Dated 28 November 2007 and
EXHIBIT 10.44
Dated
28 November 2007
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(1)
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and
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(2)
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BLOMFIELD
CORPORATE FINANCE LIMITED
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Blomfield
Corporate Finance Limited
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Tel
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Email
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▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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Authorised
and Regulated by the Financial Services Authority UKLA Registered Sponsor
Member of the London Stock Exchange AIM Nominated Adviser PLUS Corporate
Adviser Registered office ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Registered in
England no 2910387
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THIS AGREEMENT is made the 28
November 2007 and is subject to admission of Medgenics, Inc. common shares to
trading on the AIM market of the London Stock Exchange.
BETWEEN:
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(1)
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MEDGENICS, INC., whose
registered office is at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ (the “Company”);
and
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(2)
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BLOMFIELD CORPORATE FINANCE
LIMITED, whose registered office is at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ (“BCF”).
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INTRODUCTION:
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(A)
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The
Company wishes to appoint BCF to be its nominated adviser for the purposes
of the AIM Rules. BCF has agreed to act as nominated adviser and to
perform the other obligations and services to, or for, the Company
described in this Agreement upon and subject to the terms and conditions
set out in this Agreement.
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IT IS AGREED as
follows:
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1.
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Definitions
and Interpretation
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The
definitions and interpretation provisions set out in the Appendix apply in this
Agreement.
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2.
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Appointment
of nominated adviser
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2.1
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Appointment - The
Company confirms the appointment of BCF as nominated adviser to the
Company for the purposes of the AIM Rules with effect from the date of
Admission to Trading on AIM (“Admission”) and BCF confirms acceptance of
such appointment. BCF’s appointment under this Agreement confers on it all
powers, authorities and discretions on its behalf which are necessary for,
reasonably incidental to, or customary in the provision of, its services
and in BCF’s role as nominated adviser to the Company. The Company agrees
to ratify and confirm everything which BCF reasonably and lawfully does in
that capacity and in the proper exercise of such powers, authorities and
discretion.
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2.2
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Commencement - The
appointment of BCF as nominated adviser to the Company shall be for an
initial term of one year from the date of Admission and shall be subject
to termination in accordance with clause
11.
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3.
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Nominated
adviser services
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3.1
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Services - BCF’s
services as nominated adviser will comprise the
following:
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3.1.1
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Advising - advising and
guiding the directors of the Company
from time to time and the Company as to their respective responsibilities
and obligations so as to enable them to comply, on an ongoing basis, with
the AIM Rules;
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3.1.2
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Providing information -
providing to the LSE such information in relation to the Company in
such form and within such time limits as the LSE may require in accordance
with the AIM Rules or as BCF (acting reasonably) advises the Company it
should provide (provided that BCF has been given the requisite information
by the directors of the Company or, at their discretion, the Company in
accordance with sub-clause 5.2.4);
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3.1.3
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Assistance - providing
such other assistance on such terms as BCF and the Company may agree
in writing from time to time; and
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3.1.4
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Compliance with Regulations -
carrying out its obligations under this Agreement in compliance
with the relevant provisions of the FSA Rules, the AIM Rules and the
FSMA.
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3.2
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Duties to LSE and Conflict -
The responsibilities of BCF in its capacity as nominated adviser
are owed solely to the LSE and are set out in the AIM Rules. The Company
agrees that if at any time a conflict arises between the duties of BCF to
the Company and the duties of BCF (as the nominated adviser of the
Company) to the LSE, BCF shall, after reasonable consultation with the
Company, be entitled to act so as to fulfil its obligations to the LSE
without incurring any liability to the Company arising out of such
action.
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4.
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Fees
and Expenses
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4.1
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Annual fee - In
consideration of BCF’s services as nominated adviser under this Agreement
the Company shall pay to BCF a fee of £37,500 per annum, (together with
VAT, where applicable), which shall accrue on a daily basis from
Appointment and shall be payable quarterly in advance, the first such
payment of £9,375 (plus VAT) to be made on
Appointment.
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This fee
shall be reviewed on the anniversary of Admission and annually
thereafter.
