security over rental deposits placed by a member of the Group with a lessor pursuant to real estate leases entered into in the ordinary course of business and on the lessors standard terms;
|
(xiii)
|
any Security which is a Permitted Transaction;
|
(xiv)
|
any Quasi‑Security arising as a result of a disposal which is a Permitted Disposal; or
|
(xv)
|
any Security or Quasi‑Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi‑Security given by any member of the Group other than any permitted under paragraphs (i) to (xiv) above) does not exceed £1,000,000 (or its equivalent in another currency or currencies).
|
24.4
|
Disposals
|
(a)
|
Subject to paragraph (b) below, no Obligor shall (and the Company shall ensure that no other member of the Group will), enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset.
|
(b)
|
Paragraph (a) above does not apply to any Permitted Disposal or Permitted Transaction.
|
24.5
|
Merger
|
(a)
|
No Obligor shall (and the Company shall ensure that no other member of the Group will) enter into any amalgamation, demerger, merger or corporate reconstruction.
|
(b)
|
Paragraph (a) above does not apply to any sale, lease, transfer or other disposal permitted pursuant to Clause 24.4 (
Disposals
), any Permitted Reorganisation and any Permitted Transaction.
|
24.6
|
Change of Business
|
24.7
|
Further Assurance
|
(a)
|
Each Obligor shall (and the Company shall procure that each other member of the Group will), subject to the Agreed Security Principles, promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security Agent may reasonably specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):
|
(i)
|
to perfect the Security created or intended to be created under or evidenced by the Transaction Security Documents or for the exercise of any rights, powers and remedies of the Security Agent or the Finance Parties provided by or pursuant to the Finance Documents or by law; and/or
|
(ii)
|
to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.
|
(b)
|
Each Obligor shall (and the Company shall procure that each other member of the Group will), subject to the Agreed Security Principles, take all such action as is available to it (including making all filings and registrations) as may be necessary for
|
24.8
|
Insurances
|
(a)
|
The Company will, and will ensure that each of its Subsidiaries will, effect and thereafter maintain at its own expense (whether under any Group policy or otherwise), with reputable independent insurance companies or underwriters, such insurances in respect of its material assets and business of an insurable nature which:
|
(i)
|
provide cover against risks which are normally insured against by other companies of comparable size, in the relevant jurisdiction owning, possessing or leasing similar assets and carrying on similar businesses; and
|
(ii)
|
are at levels usual for a business of its size and nature as may be reasonably available in the insurance market.
|
(b)
|
No member of the Group shall be required to maintain any key‑man life insurance or to ensure that any insurance arrangements include any loss payee endorsements or arrangements in favour of the Finance Parties.
|
24.9
|
Access
|
24.10
|
Environmental compliance
|
(a)
|
comply with all Environmental Law;
|
(b)
|
obtain, maintain, file (where applicable) and ensure compliance with all requisite Environmental Permits; and
|
(c)
|
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
|
24.11
|
Intellectual property
|
(a)
|
preserve and maintain the subsistence and validity of the Intellectual Property Rights necessary for the business of the Group taken as a whole;
|
(b)
|
use reasonable endeavours to prevent any infringement in any material respect of the Intellectual Property Rights;
|
(c)
|
make registrations and pay all registration fees and taxes necessary to maintain the Intellectual Property Rights in full force and effect and record its interest in those Intellectual Property Rights;
|
(d)
|
not use or permit the Intellectual Property Rights to be used in a way or take any step or omit to take any step in respect of those Intellectual Property Rights which may materially and adversely affect the existence or value of the Intellectual Property Rights or imperil the right of any member of the Group to use such property; and
|
(e)
|
not discontinue the use of the Intellectual Property Rights,
|
24.12
|
Centre of Main Interest
|
24.13
|
Anti-corruption law
|
(a)
|
Each Obligor shall (and the Company shall ensure that each member of the Group will):
|
(i)
|
conduct its businesses in compliance with applicable anti-corruption laws; and
|
(ii)
|
maintain policies and procedures designed to promote and achieve compliance with such laws.
|
(b)
|
No Obligor shall (and the Company shall ensure that no member of the Group will) directly or indirectly use the proceeds of the Facility for any purpose which would breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other jurisdictions.
|
24.14
|
Pari passu ranking
|
24.15
|
Guarantors
|
(a)
|
Subject to paragraphs (b) and (c) below, the Company shall ensure that at all times the Group is in compliance with the Guarantor Coverage Test.
|
(b)
|
The Company need only perform its obligations under paragraph (a) above if it is not unlawful for the relevant person to become a Guarantor and that person becoming a Guarantor would not result in personal liability for that person's directors or other management. Each Obligor must use, and must procure that the relevant person uses, all reasonable endeavours lawfully available to avoid any such unlawfulness or personal liability. This includes agreeing to a limit on the amount guaranteed. The Agent may (but shall not be obliged to) agree to such a limit if, in its opinion, to do so would avoid the relevant unlawfulness or personal liability. All guarantees will be granted subject to and in accordance with the Agreed Security Principles.
|
(c)
|
If the Company, in order to comply with the Guarantor Coverage Test, notifies the Agent that it intends to accede a Subsidiary as an Additional Guarantor which has been acquired in relation to a Permitted Acquisition, there shall be no breach of paragraph (a) above, provided that:
|
(i)
|
in the case of any proposed Additional Guarantor which has been acquired in relation to a Permitted Acquisition and is incorporated in a jurisdiction of
|
(ii)
|
in the case of any proposed Additional Guarantor which has been acquired in relation to a Permitted Acquisition and is not incorporated in a jurisdiction of incorporation of an existing Guarantor, it accedes that Additional Guarantor within 60 days,
|
24.16
|
Financial indebtedness
|
(a)
|
Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no other member of the Group will) incur or permit to remain outstanding any Financial Indebtedness.
|
(b)
|
Paragraph (a) above does not apply to any Financial Indebtedness which is Permitted Financial Indebtedness or a Permitted Transaction.
|
24.17
|
Acquisitions
|
(a)
|
Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no other member of the Group will) acquire, subscribe for or invest in any business of, or shares or securities of, any company.
|
(b)
|
Paragraph (a) above does not apply to an acquisition of a company, of shares, securities or a business or undertaking (or, in each case, any interest in any of them) or the incorporation of a company which is a Permitted Acquisition.
|
24.18
|
Joint Ventures
|
(a)
|
Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no other member of the Group will) enter into, invest in or acquire (or agree to acquire) any shares, stocks, securities or other interest in any Joint Venture or transfer any assets or lend to or guarantee or give an indemnity for or give Security for the obligations of a Joint Venture or maintain the solvency of or provide working capital to any Joint Venture (or agree to do any of the foregoing).
|
(b)
|
Paragraph (a) above does not apply to any acquisition of (or agreement to acquire) any interest in a Joint Venture or transfer of assets (or agreement to transfer assets) to a Joint Venture or loan made to or guarantee given in respect of the obligations of a Joint Venture if such transaction is a Permitted Acquisition, Permitted Disposal, a Permitted Loan, a Permitted Transaction or a Permitted Joint Venture.
|
24.19
|
Loans
|
(a)
|
Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no other member of the Group will) make any loans or grant any credit for Financial Indebtedness to or for the benefit of any person.
|
(b)
|
Paragraph (a) above does not apply to a Permitted Loan or a Permitted Transaction.
|
24.20
|
Sanctions
|
(a)
|
use, lend, contribute or otherwise make available any part of the proceeds of any Utilisation or other transaction contemplated by this Agreement directly or indirectly:
|
(i)
|
for the purpose of financing any trade, business or other activities involving, or for the benefit of, any Restricted Party; or
|
(ii)
|
in any other manner that would reasonably be expected to result in any person being in breach of any Sanctions or becoming a Restricted Party;
|
(b)
|
engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or breaches or attempts to breach, directly or indirectly, any Sanctions applicable to it; or
|
(c)
|
fund all or part of any payment in connection with a Finance Document out of proceeds derived from business or transactions with a Restricted Party, or from any action which is in breach of any Sanctions.
|
24.21
|
No guarantees or indemnities
|
(a)
|
Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no other member of the Group will) incur or allow to remain outstanding any guarantee in respect of any obligation of any person.
|
(b)
|
Paragraph (a) above does not apply to a guarantee which is a Permitted Guarantee or a Permitted Transaction.
|
24.22
|
People with Significant Control regime
|
(a)
|
within the relevant timeframe, comply with any notice it receives pursuant to Part 21A of the Companies Act 2006 from any company incorporated in the United Kingdom whose shares are the subject of the Transaction Security; and
|
(b)
|
as soon as reasonably practicable, provide the Security Agent with a copy of that notice.
|
24.23
|
Dividends and share redemption
|
(a)
|
Except as permitted under paragraph (b) below, no Obligor shall (and the Company shall ensure that no other member of the Group will):
|
(i)
|
declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);
|
(ii)
|
repay or distribute any dividend or share premium reserve;
|
(iii)
|
pay or allow any member of the Group to pay any management, advisory or other fee to or to the order of any of the shareholders of the Company; or
|
(iv)
|
redeem, repurchase, decease, retire or repay any of its share capital or resolve to do so.
|
(b)
|
Paragraph (a) above does not apply to a Permitted Distribution or a Permitted Transaction or any payment falling within sub-paragraph (iii) where such payment is made following the occurrence of a Qualifying IPO on an arm’s length basis.
|
24.24
|
Share Capital
|
(a)
|
a Permitted Share Issue; or
|
(b)
|
a Permitted Transaction.
|
24.25
|
Treasury
Transactions
|
24.26
|
Preservation of assets
|
24.27
|
Conditions Subsequent
|
24.28
|
Post IPO Covenants
|
(a)
|
Notwithstanding anything to the contrary in this Agreement or any other Finance Document following the occurrence of a Qualifying IPO, the following Clauses cease to be effective and shall not apply:
|
(i)
|
Clause 24.9 (
Access
);
|
(ii)
|
Clause 24.10 (
Environmental Compliance
); and
|
(iii)
|
Clause 24.19 (
Loans
).
|
25.
|
Events of Default
|
25.1
|
Non‑Payment
|
(a)
|
its failure to pay is caused by:
|
(i)
|
administrative or technical error; or
|
(ii)
|
a Disruption Event; and
|
(b)
|
payment is made within 3 Business Days of its due date.
|
25.2
|
Financial Covenants
|
25.3
|
Other Obligations
|
(a)
|
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 25.1 (
Non‑Payment
) and Clause 25.2 (
Financial Covenants
)).
|
(b)
|
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 15 Business Days, of the earlier of (A) the Agent giving notice to the Company and (B) the Company becoming aware of the failure to comply.
|
25.4
|
Misrepresentation
|
(a)
|
Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.
|
(b)
|
No Event of Default will occur under paragraph (a) above if the circumstances giving rise to that misrepresentation, if capable of remedy, are remedied within 15 Business Days of the earlier of (i) the Company becoming aware of such misrepresentation and (ii) the giving of notice by the Agent in respect of such misrepresentation.
|
25.5
|
Cross Default
|
(a)
|
Any Financial Indebtedness of any Material Company is not paid when due nor within any originally applicable grace period.
|
(b)
|
Any Financial Indebtedness of any Material Company is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c)
|
Any commitment for any Financial Indebtedness of any Material Company is cancelled or suspended by a creditor of such Material Company as a result of an event of default (however described).
|
(d)
|
Any creditor of any Material Company becomes entitled to declare any Financial Indebtedness of such Material Company due and payable prior to its specified maturity as a result of an event of default (however described).
|
(e)
|
No Event of Default will occur under this Clause 25.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) to (d) above is less than £3,000,000 (or its equivalent in any other currency or currencies).
|
25.6
|
Insolvency
|
(a)
|
A Material Company:
|
(i)
|
is unable or admits inability to pay its debts as they fall due;
|
(ii)
|
suspends making payments on any of its debts; or
|
(iii)
|
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness.
|
(b)
|
A moratorium is declared in respect of any indebtedness of any member of the Group.
|
25.7
|
Insolvency Proceedings
|
(a)
|
the suspension of payments, a moratorium of any indebtedness, winding‑up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Material Company;
|
(b)
|
a composition, compromise, assignment or arrangement with any creditor of any Material Company;
|
(c)
|
the appointment of a liquidator (other than in respect of a solvent liquidation of a Material Company which is not an Obligor), receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Material Company or any of its assets; or
|
(d)
|
enforcement of any Security over any assets of any Material Company,
|
25.8
|
Creditors’ Process
|
25.9
|
Ownership of the Obligors
|
25.10
|
Cessation of Business
|
25.11
|
Audit qualification
|
(a)
|
The Company’s auditors qualify their report on the audited annual consolidated financial statements of the Company.
|
(b)
|
Paragraph (a) above does not apply to an “emphasis of matter” which could not reasonably be expected to be materially adverse to the interests of the Finance Parties under the Finance Documents.
|
25.12
|
Unlawfulness
|
(a)
|
it is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents and this unlawfulness adversely effects the interests of the Finance Parties under the Finance Documents in any material respect; or
|
(b)
|
any Transaction Security created by the Transaction Security Documents ceases to be effective.
|
25.13
|
Pensions
|
25.14
|
Repudiation
|
25.15
|
Material Adverse Change
|
25.16
|
Acceleration
|
(a)
|
cancel the Total Commitments and/or Ancillary Commitments whereupon they shall immediately be cancelled;
|
(b)
|
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable;
|
(c)
|
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders;
|
(d)
|
declare all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities to be immediately due and payable, at which time they shall become immediately due and payable;
|
(e)
|
declare that all or any part of the amounts outstanding under the Ancillary Facilities be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders; and/or
|
(f)
|
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Transaction Security Documents.
