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▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ GROUP PLC
NOMURA INTERNATIONAL PLC
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PLACING AND OPEN OFFER AGREEMENT
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS................................................................2
2. CONDITIONS.................................................................8
3. THE LONDON STOCK EXCHANGE.................................................10
4. APPROVAL, RELEASE AND DELIVERY OF DOCUMENTS...............................11
5. APPOINTMENT OF NOMURA.....................................................12
6. THE PLACING AND THE OPEN OFFER............................................13
7. COMPLETION................................................................15
8. COMMISSIONS AND EXPENSES..................................................16
9. RESTRICTIONS ON ACTIONS AND ANNOUNCEMENTS.................................18
10. REPRESENTATIONS AND WARRANTIES............................................20
11. INDEMNITY.................................................................21
12. MISCELLANEOUS.............................................................24
13. RECEIVING AGENT...........................................................24
14. TIME OF THE ESSENCE.......................................................25
15. WAIVER....................................................................25
16. NOTICES...................................................................25
17. COUNTERPARTS..............................................................27
18. ENTIRE AGREEMENT..........................................................27
19. GOVERNING LAW.............................................................27
SCHEDULE 1....................................................................28
DELIVERY OF DOCUMENTS....................................................28
SCHEDULE 2....................................................................30
REPRESENTATIONS AND WARRANTIES...........................................30
Page 1
THIS AGREEMENT is made on 14 March 2000
BETWEEN:
GYRUS GROUP PLC whose registered office is at ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (the COMPANY); and
NOMURA INTERNATIONAL PLC whose registered office is at ▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇.
▇▇▇▇▇▇'▇-▇▇-▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (NOMURA).
WHEREAS:
(A) By a merger agreement dated 23 February 2000 between Gyrus Group PLC,
Everest Medical Corporation and Golden Acquisition Corporation (the MERGER
AGREEMENT), the parties thereto have agreed to merge Everest Medical Corporation
with and into Golden Acquisition Corporation pursuant to which each share of
common stock and Series A, Series B, Series C and Series D preferred stock of
Everest Medical Corporation will be exchanged for US$4.85 per share of common
stock (the ACQUISITION).
(B) Notwithstanding (A) above, under the Merger Agreement, the Company may elect
to complete the Acquisition by causing Golden Acquisition Corporation to make an
offer (the TENDER OFFER) to purchase all of the outstanding shares of Everest
common and preferred stock, at a purchase price of at least $4.85 per share,
without interest, in accordance with an Offer to Purchase For Cash to be
submitted by the Company to the Securities and Exchange Commission.
(C) The Company proposes to finance the Acquisition by means of the Placing and
Open Offer.
(D) The Company proposes, subject, inter alia, to the passing of the Resolution,
to invite Qualifying Shareholders to apply to subscribe for New Shares at the
Subscription Price by way of an Open Offer on the basis of:
19 New Shares for every 46 Ordinary Shares
held as at the close of business on the Record Date and otherwise on the terms
and subject to the conditions set out in the Circular and the Application Form.
(E) Subject to the passing of the Resolutions, there will be sufficient
authorised but unissued Ordinary Shares and the Directors will have authority
under Section 80 of the Companies Act to allot the New Shares, which allotment
will not be
made on a pre-emptive basis by reason of the disapplication of Section 89 in
accordance with Section 95 of that Act.
(F) Nomura has agreed, on the terms and subject to the conditions referred to in
this Agreement, to:
(a) make the Open Offer on behalf of the Company;
(b) seek to procure subscribers for all of the New Shares at the Subscription
Price on the basis that some of such shares shall be placed firm (as
described in Recital (F) below), and some shall be subject to clawback to
the extent they are taken up under the Open Offer; and
(c) subscribe at the Subscription Price for any New Shares which are not taken
up under the Open Offer and for which subscribers are not procured as
referred to in paragraph (b) above.
(G) As described in the Circular, certain holders of Ordinary Shares have
irrevocably undertaken not to apply under the Open Offer for the New Shares to
which they will be entitled under the Open Offer, which will be conditionally
placed firm pursuant to the Placing.
NOW IT IS AGREED as follows:
DEFINITIONS
1.1 In this Agreement:
ACCEPTANCE DATE means 14 April 2000 or such later date as Nomura and the Company
may agree in writing;
ACCOUNTS DATE means 30 June 1999;
ACQUISITION PRESS ANNOUNCEMENT means the press announcement dated 23 February
2000 giving details of the Acquisition;
ADMISSION means the admission of the New Shares to the Official List becoming
effective in accordance with the Listing Rules;
APPLICATION FORM means the application form to be despatched to Qualifying
Shareholders for use in connection with the Open Offer;
AUDITORS means KPMG Audit Plc;
Page 2
AUSTRALIAN HOLDERS means Qualifying Shareholders with registered addresses in
the Commonwealth of Australia, its territories or possessions who have not given
to the Company an address in the United Kingdom for the service of notices on
them;
BROKERS means WestLB Panmure;
BUSINESS IP means the registered (including applications for registration) and
material unregistered Intellectual Property Rights owned by a member of the
Group;
CERTIFICATED SHARES means those New Shares which will not be issued as
Uncertificated Shares;
CIRCULAR means the circular (comprising a prospectus for the purpose of the FSA
and the Listing Rules) to be published in connection with the Acquisition and
the Placing and Open Offer, giving details of the Acquisition and including a
notice convening the EGM;
COMMENCEMENT OF DEALINGS means the commencement of dealings in the New Shares on
the London Stock Exchange following Admission;
COMPANIES ACT means the Companies ▇▇▇ ▇▇▇▇;
CREST means the system for paperless settlement of trades and the holding of
uncertificated securities administered by CRESTCo Limited;
DEALING DAY means a day on which dealings in domestic equity market securities
may take place on the London Stock Exchange;
DIRECTORS means the directors of the Company;
EGM means the extraordinary general meeting of the Company convened for the EGM
Date at which resolutions will be put to approve certain matters in relation to
the Acquisition and the Placing and Open Offer;
EGM DATE means 6 April 2000;
ENFORCEMENT ACTION means, in respect of any Relevant Licence, any suspension or
revocation of that licence or any direction, injunction, order, notice, fine or
similar enforcement measure taken or made in respect of that licence;
Page 3
FILINGS means all reports, notifications and documents, together with any
amendments or supplements required to be made with respect thereto, required to
be filed with any Relevant Regulatory Authority;
FIRM PLACED SHARES means the 4,289,460 New Shares which certain Qualifying
Shareholders of the Company have irrevocably undertaken to Nomura and the
Company not to subscribe for pursuant to the Open Offer;
FORM OF PROXY means the form of proxy to be sent to Ordinary Shareholders for
use in connection with the EGM;
FSA means the Financial Services ▇▇▇ ▇▇▇▇;
GROUP means the Company and its subsidiary undertakings as at the date hereof;
INTELLECTUAL PROPERTY RIGHTS means patents, trade marks, service marks, logos,
get-up, trade names, rights in designs, copyright (including rights in computer
software), internet domain names, moral rights, utility models, semi-conductor
topography rights, rights in know-how, rights in databases and other
intellectual property rights, in each case whether registered or unregistered
and including applications for the grant of any such rights and all rights or
forms of protection having equivalent or similar effect anywhere in the world;
INTERIM RESULTS means the unaudited interim results of the Group for the six
months ended 31 December 1999 and announced on 23 February 2000;
IRISH HOLDERS means Qualifying Shareholders with registered addresses in the
Republic of Ireland who have not given to the Company an address in the United
Kingdom for the service of notices on them;
JAPANESE HOLDERS means Qualifying Shareholders with registered addresses in
Japan who have not given to the Company an address in the United Kingdom for the
service of notices on them;
LICENCES IN means the licences of Intellectual Property Rights which have been
granted to a member of the Group;
LICENCES OUT means the licences of Intellectual Property Rights which have been
granted by a member of the Group to one or more third parties;
LISTING RULES means the Listing Rules of the London Stock Exchange;
LONDON STOCK EXCHANGE means London Stock Exchange Limited;
Page 4
MERGER AGREEMENT has the meaning ascribed to it in Recital (A);
MEMORANDUM means the cash flow and working capital memorandum prepared by the