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4.2
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Expenses - The Company
shall reimburse BCF for any out of pocket expenses reasonably incurred in
the performance of its services as nominated adviser within 5 Business
Days of production of an appropriate VAT
invoice.
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4.3
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Additional Services -
The fee referred to in clause 4.1 above shall be exclusive of any
additional work carried out by BCF outside the scope of this Agreement
(e.g. advice on potential acquisitions and disposals and future fund
raisings) for which a separate fee or fees will be agreed between the
Company and BCF at the relevant
time.
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5.
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Continuing
obligations
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5.1
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The
Company undertakes that whilst BCF is the Company’s nominated adviser it
will:-
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5.1.1
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Disclosure and consultation -
disclose to BCF full, complete and accurate details and consult in
advance with BCF in respect of any commitment, agreement, arrangement,
fact or matter proposed to be entered into or undertaken by any member of
the Group which if entered into or undertaken would, in the reasonable
opinion of BCF, require the Company to make any statement or announcement
to the public whether pursuant to the AIM Rules or
otherwise;
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5.1.2
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Advice - seek advice and
guidance from BCF regarding the compliance by the Company with the AIM
Rules whenever appropriate and to take such advice and guidance into
account and comply on a timely basis with the AIM Rules and any other
obligations imposed from time to time by the LSE on companies whose
securities have been admitted to trading on AIM. BCF will expect formally
to meet the Board to review compliance and other matters at regular
intervals;
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5.1.3
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Co-operation with BCF -
execute or use all reasonable endeavours to procure the execution
of all such documents and do or procure the doing of all such things and
from time to time provide or procure the prompt provision to BCF of all
access and information as may reasonably be required by BCF, or be
reasonably necessary to comply with the requirements of the LSE for the
purposes of or in connection with its role as nominated adviser to the
Company and will ensure, so far as practicable, that all information
provided is true, complete and not misleading;
and
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5.1.4
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Compliance with relevant
regulations - comply with and abide by the AIM Rules, the Act, the
City Code on Takeovers and Mergers, the Rules Governing Substantial
Acquisitions of Shares published by the Panel on Takeovers and Mergers,
the FSMA, the Prospectus Regulations and all other requirements (statutory
or otherwise) from time to time in force in relation to British public
companies whose securities are traded on AIM or otherwise applicable to
the Company and will comply without delay with all reasonable and proper
directions given by BCF in its role as the Company’s nominated adviser in
order to ensure compliance by the Company with such requirements. In
particular, in accordance with Rule 31 of the AIM Rules, the Company
must:
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(a)
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have
in place sufficient procedures, resources and controls to enable it to
comply with the AIM Rules;
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(b)
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seek
advice from BCF regarding its compliance with the AIM Rules whenever
appropriate and take that advice into
account;
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(c)
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provide
BCF with any information it reasonably requests or requires in order for
BCF to carry out its responsibilities under the AIM Rules for Companies
and the AIM Rules for Nominated Advisers, including any proposed changes
to the board of directors and provision of draft notifications in
advance;
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(d)
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ensure
that each of its directors accepts full responsibility, collectively and
individually, for its compliance with the AIM Rules;
and
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(e)
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ensure
that each director discloses to the Company without delay all information
which the Company needs in order to comply with Rule 17 of the AIM Rules
insofar as that information is known to the director or could with
reasonable diligence be ascertained by the
director.