|
26.
|
Changes to the Lenders
|
26.1
|
Assignments and Transfers by the Lenders
|
(a)
|
assign any of its rights; or
|
(b)
|
transfer by novation any of its rights and obligations,
|
26.2
|
For the purposes of Romanian law (including Article 1.611 of the Romanian Civil Code) , each Obligor hereby agrees and confirms in respect of any transfer or assignment (howsoever effected) by an Existing Lender to a New Lender that
:
|
(a)
|
such transfer or assignment will not prejudice or affect any Transaction Security created under Romanian law by that Obligor in favour of the Finance Parties; and
|
(b)
|
subject to completion of the steps referred to in this Clause 26, such Transaction Security shall extend to secure all rights transferred to that New Lender by the Existing Lender.
|
26.3
|
Company consent
|
(a)
|
The consent of the Company is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is:
|
(i)
|
to another Lender or an Affiliate of any Lender; or
|
(ii)
|
made at a time when an Event of Default is continuing.
|
(b)
|
The consent of the Company to an assignment or transfer must not be unreasonably withheld or delayed. The Company will be deemed to have given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by the Company within that time.
|
26.4
|
Other conditions of assignment or transfer
|
(a)
|
An assignment will only be effective on:
|
(i)
|
receipt by the Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties and the other Secured Parties as it would have been under if it had been an Original Lender; and
|
(ii)
|
performance by the Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.
|
(b)
|
A transfer will only be effective if the procedure set out in Clause 26.7 (
Procedure for Transfer
) is complied with.
|
(c)
|
If:
|
(i)
|
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii)
|
as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 15 (
Tax Gross‑Up and Indemnities
) or Clause 16 (
Increased Costs
),
|
(d)
|
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
26.5
|
Assignment or Transfer Fee
|
26.6
|
Limitation of Responsibility of Existing Lenders
|
(a)
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i)
|
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents;
|
(ii)
|
the financial condition of any Obligor;
|
(iii)
|
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
(iv)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(b)
|
Each New Lender confirms to the Existing Lender, the other Finance Parties and the Secured Parties that it:
|
(i)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document or the Transaction Security; and
|
(ii)
|
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
(c)
|
Nothing in any Finance Document obliges an Existing Lender to:
|
(i)
|
accept a re‑transfer or re‑assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 26; or
|
(ii)
|
support any losses directly or indirectly incurred by the New Lender by reason of the non‑performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
26.7
|
Procedure for Transfer
|
(a)
|
Subject to the conditions set out in Clause 26.3 (
Company consent
) and Clause 26.4 (
Other conditions of assignment or transfer
) a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
|
(b)
|
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c)
|
Subject to Clause 26.11(
Pro rata interest settlement
), on the Transfer Date:
|
(i)
|
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the “
Discharged Rights and Obligations
”);
|
(ii)
|
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
(iii)
|
the Agent, the Arranger, the Security Agent, the New Lender, the other Lenders and any relevant Ancillary Lender shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arranger, the Security Agent, the Existing Lender and any relevant Ancillary Lender shall each be released from further obligations to each other under the Finance Documents; and
|
(iv)
|
the New Lender shall become a Party as a “Lender”.
|
26.8
|
Procedure for Assignment
|
(a)
|
Subject to the conditions set out in Clause 26.3 (
Company consent
) and Clause 26.4 (
Other conditions of assignment
or
transfer
) an assignment may be effected in
|
(b)
|
The Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(c)
|
Subject to Clause 26.11(
Pro rata interest settlement
), on the Transfer Date:
|
(i)
|
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement;
|
(ii)
|
the Existing Lender will be released from the obligations (the “
Relevant Obligations
”) and expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of the Transaction Security); and
|
(iii)
|
the New Lender shall become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations.
|
(d)
|
Lenders may utilise procedures other than those set out in this Clause 26.8 to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor) or unless in accordance with Clause 26.7 (
Procedure for Transfer
), to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender)
provided that
they comply with the conditions set out in Clause 26.3 (
Company consent
) and Clause 26.4 (
Other conditions of assignment or transfer
).
|
26.9
|
Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to Company
|
26.10
|
Security over Lenders’ Rights
|
(a)
|
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(b)
|
any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities.
|
(i)
|
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or
|
(ii)
|
require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.
|
26.11
|
Pro rata interest settlement
|
(a)
|
If the Agent has notified the Lenders that it is able to distribute interest payments on a “pro rata basis” to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 26.7 (
Procedure for transfer
) or any assignment pursuant to Clause 26.8 (
Procedure for assignment
) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):
|
(i)
|
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (“
Accrued Amounts
”) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and
|
(ii)
|
the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts so that, for the avoidance of doubt:
|
(A)
|
when the Accrued Amounts become payable, those Accrued Amounts will be payable for the account of the Existing Lender; and
|
(B)
|
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 26.11, have been payable to it on that date, but after deduction of the Accrued Amounts.
|
(b)
|
In this Clause 26.11 references to “Interest Period” shall be construed to include a reference to any other period for accrual of fees.
|
(c)
|
An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 26.11 but which does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents.
|
27.1
|
Assignments and Transfer by Obligors
|
27.2
|
Additional Borrowers
|
(a)
|
Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 22.8 (
“Know Your Customer” Checks
), the Company may request that any of its Subsidiaries becomes an Additional Borrower. That Subsidiary shall become an Additional Borrower if:
|
(i)
|
all the Lenders (in the case of a Subsidiary which is not incorporated in a jurisdiction of an existing Borrower) or the Majority Lenders (in the case of a Subsidiary which is incorporated in a jurisdiction of an existing Borrower) approve the addition of that Subsidiary;
|
(ii)
|
the Company delivers to the Agent a duly completed and executed Accession Letter;
|
(iii)
|
the Company confirms that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower; and
|
(iv)
|
the Agent has received all of the documents and other evidence listed in Part 2 of Schedule 2 (
Conditions Precedent
) in relation to that Additional Borrower, each in form and substance satisfactory to the Agent.
|
(b)
|
The Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part 2 of Schedule 2 (
Conditions Precedent
).
|
(c)
|
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (b) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
27.3
|
Resignation of a Borrower
|
(a)
|
The Company may request that a Borrower ceases to be a Borrower by delivering to the Agent a Resignation Letter.
|
(b)
|
The Agent shall accept a Resignation Letter and notify the Company and the Lenders of its acceptance if:
|
(i)
|
no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case); and
|
(ii)
|
the Borrower is under no actual or contingent obligations as a Borrower under any Finance Documents,
|
27.4
|
Additional Guarantors
|
(a)
|
Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 22.8 (
“Know Your Customer” Checks
), the Company may request that any of its Subsidiaries become an Additional Guarantor. That Subsidiary shall become an Additional Guarantor if:
|
(i)
|
the Company delivers to the Agent a duly completed and executed Accession Letter; and
|
(ii)
|
the Agent has received all of the documents and other evidence listed in Part 2 of Schedule 2 (
Conditions Precedent
) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent.
|
(b)
|
The Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part 2 of Schedule 2 (
Conditions Precedent
).
|
(c)
|
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (b) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
|
(d)
|
Unless otherwise agreed by the Agent (acting on the instructions of the Lenders), the Company shall procure that any other member of the Group which is a Material Company shall, as soon as possible after becoming a Material Company, become an Additional Guarantor and, subject to the Agreed Security Principles, grant Security as the Agent may require.
|
27.5
|
Repetition of Representations
|
27.6
|
Resignation of a Guarantor
|
(a)
|
The Company may request that a Guarantor (other than the Company) ceases to be a Guarantor by delivering to the Agent a Resignation Letter.
|
(b)
|
The Agent shall accept a Resignation Letter and notify the Company and the Lenders of its acceptance if:
|
(i)
|
no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case); and
|
(ii)
|
the Company has confirmed that immediately following the resignation the Guarantor Coverage Test (pro forma for such resignation (and if the resigning Guarantor is being disposed of, pro forma for such disposal) will continue to be satisfied; and
|
(iii)
|
all the Lenders have consented to the Company’s request,
|
27.7
|
Release of Security on disposal
|
(a)
|
In this Clause 27.7, “
Release Disposal
” means a disposal of an asset of a member of the Group which is permitted in accordance with the terms of this Agreement.
|
(b)
|
If a disposal of an asset is a Release Disposal, the Security Agent shall, at the request of the Company and is irrevocably authorised (at the cost of the Company and without any consent, sanction, authority or further confirmation from any Finance Party or Obligor:
|
(i)
|
to release the Transaction Security or any other claim (relating to a Finance Document) over that asset;
|
(ii)
|
where the assets consist of shares in the capital of a member of the Group, to release the Transaction Security or any other claim (relating to a Finance Document) over that member of the Group’s property; and
|
(iii)
|
to execute and deliver or enter into any release of the Transaction Security or any claim described in paragraphs (i) and (ii) above and issue any certificates of non-crystallisation of any floating charge or any consent to dealing that may, be considered necessary or desirable.
|
(c)
|
Each release of Transaction Security or any claim described in paragraph (a) above shall become effective only on the making of the relevant Release Disposal and in the case of any Release Disposal made pursuant to paragraph (b) of the definition of Permitted Disposal, equivalent Security over the asset concerned will be granted by the Acquiring Company immediately following such release.
|
28.
|
Role of the Agent, the Arranger and Others
|
28.1
|
Appointment of the Agent
|
(a)
|
Each of the Arranger and the Lenders appoints the Agent to act as its agent under and in connection with the Finance Documents.
|
(b)
|
Each of the Arranger and the Lenders authorises the Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
28.2
|
Instructions
|
(a)
|
The Agent shall:
|
(i)
|
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:
|
(A)
|
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
(B)
|
in all other cases, the Majority Lenders; and
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.
|
(b)
|
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
|
(c)
|
Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties save for the Security Agent.
|
(d)
|
The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
|
(e)
|
In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.
|
(f)
|
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document. This Clause 28.2(f) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction
|
28.3
|
Duties of the Agent
|
(a)
|
The Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b)
|
Subject to paragraph (c) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.
|
(c)
|
Without prejudice to Clause 26.9 (
Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to Company
), paragraph (b) above shall not apply to any Transfer Certificate, to any Assignment Agreement or any Increase Confirmation.
|
(d)
|
The Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(e)
|
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
|
(f)
|
If the Agent is aware of the non‑payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent, the Arranger or the Security Agent) under this Agreement it shall promptly notify the other Finance Parties.
|
(g)
|
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
28.4
|
Role of the Arranger
|
28.5
|
No Fiduciary Duties
|
(a)
|
Nothing in any Finance Document constitutes the Agent or the Arranger as a trustee or fiduciary of any other person.
|
(b)
|
None of the Agent, the Arranger or any Ancillary Lender shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
28.6
|
Business with the Group
|
28.7
|
Rights and Discretions
|
(a)
|
The Agent may:
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii)
|
assume that:
|
(A)
|
any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(iii)
|
rely on a certificate from any person:
|
(A)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B)
|
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b)
|
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
|
(i)
|
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 25.1 (
Non‑Payment
));
|
(ii)
|
any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and
|
(iii)
|
any notice or request made by the Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c)
|
The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(d)
|
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be necessary.
|
(e)
|
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(f)
|
The Agent may act in relation to the Finance Documents through its officers, employees and agents.
|
(g)
|
Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
(h)
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arranger is obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(i)
|
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in
|
(j)
|
The Agent shall be entitled to deal with money paid to it by any person for the purposes of this Agreement in the same manner as other money paid to a banker by its customers except that it shall not be liable to account to any person for any interest or other amounts in respect of the money.
|
28.8
|
Responsibility for Documentation
|
(a)
|
the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, the Arranger, an Obligor, any Ancillary Lender or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security; or
|
(c)
|
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
28.9
|
No duty to monitor
|
(a)
|
whether or not any Default has occurred;
|
(b)
|
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
|
(c)
|
whether any other event specified in any Finance Document has occurred.
|
28.10
|
Exclusion of Liability
|
(a)
|
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent or any Ancillary Lender), neither the Agent nor any Ancillary Lender will be liable (including without limitation, for negligence or any other category of liability whatsoever) for:
|
(i)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Transaction Security, unless directly caused by its gross negligence or wilful misconduct;
|
(ii)
|
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Transaction Security, other than by reason of its gross negligence or wilful misconduct; or
|
(iii)
|
without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (but not including any claim based on the fraud of the Agent) arising as a result of:
|
(A)
|
any act, event or circumstance not reasonably within its control; or
|
(B)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b)
|
No Party (other than the Agent or any Ancillary Lender) may take any proceedings against any officer, employee or agent of the Agent or any Ancillary Lender in respect of any claim it might have against the Agent or an Ancillary Lender or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Transaction Security and any officer, employee or agent of the Agent or any Ancillary Lender may rely on this Clause subject to Clause 1.5 (
Third party rights
) and the provisions of the Third Parties Act.
|
(c)
|
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.
|
(d)
|
Nothing in this Agreement shall oblige the Agent or the Arranger to carry out:
|
(i)
|
any “know your customer” or other checks in relation to any person; or
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender or for any Affiliate of any Lender,
|
(e)
|
Without prejudice to any provision of any Finance Document excluding or limiting the Agent’s liability, any liability of the Agent arising under or in connection with any Finance Document or the Transaction Security shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.
|
28.11
|
Lenders’ Indemnity to the Agent
|
(a)
|
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within three Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than by reason of the Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 32.10 (
Disruption to payment systems etc.