Company relating to the Group for the period to 31 December 2001 and dated 10
March 2000;
NEW SHARES means the 12,907,447 new Ordinary Shares which are to be allotted and
issued pursuant to the Placing and Open Offer;
NOMURA ENGAGEMENT LETTER means the letter dated 22 December 1999 between the
Company and Nomura relating to the appointment of Nomura as sponsor and in
respect of the underwriting of the Placing and Open Offer;
NORTH AMERICAN HOLDERS means Qualifying Shareholders with registered addresses
in the United States or Canada or any province of Canada who have not given the
Company an address in the United Kingdom for the service of notices on them;
OFFICIAL LIST means the Official List of the London Stock Exchange;
OPEN OFFER means the invitation by Nomura, as agent for the Company, to
Qualifying Shareholders to apply to subscribe for New Shares on the basis
referred to in Recital (B);
ORDINARY SHAREHOLDERS means holders of Ordinary Shares;
ORDINARY SHARES means ordinary shares of 1p each in the capital of the Company;
PLACEES means the persons (including, if applicable, Nomura or its nominees)
procured by Nomura to subscribe for New Shares pursuant to the Placing;
PLACING means the procurement of subscribers for the New Shares by Nomura
pursuant to Clause 6.1(a);
PLACING AND OPEN OFFER PRESS ANNOUNCEMENT means the announcement dated 14 March
2000 giving details of the Placing and Open Offer (together with the Acquisition
Press Announcement, the PRESS ANNOUNCEMENTS);
PLACING LETTER means the letter to be sent by Nomura to Placees by which the New
Shares are to be placed with Placees, subject (save in respect of Firm Placed
Shares) to a right of clawback in respect of any New Shares which are taken up
under the Open Offer;
Page 5
POSTING DATE means the date of this Agreement or such later date as may be
agreed by Nomura in writing;
PREVIOUS ANNOUNCEMENTS means all documents issued and announcements (other than
the Press Announcement) made by or on behalf of the Company or any member of the
Group to the public or the press since the Accounts Date;
PROCEEDINGS means any proceedings, investigation, reviews or analogous action by
any Relevant Regulatory Authority, court or similar body in any jurisdiction;
QUALIFYING SHAREHOLDERS means Ordinary Shareholders on the register of members
of the Company as at the close of business on the Record Date;
RECEIVING AGENT means IRG PLC, Bourne House, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇ ▇▇▇;
RECEIVING AGENT AGREEMENT means the letter agreement between the Company and the
Receiving Agent;
RECORD DATE means 3 March 2000;
RELEVANT LICENCE has the meaning given in warranty 12.1 in Schedule 2;
RELEVANT REGULATORY AUTHORITY means any governmental, quasi-governmental or
other competent authority (whether at national, state, federal or other regional
level) in any jurisdiction responsible for the grant, enforcement, modification
or revocation (or any of them) of any Relevant Licence;
RELEVANT SUBSTANCE means any substance whatsoever in a solid or liquid form or
in the form of a gas or vapour and whether alone or in combination with any
other substance which is likely to cause harm to man or any other living
organism supported by the environment (which includes natural resources whether
pertaining to life or not, such as air, water, soil, fauna and flora and the
interaction between the same factors and also the built environment), or
damaging the environment or public health or welfare;
REPORT AND ACCOUNTS means the published consolidated balance sheet of the Group
as at, and the consolidated profit and loss account of the Group for the
financial period ended on, the Accounts Date (including the related directors'
and auditors' reports, the cash flow statement, all related notes and the
remainder of the annual report and accounts for that year);
Page 6
RESOLUTIONS means the resolutions to be set out in the notice of the EGM to be
contained in the Circular to, inter alia, approve the Acquisition, increase the
authorised share capital of the Company and to authorise the Directors to allot
relevant shares, in each case so as to enable the Placing and Open Offer to be
implemented;
SUBSCRIPTION PRICE means 350 ▇▇▇▇▇ per New Share;
SUPPLEMENTARY PROSPECTUS means any supplementary prospectus published by the
Company pursuant to section 147 of the FSA;
TAKEN UP has the meaning ascribed to it in Clause 6.3;
TENDER OFFER has the meaning ascribed to it in Recital (B);
UNCERTIFICATED SHARES means those New Shares which will be issued in
Uncertificated form pursuant to the Uncertificated Securities Regulations 1995;
and
UNITED STATES means the United States of America, its territories and
possessions, any State of the United States of America and the District of
Columbia.
1.2 In this Agreement unless the context otherwise requires:
(a) words and expressions defined in the Companies Act shall bear the same
meaning;
(b) headings are for convenience only and shall not affect the construction of
this Agreement;
(c) any reference to an enactment is a reference to it as from time to time
amended, consolidated or re-enacted (with or without modification) and
includes all instruments or orders made under the enactment;
(d) any reference to Nomura approving or agreeing the form of the Circular or
any Supplementary Prospectus, shall be a reference to such approval or
agreement being given solely for the purposes of this Agreement; and
(e) the operation of the Contracts (Rights of Third Parties) Act 1999 is hereby
excluded in relation to this Agreement and no other person other than the
parties to this Agreement have the right to enforce any rights or benefits
that may expressly or impliedly be granted to such party under the terms of
this Agreement.
Page 7
1.3 The following draft documents are in the agreed form and, for the purposes
of identification only, are initialled by or on behalf of the Company and Nomura
and are marked as shown below:
DOCUMENT MARKED
(a) The Press Announcements A
(b) The Circular B
(c) The Application Form C
(d) The Form of Proxy D
(e) The Placing Letter E
(f) A document consisting of a record of questions prepared to assist F
with the verification of the Press Announcements, the Circular and
any Supplementary Prospectus together with the answers to those
questions and copies of all evidence supporting those answers (the
VERIFICATION NOTES); and
(g) The undertakings from certain shareholders to the Company and G
Nomura not to take up their entitlement on the Open Offer (the
UNDERTAKINGS).
CONDITIONS
2.1 Nomura's obligations under this Agreement are conditional on:
(a) the passing of the Resolution (without amendment) at the EGM on the EGM
Date (and not, except with the written agreement of Nomura, at any
adjournment of such meeting);
(b) none of the statements in Schedule 2 being, to an extent material in the
context of the Placing and Open Offer, untrue or inaccurate or misleading:
(i) at the date of this Agreement; or
(ii) at any time before Commencement of Dealings if they had been
repeated by reference to the facts and circumstances then
existing;
Page 8
(c) no circumstance having arisen which would require a Supplementary
Prospectus to be published by or on behalf of the Company prior to
Commencement of Dealings;
(d) the fulfilment by the Company of its obligations under Clauses 3.1, 3.2,
4.3, and 4.5 by the times specified therein and the Company not being in
breach of any other of its obligations under this Agreement prior to
Commencement of Dealings;
(e) the Company confirming in writing to Nomura in a form reasonably
satisfactory to it immediately prior to Admission that, apart from payment
of consideration, there are no circumstances of which it is aware which
entitle, or would, with the giving of notice, entitle the Company (or any
of its subsidiaries) under the Merger Agreement not to proceed with the
Acquisition or to terminate the Merger Agreement;
(f) either (i) all of the conditions to the Acquisition set forth in the Merger
Agreement have been satisfied (other than the Admission becoming effective)
or (ii) in the event that the Company elects to cause Golden Acquisition
Corporation to make the Tender Offer, all of the conditions to the Tender
Offer have been satisfied or waived (other than the Admission becoming
effective), in each case, and the Merger Agreement not having been
terminated in accordance with its terms;
(g) the Company having allotted the Placing Shares in accordance with Clause 7
(conditional only upon satisfaction of the Admission becoming effective and
this Agreement not being terminated in accordance with its terms before
such satisfaction); and
(h) Admission becoming effective in accordance with the Listing Rules by not
later than 8.30 a.m. on 17 April 2000.
2.2 Nomura may, in its absolute discretion:
(a) extend the time or date for satisfaction of any condition set out in Clause
2.1 but not beyond 8.30 a.m. on 25 April 2000, in which case, a reference
in this Agreement to the satisfaction of such condition shall be to its
satisfaction by the time or date as so extended; or
(b) waive the satisfaction of any such condition.
Page 9
2.3 If any condition set out in Clause 2.1 is not satisfied (or waived by Nomura
in its absolute discretion), or becomes incapable of being satisfied, by the
required time and date then, without prejudice to any liability for any prior
breach of this Agreement or any of the representations and warranties contained
herein:
(a) Nomura's obligations under this Agreement shall cease and determine; and
(b) the Company's obligations and agreements under Clauses 8, 9, 11, 12, 14,
15, 16, 18 and 19 shall remain in full force and effect and the Company's
other obligations under this Agreement shall cease and determine.