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5.2
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The
Company undertakes that except as expressly agreed otherwise by
BCF:
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5.2.1
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Statements of intent -
it will comply with all statements of intent and undertakings
contained in any Prospectus or Circular published by the
Company;
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5.2.2
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Public releases - it
will consult with BCF in advance concerning any statement, announcement or
document released or made available by the Company to the Company’s
shareholders or otherwise to the public which relates to the Company’s
results, dividends or prospects, or to any material acquisition, disposal,
reorganisation, take-over, management development (including, without
limitation, the appointment or removal of directors of the Company,
whether executive or non-executive or changes in their share interests and
any preliminary announcement of the Company’s annual results or interim
results) or any issues of new securities (or cancellation of existing
securities) or any other significant matter (similar or not to the
foregoing) and which any member of the Group proposes to make or publish
and take proper account of the reasonable representations of BCF in
determining the content and terms and the timing of the statement,
announcement or document and the manner in which it is to be made and the
manner of release or despatch of any such statement, announcement or
document;
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5.2.3
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Price sensitive information -
it will discuss with BCF in advance any other information which the
Company reasonably believes is likely materially to affect the general
character or nature of the business of the Group including, without
limitation, developments concerning or affecting the financial or trading
position or prospects of the Group or may be necessary to be made known to
the public in order to enable shareholders and the public to appraise the
position of the Group and in order to avoid the establishment of a false
market in the Company’s securities;
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5.2.4
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Documentation - it will
forward to BCF proofs in final form of any accounts or of any public
statement or document or information which the Company or any member of
the Group proposes to make or publish and which relates to any matter
falling within clause 6 or otherwise to the holders of the Company’s
securities and supply to BCF without delay upon BCF requesting the same
all such documentation or information relating to the Group which BCF may
reasonably require in its capacity as nominated
adviser;
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5.2.5
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Notices - it will
promptly provide to BCF without delay all information which the Company is
obliged forward to the LSE including, without limitation, copies of any
notices served by the Company under Section 212 of the Act and of any
notifications made to it under Section 198 and/or Section 324 of the
Act;
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5.2.6
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Management accounts - it
will forward to BCF monthly management accounts of the Company’s affairs
within 15 Business Days of the end of the month to which the management
accounts relate and the associated board report, board minutes and any
other documentation produced to the Board in considering monthly
management accounts from the finance director of the Company. All such
management accounts shall comprise a consolidated balance sheet of the
Company as at the end of the month to which they relate, a consolidated
profit and loss account for such month and a cashflow statement for such
month;
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5.2.7
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Corporate governance -
it will use all reasonable endeavours to comply at all times with
the requirements under the Combined Code, as the same may be amended or
replaced from time to time.;
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5.2.8
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Subsidiaries - it will
ensure that each other member of the Group adheres to the provisions of
this Agreement in all applicable respects as if each reference in this
Agreement to “the Company” contained (where applicable) an additional and
separate reference to it;
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5.2.9
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Accounting information –
it will supply BCF with copies of the preliminary announcement of
the Company’s annual results and the audited annual accounts of the
Company, approved by the directors of
the Company and by the auditors from time to time of the Company, within
six months of the end of the financial period to which they relate, and
with copies of any interim results within three months of the end of the
relevant period;
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5.2.10
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Further information -
authorise and direct the Company’s auditors and professional
advisers to supply BCF with any information concerning the Company which
BCF may from time to time reasonably request in its capacity as nominated
adviser;
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5.2.11
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Broker – it will
provide to BCF without delay notification of any change in Broker;
and
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5.2.12
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Breach of AIM Rules –
it will inform BCF immediately
upon becoming aware of any breach by
the Company and/or any director of the Company of the AIM Rules and to
request the advice and guidance of BCF in relation to all matters relevant
to the Company’s compliance on an ongoing basis with the AIM
Rules.
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5.3
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Without
prejudice to the generality of the foregoing, the Company
undertakes:
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5.3.1
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Compliance with directions -
to comply with all proper and reasonable directions given by BCF in
relation to compliance with the AIM Rules;
and
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5.3.2
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Notice of meetings - to
give to BCF advance notice of all meetings of the Board at the same time
as such notice is given to the directors of the Company, together with
details of the business to be considered at such meetings and copies of
all papers distributed to the
Board.
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5.4
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Other financial advisers -
For so long as BCF shall be nominated adviser to the Company, the
Company shall not appoint any other financial adviser or broker (save for
a Broker required under the AIM
Rules).
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5.5
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Directors’ confirmations and
undertakings
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5.5.1
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Confirmation of advice –
Each of the Directors confirms to BCF that he has received advice
and guidance from the Company’s legal advisers as to the nature of his
responsibilities and obligations under the AIM Rules, the Company’s
compliance with the AIM Rules on an on-going basis and his status as a
director of an AIM quoted company under the AIM
Rules.