), notwithstanding the Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b)
|
Subject to paragraph (c) below, the Company shall immediately on demand reimburse any Lender for any payment that Lender makes to the Agent pursuant to paragraph (a) above.
|
(c)
|
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Agent to an Obligor.
|
(d)
|
This indemnity given by each Lender under or in connection with this Agreement is a continuing obligation, independent of the Lenders' other obligations under or in connection with that or any other document and survives after that document is terminated. It is not necessary for a person to pay any amount or incur any expense before enforcing an indemnity under or in connection with this Agreement or any other document.
|
28.12
|
Resignation of the Agent
|
(a)
|
The Agent may resign and appoint one of its Affiliates acting through an office in the United Kingdom as successor by giving notice to the Lenders and the Company.
|
(b)
|
Alternatively the Agent may resign by giving 30 days’ notice to the Lenders and the Company, in which case the Majority Lenders (after consultation with the Company) may appoint a successor Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Agent (after consultation with the Company) may appoint a successor Agent (acting through an office in the United Kingdom).
|
(d)
|
If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under paragraph (c) above, the Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent) agree with the proposed successor Agent amendments to this Clause 28.12 and any other term of this Agreement dealing with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Agent's normal fee rates and those amendments will bind the Parties.
|
(e)
|
The retiring Agent shall make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents. The Company shall, within three Business Days of demand, reimburse the retiring Agent
|
(f)
|
The Agent’s resignation notice shall only take effect upon the appointment of a successor.
|
(g)
|
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (d) above) but shall remain entitled to the benefit of Clause 17.3 (
Indemnity to the Agent
) and this Clause 28 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(h)
|
After consultation with the Company, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.
|
(i)
|
The Agent shall resign in accordance with paragraph (b) above if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
(i)
|
the Agent fails to respond to a request under Clause 15.8 (
FATCA information
) and the Company or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
(ii)
|
the information supplied by the Agent pursuant to Clause 15.8 (
FATCA information
) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
|
(iii)
|
the Agent notifies the Company and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
|
28.13
|
Confidentiality
|
(a)
|
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b)
|
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.
|
28.14
|
Replacement of the Agent
|
(a)
|
After consultation with the Company, the Majority Lenders may, by giving 30 days' notice to the Agent replace the Agent by appointing a successor Agent (acting through an office in the United Kingdom).
|
(b)
|
The retiring Agent shall make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
|
(c)
|
The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of Clause 17.3 (
Indemnity to the Agent
) and this Clause 28.14 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).
|
(d)
|
Any successor Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
28.15
|
Relationship with the Lenders
|
(a)
|
Subject to Clause 26.11 (
Pro rata interest settlement
), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent’s principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
(i)
|
entitled to or liable for any payment due under any Finance Document on that day; and
|
(ii)
|
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day.
|
(b)
|
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 34.5 (
Electronic Communication
)) electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause 34.2 (
Addresses
) and paragraph (a)(i) of Clause 34.5 (
Electronic Communication
) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
|
28.16
|
Credit Appraisal by the Lenders and Ancillary Lenders
|
(a)
|
the financial condition, status and nature of each member of the Group or the Transaction Security;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Transaction Security and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security;
|
(c)
|
whether that Lender or Ancillary Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the Transaction Security, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security;
|
(d)
|
the adequacy, accuracy or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e)
|
the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.
|
28.17
|
Deduction from Amounts Payable by the Agent
|
28.18
|
Reliance and engagement letters
|
28.19
|
Regulatory Position
|
28.20
|
Role of Reference Bank
|
(a)
|
No Reference Bank is under any obligation to provide a quotation or any other information to the Agent.
|
(b)
|
No Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.
|
(c)
|
No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any Reference Bank Quotation, and any officer, employee or agent of each Reference Bank
|
28.21
|
Third party Reference Banks
|
29.
|
The Security Agent
|
29.1
|
Security Agent as Trustee
|
(a)
|
The Security Agent declares that it holds the Transaction Security on trust for the Secured Parties on the terms contained in this Agreement.
|
(b)
|
Each of the Finance Parties authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
29.2
|
Parallel Debt (Covenant to Pay the Security Agent)
|
(a)
|
Notwithstanding any other provision of this Agreement, each Obligor hereby irrevocably and unconditionally undertakes to pay to the Security Agent, as creditor in its own right and not as representative of the other Secured Parties, sums equal to and in the currency of each amount payable by each Obligor to each of the Secured Parties under each of the Finance Documents as and when that amount falls due for payment under the relevant Finance Document or would have fallen due but for any discharge resulting from failure of another Secured Party to take appropriate steps, in insolvency proceedings affecting that Obligor, to preserve its entitlement to be paid that amount.
|
(b)
|
The Security Agent shall have its own independent right to demand payment of the amounts payable by each Obligor under this Clause 29.2 irrespective of any discharge of that Obligor’s obligation to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings affecting that Obligor, to preserve their entitlement to be paid those amounts.
|
(c)
|
Any amount due and payable by an Obligor to the Security Agent under this Clause 29.2 shall be decreased to the extent that the other Secured Parties have received (and are able to retain) payment in full of the corresponding amount under the other provisions of the Finance Documents and any amount due and payable by an Obligor to the other Secured Parties under those provisions shall be decreased to the extent that the Security Agent has received (and is able to retain) payment in full of the corresponding amount under this Clause 29.2.
|
29.3
|
Enforcement through Security Agent only
|
29.4
|
Instructions
|
(a)
|
The Security Agent shall:
|
(i)
|
subject to paragraphs (d) and (e) below exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by the Majority Lenders;
|
(ii)
|
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with sub-paragraph (i) above (or if the relevant Finance Document stipulates the matter is a decision for any Lender or group of Lenders in accordance with instructions given to it by that Lender or group of Lenders).
|
(b)
|
The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Agent (or, if the relevant Finance Document stipulates the matter is a decision for any Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives those instructions or that clarification that it has requested.
|
(c)
|
Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary intention appears in the relevant Finance Document, any instructions given to the Security Agent by the Agent shall override any conflicting instructions given by any other Parties and will be binding on all Secured Parties.
|
(d)
|
Paragraph (a) above shall not apply:
|
(i)
|
where a contrary indication appears in this Agreement;
|
(ii)
|
where a Finance Document requires the Security Agent to act in a specified manner or to take a specified action;
|
(iii)
|
in respect of any provision which protects the Security Agent’s own position in its personal capacity as opposed to its role of Security Agent for the Secured Parties including without limitation, Clauses 29.7 (
No duty to account
) to Clause 29.12 (
Exclusion of Liability
), Clause 29.15 (
Confidentiality
) to Clause 29.21 (
Custodians and nominees
) and Clause 29.24 (
Acceptance of title
) to Clause 29.28 (
Disapplication of Trustee Acts
); or
|
(iv)
|
in respect of the exercise of the Security Agent’s discretion to exercise a right, power or authority under any of:
|
(A)
|
Clause 29.29 (
Order of Application
); and
|
(B)
|
Clause 29.32 (
Permitted Deductions
).
|
(e)
|
If giving effect to instructions given by the Majority Lenders would (in the Security Agent’s opinion) have an effect equivalent to a decision that would otherwise require all the Lenders’ consent pursuant to Clause 38 (
Amendments and Waivers
), the Security Agent shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Agent) whose consent would have been required in respect of that amendment.
|
(f)
|
In exercising any discretion to exercise a right, power or authority under the Finance Documents where either:
|
(i)
|
it has not received any instructions as to the exercise of that discretion; or
|
(ii)
|
the exercise of that discretion is subject to paragraph (d)(iv) above,
|
(g)
|
The Security Agent may refrain from acting in accordance with any instructions of any Finance Party or group of Finance Parties until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
|
(h)
|
Without prejudice to the provisions of the remainder of this Clause 29.4, in the absence of instructions, the Security Agent may act (or refrain from acting) as it considers in its discretion to be appropriate.
|
29.5
|
Duties of the Security Agent
|
(a)
|
The Security Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.
|
(b)
|
The Security Agent shall promptly:
|
(i)
|
forward to the Agent a copy of any document received by the Security Agent from any Obligor under any Finance Document; and
|
(ii)
|
forward to a Party the original or a copy of any document which is delivered to the Security Agent for that Party by any other Party.
|
(c)
|
The Security Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d)
|
If the Security Agent receives notice from a Party referring to any Finance Document, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Agent.
|
(e)
|
The Security Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
29.6
|
No Fiduciary Duties to Obligors
|
29.7
|
No Duty to Account
|
29.8
|
Business with the Group
|
29.9
|
Rights and Discretions
|
(a)
|
The Security Agent may:
|
(i)
|
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
(ii)
|
assume that:
|
(A)
|
any instructions received by it from the Agent, Majority Lenders, any Finance Party or any group of Finance Parties are duly given in accordance with the terms of the Finance Documents;
|
(B)
|
unless it has received notice of revocation, that those instructions have not been revoked; and
|
(C)
|
if it receives any instructions to act in relation to the Transaction Security, that all applicable conditions under the Finance Documents for so acting have been satisfied; and
|
(iii)
|
rely on a certificate from any person:
|
(A)
|
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
(B)
|
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
(b)
|
The Security Agent shall be entitled to carry out all dealings with the Lenders through the Agent and may give to the Agent any notice or other communication required to be given by the Security Agent to the Lenders.
|
(c)
|
The Security Agent may assume (unless it has received notice to the contrary in its capacity as Security Agent for the Secured Parties) that:
|
(i)
|
no Default has occurred;
|
(ii)
|
any right, power, authority or discretion vested in any Party or any group of Finance Parties has not been exercised; and
|
(iii)
|
any notice made by the Company is made on behalf of and with the consent and knowledge of all the Obligors.
|
(d)
|
The Security Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
(e)
|
Without prejudice to the generality of paragraph (d) above or paragraph (f) below, the Security Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Agent (and so separate from any lawyers instructed by any other Finance Party) if the Security Agent in its reasonable opinion deems this to be desirable.
|
(f)
|
The Security Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Security Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
(g)
|
The Security Agent, any Receiver and any Delegate may act in relation to the Finance Documents and the Transaction Security through its officers, employees and agents and shall not:
|
(i)
|
be liable for any error of judgment made by any such person; or
|
(ii)
|
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,
|
(h)
|
Unless a Finance Document expressly specifies otherwise, the Security Agent may disclose to any other Party any information it reasonably believes it has received as security trustee under this Agreement.
|
(i)
|
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
(j)
|
Notwithstanding any provision of any Finance Document to the contrary, the Security Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
|
29.10
|
Responsibility for Documentation
|
(a)
|
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Security Agent, an Obligor or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security; or
|
(c)
|
any determination as to whether any information provided or to be provided to any Secured Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation to insider dealing or otherwise.
|
29.11
|
No Duty to Monitor
|
(a)
|
whether or not any Default has occurred;
|
(b)
|
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
|
(c)
|
whether any other event specified in any Finance Document has occurred.
|
29.12
|
Exclusion of Liability
|
(a)
|
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Security Agent, any
|
(i)
|
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Transaction Security unless directly caused by its gross negligence or wilful misconduct;
|
(ii)
|
exercising or not exercising any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Transaction Security;
|
(iii)
|
any shortfall which arises on the enforcement or realisation of the Transaction Security; or
|
(iv)
|
without prejudice to the generality of paragraphs (i) to (iii) above, any damages, costs, losses, any diminution in value or any liability whatsoever arising as a result of:
|
(A)
|
any act, event or circumstance not reasonably within its control; or
|
(B)
|
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
(b)
|
No Party (other than the Security Agent, that Receiver or that Delegate (as applicable)) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Transaction Security and any officer, employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (
Third Party Rights
) and the provisions of the Third Parties Act.
|
(c)
|
Nothing in this Agreement shall oblige the Security Agent to carry out:
|
(i)
|
any “know your customer” or other checks in relation to any person; or
|
(ii)
|
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any other Finance Party,
|
(d)
|
Without prejudice to any provision of any Finance Document excluding or limiting the liability of the Security Agent, any Receiver or Delegate, any liability of the Security
|
29.13
|
Lenders’ Indemnity to the Security Agent
|
(a)
|
Each Lender shall (in the proportion to its share of the Total Commitments (or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their being reduced to zero)), indemnify the Security Agent and every Receiver and every Delegate, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the relevant Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under, or exercising any authority conferred under, the Finance Documents (unless the relevant Security Agent, Receiver or Delegate has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b)
|
Subject to paragraph (c) below, the Company shall immediately on demand reimburse any Lender for any payment that Lender makes to the Security Agent pursuant to paragraph (a) above.
|
(c)
|
Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Security Agent to an Obligor.
|
(d)
|
Each indemnity given by a Lender under or in connection with a Finance Document is a continuing obligation, independent of the Lender's other obligations under or in connection with that or any other Finance Document and survives after that Finance Document is terminated. It is not necessary for a Finance Party to pay any amount or incur any expense before enforcing an indemnity under or in connection with a Finance Document.
|
29.14
|
Resignation of the Security Agent
|
(a)
|
The Security Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Company.
|
(b)
|
Alternatively the Security Agent may resign by giving 30 days’ notice to the other Finance Parties and the Company, in which case the Majority Lenders (following consultation with the Company) may appoint a successor Security Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Security Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Security Agent (after consultation with the Agent) may appoint a successor Security Agent.