THE LONDON STOCK EXCHANGE
3.1 The Company confirms that it has applied to the London Stock Exchange for
admission of the New Shares to the Official List. The Company shall use all
reasonable endeavours to obtain permission for the admission of the New Shares
to the Official List (subject only to the allotment of the New Shares) as soon
as practicable and, in any event, prior to the EGM Date.
3.2 The Company confirms that it has applied for formal approval of the Circular
for the purposes of, and in accordance with, the Listing Rules and shall use all
reasonable endeavours to obtain such approval as soon as practicable and in any
event before despatching the Circular.
3.3 The Company shall supply all information, give all undertakings, execute all
documents, pay all fees and do or procure to be done all things in each case as
may be necessary or required (a) by the London Stock Exchange for the purposes
of obtaining formal approval of the Circular and obtaining Admission, and (b) to
comply with the Listing Rules, the FSA and the Companies Act.
3.4 The Company shall notify Nomura immediately upon its becoming aware of any
matter referred to in paragraph (a) or (b) of section 147(1) of the FSA which
arises between publication of the Circular and Commencement of Dealings. The
Company shall deal with every such matter in accordance with section 147 of the
FSA and the Listing Rules (including paragraphs 5.14 to 5.16, 8.1, 8.14 and
8.20).
3.5 The Company shall, from time to time until Admission, procure (to the extent
that it lies in its power to do so) to be communicated or delivered to Nomura
all such information and documents (signed by the appropriate person where so
required) as Nomura may reasonably require to enable it to discharge its
obligations hereunder and pursuant to or in connection with the Placing or the
Page 10
Open Offer or as may be required to comply with the requirements of the FSA or
the London Stock Exchange.
3.6 Nomura shall provide reasonable assistance to the Company to enable it to
comply with its obligations under Clauses 3.1 and 3.2.
APPROVAL, RELEASE AND DELIVERY OF DOCUMENTS
4.1 The Company confirms to Nomura that a meeting or meetings of the board of
Directors (or a duly constituted and authorised committee of the board) has been
held which has:
(a) authorised the Company to enter into and perform its obligations under this
Agreement and the Merger Agreement;
(b) approved the form and release of the Press Announcements;
(c) approved the form of the Circular, the Application Form and the Form of
Proxy and authorised their publication and approved and authorised the
publication of other documents connected with the Acquisition, the Placing
and the Open Offer, as appropriate;
(d) approved the making of the Placing and Open Offer;
(e) approved the making of an application for admission of the New Shares to
the Official List; and
(f) authorised all necessary steps to be taken by the Company in connection
with each of the above matters.
4.2 The Company authorises Nomura to deliver an underwriting proof of the
Circular to any potential Placees.
4.3 Subject to the London Stock Exchange having formally approved the Circular
for the purpose of the Listing Rules, the Company shall:
(a) deliver one copy of the Circular to the Registrar of Companies in England
and Wales for registration in accordance with section 149 of the FSA prior
to despatch of the Circular;
(b) make further copies of the Circular available in accordance with paragraphs
8.4 to 8.6 of the Listing Rules and make available to Nomura such number
Page 11
of copies of the Circular and Application Form as it may reasonably
require; and
(c) subject to Clause 4.4, despatch the Circular, the Application Form and Form
of Proxy to Ordinary Shareholders, as soon as practicable and in any event
on the date of this Agreement.
4.4 The Company shall procure that North American Holders, Australian Holders,
Irish Holders and Japanese Holders are not sent Application Forms unless on or
prior to the Acceptance Date they have satisfied the Company that they are
permitted to take up their entitlements under the Open Offer without breach of
any applicable law.
4.5 Before despatching the Circular, the Company shall deliver the documents
referred to in Part 1 of Schedule 1 to Nomura.
4.6 Following the passing of the Resolutions, and in any event not later than
5.00 p.m. on the Dealing Day immediately preceding the date of Admission, the
Company shall deliver the documents referred to in Part 2 of Schedule 1 to
Nomura.
4.7 Each document referred to in this Clause 4 and in Schedule 1 and any
Supplementary Prospectus shall be in the form approved by Nomura for the
purposes only of underwriting the Placing and Open Offer.
4.8 If any meeting of the board of Directors referred to in this Clause 4 or in
Schedule 1 is a meeting of a committee of the board of Directors, the Company
shall deliver a certified copy of the minutes of the meeting of the board of
Directors appointing such committee with the minutes of the relevant meeting.
APPOINTMENT OF NOMURA
5.1 The Company hereby irrevocably appoints Nomura as its agent for the purposes
of making the Open Offer on the terms and subject to the conditions set out or
referred to in the Circular and the Application Form and Nomura accepts such
appointment.
5.2 The appointment referred to in Clause 5.1 confers on Nomura and its agents
all powers, authorities and discretions on behalf of the Company which Nomura or
such agents reasonably consider necessary or desirable in connection with the
Open Offer and the Company agrees to ratify and confirm everything
Page 12
which Nomura or such agents shall lawfully do on behalf of the Company in the
exercise of such appointment, powers, authorities and discretions.
5.3 The Company hereby irrevocably and unconditionally confirms the appointment
of Nomura as sponsor in connection with the admission of the New Shares to the
Official List of the London Stock Exchange and Nomura hereby accepts such
appointment. The Company hereby confirms that the foregoing appointment confers
on Nomura all powers, authorities and discretions on its behalf which are
necessary for, or reasonably incidental to, the performance of its functions as
sponsor and obtaining Admission and the Company hereby agrees to ratify and
confirm everything which Nomura shall lawfully and properly do in accordance
with the terms of this Agreement in the exercise of such appointment, powers,
authorities and discretions.
5.4 Notwithstanding that Nomura acts as agent of the Company in connection with
the Placing and Open Offer:
(a) it may receive and retain for its own benefit any commissions or brokerage
or other benefit paid to or lawfully and properly received by it or its
agent in connection with the Placing and Open Offer and shall not be liable
to account to the Company for any such commission, brokerage or other
benefit; and
(b) any New Shares which it or any such agent subscribes may be retained or
dealt in by it or such agent for its or such agent's own use and benefit.
THE PLACING AND THE OPEN OFFER
6.1 Subject to the conditions set out in Clause 2.1 and in reliance on the
covenants, indemnities, representations and warranties contained in this
Agreement, Nomura shall:
(a) use its reasonable endeavours to arrange Placees for the New Shares at the
Subscription Price on the basis of the information contained in the
Circular, subject (save in respect of Firm Placed Shares) to a right of
clawback in respect of any New Shares which are taken up under the Open
Offer; and
(b) as agent for the Company, by means of the Circular and the Application
Form, invite Qualifying Shareholders to apply to subscribe for the New
Shares at the Subscription Price and otherwise on the terms and conditions
set out therein.
Page 13
6.2 Neither the Open Offer nor any of its terms and conditions shall be varied,
extended, amended or withdrawn without the prior written consent of Nomura, such
consent not to be unreasonably withheld or delayed.
6.3 New Shares in respect of which Application Forms are (or are treated by the
Company pursuant to the provisions set out below as having been) lodged for
acceptance by 3.00 p.m. on the Acceptance Date (and which have not by that time
been rejected, whether as a result of the Money Laundering Regulations 1993 or
otherwise), in each case in accordance with the terms of the Circular and the
Application Form, and which are accompanied by:
(a) cheques which have not, before 3.00 p.m. on the Acceptance Date, been
notified to the Receiving Agent as not having been accepted by the drawee
on first presentation; or
(b) other remittances,
for the full amount payable in respect of such New Shares, are referred to in
this Agreement as having been TAKEN UP, PROVIDED THAT, at the absolute
discretion of the Company, New Shares shall for the purpose of this Agreement be
deemed to have been taken up by 3.00 p.m. on the Acceptance Date if a cheque or
other remittance for the full amount payable in respect of such New Shares (and
whether or not such cheque or other remittance shall be honoured) is received
prior to 3.00 p.m. on the Acceptance Date from an authorised person (as defined
in the FSA) who shall have specified the New Shares concerned and undertaken to
lodge the relevant Application Form duly completed in due course. The risk
attaching to any cheque or other remittance accompanying any Application Form
which has not been dishonoured prior to the Acceptance Date shall be borne by
the Company.