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5.5.2
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Each
of the Directors undertakes to BCF that (while he continues to be a
director of the Company) he will:
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(a)
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Compliance with undertakings -
use all reasonable endeavours, so far as he is able, to procure
that the Company complies fully in all respects with each undertaking or
other obligation under this Agreement, including but not limited to
ensuring compliance with the matters listed in Clause 5 above and the AIM
Rules in so far as they relate to dealings in the securities of a company
whose securities have been admitted to trading on AIM and in particular
Rules 13 and 21 thereof and in default of the Company doing so, will
himself (in so far as he is able to do so) comply;
and
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(b)
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Provision of information -
provide promptly to BCF all such information which he has or which,
on reasonable enquiry, ought to be known to him relating in any way to the
Group or the Company as may be reasonably required by BCF for the purpose
of BCF complying with any legal or regulatory requirement as the Company’s
nominated adviser or otherwise complying with the terms of this
Agreement.
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5.5.3
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Duration of obligations -
The obligations of each Director respectively under this Agreement
shall continue only for so long as they shall remain a director of the
Company. In the event that any person is appointed a director of the
Company after the date of this Agreement (New Director), the
Company shall procure that any such person enters into a deed of adherence
with BCF in a form reasonably acceptable to BCF whereby they agree to
observe, perform and be bound by the undertakings and other obligations of
the Directors then binding upon the Directors under this Agreement to the
intent and effect that such person shall be deemed to be a party to this
Agreement as a Director save that any new director shall not be liable for
any antecedent breaches by any of
them.
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6.
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Directors’
Dealings and other Directors’
Covenants
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6.1
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Each
of the Directors undertakes to BCF that he
will:-
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6.1.1
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Restrictions on share dealings
- in respect of any dealings in any shares in the capital of the
Company in which he is interested whilst he is a director, at all times
observe the restrictions on dealings in securities of the Company set out
in the AIM Rules;
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6.1.2
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Notification
by
connected persons
- procure that any person who is a connected person in relation to
them for the purposes of Section 346 of the Act will notify the Company
and BCF as soon as practicable of any information notification of which is
required under the AIM Rules;
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6.1.3
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Accuracy of information -
ensure that any information supplied by him or, so far as is
reasonably practicable, the Company to BCF, including any expressions of
opinion, will be, to the best of his knowledge and belief, true, fair and
accurate and will not be misleading and will not omit any material
information. If during the course of BCF’s engagement any Director
subsequently discovers any thing or matter which renders any such
information materially untrue, unfair, inaccurate or misleading, he
undertakes to notify BCF
immediately.
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6.1.4
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Combined Code - Each of
the Directors and the Company confirms to BCF that it is intended that the
Company should comply so far as practicable with the Combined Code and
undertakes that if at any time it is intended that the Company should not
so comply, then the Directors will consult with BCF (so long as BCF is the
Company’s nominated adviser) in relation to such
matters.
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7.
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Reference
to advice
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The
Company undertakes to BCF that neither any advice rendered by BCF nor any
communication from BCF in connection with the services performed by BCF pursuant
to this Agreement shall be quoted, or referred to, in any public report,
document, release or other communication by the Company or by any related party
(within the meaning of the AIM Rules) without the prior written consent of BCF,
such consent not to be unreasonably
withheld or delayed, unless the Company comes under a legal or regulatory
obligation to disclose it in which event the Company shall so far as possible
consult with BCF as to the nature and extent of the disclosure and shall only
make any disclosure to the extent required by law or regulation.
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8.
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Acknowledgements
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8.1
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BCF’s duty of care - The
parties acknowledge that BCF is acting solely for the Company and no one
else and accordingly that BCF will not be responsible to anyone other than
the Company for providing the protections afforded to clients of BCF or
for providing advice in relation to or in connection with any
transactions.
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8.2
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Legal advice - The
Company and each of the Directors acknowledges that BCF is not responsible
for providing any legal advice to the Company any director of the Company
in respect of any applicable laws and regulations and the Company and each
of the Directors undertakes to obtain appropriate legal advice in respect
of these matters and to communicate to BCF any such advice as is relevant
to the carrying out of BCF’s services under this Agreement (save to the
extent that such advice relates to any dispute or potential dispute with
BCF).