|
(d)
|
The retiring Security Agent shall make available to the successor Security Agent such documents and records and provide such assistance as the successor Security Agent may reasonably request for the purposes of performing its functions as Security Agent under the Finance Documents. The Company shall, within three Business Days of
|
(e)
|
The Security Agent’s resignation notice shall only take effect upon:
|
(i)
|
the appointment of a successor; and
|
(ii)
|
the transfer of all the Transaction Security to that successor.
|
(f)
|
Upon the appointment of a successor, the retiring Security Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) of Clause 29.26 (
Winding Up of Trust
) and paragraph (d) above) but shall remain entitled to the benefit of this Clause 29 and Clause 17.4 (
Indemnity to the Security Agent
) (and any Security Agent fees for the account of the retiring Security Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if that successor had been an original Party.
|
(g)
|
The Majority Lenders may, by notice to the Security Agent, require it to resign in accordance with paragraph (b) above. In this event, the Security Agent shall resign in accordance with paragraph (b) above.
|
29.15
|
Confidentiality
|
(a)
|
In acting as trustee for the Secured Parties, the Security Agent shall be regarded as acting through its trustee division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b)
|
If information is received by another division or department of the Security Agent, it may be treated as confidential to that division or department and the Security Agent shall not be deemed to have notice of it.
|
(c)
|
Notwithstanding any other provision of any Finance Document to the contrary, the Security Agent is not obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty.
|
29.16
|
Information from the Finance Parties
|
29.17
|
Credit Appraisal by the Secured Parties and Ancillary Lenders
|
(a)
|
the financial condition, status and nature of each member of the Group;
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Transaction Security and any other agreement, arrangement or
|
(c)
|
whether that Secured Party or Ancillary Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the Transaction Security, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security;
|
(d)
|
the adequacy, accuracy or completeness of any information provided by the Security Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
(e)
|
the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.
|
29.18
|
Reliance and Engagement Letters
|
29.19
|
No Responsibility to Perfect Transaction Security
|
(a)
|
require the deposit with it of any deed or document certifying, representing or constituting the title of any Obligor to any of the Charged Property;
|
(b)
|
obtain any licence, consent or other authority for the execution, delivery, legality, validity, enforceability or admissibility in evidence of any Finance Document or the Transaction Security;
|
(c)
|
register, file or record or otherwise protect any of the Transaction Security (or the priority of any of the Transaction Security) under any law or regulation or to give notice to any person of the execution of any Finance Document or of the Transaction Security;
|
(d)
|
take, or to require any Obligor to take, any step to perfect its title to any of the Charged Property or to render the Transaction Security effective or to secure the creation of any ancillary Security under any law or regulation; or
|
(e)
|
require any further assurance in relation to any Transaction Security Document.
|
29.20
|
Insurance by Security Agent
|
(a)
|
The Security Agent shall not be obliged:
|
(i)
|
to insure any of the Charged Property;
|
(ii)
|
to require any other person to maintain any insurance; or
|
(iii)
|
to verify any obligation to arrange or maintain insurance contained in any Finance Document.
|
(b)
|
Where the Security Agent is named on any insurance policy as an insured party, it shall not be liable for any damages, costs or losses to any person as a result of its failure to notify the insurers of any material fact relating to the risk assumed by such insurers or any other information of any kind, unless the Majority Lenders request it to do so in writing and the Security Agent fails to do so within fourteen days after receipt of that request.
|
29.21
|
Custodians and Nominees
|
29.22
|
Delegation by the Security Agent
|
(a)
|
Each of the Security Agent, any Receiver and any Delegate may, at any time, delegate by power of attorney or otherwise to any person for any period, all or any right, power, authority or discretion vested in it in its capacity as such.
|
(b)
|
That delegation may be made upon any terms and conditions (including the power to sub-delegate) and subject to any restrictions that the Security Agent, that Receiver or that Delegate (as the case may be) may, in its discretion, think fit in the interests of the Secured Parties.
|
(c)
|
No Security Agent, Receiver or Delegate shall be bound to supervise, or be in any way responsible for any damages, costs or losses incurred by reason of any misconduct, omission or default on the part of, any such delegate or sub-delegate.
|
29.23
|
Additional Security Agents
|
(a)
|
The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it:
|
(i)
|
if it considers that appointment to be in the interests of the Secured Parties; or
|
(ii)
|
for the purposes of conforming to any legal requirement, restriction or condition which the Security Agent deems to be relevant; or
|
(iii)
|
for obtaining or enforcing any judgment in any jurisdiction,
|
(b)
|
Any person so appointed shall have the rights, powers, authorities and discretions (not exceeding those given to the Security Agent under or in connection with the Finance Documents) and the duties, obligations and responsibilities that are given or imposed by the instrument of appointment.
|
(c)
|
The remuneration that the Security Agent may pay to that person, and any costs and expenses (together with any applicable VAT) incurred by that person in performing its functions pursuant to that appointment shall, for the purposes of this Agreement, be treated as costs and expenses incurred by the Security Agent.
|
29.24
|
Acceptance of Title
|
29.25
|
Releases
|
29.26
|
Winding Up of Trust
|
(a)
|
all of the Secured Obligations and all other obligations secured by the Transaction Security Documents have been fully and finally discharged; and
|
(b)
|
no Secured Party is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents,
|
(i)
|
the trusts set out in this Agreement shall be wound up and the Security Agent shall release, without recourse or warranty, all of the Transaction Security and the rights of the Security Agent under each of the Transaction Security Documents; and
|
(ii)
|
any Security Agent which has resigned pursuant to Clause 29.14 (
Resignation of the Security Agent
) shall release, without recourse or warranty, all of its rights under each Transaction Security Document.
|
29.27
|
Powers Supplemental to Trustee Acts
|
29.28
|
Disapplication of Trustee Acts
|
29.29
|
Order of Application
|
(a)
|
in discharging any sums owing to the Security Agent (in its capacity as such) (other than pursuant to Clause 29.2 (
Parallel debt (Covenant to Pay the Security Agent)
), any Receiver or any Delegate;
|
(b)
|
in payment of all costs and expenses incurred by the Agent, the Security Agent or any Lender in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of this Agreement;
|
(c)
|
in payment or distribution to the Agent, on its behalf and on behalf of the other Secured Parties, for application towards the discharge of all sums due and payable by any Obligor under any of the Finance Documents in accordance with Clause 32.5 (
Partial Payments
);
|
(d)
|
if none of the Obligors is under any further actual or contingent liability under any Finance Document, in payment or distribution to any person to whom the Security Agent is obliged to pay or distribute in priority to any Obligor; and
|
(e)
|
the balance, if any, in payment or distribution to the relevant Obligor.
|
29.30
|
Investment of Proceeds
|
29.31
|
Currency Conversion
|
(a)
|
For the purpose of, or pending the discharge of, any of the Secured Obligations the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at the spot rate at which the Security Agent is able to purchase the currency in which the Secured Obligations are due with the amount received.
|
(b)
|
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
|
29.32
|
Permitted Deductions
|
29.33
|
Good Discharge
|
(a)
|
Any distribution or payment to be made in respect of the Secured Obligations by the Security Agent may be made to the Agent on behalf of the Lenders and any distribution or payment made in that way shall be a good discharge, to the extent of that payment or distribution, by the Security Agent.
|
(b)
|
The Security Agent is under no obligation to make payment to the Agent in the same currency as that in which any Unpaid Sum is denominated.
|
29.34
|
Amounts Received by Obligors
|
29.35
|
Application and Consideration
|
30.
|
Conduct of Business by the Finance Parties
|
(a)
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
(b)
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
(c)
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
31.
|
Sharing among the Finance Parties
|
31.1
|
Payments to Finance Parties
|
(a)
|
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;
|
(b)
|
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 32 (
Payment Mechanics
), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
(c)
|
the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the “
Sharing Payment
”) equal to such receipt or recovery less any amount which the Agent determines may be retained by the
|
31.2
|
Redistribution of Payments
|
31.3
|
Recovering Finance Party’s Rights
|
31.4
|
Reversal of Redistribution
|
(a)
|
each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) the “
Redistributed Amount
”); and
|
(b)
|
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
31.5
|
Exceptions
|
(a)
|
This Clause 31 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
|
(b)
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
(i)
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
(ii)
|
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
31.6
|
Ancillary Lenders
|
(a)
|
This Clause 31.6 shall not apply to any receipt or recovery by a Lender in its capacity as an Ancillary Lender at any time prior to the Agent exercising any of its rights under Clause 25.16 (
Acceleration
).
|
(b)
|
Following the exercise by the Agent of any of its rights under Clause 25.16 (Acceleration), this Clause 31.6 shall apply to all receipts or recoveries by Ancillary Lenders except to the extent that the receipt or recovery represents a reduction of the
|
32.
|
Payment Mechanics
|
32.1
|
Payments to the Agent
|
(a)
|
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, excluding a payment under the terms of an Ancillary Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b)
|
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Agent) and with such bank as the Agent, in each case, specifies.
|
32.2
|
Distributions by the Agent
|
32.3
|
Distributions to an Obligor
|
32.4
|
Clawback and pre-funding
|
(a)
|
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b)
|
Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
|
(c)
|
If the Agent has notified the Lenders that it is willing to make available amounts for the account of a Borrower before receiving funds from the Lenders then if and to the
|
(i)
|
the Agent shall notify the Company of that Lender’s identity and the Borrower to whom that sum was made available shall on demand refund it to the Agent; and
|
(ii)
|
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
32.5
|
Partial Payments
|
(a)
|
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
(i)
|
first
, in or towards payment
pro rata
of any unpaid amount owing to the Agent or the Security Agent under the Finance Documents;
|
(ii)
|
secondly
, in or towards payment
pro rata
of any accrued interest, fee or commission due but unpaid under the Finance Documents;
|
(iii)
|
thirdly
, in or towards payment
pro rata
of any principal due but unpaid under the Finance Documents; and
|
(iv)
|
fourthly
, in or towards payment
pro rata
of any other sum due but unpaid under the Finance Documents.
|
(b)
|
The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (a)(iv) above.
|
(c)
|
Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
|
32.6
|
No Set‑Off by Obligors
|
32.7
|
Business Days
|
(a)
|
Any payment under any Finance Document which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b)
|
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
32.8
|
Currency of Account
|
(a)
|
Subject to paragraphs (b) to (e) below, the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b)
|
A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated, pursuant to this Agreement, on its due date.
|
(c)
|
Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated, pursuant to this Agreement, when that interest accrued.
|
(d)
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(e)
|
Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency.
|
32.9
|
Change of Currency
|
(a)
|
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i)
|
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Company); and
|
(ii)
|
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).
|
(b)
|
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Market and otherwise to reflect the change in currency.
|
32.10
|
Disruption to payment systems etc.
|
(a)
|
the Agent may, and shall if requested to do so by the Company, consult with the Company with a view to agreeing with the Company such changes to the operation or administration of the Facility as the Agent may deem necessary in the circumstances;
|
(b)
|
the Agent shall not be obliged to consult with the Company in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
(c)
|
the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
(d)
|
any such changes agreed upon by the Agent and the Company shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 38 (
Amendments and Waivers
);
|
(e)
|
the Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 32.10; and
|
(f)
|
the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
33.
|
Set‑Off
|
(a)
|
Following the occurrence of an Event of Default which is continuing, a Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set‑off.
|
(b)
|
Any credit balances taken into account by an Ancillary Lender when operating a net limit in respect of any overdraft under an Ancillary Facility shall on enforcement of the Finance Documents be applied first in reduction of the overdraft provided under that Ancillary Facility in accordance with its terms.
|
34.
|
Notices
|
34.1
|
Communications in Writing
|
34.2
|
Addresses
|
(a)
|
in the case of the Company, that identified with its name below;
|
(b)
|
in the case of each Lender, Ancillary Lender or any other Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and
|
(c)
|
in the case of the Agent or the Security Agent, that identified with its name below,
|
34.3
|
Delivery
|
(a)
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:
|
(i)
|
if by way of fax, when received in legible form; or
|
(ii)
|
if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address;
|
(b)
|
Any communication or document to be made or delivered to the Agent or the Security Agent will be effective only when actually received by the Agent or the Security Agent
|
(c)
|
All notices from or to an Obligor shall be sent through the Agent.
|
(d)
|
Any communication or document made or delivered to the Company in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
(e)
|
Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5:00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
34.4
|
Notification of Address and Fax Number
|
34.5
|
Electronic Communication
|
(a)
|
Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means (including, without limitation, by way of posting to a secure website) if those two Parties:
|
(i)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and
|
(ii)
|
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days’ notice.
|
(b)
|
Any such electronic communication as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication.
|
(c)
|
Any such electronic communication as specified in paragraph (a) above made between any two Parties will be effective only when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Agent or the Security Agent only if it is addressed in such a manner as the Agent or the Security Agent shall specify for this purpose.
|
(d)
|
Any electronic communication which becomes effective, in accordance with paragraph (c) above, after 5:00 p.m. in the place in which the Party to whom the relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.
|
(e)
|
Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 34.5.
|
34.6
|
English Language
|
(a)
|
Any notice given under or in connection with any Finance Document must be in English.
|
(b)
|
All other documents provided under or in connection with any Finance Document must be:
|
(i)
|
in English; or
|
(ii)
|
if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
|
35.
|
Calculations and Certificates
|
35.1
|
Accounts
|
35.2
|
Certificates and Determinations
|
35.3
|
Day Count Convention
|
36.
|
Partial Invalidity
|
37.
|
Remedies and Waivers
|
38.