6.4 As soon as practicable after 3.00 p.m. on the Acceptance Date and by not
later than 8.00 a.m. on the first Dealing Day after the Acceptance Date, the
Company will (or will procure that the Receiving Agent will) notify Nomura in
writing of the number of New Shares which have not been taken up. Where cheques
or bankers' drafts in relation to an Application Form have been dishonoured
prior to 3.00 p.m. on the Acceptance Date the New Shares to which such
Application Form relates will be treated as not having been taken up and where
the relevant application has been rejected prior to 3.00 p.m. on the Acceptance
Date due to a failure to provide satisfactory evidence of identity in order to
comply with the Money Laundering Regulations 1993 in the manner contemplated in
the Circular and the Application Form, the New Shares to which
Page 14
such application relates will be treated as not having been taken up. The
obligations of Nomura shall cease in respect of any New Shares which are taken
up.
6.5 Nomura shall, in its absolute discretion, determine the identity of the
proposed Placees (if any) for the New Shares not taken up, the extent to which
each Placee is to subscribe for such shares and all other matters in respect of
the Placing including the last time at which Placing Letters may be despatched
and allocations pursuant thereto may be made.
6.6 Subject to the Company complying with Clause 6.4, if by 3.00 p.m. on the
Dealing Day immediately preceding the date of Admission, there are New Shares
which are not taken up and for which no Placees have been arranged, Nomura shall
itself subscribe (as principal) for such New Shares on the basis of the
information contained in the Circular and the Application Form (other than as to
the time and method of acceptance and payment).
6.7 Nomura will procure that the Company (or the Receiving Agent on behalf of
the Company) is notified of the names and registration details of the Placees
allocated New Shares which are not taken up together with details of any
subscription for such shares to be made by Nomura pursuant to Clause 6.6, and
shall specify whether such shares are to be issued in certificated or
uncertificated form as soon as reasonably practicable after the Company has
complied with its obligations under Clause 6.4.
COMPLETION
7.1 As soon as practicable after notification of the details referred to in
Clause 6.7, and in any event by 5.00 p.m. on the Dealing Day immediately
preceding the date of Admission, the Company shall allot the New Shares pursuant
to, a resolution of the Board of Directors (or a duly authorised committee
thereof) to:
(a) Qualifying Shareholders (or their nominee) who took up such shares under
the Open Offer; and
(b) in accordance with the details notified to the Company pursuant to Clause
6.7, to the Placees (or their nominee) and (to the extent so notified) to
Nomura.
7.2 The allotment of the New Shares will be made:
Page 15
(a) subject only to Admission;
(b) on the basis of the information set out in the Circular and the Application
Form; and
(c) on terms that, upon Admission they shall be issued as fully paid up and
will rank pari passu in all respects with the existing issued Ordinary
Shares and will be issued free from all liens, charges, encumbrances and
equities.
7.3 Following Admission, the Company shall forthwith procure the registration of
the details of the persons referred to in Clause 7.1 in the Company's register
of members in respect of the New Shares. In addition, the Company shall:
(a) in the case of the Certificated Shares to be issued pursuant to the Open
Offer and to the persons referred to in Clause 6.7, procure that the
Receiving Agent shall despatch definitive share certificates in the names
of the respective allottees by first class post to the persons entitled
thereto as soon as possible and in any event by no later than 3.00 p.m. on
the fourth Dealing Day after Admission; and
(b) in the case of the Uncertificated Shares, procure that the Receiving Agent
shall transfer such shares to the respective allottees through CREST by not
later than 3.00 p.m. on the date of Admission.
7.4 As soon as reasonably practicable following Admission (and in any event by
not later than 3.00 pm on the second Dealing Day thereafter), and subject to the
Company having complied with its obligations under Clauses 7.2 and 7.3, Nomura
shall procure payment of the Subscription Price for the New Shares which are not
taken up to the Company (or to the Receiving Agent) subject to deduction in
accordance with Clause 8.2, which payment shall constitute a complete discharge
to Nomura of its obligations to the Company under Clauses 6 and 7. It shall be
the responsibility of the Company to procure that the Receiving Agent pays to
the Company an amount representing the aggregate Subscription Price for the New
Shares taken up under the Open Offer.
COMMISSIONS AND EXPENSES
8.1 The Company shall pay Nomura in consideration for its services under this
Agreement:
(a) a commission of 2.625 per cent. of the value of the aggregate number of the
New Shares at the Subscription Price in respect of the period from (and
Page 16
including) the date of this Agreement to (but excluding) the date falling
thirty five days after the date of this Agreement; and
(b) a commission of 0.125 per cent. of the value of the aggregate number of the
New Shares at the Subscription Price in respect of each period of seven
days or part thereof from (and including) the date falling thirty five days
after the date of this Agreement to (and including) the second Dealing Day
after the Acceptance Date or, if earlier, the date on which Nomura's
obligations under this Agreement cease in accordance with Clause 2.3.
8.2 The Company shall pay such commissions to Nomura by not later than 3.00 p.m.
on the day upon which Nomura procures payment to the Company (or to the
Receiving Agent) pursuant to Clause 7.4 or, if earlier, on the first Dealing Day
after the date on which Nomura's obligations under this Agreement cease in
accordance with Clause 2.3. Without prejudice to its right to receive payment
directly from the Company pursuant to this Clause 8.2, Nomura shall be entitled
and is authorised to deduct some or all of such commissions and any fee and
expense which the Company has agreed to pay Nomura from any amount otherwise
payable by Nomura to the Company (or to the Receiving Agent) under this
Agreement.
8.3 Out of the commissions referred to in Clause 8.1, Nomura may pay commissions
to such persons (if any) as it may procure to subscribe for the New Shares.
8.4 In addition to the commissions referred to in Clause 8.1, the Company shall
pay (whether or not Nomura's obligations under this Agreement become
unconditional) all costs and expenses of, or in connection with, the Placing and
Open Offer, the EGM, the allotment and issue of the New Shares and this
Agreement. This shall include (but shall not be limited to) the London Stock
Exchange listing fees, other regulatory fees and expenses, printing and
advertising costs, postage, registrars' and the Receiving Agent's charges, its
own and Nomura's reasonable legal and other out-of-pocket expenses, all
accountancy and other professional fees, public relations fees and expenses and
all stamp duty and stamp duty reserve tax (if any) and other duties and taxes in
connection with the Placing and Open Offer, the EGM, the allotment and issue of
the New Shares and this Agreement. The Company shall immediately on request pay
or reimburse Nomura the amount of any expenses which are to be borne by the
Company and which Nomura (or any subscriber for New Shares) has paid.
Page 17
8.5 Where, pursuant to this Agreement, a sum is paid or reimbursed to Nomura,
the Company shall also pay to Nomura in respect of value added tax:
(a) where the payment or reimbursement constitutes the consideration or part of
it for any supply of services by Nomura to the Company, such amount as
equals any value added tax properly payable thereon and on such
irrecoverable value added tax, if any, as is referred to in (b) below;
(b) (except where (c) below applies) such amount as equals any value added tax
charged to Nomura in respect of any cost, charge or expense which gives
rise to the payment or reimbursement and which Nomura certifies is not
recoverable by it by repayment or credit, that certificate to be conclusive
save in the case of manifest error; and
(c) on any payment or reimbursement in respect of or indemnification for costs,
charges or expenses incurred by Nomura as agent for the Company, such
amount as equals the amount included in the costs, charges or expenses in
respect of value added tax.
RESTRICTIONS ON ACTIONS AND ANNOUNCEMENTS
9.1 Without Nomura's prior consent, the Company shall not, and shall procure
that no other member of the Group shall, and shall use its reasonable endeavours
to procure so far as it is in its power to do so that Everest Medical
Corporation will not, between the date of this Agreement and the date which is
twenty Dealing Days after, as appropriate, the Acceptance Date or the date that
the Nomura's obligations under this Agreement cease in accordance with Clause
2.3:
(a) enter into any commitment or agreement, or put itself in a position where
it is obliged to announce that any commitment or agreement may be entered
into, which is or may be material in the context of the Placing and Open
Offer or the underwriting of the New Shares;
(b) allot, issue or grant any rights in respect of any securities of the
Company (except for the grant of options under, and the allotment and issue
of Ordinary Shares pursuant to options granted under, the Company's Inland
Revenue approved share option schemes, in each case in accordance with
normal practice); or
(c) publish, file, make or despatch any announcement, document or other
communication which is or may be material in the context of the Placing and
Open Offer or the underwriting of the New Shares (save for the
Page 18
publication, filing, making or despatch, as the case may be, of the
Circular, the Form of Proxy, the Application Form and any Supplementary
Prospectus in accordance with the terms of this Agreement) and any
announcements or filings required to be filed by the Company, Golden
Acquisition Corporation or Everest under U.S. Securities Laws in
connection with the Tender Offer or any of the other transactions
contemplated by the Merger Agreement.