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8.3
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Conflicts of interest -
The Company acknowledges that, when BCF gives the Company advice or
provides other services in accordance with this Agreement, BCF or a
Relevant Person or another client may have an interest, relationship or
arrangement that is material in relation to the transaction or investment
concerned. Where BCF becomes aware that a conflict of interest has arisen
or is likely to arise, it will promptly inform the Company in writing, but
will be under no obligation to provide details of the conflict other than
such general particulars as may be necessary to enable the Company to
assess its importance. Thereafter, the parties will in good faith, and as
soon as reasonably practicable, consult with a view to resolving a
satisfactory method or procedure in view of such
conflict.
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8.4
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Compliance with Rules -
The Company acknowledges that all services provided by BCF pursuant
to this Agreement are subject to the rules and regulations from time to
time of the FSA. In providing its services, BCF is proposing to treat the
Company as a “Professional Client” within the meaning of the FSA
Rules.
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Page 8 of
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8.5
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Failure to make announcements -
If the Company fails (in the reasonable opinion of BCF acting in
good faith and having regard to the Company’s obligations under this
Agreement) to make any announcement, the Company acknowledges that BCF
may, having first consulted with the Company, make such announcement on
the Company’s behalf instead (but without any obligation for BCF to do
so).
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8.6
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Accuracy of information -
Each of the Company and the Directors acknowledges that it shall
not be sufficient to provide any information in accordance with this
Agreement unless such information is also accurate and not misleading and
agrees that BCF will not be responsible for the verification of any such
information and shall accept no responsibility for its
accuracy.
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8.7
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Disclosure required by BCF -
The Company and each of the Directors acknowledges and accepts that
BCF may be required by law or by regulatory agencies and authorities to
disclose information and deliver documents relating to the Company and/or
the Directors in relation to BCF’s engagements under this Agreement. Each
of them expressly authorises any such disclosure or delivery provided
that, to the extent allowed, BCF will provide the Company with prompt
prior notice of any such obligations to disclose
information.
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8.8
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BCF’s Property - All
correspondence and papers in BCF’s possession or control relating to its
engagement under this Agreement shall be and remain BCF’s sole property,
save for any original documents held to the Company’s
order.
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8.9
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BCF’s Instructions - BCF
is entitled to assume that instructions have been properly authorised by
the Company if they are given or purported to be given by an individual or
person who is or purports to be and is reasonably believed by BCF to be a
director or authorised agent of the
Company.
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9.
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Indemnity
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9.1
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The
Company agrees to indemnify and hold harmless each of BCF (for itself and
on the basis that it shall enjoy an absolute discretion as to the
enforcement of any claim under the terms of this Clause 9.1, as trustee
for each and every Relevant Person) and each Relevant Person to the
fullest extent permitted by law against all liabilities, demands,
losses, claims, actions, damages, proceedings made, brought or threatened
against any Relevant Person (whether or not successful, compromised or
settled), costs, charges, expenses (including legal fees and expenses
reasonably incurred) and any other liabilities of whatsoever nature which
any of them may suffer or incur in any jurisdiction directly or indirectly
as a result of or arising out of or in connection
with:
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9.1.1
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Performance of services -
the performance by BCF or any Relevant Person of its services to
the Company pursuant to this Agreement or BCF’s role in acting as
nominated adviser;
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Page 9 of
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9.1.2
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Approval of press releases -
the approval or issue by BCF of any press release or of any FSMA
Financial Promotion issued by or on behalf of the
Company;
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9.1.3
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Breach of Agreement -
any breach or alleged breach (other than a breach alleged by BCF
which is not a proven breach) by the Company or the Directors of any of
the other provisions of this Agreement;
or
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9.1.4
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Transactions - any
transactions expressly contemplated by this
Agreement;
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and which
does not in any such case arise as a result of the fraud, negligence or wilful
default of BCF or any Relevant Person or the result of any contravention by BCF
or Relevant Person of the FSMA, or the FSA Rules or The Prospectus Regulations
or the result of the breach by BCF of any material provision of this
Agreement.