|
Amendments and Waivers
|
38.1
|
Required Consents
|
(a)
|
Subject to Clause 38.2 (
All Lender matters
) and Clause 38.3 (
Other exceptions
) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.
|
(b)
|
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 38.
|
38.2
|
All Lender matters
|
(a)
|
the definition of “Majority Lenders” in Clause 1.1 (
Definitions
);
|
(b)
|
an extension to the date of payment of any amount under the Finance Documents;
|
(c)
|
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;
|
(d)
|
a change in currency of payment of any amount under the Finance Documents;
|
(e)
|
an increase in any Commitment, an extension of the Availability Period or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Facility;
|
(f)
|
a change to the Borrowers or Guarantors other than in accordance with Clause 27 (
Changes to the Obligors
);
|
(g)
|
any provision which expressly requires the consent of all the Lenders;
|
(h)
|
Clause 2.4 (
Finance Parties’ rights and obligations
), Clause 10.1 (
Illegality
), Clause 26 (
Changes to the Lenders
), Clause 31 (
Sharing among the Finance Parties
), this Clause 38, Clause 42 (
Governing law
) or Clause 44.1 (
Jurisdiction
);
|
(i)
|
the nature or scope of:
|
(i)
|
the guarantee and indemnity granted under Clause 20 (
Guarantee and Indemnity
);
|
(ii)
|
the Charged Property; or
|
(iii)
|
the manner in which the proceeds of enforcement of the Transaction Security are distributed; or
|
(j)
|
the release of any guarantee and indemnity granted under Clause 20 (
Guarantee and Indemnity
) or of any Transaction Security (other than any release contemplated in Clause 27 (
Changes to the Obligors
)); or
|
(k)
|
Clause 21.22 (
Sanctions
), Clause 24.20 (
Sanctions
) and the definitions of “OFAC”, “Restricted Party”, “Sanctions”, “Sanctions Authority” and “Sanctions List”, and the construction of “Sanctions Authority”
|
38.3
|
Other exceptions
|
(a)
|
An amendment or waiver which relates to the rights or obligations of the Agent, the Security Agent or the Arranger or an Ancillary Lender or a Reference Bank (each in their capacity as such) may not be effected without the consent of the Agent, the Security Agent, the Arranger or that Ancillary Lender or that Reference Bank, as the case may be.
|
(b)
|
An amendment or waiver which relates to (i) the change of the Termination Date in respect of an Incremental Facility; or (ii) the definition of “Incremental Facility Supplemental Security”; or (iii) the second sub-paragraph of paragraph (g) of Clause 8.1 (
Selection of Incremental Facility and/or Existing Facility Increase Lenders
) shall not be made without the prior consent of all Lenders.
|
38.4
|
Replacement of Screen Rate
|
38.5
|
Time
|
(a)
|
At any time where there is more than one Lender, if any Lender fails to respond to a request for an amendment or waiver within 15 Business Days (unless the Company and the Agent agree to a longer time period in relation to any request) of that request being made:
|
(i)
|
its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and
|
(ii)
|
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
|
39.
|
Confidential Information
|
39.1
|
Confidentiality
|
39.2
|
Disclosure of Confidential Information
|
(a)
|
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price‑sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b)
|
to any person:
|
(i)
|
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent or Security Agent, and, in each case, to any of that person’s Affiliates, Related Funds, Representatives and professional advisers;
|
(ii)
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub‑participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of
|
(iii)
|
appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (b) of Clause 28.14 (
Relationship with the Lenders
));
|
(iv)
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (ii) above;
|
(v)
|
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
(vi)
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
|
(vii)
|
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 26.10 (
Security over Lenders’ rights
);
|
(viii)
|
who is a Party; or
|
(ix)
|
with the consent of the Company,
|
(A)
|
in relation to paragraphs (b)(i), (ii) and (iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B)
|
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price‑sensitive information;
|
(C)
|
in relation to paragraphs (b)(v), (vi) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price‑sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances; and
|
(c)
|
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential
|
39.3
|
Entire Agreement
|
39.4
|
Inside Information
|
39.5
|
Notification of Disclosure
|
(a)
|
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 39.2 (
Disclosure of Confidential Information
) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(b)
|
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 39.
|
39.6
|
Continuing Obligations
|
(a)
|
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b)
|
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
40.
|
Confidentiality of Funding Rates and Reference Bank Quotations
|
40.1
|
Confidentiality and Disclosure
|
(a)
|
The Agent and each Obligor agree to keep each Funding Rate and, in the case of the Agent, each Reference Bank Quotation, confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b) and (c) below.
|
(b)
|
The Agent may disclose:
|
(i)
|
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the relevant Borrower pursuant to Clause 11.5 (
Notification of rates of interest
); and
|
(ii)
|
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.
|
(c)
|
The Agent may disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose any Funding Rate, to:
|
(i)
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
(ii)
|
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;
|
(iii)
|
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and
|
(iv)
|
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
(d)
|
The Agent's obligations in this Clause 40.1 relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause 11.5 (
Notification of rates of interest
) provided that (other than pursuant to paragraph (b)(i)
|
40.2
|
Related obligations
|
(a)
|
The Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
|
(b)
|
The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case may be:
|
(i)
|
of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 40.1 (
Confidentiality and disclosure
) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(ii)
|
upon becoming aware that any information has been disclosed in breach of this Clause 40.
|
40.3
|
No Event of Default
|
41.
|
Counterparts
|
42.
|
Contractual
recognition
of bail-in
|
(a)
|
any Bail-In Action in relation to any such liability, including (without limitation):
|
(i)
|
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
(ii)
|
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
(iii)
|
a cancellation of any such liability; and
|
43.
|
Governing Law
|
44.
|
Enforcement
|
44.1
|
Jurisdiction
|
(a)
|
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non‑contractual obligation arising out of or in connection with this Agreement) (a “
Dispute
”).
|
(b)
|
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
|
(c)
|
Notwithstanding paragraph (a) above, no Finance Party or Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties and Secured Parties may take concurrent proceedings in any number of jurisdictions.
|
44.2
|
Service of Process
|
(a)
|
irrevocably appoints the Company as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
(b)
|
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
Name of Original Borrower
|
Registration number
(
or equivalent, if any
)
|
Endava Limited
|
05722669
|
Endava (UK) Limited
|
03919935
|
Name of Original Guarantor
|
Registration number
(
or equivalent, if any
)
|
Endava Limited
|
05722669
|
Endava (UK) Limited
|
03919935
|
Endava Romania SRL
|
9533457
|
Endava Inc.
|
5650269
|
Endava Holding B.V.
|
32048894
|
Name of Original Lender
|
Commitment
|
Treaty Passport scheme
reference number and
jurisdiction of tax residence
(
if applicable
)
|
|
HSBC Bank plc
|
(a)
|
£50,000,000;
plus
|
N/A
|
|
(b)
|
$12,100,000;
plus
|
|
|
(c)
|
€9,500,000
|
|
1.
|
Original Obligors
|
(a)
|
A copy of the constitutional documents of each Original Obligor, including, in relation to any Dutch Obligor:
|
(i)
|
a certified extract from the trade register (
Handelsregister
) of the Dutch Chamber of Commerce (
Kamer van Koophandel
);
|
(ii)
|
the deed of incorporation (
akte
van oprichting
);
|
(iii)
|
the articles of association (
statuten
);
|
(iv)
|
the shareholder’s register; and
|
(v)
|
any analogous constitutional document.
|
(b)
|
A copy of a resolution of the board of directors of each Original Obligor (other than Original Obligors incorporated in Romania, for which, a copy of the resolution of the general meeting of shareholders will be provided (the “
Romanian Shareholder Resolution
”)):
|
(i)
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(ii)
|
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(iii)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
|
(c)
|
In respect to any Dutch Obligor, if applicable, a request for advice and an unconditional positive advice of the relevant works council (
ondernemingsraad
), or otherwise confirmation that no works council is established or is required to be established.
|
(d)
|
If applicable, a copy of a resolution of the board of supervisory directors (
raad van commissarissen
) of each Dutch Obligor, approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and approving the resolutions referred to under (b) above, or otherwise confirmation that no board of supervisory directors is established or is required to be established.
|
(e)
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above.
|
(f)
|
If required by the law of the jurisdiction of incorporation of an Original Guarantor, a copy of a resolution signed by all the holders of the issued shares in each Original Guarantor (other than the Company), approving the terms of, and the transactions contemplated by, the Finance Documents to which the Original Guarantor is a party.
|
(g)
|
A certificate of the Company (signed by a director) confirming that borrowing, guaranteeing or securing, as appropriate, the Total Commitments would not cause any borrowing, guarantee, security or similar limit binding on any Original Obligor to be exceeded.
|
(h)
|
A certificate of an authorised signatory of the relevant Original Obligor certifying that each copy document relating to it specified in this Part 1 of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
(i)
|
For a Romanian Obligor, an original certificate of corporate good standing (Romanian:
certificat constatator
) issued by the relevant Romanian Commercial Registry no earlier than six Business Days prior to the execution of this Agreement.
|
(j)
|
For a Romanian Obligor, an original excerpt (Romanian:
extras
) (issued in accordance with Article 9(3) of the Romanian Law No. 359/2004) confirming that such Obligor is operational as of the date of such excerpt, excerpt issued by the relevant Romanian Commercial Registry no earlier than six Business Days prior to the execution of this Agreement.
|
(k)
|
For a Romanian Obligor, an original certificate indicating that no proceeding act has been published in the Bulletin for Insolvency Proceedings (Romanian:
Buletinul Procedurilor de Insolvenţă
) with respect to such Obligor, issued by the relevant Romanian Commercial Registry no earlier than six Business Days prior to the execution of this Agreement.
|
2.
|
Finance Documents
|
(a)
|
This Agreement duly executed by all original parties to it.
|
(b)
|
The Fee Letters duly executed by all parties.
|
(c)
|
At least two originals of the following security documents:
|
Name of security provider(s)
|
Security Document
|
Governing Law
|
Endava Limited
Endava (UK) Ltd
|
Debenture
|
English law
|
Endava Limited
Endava (UK) Ltd
|
Share Pledge overs shares in Endava Holding B.V.
|
Dutch law
|
Endava Holding B.V.
|
Omnibus Pledge (disclosed security over bank accounts and intragroup receivables, and undisclosed security over other receivables)
|
Dutch law
|
Endava Limited
|
Equity Pledge over interests in Endava, Inc.
|
NY law
|
Endava Inc.
|
Security Agreement
|
NY law
|
Endava Limited
|
Mortgage agreement over shares in Endava Romania SRL
|
Romanian law
|
Endava Romania SRL
|
Mortgage agreement over movable property
|
Romanian law
|
(d)
|
A copy of all share certificates, transfers and stock transfer forms or equivalent duly executed by the relevant Obligor in blank in relation to the assets subject to or expressed to be subject to the Transaction Security and other documents of title to be provided under the Transaction Security Documents referred to in paragraph (c) above, including in respect of a Romanian Obligor, an up to date copy of the shareholders’ register of the Romanian Obligor reflecting the relevant security over the shares/social parts thereof.
|
(e)
|
A deed of release in respect of the existing security package granted to HSBC Bank PLC, in form and substance satisfactory to the Agent.
|
3.
|
Legal Opinions
|
(a)
|
A legal opinion of Simmons & Simmons LLP, legal advisers to the Arranger and the Agent in England, substantially in the form distributed to the Original Lenders prior to signing this Agreement.
|
(b)
|
If an Original Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Arranger and the Agent in the relevant jurisdiction, substantially in the form distributed to the Original Lenders prior to signing this Agreement.
|
4.
|
Other Documents and Evidence
|
(a)
|
Evidence that any process agent referred to in Clause 44.2 (
Service of Process
), if not an Original Obligor, has accepted its appointment.
|
(b)
|
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (and which it has notified the Company are to be provided accordingly at least 10 Business Days prior to the date of this Agreement) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
|
(c)
|
The Original Financial Statements of each Original Obligor.
|
(d)
|
A copy of the Base Case Model.
|
(e)
|
A copy of the Group Structure Chart.
|
(f)
|
Evidence that the fees, costs and expenses then due from the Company pursuant to Clause 14 (
Fees
) and Clause 19 (
Costs and Expenses
) have been paid or will be paid by the first Utilisation Date.
|
(g)
|
Confirmation from the relevant Lender that the Romanian Ancillaries have been grandfathered under an Ancillary Facility.
|
(h)
|
An insurance broker’s letter addressed to the Agent from Ross Insurance Group in relation to the Group.
|
(i)
|
The performance by each Lender and Agent of all necessary "know your customer" or other similar checks in relation to the Original Obligors.
|
(j)
|
In respect of each company incorporated in the United Kingdom whose shares are the subject of the Transaction Security (a “
Charged Company
”), either:
|
(i)
|
a certificate of an authorised signatory of the Company certifying that:
|
(A)
|
each member of the Group has compiled within the relevant timeframe with any notice it has received pursuant to Part 21A of the Companies Act 2006 from that Charged Company; and
|
(B)
|
no “warning notice” or “ restrictions notice” (in each case as defined in Schedule 1B of the Companies Act 2006) has been issued in respect of those shares,
|
(ii)
|
a certificate of an authorised signatory of the Company certifying that such Charged Company is not required to comply with Part 21A of the Companies Act 2006.
|
1.
|
An Accession Letter, duly executed by the Additional Obligor and the Company.
|
2.
|
A copy of the constitutional documents of the Additional Obligor, , including, in relation to any Dutch Obligor:
|
(a)
|
a certified extract from the trade register (
Handelsregister
) of the Dutch Chamber of Commerce (
Kamer van Koophandel
);
|
(a)
|
the deed of incorporation (
akte
van oprichting
);
|
(b)
|
the articles of association (
statuten
);
|
(c)
|
the shareholder’s register; and
|
(d)
|
any analogous constitutional document.
|
3.
|
A copy of a resolution of the board of directors of the Additional Obligor:
|
(a)
|
approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter;
|
(b)
|
authorising a specified person or persons to execute the Accession Letter on its behalf; and
|
(c)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices (including, in relation to an Additional Borrower, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents.
|
4.
|
In respect to any Dutch Obligor, if applicable, a request for advice and an unconditional positive advice of the relevant works council (
ondernemingsraad
), or otherwise confirmation that no works council is established or is required to be established.
|
5.
|
If applicable, a copy of a resolution of the board of supervisory directors (
raad van commissarissen
) of each Dutch Obligor, approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and approving the resolutions referred to under (b) above, or otherwise confirmation that no board of supervisory directors is established or is required to be established.
|
6.