9.2 The Company undertakes to make all such announcements concerning the Placing
and Open Offer and/or the Acquisition as shall be necessary to comply with the
Listing Rules and/or section 47 of the FSA or which Nomura otherwise reasonably
considers to be necessary or desirable (including, without limitation, for the
purposes of procuring Placees or potential subscribers for any New Shares in
accordance with this Agreement) and Nomura shall be entitled (following
consultation with the Company where practicable) to make any such announcement
if the Company fails (in the opinion of Nomura acting in good faith) promptly to
fulfil its obligations under this Clause 9.2.
9.3 The Company undertakes to do all such reasonable acts and things as are
reasonably necessary to enable the provisions of this Agreement, the Placing,
and the Open Offer to be carried out and given full force and effect.
9.4 The Company agrees with and acknowledges to Nomura that neither Nomura nor
any of its advisers shall be responsible to the Company or any of its directors
for verifying the accuracy and/or fairness of any information published in the
Circular save in respect of the details of and information contained in the
Circular of the mechanics of the Placing and Open Offer or otherwise published
by the Company in connection with the Placing and Open Offer or the Acquisition,
unless (and only to the extent that) Nomura has taken specific responsibility
for such verification.
9.5 The Company undertakes that it will not agree to any material alteration,
revision or amendment of the terms or conditions of either the Tender Offer or
the Merger Agreement (or any document entered into pursuant thereto) or waive
(in whole or in part) or amend or extend any material condition thereof or grant
any material indulgence thereunder or, subject as aforesaid, proceed to
completion thereof without full satisfaction of all of the terms and conditions
of the Tender Offer or the Merger Agreement or in circumstances where the
Company is aware that it is entitled to rescind or terminate the Tender Offer or
the Merger Agreement without the prior written consent of Nomura.
Page 19
REPRESENTATIONS AND WARRANTIES
10.1 The Company represents, warrants and undertakes to Nomura in the terms set
out in Schedule 2. The Company acknowledges that Nomura is entering into this
Agreement in reliance on such representations, warranties and undertakings. Each
representation, warranty and undertaking shall be construed separately and shall
not be limited or restricted by reference to or inference from the terms of any
other representation, warranty and undertaking or any other term of this
Agreement.
10.2 The Company shall use its best endeavours not to (and shall use reasonable
endeavours to procure that no other member of the Group nor any of its or their
respective directors, officers, employees or agents shall) cause or (so far as
they are able, using reasonable endeavours) permit any event to occur or omit to
do anything between the date of this Agreement and the date which is five
Dealing Days after, as appropriate, the Acceptance Date or the date on which
Nomura's obligations under this Agreement cease in accordance with Clause 2.3
which would make any statement in Schedule 2 untrue, inaccurate or misleading if
such statement were repeated at such date by reference to the facts and
circumstances then existing.
10.3 The Company shall as soon as reasonably practicable notify Nomura (giving
reasonable details) if it comes to the knowledge of the Company or any Director
that any statement in Schedule 2 was untrue, inaccurate or misleading at the
date of this Agreement or would be untrue, inaccurate or misleading if repeated
by reference to the facts and circumstances existing at any time during the
period referred to in Clause 10.2 or if the Company is in breach of any of its
obligations under this Agreement.
10.4 The Company agrees that Nomura and each Placee shall be entitled (as
subscribers for New Shares) to the same remedies and rights of action against
the Company, and to the same extent, as any person who acquires any New Shares
pursuant to the Open Offer on the basis of the Circular.
10.5 References in this Agreement to a representation, warranty or undertaking
being (or not being) true and accurate or not being (or being) misleading IN ANY
MATERIAL RESPECT shall mean material in the context of the Placing and Open
Offer or the underwriting of the New Shares. In that connection and otherwise in
this Agreement in relation to references to a matter which would or might be
MATERIAL IN THE CONTEXT OF THE UNDERWRITING OF THE NEW SHARES, a matter shall,
without limitation, be deemed to be so material if it would have been material
for disclosure
Page 20
to potential Placees had such matter existed when Placees were sought for the
New Shares.
10.6 The representations, warranties and undertakings referred to in Clauses
10.1 to 10.5 shall remain in full force and effect notwithstanding completion of
all matters and arrangements referred to in, or contemplated by, this Agreement.
INDEMNITY
11.1 Nothing in this Clause 11 shall operate to exclude or restrict any duty or
liability of Nomura under the FSA or under the regulatory system (as defined in
the rules of The Securities and Futures Authority Limited) to an extent greater
than permitted by those rules.
11.2 No claim shall be made against Nomura or any subsidiary undertaking or
holding company of Nomura or any subsidiary undertaking of such holding company
or any of their respective shareholders, directors, officers, agents or
employees (each, together with Nomura, referred to in this clause 11 as an
INDEMNIFIED PERSON) to recover any loss, damage, cost, charge or expense which
any member of the Group or any of their respective directors, officers, agents
or employees or any other person may suffer or incur by reason of, or arising
out of, the carrying out by Nomura or on its behalf of its obligations and
services under this Agreement or otherwise in connection with the Placing and
Open Offer or the listing of the New Shares (the COMPANY LOSSES) unless and to
the extent that such loss, damage, cost, charge or expense arises from the
negligence or wilful default of Nomura or that Indemnified Person or any breach
by Nomura of its obligations under this Agreement.
11.3 Notwithstanding anything in Clause 11.2 above, where any Indemnified Person
is the subject of a claim alleging liability in respect of any Company Losses,
then the total amount of such Company Losses recoverable from any such
Indemnified Persons shall be limited to such proportion of the Company Losses as
is finally determined to be just and equitable, having regard to the relative
responsibility of (i) all Indemnified Persons taken together so liable and (ii)
any other person (including for the avoidance of doubt, both the Company (and
any director, employee, agent, subsidiary or affiliate of the Company) and any
other person unrelated to the Company) who is jointly or severally liable for
the Company Losses or any part thereof (a THIRD PARTY). For the avoidance of
doubt, any limitation or exclusion or restriction on the liability of any Third
Party under any jurisdiction, whether arising under statute or contract or
resulting from death,
Page 21
bankruptcy or insolvency shall be ignored for the purposes of determining the
extent of responsibility of that Third Party under (ii) above.
11.4 Without prejudice to Clause 11.3 above, insofar as the Company has engaged
any adviser (a CAPPED ADVISER) on the basis that its liability to the Company
arising out of any default by it or otherwise in connection with the Placing and
Open Offer is subject to any limitation, the liability of each Indemnified
Person to the Company or any other person in respect of the Company Losses shall
not exceed the amount for which that Indemnified Person would have been liable
after deducting any amount which that Indemnified Person would have been
entitled to recover from the capped adviser, in the absence of the limitation of
the capped adviser's liability, by way of contribution to that Indemnified
Person, in respect of the matter concerned.
11.5 The Company undertakes with Nomura for itself and as trustee for each other
Indemnified Person to keep each Indemnified Person indemnified against all
actions, claims or demands brought or made (or threatened to be brought or made)
in any jurisdiction against that Indemnified Person (whether or not successful,
compromised or settled) and against all losses, liabilities, costs, charges and
expenses in any jurisdiction which any Indemnified Person may suffer or incur
(including, without limitation, all such losses, liabilities, costs, charges and
expenses as the Indemnified Person suffers or incurs in investigating,
responding to, preparing for or disputing any actions, claims or demands or in
enforcing its rights under this Clause 11), and whether the same are made,
suffered or incurred (as the case may be) before or after the date of this
Agreement, and which in any case results from, is attributable to or arises in
connection with (directly or indirectly) the matters contemplated by this
Agreement including, without limitation:
(a) Nomura (or any person on its behalf) carrying out or performing its
obligations or services under this Agreement or in connection with the
Placing and Open Offer or the listing of the New Shares;
(b) the Placing and Open Offer, the allotment and issue of the New Shares, the
release, despatch, filing or publication (as the case may be) of the Press
Announcement, the Circular, the Form of Proxy, the Application Form, or any
Supplementary Prospectus; or
(c) any breach or alleged breach by the Company of any of its obligations under
this Agreement or any of the representations, warranties or undertakings
set out or referred to in this Agreement or otherwise in connection with
the Placing and Open Offer,
Page 22
unless and to the extent that the relevant action, claim, demand, loss,
liability, cost, charge or expense arises from the negligence or wilful default
of Nomura or that Indemnified Person or any breach by Nomura of its obligations
under this Agreement, PROVIDED THAT an Indemnified Person shall not be entitled
to be indemnified pursuant to this Clause 11.5 in respect of any relevant
action, claim, demand, loss, liability, cost, charge or expense suffered or
incurred which (i) is an unrealised or realised loss in respect of the value of
any New Shares subscribed by an Indemnified Person unless and to the extent that
the same arise or result from any breach by the Company of any of its
obligations under this Agreement, any breach of the representations, warranties
and undertakings referred to in Clause 10.1 or any other neglect or default on
the part of the Company or (ii) arises from the publication of any research note
produced by Nomura (in respect of which the Company shall have no liability).