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9.2
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No claims - No claim
shall be made against BCF or a Relevant Person by the Company or the
Directors to recover any damage, cost, charge or expense which any of them
may suffer or incur by reason of or arising out of any advice or service
provided by BCF or any Relevant Person to the Company or the Directors in
relation to, or in connection with the performance of BCF’s obligations
under this Agreement or otherwise in connection with the appointment under
this Agreement or its role as the nominated adviser for the purposes of
the AIM Rules, unless and except to the extent that such damages, costs,
charges or expenses arise as a result of the fraud, negligence or wilful
default of BCF or any Relevant Person or the result of any contravention
by BCF or the Relevant Person of the FSMA, the AIM Rules or the FSA Rules
or the result of the breach by BCF of any material provision of this
Agreement.
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10.
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Authority
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The
Company authorises BCF to take all such actions on the Company’s behalf which
are reasonably necessary for, or reasonably incidental to, the carrying out of
BCF’s responsibilities as the Company’s nominated adviser and the Company
agrees, on demand in writing given by BCF to the Company, to ratify and confirm
everything which BCF shall reasonably and lawfully do in the exercise of such
authority. BCF agrees to keep the Company informed as to any actions which it
proposes to take in its capacity as nominated adviser to the
Company.
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11.
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Termination
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11.1
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Termination - Either the
Company or BCF may terminate this Agreement on giving to the other parties
90 business days written notice, but in any event, such notice not to be
given prior to first eighteen month period of
Appointment.
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11.2
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BCF
may terminate this Agreement forthwith by giving written notice to the
Company in any one of the following events or circumstances, namely
if:
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11.2.1
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Failure to pay - the Company does not pay any sum
payable under this Agreement within 30 Business Days of the due date
having been given not less than 5 Business Days’ prior written notice of
any such failure to pay; or
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Page 10
of 17
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11.2.2
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Material breach of agreement -
either the Company or any of the Directors commits any breach of
any of the other terms and conditions of this Agreement, which breach (if
capable of remedy) remains unremedied within 10 Business Days’ service of
a notice specifying the breach and requiring it to be remedied;
or
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11.2.3
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Breach of applicable
regulations - any director of the Company commits a fraudulent act,
or the Company or any director of any member of the Group commits any
material breach of the Act, the AIM Rules, the Prospectus Regulations, the
FSMA, the FSA Rules or any other laws or regulations to which the Group
and/or the Directors are subject from time to time;
or
|
|
11.2.4
|
Administration - the
Company or any member of the Group becomes insolvent or unable or deemed
unable to pay its debts as and when they fall due or is it involved in any
administration, receivership, liquidation or insolvency proceedings or
makes an arrangement with any of its members or creditors except for the
purposes of and followed by reconstruction, amalgamation, reorganisation,
merger or consolidation on terms approved by BCF (such approval not to be
unreasonably withheld or delayed) before that step is taken;
or
|
|
11.2.5
|
Failure to comply with advice -
the Company fails to comply with advice given to the Company and/or
the Directors by BCF such that, in the reasonable opinion of BCF, such
failure could jeopardise or damage the reputation of
BCF.
|
|
11.3
|
Notification - The
Company shall notify BCF promptly upon becoming aware of the occurrence of
a Termination Event or any event or circumstance which may give rise to
the occurrence of a Termination
Event.
|
|
11.4
|
Upon
termination in accordance with sub-clause
11.2:
|
|
11.4.1
|
Rights and obligations -
subject to the remainder of this sub-clause 11.4, the rights and
obligations of the parties under this Agreement shall (save in respect of
clause 9 (Indemnity)
and sub-clause 13.4 (Confidentiality)
terminate and be of no further
effect;
|
|
11.4.2
|
BCF fee - the rights of
BCF in respect of its annual fee as referred to in sub-clause 4.1 (Annual Fee), will remain in full force and
effect to the extent that the Company shall be obliged to pay BCF its
annual fee on a pro rata basis up to the date of
termination;
|
|
11.4.3
|
Consultation - BCF shall
consult with the Company on its AIM status and the Company shall issue a
press announcement in such terms as BCF may reasonably
require;
|
|
11.4.4
|
Accrued rights - any
rights to which any of the parties to this Agreement may be entitled
before such termination shall remain in full force and effect;
and
|
|
11.4.5
|
Claims - the termination
shall not affect or prejudice any right to damages or other remedy which
the terminating party may have in respect of the Termination Event which
gave rise to the termination or any other right to damages or other remedy
which any party may have in respect of any breach of this Agreement which
existed at or before the date of
termination.