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph 3 above.
|
7.
|
For a Romanian Obligor, an original certificate of corporate good standing (Romanian:
certificat
constatator) issued by the relevant Romanian Commercial Registry no earlier than six Business Days prior to the execution of the Accession Letter.
|
8.
|
For a Romanian Obligor, an original excerpt (Romanian:
extras
) (issued in accordance with Article 9(3) of the Romanian Law No. 359/2004) confirming that such Obligor is operational as of the date of such excerpt, excerpt issued by the relevant Romanian Commercial Registry no earlier than six Business Days prior to the execution of the Accession Letter.
|
9.
|
For a Romanian Obligor, an original certificate indicating that no proceeding act has been published in the Bulletin for Insolvency Proceedings (Romanian:
Buletinul Procedurilor de Insolvenţă
) with respect to such Obligor, issued by the relevant Romanian Commercial Registry no earlier than six Business Days prior to the execution of the Accession Letter.
|
10.
|
If required by the law of the jurisdiction of incorporation of the Additional Obligor, a copy of a resolution signed by all the holders of the issued shares of the Additional Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Additional Guarantor is a party and for an Additional Obligor incorporated in Romania, evidence of registration of such resolution with the Romanian Commercial Registry in view of publication with the Romanian Official Gazette.
|
11.
|
A certificate of the Additional Obligor (signed by a director) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded.
|
12.
|
A certificate of an authorised signatory of the Additional Obligor certifying that each copy document listed in this Part 2 of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter.
|
13.
|
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (and which it has notified the Company are to be provided accordingly at least 10 Business Days prior to the date of the Accession Letter) in connection with the entry into and performance of the transactions contemplated by the Accession Letter or for the validity and enforceability of any Finance Document.
|
14.
|
If available, the latest audited financial statements of the Additional Obligor.
|
15.
|
A legal opinion of Simmons & Simmons, legal advisers to the Arranger and the Agent in England.
|
16.
|
If the Additional Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Arranger and the Agent in the jurisdiction in which the Additional Obligor is incorporated.
|
17.
|
Subject to the Agreed Security Principles, Transaction Security Documents which are required by the Agent to be executed by the proposed Additional Guarantor.
|
From:
|
[Borrower]
|
To:
|
[Agent]
|
Dated:
|
[●]
|
1.
|
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2.
|
We wish to borrow a Loan on the following terms:
|
Facility:
|
[●]
|
Proposed Utilisation Date:
|
[●] (or, if that is not a Business Day, the next Business Day)
|
Currency of Loan:
|
[●]
|
Amount:
|
[●] or, if less, the Available Facility
|
Interest Period:
|
[●]
|
3.
|
We confirm that each condition specified in Clause 4.2 (
Further Conditions Precedent
) of the Agreement is satisfied on the date of this Utilisation Request.
|
4.
|
[This Loan is to be made in [whole]/[part] for the purpose of refinancing [
identify maturing Loan
]/[The proceeds of this Loan should be credited to [account]].
|
5.
|
This Utilisation Request is irrevocable.
|
authorised signatory for
[
name of relevant Borrower
]
|
}
|
|
|
|
To:
|
[●] as Agent
|
From:
|
[
the Existing Lender
] (the “
Existing Lender
”) and [
the New Lender
] (the “
New Lender
”)
|
Dated:
|
[●]
|
1.
|
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2.
|
We refer to Clause 26.7 (
Procedure for Transfer
) of the Agreement:
|
(a)
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation, and in accordance with Clause 26.7 (
Procedure for Transfer
) of the Agreement, all of the Existing Lender’s rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender’s Commitment and participations in Loans under the Agreement as specified in the Schedule.
|
(b)
|
The proposed Transfer Date is [●].
|
(c)
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 34.2 (
Addresses
) of the Agreement are set out in the Schedule.
|
3.
|
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Clause 26.6 (
Limitation of Responsibility of Existing Lenders
) of the Agreement.
|
4.
|
The New Lender confirms that it is:
|
(a)
|
[a Qualifying Lender (other than a Treaty Lender);]
|
(b)
|
[a Treaty Lender;]
|
(c)
|
[not a Qualifying Lender]
1
|
5.
|
[The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
|
(a)
|
a company resident in the United Kingdom for United Kingdom tax purposes;
|
(b)
|
a partnership each member of which is:
|
(i)
|
a company so resident in the United Kingdom; or
|
(ii)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19
|
1
|
Delete as applicable - each New Lender is required to confirm which of these three categories it falls within.
|
(c)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]
2
|
6.
|
[The New Lender confirms (for the benefit of the Agent and without liability to any Obligor) that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [●]) and is tax resident in [●]
3
and wishes such passport to apply in respect of this Agreement, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax, and notifies that the Company notify and each Borrower that:
|
(a)
|
each Borrower which is a Party as a Borrower as at the Transfer Date must, to the extent that the New Lender becomes a Lender under a Facility which is made available to that Borrower pursuant to Clause 2.1 (
The Facilities
) of the Agreement, make an application to H.M. Revenue & Customs on Form DTTP2 within 30 days of the Transfer Date; and
|
(b)
|
each Additional Borrower which becomes an Additional Borrower after the Transfer Date, must, to the extent that the New Lender is a Lender under a Facility which is made available to that Additional Borrower pursuant to Clause 2.1 (
The Facilities
) of the Agreement, make an application to H.M. Revenue & Customs on Form DTTP2 within 30 days of becoming an Additional Borrower.]
4
|
7.
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
8.
|
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
9.
|
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
2
|
Include if New Lender comes within paragraph (i)(B) of the definition of “Qualifying Lender” in Clause 15.1 (Definitions).
|
3
|
Insert jurisdiction of tax residence.
|
4
|
Include if New Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement.
|
[
Existing Lender
]
|
}
|
|
|
By:
|
[
New Lender
]
|
}
|
|
|
By:
|
[
Agent
]
|
}
|
|
|
By:
|
To:
|
[●] as Agent and [●] as Company, for and on behalf of each Obligor
|
From:
|
[
the Existing Lender
] (the “
Existing Lender
”) and [
the New Lender
] (the “
New Lender
”)
|
1.
|
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
|
2.
|
We refer to Clause 26.8 (
Procedure for Assignment
) of the Agreement:
|
(a)
|
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement and the other Finance Documents and in respect of the Transaction Security which correspond to that portion of the Existing Lender’s Commitments and participations in Loans under the Agreement as specified in the Schedule.
|
(b)
|
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender’s Commitments and participations in Loans under the Agreement specified in the Schedule.
|
(c)
|
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
5
|
3.
|
The proposed Transfer Date is [●].
|
4.
|
On the Transfer Date the New Lender becomes a Party to the Finance Documents as a Lender.
|
5.
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 34.2 (
Addresses
) of the Agreement are set out in the Schedule.
|
6.
|
The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Clause 26.6 (
Limitation of Responsibility of Existing Lenders
) of the Agreement.
|
7.
|
The New Lender confirms:
|
(a)
|
[a Qualifying Lender (other than a Treaty Lender);]
|
(b)
|
[a Treaty Lender;]
|
(c)
|
not a Qualifying Lender].
6
|
5
|
If the Assignment Agreement is used in placed of a Transfer Certificate in order to avoid a novation of rights/obligations for reasons relevant to a civil jurisdiction, local law advice should be sought to check the suitability of the Assignment Agreement due to the assumption of obligations contained in paragraph 2(c). This issue should be addressed at primary documentation stage.
|
6
|
Delete as applicable - each New lender is required to confirm which of these three categories it falls within.
|
8.
|
[The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
|
(a)
|
a company resident in the United Kingdom for United Kingdom tax purposes;
|
(b)
|
a partnership each member of which is:
|
(i)
|
a company so resident in the united Kingdom; or
|
(ii)
|
a company not so resident in the United Kingdom which carries on a trade in the United kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance falls to it by reason if Part 17 of the CTA; or
|
(c)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]
7
|
9.
|
[The New Lender confirms (for the benefit of the Agent and without liability to any Obligor)
that it holds a passport under the HMRC DT Treaty passport scheme (reference number [●]]) and is tax resident in [●]
8
and wishes such passport to apply in respect of this Agreement, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax, and notifies the Company and each Borrower that:
|
(a)
|
each Borrower which is a Party as a Borrower as at the Transfer Date must, to the extent that the New Lender becomes a Lender under a Facility which is made available to that Borrower pursuant to Clause 2.1 (
The Facilities
) of the Agreement, make an application to H.M. Revenue & Customs on Form DTTP2 within 30 days of the Transfer Date; and
|
(b)
|
each Additional Borrower which becomes an Additional Borrower after the Transfer Date, must, to the extent that the New Lender is a Lender under a Facility which is made available to that Additional Borrower pursuant to Clause 2.1 (
The Facilities
) of the Agreement, make an application to H.M. Revenue & Customs on Form DTTP2 within 30 days of becoming an Additional Borrower.]
9
|
10.
|
This Assignment Agreement acts as notice to the Agent (on behalf on each Finance Party] and, upon delivery in accordance with Clause 26.9 (
Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to Company
) of the Agreement, to the Company (on behalf of each Obligor) of the Assignment referred to in this Assignment Agreement.
|
11.
|
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.
|
12.
|
This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
13.
|
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
|
7
|
Include if New Lender comes within paragraph (i)(B) of the definition of “Qualifying Lender” in Clause 15.1 (Definitions).
|
8
|
Insert jurisdiction of tax residence.
|
9
|
Include if New Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement.
|
[
Existing Lender
]
|
}
|
|
|
By:
|
[
New Lender
]
|
}
|
|
|
By:
|
[
Agent
]
|
}
|
|
|
By:
|
To:
|
[●] as Agent
|
From:
|
[Subsidiary] and [Company]
|
Dated:
|
[●]
|
1.
|
We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.
|
2.
|
[Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and to be bound by the terms of the Agreement as an Additional [Borrower]/[Guarantor] pursuant to [Clause 27.2 (
Additional Borrowers
)]/[Clause 27.4 (
Additional Guarantors
)] of the Agreement. [Subsidiary] is a company duly incorporated under the laws of [
name of relevant jurisdiction
].
|
3.
|
[The Company confirms that no Default is continuing or would occur as a result of [Subsidiary] becoming an Additional Borrower.]
10
|
4.
|
[
Subsidiary’s
] administrative details are as follows:
|
Address:
|
[●]
|
Fax No:
|
[●]
|
Attention:
|
[●]
|
5.
|
This Accession Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
[
Company
]
|
}
|
|
|
|
10
|
Include in the case of an Additional Borrower.
|
[
Subsidiary
]
|
}
|
|
|
|
To:
|
[●] as Agent
|
From:
|
[
resigning Obligor
] and [
Company
]
|
Dated:
|
[●]
|
1.
|
We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same meaning in this Resignation Letter unless given a different meaning in this Resignation Letter.
|
2.
|
Pursuant to [Clause 27.3 (
Resignation of a Borrower
)]/[Clause 27.6 (
Resignation of a Guarantor
)]
of the Agreement, we request that [resigning Obligor] be released from its obligations as a [Borrower]/[Guarantor] under the Agreement.
|
3.
|
We confirm that:
|
(a)
|
no Default is continuing or would result from the acceptance of this request; and
|
(b)
|
[●]
11
|
4.
|
This Resignation Letter and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
[
Company
]
|
}
|
|
|
By:
|
[
Subsidiary
]
|
}
|
|
|
By:
|
11
|
Insert any other conditions required by the Facility Agreement.
|
To:
|
[●] as Agent
|
From:
|
[Company]
|
Dated:
|
[●]
|
1.
|
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
|
2.
|
We confirm that: [
Insert details of covenants to be certified
].
|
3.
|
We confirm that the applicable Margin is: [●].
|
4.
|
[We confirm that the Percentage Increase for the purposes of Clause 1.6 (Basket adjustments) is [●]%, and accordingly the following numerical baskets are increased to the following amounts:
|
Director of
[
Company
]
|
}
|
|
|
Signed:
|
Director of
[
Company
]
|
}
|
|
|
Signed:
|
Name of Obligor
|
Security
|
Endava Romania SRL
|
Security provided in favour of Banca Transilvania securing indebtedness which shall not exceed EUR1,350,000.
|
|
Loans in euro
|
Loans in
sterling
|
Loans in
RON |
Agent notifies the Company if a
currency is approved as an
Optional Currency in accordance
with Clause 4.3 (
Conditions
relating to Optional Currencies
)
|
-
|
-
|
U-4 5 pm
|
Delivery of a duly completed
Utilisation Request (Clause 5.1
(
Delivery of a Utilisation Request
))
|
U-3 9.30 am
|
U-1 9.30 am
|
U-3 9.30am
|
Agent determines (in relation to a
Utilisation) the Base Currency
Amount of the Loan, if required
under Clause 5.4 (
Lenders’
Participation
) and notifies the
Lenders of the Loan in accordance
with Clause 5.4 (
Lender’s
Participation
)
|
U-3 3.00 pm
|
U-1 3.00 pm
|
U-3 3.00 pm
|
Agent receives a notification from
a Lender under Clause 6.2
(
Unavailability of a Currency
)
|
-
|
-
|
U-3 5.00 pm
|
Agent gives notice in accordance
with Clause 6.2 (
Unavailability of
a Currency
)
|
-
|
-
|
U-2 10.00 am
|
LIBOR or EURIBOR or ROBOR
is fixed
|
Quotation Day
11:00 a.m. in
respect of LIBOR
and 11.00 a.m.