11.6 Subject to the requirement of a relevant insurer, if any claim is made
against an Indemnified Person for which indemnity is sought under Clause 11.5,
Nomura shall notify the Company as soon as reasonably practicable and consult
with the Company with respect to the handling of the claim.
11.7 If the United Kingdom Inland Revenue or any other taxing authority in any
jurisdiction brings into charge to taxation any sum payable to Nomura or another
Indemnified Person under this Agreement (other than the commissions payable
pursuant to Clause 8.1), then (to the extent that the loss, damage, liability,
cost, charge or expense in respect of which the sum is payable is not allowable
to the relevant Indemnified Person as a deduction for tax purposes against the
sum so payable and in the same accounting period as that in which such sum is
brought into charge to tax) the sum so payable shall be grossed up by such
amount as will ensure that after deduction of the taxation so chargeable there
shall remain a sum equal to the amount that would otherwise be payable under
this Agreement.
11.8 All sums payable to Nomura or another Indemnified Person under this
Agreement shall be paid free and clear of all deductions or withholdings unless
the deduction or withholding is required by law, in which event the Company
shall pay such additional amount as shall be required to ensure that the net
amount received by the Indemnified Person concerned will equal the full amount
which would have been received by it had no such deduction or withholding been
made.
11.9 Notwithstanding any other provision of this Agreement, no Indemnified
Person shall be liable to the Company for, or lose the benefit of the provisions
of this Clause 11 as a result of, any delay in performance or non-performance of
its obligations arising under, out of, or in connection with, this Agreement
where such
Page 23
performance is delayed or prevented by circumstances beyond its reasonable
control.
11.10 The provisions of Clauses 11.1 to 11.9 will remain in full force and
effect notwithstanding the completion of all matters and arrangements referred
to in or contemplated by this Agreement.
11.11 The Company and Nomura undertake with each other that neither the Company
nor Nomura nor any of its employees or agents nor any person acting on its
instructions will engage in (i) any direct selling efforts as such term is
defined in Regulation S of the US Securities Act of 1933, as amended (the
SECURITIES ACT) or (ii) any form of general solicitation or general advertising
as such terms are used in Rule 502 of the Securities Act in respect of the New
Shares.
MISCELLANEOUS
12.1 For the avoidance of doubt, the Company acknowledges and agrees that it is
responsible for any due diligence carried out by the Company or its other
advisers in relation to the Acquisition and the Placing and Open Offer and that
neither Nomura nor any of its advisers shall be responsible to Company or any
Director for any such due diligence in relation thereto or for verifying the
accuracy or fairness of any information published by or on behalf of the Company
in connection with the Acquisition and the Placing and Open Offer save for the
description in such Circular of the mechanics of the Placing and Open Offer.
12.2 The Company agrees that for the purpose of the Placing and Open Offer
(including for the purposes of seeking to procure any Placees for the New
Shares) Nomura shall not be responsible for the provision of or obtaining advice
as to the requirements of applicable laws or regulations of jurisdictions other
than the United Kingdom nor shall it be responsible where it or the Company has
acted in reliance on any advice obtained by the Company in respect thereof.
12.3 The Company acknowledges that the representations, warranties, undertakings
and indemnities contained in this Agreement are given to Nomura in connection
with the Placing and Open Offer and the listing of the New Shares whether in its
capacity as underwriter, financial adviser or sponsor and references in this
Agreement to Nomura shall be construed accordingly.
RECEIVING AGENT
13. The Company confirms that it has instructed the Receiving Agent to act as
receiving agent in connection with the Placing and Open Offer and the EGM and
Page 24
to perform the obligations assigned to it under the Circular, the Form of Proxy,
the Application Forms and this Agreement as receiving agent.
TIME OF THE ESSENCE
14. Any time, date or period mentioned in this Agreement may be extended by
mutual agreement between the Company and Nomura but as regards any time, date or
period originally fixed, or any time, date or period so extended, time shall be
of the essence.
WAIVER
15.1 Any right or remedy of Nomura under this Agreement shall only be waived or
varied by an express waiver or variation in writing.
15.2 No failure or delay by Nomura in exercising any right or remedy under this
Agreement shall impair such right or remedy or operate or be construed as a
waiver or variation of the right or remedy or preclude its exercise at any
subsequent time. No single or partial exercise of any such right or remedy shall
preclude any other or further exercise of such right or remedy or the exercise
of any other right or remedy. The rights, powers and remedies of Nomura provided
in this Agreement are cumulative and not exclusive of any rights, powers and
remedies provided by law.
NOTICES
16.1 Any notice to be given under, or in connection with, this Agreement shall
be in writing and be signed by or on behalf of the party giving it. It shall be
served by sending it by fax to the number set out in Clause 16.2 or by
delivering it by hand, or sending it by pre-paid recorded delivery, special
delivery or registered post, to the address set out in Clause 16.2 marked for
the attention of the relevant party (or as otherwise notified from time to time
under this Agreement).
Any notice so served shall be deemed to have been duly received:
(a) in the case of delivery by hand, when delivered;
(b) in the case of fax, at the time of transmission; and
(c) in the case of pre-paid recorded delivery, special delivery or registered
post, on the Dealing Day following the date of posting;
Page 25
provided that if delivery by hand or fax occurs on a day which is not a Dealing
Day or after 6 p.m. on a Dealing Day, service shall be deemed to occur at 9 a.m.
on the following Dealing Day.
16.2 The addresses of Nomura and the Company for the purpose of Clause 16.1 are:
Page 26
(i) THE COMPANY: ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax No. ▇▇▇▇▇ ▇▇▇ ▇▇▇
For the attention of: ▇▇▇▇ ▇▇▇▇▇▇▇▇,
Finance Director
cc: Ashurst ▇▇▇▇▇▇ ▇▇▇▇▇
Ref: PRVB/G85600001
(ii) NOMURA: ▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇. ▇▇▇▇▇▇'▇-▇▇-▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No. ▇▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of: ▇▇▇▇▇▇ ▇▇▇▇
COUNTERPARTS
17. This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
ENTIRE AGREEMENT
18. This Agreement and the Nomura Engagement Letter, excluding any provisions in
the Nomura Engagement Letter relating to claims or indemnification of Nomura or
Indemnified Persons and any other obligations of the Company contained therein
in either case relating to the Placing and Open Offer, represent the entire
agreement between the parties in relation to the subject matter of this
Agreement and supersede any previous agreement whether written or oral between
the parties in relation to that subject matter. Accordingly, all other terms,
conditions, representations, warranties and other statements which would
otherwise be implied (by law or otherwise) shall not form part of this
Agreement.
GOVERNING LAW
19. This Agreement shall be governed by and interpreted in accordance with
English law and the parties hereto irrevocably submit to the exclusive
jurisdiction of the courts of England.
Page 27
SCHEDULE 1
DELIVERY OF DOCUMENTS
PART 1
Before despatching the Circular, the Company shall deliver to Nomura:
(a) a certified copy of the minutes of the meeting referred to in Clause 4.1;
(b) a signed copy of the Verification Notes relating to the Circular;
(c) a certified copy of the signed letters of responsibility to the Directors
and to Nomura from each Director accepting responsibility for the
information contained in the Circular and any Supplementary Listing
Particulars;
(d) a copy of the Memorandum;
(e) a letter to the Directors and to Nomura from the Auditors relating to the
working capital statements in the Circular;
(f) a letter to the Directors and to Nomura from the Auditors confirming the
correct extraction of financial information contained in the Circular;
(g) a copy of the letters to the London Stock Exchange from each Director under
paragraph 5.5 of the Listing Rules;
(h) a letter to Nomura from each Director relating to the matters referred to
in paragraph 2.9 of the Listing Rules;
(i) letters to Nomura from the Company relating to the matters referred to in
paragraphs 2.14, 2.15 and 2.15A of the Listing Rules;
(j) a letter to Nomura from each of the Company, the Auditors and the Company's
solicitors relating to the matters referred to in paragraph 2.8 of the
Listing Rules;
(k) a copy of the Circular bearing evidence of formal approval by the London
Stock Exchange; and
(l) evidence that the Circular has been delivered to the Registrar of Companies
in England and Wales for registration in accordance with section 149 of the
FSA.