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Page 11
of 17
|
12.
|
Withholding
and grossing up
|
|
12.1
|
Deductions or withholdings -
All sums payable to BCF 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 relevant person shall
pay such additional amount as shall be required to ensure that the net
amount received by BCF will equal the full amount which would have been
received by it had no such deduction or withholding been
made.
|
|
12.2
|
Charge to tax - Save in
respect of any fees payable to BCF pursuant to clause 4, if the United
Kingdom Inland Revenue or any other tax authority brings into charge to
tax (or into any computation of income, profit or gains for the purposes
of any charge to tax) any sum payable to BCF under this Agreement, then
the person liable to make such payment shall pay such additional amount as
shall be required to ensure that after deduction of the tax so chargeable
there remains a sum equal to the amount that would otherwise be payable to
BCF under this Agreement (additional payments being made on demand of
BCF).
|
|
13.
|
General
|
|
13.1
|
Entire Agreement -
Subject as provided in Clause 13.5 below, this Agreement sets out
the entire agreement and understanding between the parties in respect of
the subject matter of this
Agreement.
|
|
13.2
|
Assignment - Rights
arising from or in connection with this Agreement may not be assigned,
save that BCF may assign the benefit of this Agreement to any holding
company or subsidiary of BCF (both terms as defined in section 736 of the
Act) or any subsidiary of such holding company. This Agreement shall be
binding upon and endure for the benefit of the respective personal
representatives, heirs, successors and assigns of the
parties.
|
|
13.3
|
Variation - No purported
variation of this Agreement shall be effective unless it is in writing and
signed by or on behalf of each of the
parties.
|
|
13.4
|
Confidentiality:
|
|
13.4.1
|
Confidential information -
Except as referred to in sub-clause 13.4.2, each party shall treat
as strictly confidential all information received or obtained as a result
of entering into or performing this Agreement which relates to the
provisions or subject matter of this Agreement, to any other party to this
Agreement or the negotiations relating to this
Agreement.
|
|
13.4.2
|
Disclosure permitted -
Any party may disclose information which would otherwise be
confidential if and to the
extent:
|
Page 12
of 17
|
|
(a)
|
it
is required to do so by law or any securities exchange or regulatory or
governmental body to which it is subject wherever
situated;
|
|
|
(b)
|
it
considers it necessary to disclose the information to its professional
advisers, solicitors, auditors and bankers provided that it does so on a
confidential basis;
|
|
|
(c)
|
the
information has come into the public domain through no fault of that
party; or
|
|
|
(d)
|
each
party to whom it relates has given its consent in
writing.
|
|
13.5
|
Default interest - If
any party defaults in the payment when due of any sum payable under this
Agreement (whether payable by agreement or by an order of a court or
otherwise), the liability of that party shall be increased to include
interest on that sum from the date when such payment was due until the
date of actual payment at a rate per annum of 3 per cent. above the base
rate from time to time of Barclays Bank plc. Such interest shall accrue
from day to day and shall be compounded
annually.
|
|
13.6
|
Notices
|
|
13.6.1
|
Notices in writing - Any
notice to be given under this Agreement shall be in writing (unless
otherwise stated) for the attention of the person stated below and served
personally or sent by pre-paid registered mail to the respective address
stated at the beginning of this Agreement or by facsimile as set out
below, or as the party required to receive such notice may otherwise from
time to time notify to the other party giving the
notice:
|
|
the
Company/any
Director
|
BCF
|
||
|
Facsimile:
|
▇▇▇▇
▇ ▇▇▇ ▇▇▇▇
|
▇▇▇
▇▇▇▇ 0747
|
|
|
Attn:
|
▇▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
Attn:
|
▇▇▇
▇▇▇▇
|
The BCF
qualified staff listed above shall be the Company’s primary corporate finance
contacts, at least one of whom is a “Qualified Executive” (as defined by the AIM
Rules). The staff allocated to the Company may change from time to
time.