Brussels time in
respect of EURIBOR
|
Quotation Day 11:00 a.m.
|
Quotation Day 11:00 a.m.
|
Reference Bank Rate calculated by
reference to available quotations in
accordance with Clause 13.2
(Calculation of Reference Bank
Rate)
|
Noon on the
Quotation Day in
respect of LIBOR
and Quotation Day
11:30 a.m. (Brussels
time) in respect of
EURIBOR
|
Noon on the Quotation Day
|
Noon on the
Quotation Day in
respect of
ROBOR
|
To:
|
[●] as Agent and [●] as Company, for and on behalf of each Obligor
|
From:
|
[the Increase Lender] (the “
Increase Lender
”)
|
1.
|
We refer to the Agreement. This is an Increase Confirmation. Terms defined in the Agreement have the same meaning in this Increase Confirmation unless given a different meaning in this Increase Confirmation.
|
2.
|
We refer to Clause 2.2 (
Increase
) of the Agreement.
|
3.
|
The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule (the “
Relevant Commitment
”) as if it had been an Original Lender under the Agreement in respect of the Relevant Commitment.
|
4.
|
The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment is to take effect (the “
Increase Date
”) is [●].
|
5.
|
On the Increase Date, the Increase Lender becomes party to the Finance Documents as a Lender.
|
6.
|
The Facility Office and address, fax number and attention details for notices to the Increase Lender for the purposes of Clause 34.2 (
Addresses
) of the Agreement are set out in the Schedule.
|
7.
|
The Increase Lender expressly acknowledges the limitations on the Lenders’ obligations referred to in paragraph (i) of Clause 2.2 (
Increase
) of the Agreement.
|
8.
|
The Increase Lender confirms that it is:
|
(a)
|
[a Qualifying Lender (other than a Treaty Lender);]
|
(b)
|
[a Treaty Lender;]
|
(c)
|
[not a Qualifying Lender].
13
|
9.
|
[The Increase Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
|
(a)
|
a company resident in the United Kingdom for United Kingdom tax purposes;
|
(b)
|
a partnership each member of which is:
|
(i)
|
a company so resident in the United Kingdom; or
|
(ii)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19
|
13
|
Delete as applicable - each Increase Lender is required to confirm which of these three categories it falls within.
|
(c)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]
14
|
10.
|
[The Increase Lender confirms (for the benefit of the Agent and without liability to any Obligor) that it holds a passport under the HMRC DT Treaty passport scheme (reference number [●]) and is tax resident in [●]*and wishes such passport to apply in respect of this Agreement, so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax and notifies the Company and each Borrower that:
|
(a)
|
each Borrower which is a Party as a Borrower as at the Transfer Date must, to the extent that the Increase Lender becomes a Lender under a Facility which is made available to that Borrower pursuant to Clause 2.1 (
The Facilities
) of the Agreement, make an application to H.M. Revenue & Customs on Form DTTP2 within 30 days of the Transfer; and
|
(b)
|
each Additional Borrower which becomes an Additional Borrower after the Transfer Date must, to the extent that the Increase Lender is a Lender under a Facility which is made available to that Additional Borrower pursuant to Clause 2.1 (
The Facilities
) of the Agreement, make an application to H.M. Revenue & Customs on Form DTTP2 within 30 days of becoming an Additional Borrower.]**
|
11.
|
This Increase Confirmation may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Increase Confirmation.
|
12.
|
This Increase Confirmation and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
13.
|
This Increase Confirmation has been entered into on the date stated at the beginning of this Increase Confirmation.
|
14
|
Include only if Increase Lender is a UK Non-Bank Lender i.e. falls within paragraph (i)(B) of the definition of Qualifying Lender in Clause 15.1 (Definitions).
|
*
|
Insert jurisdiction of tax residence.
|
**
|
Include if the Increase Lender holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Agreement.
|
1.
|
Security Principles
|
1.1
|
The guarantees and security to be provided will be given in accordance with the agreed security principles set out in this section (the “
Agreed Security Principles
”). This section addresses the manner in which the Agreed Security Principles will impact on the guarantees and security proposed to be taken in relation to this transaction.
|
1.2
|
The Agreed Security Principles embody recognition by all parties that there may be certain legal and practical difficulties in obtaining guarantees and security from all Obligors in every jurisdiction in which Obligors are located. In particular:
|
(a)
|
general mandatory limitations (including, with respect to the relevant jurisdictions for which guarantee limitation language is set out in this Agreement, such limitations as set out herein), financial assistance, corporate benefit, fraudulent preference, maintenance of capital rules, retention of title claims and similar principles may limit the ability of a member of the Group to provide a guarantee or security or may require that the guarantee or security be limited by an amount or otherwise;
|
(b)
|
in the case of any joint venture or non‑wholly owned subsidiary all guarantees and security will be limited to comply with restrictions in the joint venture, shareholders’ or other agreement or by law
provided that
the Company shall notify the Agent of such restrictions and will use reasonable endeavours to avoid or overcome such restrictions, or if required obtain any necessary consents;
|
(c)
|
the relevant Obligor will use all reasonable endeavours to assist in demonstrating that corporate benefit (as required by relevant local jurisdiction) accrues to each relevant Obligor and to overcome any such other limitations to the extent reasonably practicable;
|
(d)
|
the security and extent of its perfection will be agreed taking into account the cost to the Group of providing security so as to ensure that it is proportionate to the benefit accruing to the Lenders (in each case, to be determined by the Security Agent, acting reasonably);
|
(e)
|
any assets subject to pre-existing third party arrangements which are notified to the Agent and are permitted by the Finance Documents and which prevent those assets from being subject to fixed or specified security will be excluded from such fixed or specified security
provided that
to the extent such assets are material in the context of the Group taken as a whole reasonable endeavours to obtain consent to charging any such assets shall be used by the relevant Obligors if the relevant asset is material;
|
(f)
|
members of the Group will not be required to give guarantees or enter into security documents if it would conflict with the mandatory fiduciary duties of their directors or contravene any applicable legal prohibition or result in a risk of personal or criminal liability on the part of any officer
provided that
the relevant member of the Group and each of their directors shall use reasonable endeavours to overcome any such obstacle;
|
(g)
|
perfection of security, when required, and other legal formalities will be completed as soon as reasonably practicable and, in any event, within the time periods specified in the Finance Documents therefor or (if earlier or to the extent no such time periods are specified in the Finance Documents) within the time periods specified by applicable law in order to ensure due perfection;
|
(h)
|
the maximum guaranteed or secured amount may be limited to minimise stamp duty, notarisation, registration or other applicable fees where the benefit of increasing the guaranteed or secured amount is disproportionate in the reasonable opinion of the Agent to the level of such fee, tax or duty;
|
(i)
|
where a class of assets to be secured includes material and immaterial assets, if the cost of granting security over the immaterial assets is disproportionate in the reasonable opinion of the Agent to the benefit of such security, security will be granted over the material assets only (as agreed between the Company and the Security Agent (each acting reasonably)) but subject to the extent that the immaterial assets are clearly separately identifiable;
|
(j)
|
unless granted under a global security document governed by the law of the jurisdiction of an Obligor or under English law all security (other than share security over its subsidiaries that are Obligors) shall be governed by the law of and secure assets located in the jurisdiction of incorporation of that Obligor;
|
(k)
|
guarantee and security limitations may mean that access to the assets of an Obligor is limited (or where applicable by reference to market standard limitation language in the relevant jurisdiction);
|
(l)
|
no perfection action will be required in jurisdictions where Obligors are not incorporated but perfection action may be required in the jurisdiction of incorporation of one Obligor in relation to security granted by another Obligor incorporated in a different jurisdiction; and
|
(m)
|
other than a general security agreement and related filing, no perfection action will be required with respect to assets of a type not owned by members of the Group.
|
1.3
|
The costs (including reasonable legal fees, disbursements, registration costs, taxes, notary fees and other costs and expenses) related to the guarantees and security incurred by legal counsel to the Security Agent will be paid by the Company and legal fees shall be subject to an agreed cap (once the parameters of the security are known and agreed).
|
1.4
|
To the extent possible under applicable law the security documents shall expressly state that in the event of any inconsistency between the terms of the security documents and this Agreement, the terms of this Agreement shall prevail.
|
2.
|
Guarantors and Security
|
2.1
|
Subject to the guarantee limitations set out in this Agreement, each guarantee will be an upstream, cross‑stream and downstream guarantee for all liabilities of the Obligors under the Finance Documents in accordance with, and subject to, the requirements of the Agreed Security Principles in each relevant jurisdiction. Security documents will secure the guarantee obligations of the relevant security provider or, if such security is provided on a third party basis, all liabilities of the Obligors under the Finance Documents, in each case including but not limited to any amounts owed pursuant to any incremental facility and any parallel debt provisions, in accordance with, and subject to, the requirements of the Agreed Security Principles in each relevant jurisdiction.
|
2.2
|
Where an Obligor pledges shares (including but not limited to stock, equity quotas, equity interests, or any other instruments (negotiable or non‑negotiable) representing the stated capital of any person), the security document will be governed by the laws of the company whose shares are being pledged and not by the law of the country of the pledgor. Subject to these principles, the shares in each Obligor (other than the Company) shall be secured. For the avoidance of doubt, the shares held by an Obligor in a Subsidiary that is not an Obligor shall not be required to be the subject of security.
|
2.3
|
To the extent legally possible, all security shall be given in favour of the Security Agent and not the Finance Parties individually. “Parallel debt” provisions will be used where necessary; such provisions will be contained in this Agreement and not the individual security documents unless required under local laws. To the extent possible, no action shall be required to be taken in relation to the guarantees or security when any Lender assigns or transfers any of its participation in the Facilities to a New Lender.
|
2.4
|
The costs of any re‑execution, notarisation, re‑registration, amendment or other perfection requirement for any security on any assignment or transfer of commitments to a new Lender shall be for the account of the transferee Lender.
|
3.
|
Terms of Transaction Security Documents
|
3.1
|
the security will be first ranking, to the extent possible;
|
3.2
|
security will not be enforceable until an Event of Default has occurred which is continuing and a notice of acceleration has been given by the Agent in accordance with the terms of this Agreement;
|
3.3
|
the Security Agent shall only be able to exercise a power of attorney following an Event of Default which is continuing or if the relevant Obligor has failed to comply with a further assurance or perfection obligation (and any grace period applicable thereto has expired);
|
3.4
|
in the security documents there will be no repetition or extension of clauses set out in this Agreement such as those relating to notices, cost and expenses (except in security documents requiring notarisation), indemnities, tax gross up and distribution of proceeds other than in respect of enforcement costs; representations and undertakings shall be included in the security documents only to the extent necessary in respect of that specified asset or to the extent required by local law in order to create or to perfect the security interest expressed to be created thereby and to:
|
(a)
|
confirm due authorisation, validity, enforceability and to confirm and/or undertake any registration or perfection of the security; and
|
(b)
|
provide such information in relation to the assets subject to the security as may be reasonably required by the Security Agent (acting on the instructions of the Majority Lenders) for the creation, maintenance or enforcement of the Security or for the purposes of identifying assets subject to a specific fixed charge,
|
3.5
|
except pursuant to the Security Agreement being entered into by Endava Inc. and the Equity Pledge Agreement being entered into by the Company with respect to the equity interests in Endava Inc. (or a Transaction Security Document being entered into by any other US Obligor or with respect to the equity of any other US Obligor), information, such as lists of assets, will be provided only if and only to the extent required by local law or regulation to be provided to create or to perfect the security interest expressed to be created thereby and, if so required, shall be provided no more frequently than annually (unless required more frequently under local law or market practice dictates) or, following an Event of Default which is continuing, on the Security Agent’s request; and
|
3.6
|
security will, where possible and practical, automatically create security over future assets of the same type as those already secured; where local law requires supplemental pledges to be delivered in respect of future acquired assets in order for effective security to be created over
|
4.
|
Bank Accounts
|
4.1
|
If an Obligor grants security over its bank accounts it shall be free to receive, withdraw or otherwise transfer any credit balance of those accounts (other than any accounts which are specifically blocked) in the course of its business until an Event of Default has occurred which is continuing and a notice of acceleration has been given by the Agent in accordance with the terms of this Agreement.