Page 28
PART 2
Following the passing of the Resolution, the Company shall deliver to the
Nomura:
(a) a certified copy of the Resolution and any other ordinary or special
resolution of the Company in general meeting authorising the Directors
under section 80 of the Companies Act to allot the New Shares and
disapplying section 89 of the Companies Act in connection with allotments
made pursuant to the section 80 authority; and
(b) a certified copy of the resolution of the board of Directors allotting the
New Shares as referred to in Clause 7.1.
Page 29
SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
PUBLIC DOCUMENTATION
1.1 All statements of fact in the Tender Offer Documents, the Press
Announcements, the Circular, the Application Form and the Form of Proxy are true
and accurate in all material respects and are not misleading in any material
respect.
1.2 All estimates and all statements of opinion, intention or expectation in the
Tender Offer Documents, the Press Announcements, the Circular, the Application
Form and the Form of Proxy are made on reasonable grounds after due and careful
consideration, honestly held by the Directors and fairly based.
1.3 There are no facts or circumstances known, or which could on reasonable
enquiry have been known, to the Company or the Directors which are not stated in
the Press Announcement or the Circular (as the case may be) the omission of
which would make any statement or estimate therein misleading in any material
respect and which would or might be material in the context of the Placing and
Open Offer or the underwriting of the New Shares.
1.4 All statements of fact in any Supplementary Prospectus will be true and
accurate in all material respects and will not be misleading in any material
respect.
1.5 All estimates and all statements of opinion, intention or expectation in any
Supplementary Prospectus will be made on reasonable grounds after due and
careful consideration, honestly held by the Directors and fairly based.
1.6 There will be no facts or circumstances known, or which could on reasonable
enquiry have been known, to the Company or the Directors which are not stated in
any Supplementary Prospectus the omission of which would make any statement or
estimate therein misleading in any material respect and which would or might be
material in the context of the Placing and Open Offer or the underwriting of the
New Shares.
1.7 Each of the Circular, the Application Form and the Form of Proxy comply (and
any Supplementary Prospectus will comply) with the Company's Articles of
Association and with all relevant laws and regulations of the United Kingdom and
any other relevant jurisdiction including, without limitation, the Listing Rules
and
Page 30
the requirements of the London Stock Exchange, the Companies Act and the FSA.
1.8 Without prejudice to the generality of paragraphs 1.1 to 1.7, the Circular
contains (and any Supplementary Prospectus, when taken together with the
Circular, will contain) all such information as investors and their professional
advisers would reasonably require, and reasonably expect to find there, for the
purpose of making an informed assessment of the assets and liabilities,
financial position, profits and losses, and prospects of the Company and of the
rights attaching to the New Shares, having regard to the matters referred to in
section 146(3) of the FSA.
PREVIOUS ANNOUNCEMENTS
2.1 In the Report and Accounts, the Interim Results and all Previous
Announcements, save to the extent corrected in any announcement or public
document subsequently made or released by or on behalf of the Company through
the Regulatory News Service of the London Stock Exchange:
(a) all statements of fact were when made and remain true and accurate in all
material respects and not misleading in any material respect;
(b) all estimates and all statements of opinion, intention or expectation which
are or might be material in the context of the Placing and Open Offer or
the underwriting of the New Shares were made on reasonable grounds after
due and careful consideration, were and remain honestly held by the
Directors and were fairly based; and
(c) there were and are no other facts known, or which could on reasonable
enquiry have been known, to the Company or the Directors which were not
included in the relevant document or announcement, the omission of which
made or makes any statement or estimate in that document or announcement
misleading or which would or might be material in the context of the
Placing and Open Offer or the underwriting of the New Shares.
2.2 Each Previous Announcement complied with the Company's Articles of
Association and with all relevant laws and regulations of the United Kingdom and
any other relevant jurisdiction including, without limitation, the Listing Rules
and the requirements of the London Stock Exchange, the Companies Act and the
FSA.
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REPORT AND ACCOUNTS
3. The Report and Accounts:
(a) give a true and fair view of the state of affairs of the Group as at the
Accounts Date, of the loss of the Group for the financial year ended on
that date and of the results of the cash flows for the Group for the
financial year ended on that date; and
(b) have been prepared in accordance with the Companies Act and all applicable
statements of standard accounting practice and generally accepted
accounting principles and practices consistently applied.
INTERIM RESULTS
4. The Interim Results were prepared with reasonable care and attention and have
been properly compiled in accordance with the Listing Rules, all applicable
statements of standard accounting practice, with generally accepted accounting
principles and practices consistently applied and on a basis consistent with the
accounting policies and principles applied in the preparation of the Report and
Accounts except, in each case, in so far as inappropriate in respect of the
preparation of interim results.
POSITION SINCE ACCOUNTS DATE
5.1 Since the Accounts Date and save as subsequently disclosed in the Report and
Accounts, the Press Announcements and the Interim Results and any Previous
Announcement made before the date of this Agreement:
(a) the business of the Group has been carried on in the ordinary and usual
course;
(b) there has been no adverse change in the financial or trading position or
prospects of the Group; and
(c) no contracts or commitments of an unusual or unduly onerous nature have
been entered into by any member of the Group,
save, in each case, for matters which, individually or in aggregate, are not
material for disclosure in the context of the Placing and Open Offer and the
underwriting of the New Shares.
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LITIGATION AND PROCEEDINGS
6.1 Save as disclosed in the Circular, no member of the Group has any claims
outstanding against it or is engaged in, or has within the last twelve months
been engaged in, any litigation or arbitration or similar proceedings or in any
governmental, regulatory or similar investigation or enquiry, which individually
or collectively may have or, during the last twelve months, has had a
significant effect on the financial or trading position or prospects of the
Group. So far as the Company is aware there is no such claim, litigation,
proceeding, investigation or enquiry pending or threatened. There are no
circumstances known to the Company or the Directors which are likely to give
rise to any such claim, litigation, proceeding, investigation or enquiry.
6.2 No member of the Group has taken any action and no other steps have been
taken or legal proceedings started or threatened against any of them for any of
their administration, winding up or dissolution, or for any of them to enter
into any compromise, arrangement or composition for the benefit of creditors, or
for the appointment of a receiver, administrator, provisional liquidator,
trustee or similar officer of any of them, or of any of their respective
properties, revenues or assets and there are no circumstances known, or which
could on reasonable enquiry have been known, to the Company or the Directors
which are likely to give rise to any of the foregoing.
COMPLIANCE AND CAPACITY
7.1 The making of the Tender Offer and the Placing and Open Offer, the issue,
publication, despatch or filing (as the case may be) of the Tender Offer
Documents, the Press Announcements, the Circular, the Form of Proxy, the
Application Form and any Supplementary Prospectus, the entry into and
performance of this Agreement and, subject only to the passing of the
Resolution, the allotment and issue of the New Shares complies or will (as the
case may be) comply with:
(a) the Memorandum and Articles of Association of the Company and all
applicable laws and regulations of the United Kingdom and any other
relevant jurisdiction including, without limitation, the Listing Rules and
the requirements of the London Stock Exchange, the Companies Act and the
FSA; and
(b) all agreements to which any member of the Group is a party or by which any
of them or any of their respective properties or assets is bound and will
not infringe any restrictions or the terms of any contract, obligation or
Page 33
commitment of any member of the Group or give rise to any consequences
which are material in the context of the Placing and Open Offer or the
underwriting of the New Shares.
7.2 The Company and the Directors have all necessary powers and authority to
enter into and comply with the Company's obligations under this Agreement
(including without limitation to pay the commissions and expenses), to make the
Tender Offer and the Placing and Open Offer, to allot and issue the New Shares,
to issue the Press Announcement, the Circular, the Form of Proxy, the
Application Form and any Supplementary Prospectus, without (save for the passing
of the Resolution) any sanction or consent by members of the Company or any
class of them or any creditors or holders of any other securities of the
Company. Save as disclosed in the Circular, there are no other consents,
authorisations, approvals or licences required by the Company for any of the
foregoing which have not been unconditionally obtained and which are not in full
force and effect.
NEW SHARES
8.1 The New Shares will upon Admission be allotted and issued credited as fully
paid, will rank pari passu in all respects with the existing issued Ordinary
Shares including the right to receive all dividends and other distributions
declared, made or paid on such shares after the date of this Agreement and will
be free from all liens, charges, encumbrances and equities.