|
4.2
|
Control agreements may be entered into in respect of bank accounts where required by local law or regulation to perfect the security interest over such bank accounts, however, the Obligors will not be required to serve control agreements where the relevant Obligor can demonstrate that there would be a significant Tax or other cost or disadvantage in doing so such that, in the reasonable opinion of the Security Agent, the cost of serving such control agreement would be disproportionate to the benefit of such control agreement to the Lenders;
|
4.3
|
Notice of the Security will be served on the account bank following an Event of Default which is continuing. The relevant Obligor shall use its reasonable endeavours to obtain an acknowledgment.
|
4.4
|
Any security over bank accounts may be subject to any prior security interests in favour of the account bank which are created either by law or in the standard terms and conditions of the account bank.
|
4.5
|
If required under local law, security over bank accounts will be registered subject to the general principles set out in these Agreed Security Principles.
|
5.
|
Fixed Assets
|
5.1
|
Subject to the terms of this Agreement, Security will be granted over fixed assets including, but not limited to, assets which in the reasonable opinion of the Agent are material real estate and material intellectual property rights.
|
5.2
|
No notice whether to third parties or by attaching a notice to the fixed assets shall be prepared or given until an Event of Default has occurred which is continuing in accordance with the terms of this Agreement.
|
5.3
|
If required under local law, security over fixed assets will be registered subject to the general principles set out in these Agreed Security Principles.
|
6.
|
Insurance Policies
|
6.1
|
An Obligor will grant Security over any of its contracts or insurance policies taken out by it or in which it has an interest.
|
6.2
|
Notice of the Security will be served on the relevant counterparty to the contracts or insurances following an Event of Default which is continuing. The relevant Obligor shall use its reasonable endeavours to obtain an acknowledgment.
|
6.3
|
No loss payee or other endorsement shall be made on the insurance policy.
|
7.
|
Intercompany Receivables
|
7.1
|
An Obligor will grant Security over any of its intercompany receivables and it shall, subject to the terms of this Agreement, be free to deal with those receivables in the course of its business in accordance with the terms of the Finance Documents until n Event of Default has occurred
|
7.2
|
If required by local law to perfect the security, notice of the Security will be served on the relevant debtor within the time period provided for service in the relevant Transaction Security Document (which shall not be less than 5 Business Days) and the relevant Obligor shall use its reasonable endeavours to obtain an acknowledgement. Otherwise, notice of the Security will be served on the relevant debtor following an Event of Default which is continuing and the relevant Obligor shall use its reasonable endeavours to obtain an acknowledgment.
|
7.3
|
If required under local law, security over intercompany receivables will be registered subject to the general principles set out in these Agreed Security Principles.
|
8.
|
Trade Receivables
|
8.1
|
If an Obligor grants security over its trade receivables it shall be free to deal with those receivables in the course of its business until an Event of Default has occurred which is continuing and a notice of acceleration has been given by the Agent in accordance with the terms of this Agreement.
|
8.2
|
Notice of the Security will be served on the counter party of any trade receivables following an Event of Default which is continuing. The relevant Obligor shall use its reasonable endeavours to obtain an acknowledgment.
|
8.3
|
No security will be granted over any trade receivables which cannot be secured under the terms of the relevant contract, unless the restriction only relates to a prohibition on assignment whereby a charge can still be provided.
|
8.4
|
If required under local law, security over trade receivables will be registered subject to the general principles set out in these Agreed Security Principles.
|
8.5
|
Any list of trade receivables required shall not include details of the underlying contracts; however, after an Event of Default has occurred which is continuing in accordance with the terms of this Agreement, such list of trade receivables shall specify all the details as may be requested by the Security Agent at such time.
|
9.
|
Shares
|
9.1
|
Until an Event of Default has occurred which is continuing and a notice of acceleration has been given by the Agent in accordance with the terms of this Agreement, the charging Obligor will be permitted to retain and to exercise voting rights appertaining to any shares charged by it and the company whose shares have been charged will be permitted to pay dividends upstream on pledged shares to the extent permitted under the Finance Documents.
|
9.2
|
Where customary or applicable as a matter of law, on, or as soon as reasonably practicable following execution of the share charge, the share certificate (or other documents evidencing title to the relevant shares) and a stock transfer form executed in blank (or local law equivalent) will be provided to the Security Agent and where required by law the share certificate or shareholders’ register will be endorsed or written up and the endorsed share certificate or a copy of the written up register provided to the Security Agent. In respect of the financing on or around the date of this Agreement, any documents should be in the possession of the Security Agent or its counsel on the date of entry into the relevant security document.
|
9.3
|
Unless the restriction is required by law or regulation, the constitutional documents of the company whose shares have been charged (or equivalent in the relevant jurisdictions) and any agreements or documents binding on the relevant company or which impact on the share security to be provided will be amended to remove any restriction on the transfer or the
|
10.
|
Exclusions:
|
10.1
|
No security shall be granted over:
|
(a)
|
real estate which in the reasonable opinion of the Agent is not material real estate, other than under an English law floating charge granted by an Obligor incorporated in England and Wales or a global security document governed by the law of the jurisdiction of an Obligor. In respect of any leasehold property, such property shall be excluded from any fixed security where it is subject to a restriction that precludes the creation of Security over that asset or requires the prior consent of any third party (other than any member of the Group) to the creation of Security over that asset, breach of which restriction would (in the reasonable opinion of the relevant chargor) be materially adverse to any of its commercial relationships or its property or other rights in relation to or in connection with that asset until the relevant consent, condition or waiver has been satisfied or obtained.
|
(b)
|
intellectual property other than (i) under an English law floating charge granted by an Obligor incorporated in England and Wales or similar floating security granted under a global security document governed by the law of the jurisdiction of an Obligor; or (ii) intellectual property for which the higher of the book and market value exceeds £1,000,000. In respect of any Intellectual Property which constitutes a license recovered from a third party, such property shall be excluded from any fixed security where it is subject to a restriction that precludes the creation of Security over that asset or requires the prior consent of any third party (other than any member of the Group) to the creation of Security over that asset, breach of which restriction would (in the reasonable opinion of the relevant Chargor) be materially adverse to any of its commercial relationships or its property or other rights in relation to or in connection with that asset until the relevant consent, condition or waiver has been satisfied or obtained.
|
To:
|
[●] as Agent and [●] as Security Agent
|
From:
|
[●] as the Company and the entities listed in the Schedule as [Incremental Facility Lenders]/[Increasing Lenders]
|
1.
|
We refer to the Facilities Agreement. This is an Incremental Facility/Existing Facility Increase Notice. Terms defined in the Facilities Agreement have the same meaning in this Incremental Facility/Existing Facility Increase Notice unless given a different meaning in this Incremental Facility /Existing Facility Increase Notice.
|
2.
|
We refer to Clause 8 (
Existing Facility Increase and Establishment of Incremental Facilities
) of the Facilities Agreement.
|
3.
|
[We request the establishment of an Incremental Facility with the following Incremental Facility Terms:
|
(a)
|
Currency
:
|
(b)
|
Total Incremental Facility Commitments
:
|
(c)
|
Margin
:
|
(d)
|
Level of commitment fee payable pursuant to Clause 14.1 (Commitment fee) of the Facilities Agreement in respect of the Incremental Facility and the level and payment terms of any other fees payable to all Lenders under the Incremental Facility
:
|
(e)
|
Borrower(s) to which the Incremental Facility is to be made available:
|
(f)
|
Availability Period
:
|
(g)
|
Termination Date
:
|
3.
|
[We request an increase in Commitments on the following terms:
|
(a)
|
Facility to be increased
:
|
(b)
|
Total additional Commitments:
|
4.
|
The proposed Establishment Date is [●].
|
5.
|
Each [Incremental Facility Lender]/[Existing Facility Increase Lender] agrees to assume and will assume all of the obligations corresponding to the [Incremental Facility Commitment]/[additional Commitment] set opposite its name in the Schedule as if it had been an Original Lender under the Facilities Agreement in respect of that [Incremental Facility Commitment]/[additional Commitment].
|
6.
|
On the Establishment Date each [Incremental Facility Lender]/[Existing Facility Increase Lender] becomes party to the relevant Finance Documents as a Lender.
|
7.
|
Each [Incremental Facility Lender]/[Existing Facility Increase Lender] expressly acknowledges the limitations on the Lenders' obligations referred to in Clause [●] (
Limitation of responsibility
) of the Facilities Agreement.
|
8.
|
This Incremental Facility/Existing Facility Increase Notice may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Incremental Facility/Existing Facility Increase Notice.
|
9.
|
This Incremental Facility/Existing Facility Increase Notice and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
10.
|
This Incremental Facility/Existing Facility Increase Notice has been entered into on the date stated at the beginning of this Incremental Facility/Existing Facility Increase Notice.
|
Note:
|
The execution of this Incremental Facility/Existing Facility Increase Notice may not be sufficient for each Lender to obtain the benefit of the Transaction Security in all jurisdictions. It is the responsibility of each Incremental Facility Lender to ascertain whether any other documents or other formalities are required to obtain the benefit of the Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
|
Name of [Incremental Facility
Lender]/[Existing Facility Increase Lender]
|
[Incremental Facility
Commitment]/[Commitment]
|
By:
|
|
|
The [Incremental Facility Lenders]/[Existing Facility Increase Lender]
|
||
[ ]
|
The Agent
|
|
|
|
By:
|
|
|
|
The Security Agent
|
|
|
|
By:
|
|
To:
|
[●] as Agent and [●] as Company
|
From:
|
[
The Incremental Facility Lender/Existing Facility Increase Lender
]
|
1.
|
We refer to the Facilities Agreement. This is a New Lender Certificate. Terms defined in the Facilities Agreement have the same meaning in this New Lender Certificate unless given a different meaning in this New Lender Certificate.
|
2.
|
We confirm that we are:
|
(a)
|
[a Qualifying Lender (other than a Treaty Lender);]
|
(b)
|
[a Treaty Lender;]
|
(c)
|
[not a Qualifying Lender.]
15
|
3.
|
[We confirm that the person beneficially entitled to interest payable to us in respect of an advance under a Finance Document is either:
|
(a)
|
a company resident in the United Kingdom for United Kingdom tax purposes;
|
(b)
|
a partnership each member of which is:
|
(i)
|
a company so resident in the United Kingdom; or
|
(ii)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
|
(c)
|
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]
16
|
4.
|
[We confirm that we hold a passport under the HMRC DT Treaty Passport scheme (reference number [●]) and are tax resident in [●]
17
, so that interest payable to us by borrowers is generally subject to full exemption from UK withholding tax and request that the Company notify:
|
(a)
|
each Borrower which is a Party as a Borrower as at the relevant Establishment Date; and
|
15
|
Delete as applicable - each New Lender is required to confirm which of these three categories it falls within.
|
16
|
Include if the New Lender comes within paragraph (i)(B) of the definition of Qualifying Lender in Clause [•] (Definitions).
|
17
|
Insert jurisdiction of tax residence.
|
(b)
|
each Additional Borrower which becomes an Additional Borrower after that Establishment Date,
|
5.
|
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause [●] (
Addresses
) of the Facilities Agreement are:
|
18
|
Include if the Incremental Facility Lenders holds a passport under the HMRC DT Treaty Passport Scheme and wishes that scheme to apply to the Facilities Agreement.
|
ENDAVA LIMITED
|
}
|
/s/ John Edward Cotterell
|
|
By: John Edward Cotterell
|
|
Address for notices: Endava Limited, 125 Old Broad Street, London EC2N 1AR
Attention: Chief Financial Officer
Fax: +44 207 367 1001
Email: legal@endava.com
|
ENDAVA LIMITED
|
}
|
/s/ John Edward Cotterell
|
|
By: John Edward Cotterell
|
ENDAVA (UK) LIMITED
|
}
|
/s/ Mark Stuart Thurston
|
|
By: Mark Stuart Thurston
|
ENDAVA LIMITED
|
}
|
/s/ John Edward Cotterell
|
|
By: John Edward Cotterell
|
ENDAVA (UK) LIMITED
|
}
|
/s/ Mark Stuart Thurston
|
|
By: Mark Stuart Thurston
|
ENDAVA ROMANIA SRL
|
}
|
/s/ Mark Stuart Thurston
|
|
By: Mark Stuart Thurston
|
ENDAVA INC.
|
}
|
/s/ Simon Whittington
|
|
By: Simon Whittington
|
ENDAVA HOLDING B.V.
|
}
|
/s/ Mark Stuart Thurston
|
|
By: Mark Stuart Thurston
|
HSBC BANK PLC
|
}
|
/s/ Matthew Ashcroft
|
|
By: Matthew Ashcroft
|
|
Address for notices: Level 6, 71 Queen Victoria Street, London, EC4V 4AY
Attention: Johan Bakker
Email: johan.bakker@hsbc.com
|
HSBC BANK PLC
|
}
|
/s/ Matthew Ashcroft
|
|
By: Matthew Ashcroft
|
|
Address for notices: Level 6, 71 Queen Victoria Street, London, EC4V 4AY
Attention: Johan Bakker
Email: johan.bakker@hsbc.com
|
HSBC BANK PLC
|
}
|
/s/ Matthew Ashcroft
|
|
By: Matthew Ashcroft
|
|
Address for notices: Level 6, 71 Queen Victoria Street, London, EC4V 4AY
Attention: Johan Bakker
Email: johan.bakker@hsbc.com
|
HSBC BANK PLC
|
}
|
/s/ Matthew Ashcroft
|
|
By: Matthew Ashcroft
|
|
Address for notices: Level 6, 71 Queen Victoria Street, London, EC4V 4AY
Attention: Johan Bakker
Email: johan.bakker@hsbc.com
|