8.2 Except as disclosed in the Report and Accounts, any Previous Announcement or
the Circular, and except for options granted under the employees' share schemes
in accordance with normal practice, there are no arrangements which
(contingently or otherwise) may give rise to an obligation on the Company or any
other member of the Group to allot, issue or grant any relevant securities.
WORKING CAPITAL
9.1 The Group will have sufficient working capital for its present and
reasonably foreseeable future requirements having regard to existing bank
balances and facilities available and the proceeds of the Placing and Open
Offer.
9.2 The working capital forecast of the Group contained in the Memorandum has
been properly compiled, and has been made after due and careful inquiry and on
the bases and assumptions stated in the Memorandum. All statements of fact in
the Memorandum are true and accurate in all material respects and are not
misleading in any material respect, all estimates and all statements of opinion,
Page 34
intention or expectation contained therein are made on reasonable grounds and
are truly held by the Directors, are fairly based and have been made having
regard to all the information available to the Company and the Directors. There
are no other facts or circumstances known to the Company or the Directors not
included in the Memorandum the omission of which would make any such statement
or estimate in the Memorandum misleading in any material respect. All the
assumptions on which the forecast is based are reasonable assumptions and there
are no other assumptions on which that forecast ought to have been based which
have not been made in the Memorandum.
9.3 All information requested from the Company by the Auditors and Nomura for
the purpose of reviewing the working capital requirements of the Group has been
supplied to them and such information is true and accurate in all material
respects and not misleading in any material respect.
ENVIRONMENTAL RISKS
10.1 So far as the Company is aware, no member of the Group has any material
actual or contingent liability under applicable laws and regulations (whether of
the United Kingdom or any other jurisdiction), including any laws and
regulations with respect to health and safety of any person and the pollution or
the protection of the environment (collectively and individually, ENVIRONMENTAL
LEGISLATION) or otherwise in relation to any interest in land including all of
its freehold and leasehold properties (whether as owner, former owner, or as
tenant or former tenant, or as an original contracting party, or guarantor of
any party, to any deed, document, lease or licence connected therewith) (the
PROPERTIES).
10.2 No Property, as far as the Company is aware, is affected in any material
way, and/or in any material manner which may affect its value and/or may involve
any material expenditure, by the presence of asbestos in such Property; no
building or other structure on or forming part of the Properties or the ground
or groundwater at any Property, as far as the Company is aware having made
reasonable enquiries, is affected in any material way by or contains a Relevant
Substance.
10.3 Neither the Company nor any member of the Group has received notice of and
none of them is aware of any material breach or alleged breach of the
requirements of any Environmental Legislation or circumstances which may give
rise to the same.
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INTELLECTUAL PROPERTY RIGHTS
11.1 A member of the Group owns all of the rights and interests in, and has
title to, the Business IP.
11.2 A member of the Group is the registered proprietor of the registrations and
applications included in the Business IP, and the registrations and applications
are not, so far as the Company is aware, subject to, challenge, removal or
surrender. So far as the Company is aware having made reasonable enquiries,
there is nothing which might prevent the registrations and applications from
being granted or registered.
11.3 No compulsory licences or licences of right other than in relation to the
ArthoCare Settlement dated 28 June 1999 have been, or so far as the Company is
aware, having made reasonable enquiries, are likely to be, granted for the
Business IP.
11.4 All application, filing, registration, renewal and other fees for the
registrations and applications included in the Business IP have been paid.
11.5 As far as the Company is aware, the material Licences In and the material
Licences Out are binding and in force. As far as the Company is aware, none of
the parties to them is in default and there are no grounds on which they might
be terminated. As far as the Company is aware, no disputes have arisen or are
foreseeable in connection with them.
11.6 As far as the Company is aware, none of the operations of the Group
infringes the Intellectual Property Rights of a third party.
11.7 Save as disclosed in a Previous Announcement or the Circular, no claim has
been made by a third party which alleges that the current operations of the
Group infringe the Intellectual Property Rights of a third party or which
otherwise disputes the right of any member of the Group to use the Intellectual
Property Rights owned or used or proposed to be used by a member of the Group.
The Company is not aware of any circumstances likely to give rise to a claim.
11.8 As far as the Company is aware, no third party is infringing any Business
IP.
11.9 No claim has been made by any member of the Group which alleges that a
third party is infringing the Business IP owned by any member of the Group or
which otherwise disputes the right of a third party to use the Intellectual
Property Rights owned or used by it.
Page 36
11.10 As far as the Company is aware, no member of the Group has acquiesced in
the unauthorised use by a third party of the Intellectual Property Rights owned
or used by any member of the Group.
11.11 There have been no acts or omissions by any member of the Group which
would prejudice the rights of a member of the Group to enforce any Business IP.
In particular, transactions relating to it have been registered promptly, and
within applicable time limits.
11.12 Material confidential information of any member of the Group or of a third
party which has been made available to any member of the Group has been kept
confidential and has not been disclosed to third parties except in accordance
with the applicable terms of confidentiality.
11.13 As far as the Company is aware, none of the operations of the Group
involves the unauthorised use of confidential information disclosed in
circumstances which might entitle a third party to make a claim against a member
of the Group.
11.14 Except for agreements entered into in the ordinary course of business, no
member of the Group is subject to any obligation which restricts to any material
extent the free use or disclosure of confidential information used by the Group.
11.15 As far as the Company is aware, a member of the Group owns, or has
licensed to it, all Intellectual Property Rights which are required to carry on
the Group's business as it is presently carried on.
11.16 No Business IP is subject to any security interest, option, mortgage,
charge or lien.
REGULATORY MATTERS
12.1 The Group holds all the material permits, licences, consents,
authorisations, orders, approvals or similar permissions required by law to be
obtained from Relevant Regulatory Authorities for the conduct of the businesses
of each member of the Group in all jurisdictions as currently carried out (the
RELEVANT LICENCES).
12.2 All Relevant Licences are valid and in full force and effect and no member
of the Group has received any written communication that any Enforcement Action
in respect of any of them has been initiated or, so far as any member of the
Group is aware, threatened.
Page 37
12.3 So far as the Company is aware, as at the date of this Agreement, there are
no circumstances indicating that:
(i) any Enforcement Action could be taken in respect of any Relevant Licence;
or
(ii) any Relevant Licence might not be renewed.
12.4 Each member of the Group is and has been in compliance in all material
respects with, and has not violated in any material respect any of the
provisions of, and, so far as the Company is aware, as at the date of this
Agreement, the conduct of the business of any member of the Group in any
jurisdiction will not violate, in a manner which might have a material adverse
effect, any of the provisions of:
(i) any applicable law and regulation in any jurisdiction in force at any time
up to (and including) the date of this Agreement;
(ii) the Relevant Licences;
(iii) any rules, regulations, orders, decrees, judgments, directives, directions
and determinations of any Relevant Regulatory Authority, court of law or
other similar authority; and
(iv) any international bilateral or multilateral agreement or treaty to which
any member of the Group is subject.
12.5 No member of the Group has received any written communication of
Proceedings under any Relevant Licence or otherwise affecting any member of the
Group and, so far as the Company is aware, no previous actions or inactions by
any member of the Group could reasonably afford a basis for any such
Proceedings.
12.6 Each member of the Group has made all material Filings. As of their
respective dates, each of the Filings:
(i) was true and complete in all material respects (or was amended so as to be
so promptly following the discovery of any discrepancy); and
(ii) complied in all material respects with any applicable laws and regulations
in any jurisdiction and with all rules, regulations, orders, decrees and
directions of any Relevant Regulatory Authority (or was amended so as to
be so promptly following the discovery of any such non-compliance).
Page 38
PROFIT FORECAST
13. The forecast that the Group as enlarged by the Acquisition contained in the
Circular will make a loss in respect of the financial period ending 30 June 2000
(the FORECAST) has been made after due and careful inquiry and on the bases and
assumptions stated in the Circular. There are no other facts or circumstances
known to the Company or the Directors that make the Forecast inaccurate or
misleading. All the assumptions on which the Forecast is based are reasonable
and there are no other assumptions on which the Forecast ought to have been
based which have not been set out in the Circular. All information supplied by
the Company to the Auditors or Nomura for the purposes of reviewing the Forecast
is true and accurate in all material respects and not misleading in any material
respect.
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SIGNED by
for and on behalf of
GYRUS GROUP PLC
____________________
Director
SIGNED by
for and on behalf of
NOMURA INTERNATIONAL PLC
____________________
Director
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