|
13.6.2
|
Service - Any such
written notice shall be deemed to have been
served:
|
|
|
(a)
|
if
delivered, at the time of delivery;
|
|
|
(b)
|
if
posted, at 10.00 a.m. on the second Business Day after it was put into the
post; and
|
|
|
(c)
|
if
sent by facsimile, at the time of effective
transmission.
|
|
13.6.3
|
Proving service - In
proving such service by post it shall be sufficient to prove that the
letter containing the notice was properly addressed and delivered or put
into the post as a pre-paid registered letter. In proving effective
transmission by facsimile it shall be sufficient to prove that the entire
facsimile containing such notice was sent to the appropriate number and an
answerback was received at the end of the transmission in respect of the
number of pages comprised in the
notice.
|
Page 13
of 17
|
13.7
|
Severable Provisions -
Each of the provisions of this Agreement is severable and distinct
from the others and the invalidity, illegality or unenforceability of any
one or more of the provisions of this Agreement shall not affect the
continuation in force of the remaining provisions of this
Agreement.
|
|
13.8
|
Indulgence - No neglect,
indulgence, failure to exercise or delay of any party in exercising any
right or remedy under this Agreement shall constitute a waiver of such
right or remedy and no single or partial exercise of any right or remedy
under this Agreement shall preclude or restrict any other or future
exercise of such right or remedy or the exercise of any other right or
remedy. The rights and remedies contained in this Agreement are cumulative
and not exclusive of any rights or remedies provided by
law.
|
|
13.9
|
Waiver - Any waiver must
be in writing and may be given subject to any condition thought fit by the
grantor. Any waiver shall be effective only in the instance and for the
purpose for which it is given.
|
|
13.10
|
Indemnities - The
indemnities set out in this Agreement shall be in addition to and not be
construed to limit, affect or prejudice any other right or remedy
available to BCF or any Relevant Person and any such indemnities shall be
enforceable by it only to the extent that such enforcement is not
prohibited by any law or regulation to which the Company is
subject.
|
|
13.11
|
Third Party Rights - No
term of this Agreement is enforceable under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ by a person who is not a party to this Agreement other
than a Relevant Person.
|
|
13.12
|
Counterparts - This
Agreement may be executed in any number of counterparts and all the
counterparts when taken together will constitute one agreement. Each party
may enter into this Agreement by executing a
counterpart.
|
|
13.13
|
Governing law and jurisdiction
- This Agreement shall be governed by and construed in accordance
with English Law. Each of the parties irrevocably submits for all purposes
in connection with this Agreement to the exclusive jurisdiction of the
courts of England.
|
Executed by the parties on the
date specified at the beginning of this Agreement.
Page 14
of 17
APPENDIX
- Definitions and Interpretation
|
1.
|
Definitions
|
The
following definitions apply in this Agreement:
|
|
Act
|
means
the Companies ▇▇▇ ▇▇▇▇;
|
|
|
AIM
|
means
the, a AIM Market of the LSE;
|
|
|
AIM
Rules
|
means
the LSE’s rules relating to AIM as amended from time to
time;
|
|
|
Appointment
|
the
appointment of BCF as nominated adviser as of the date of this
Agreement;
|
|
|
Board
|
means
the board of directors of the Company from time to
time;
|
|
|
Broker
|
means
the broker (as defined by the AIM Rules) appointed by the Company from
time to time;
|
|
|
Business
Day
|
means
any day which is not a Saturday or Sunday or a bank or other public
holiday in England;
|
|
Combined
Code
|
The
principles of Good Governance and Code of Best Practice prepared by the
committee on Corporate Governance published in June 1998 and renewed in
July 2003;
|
|
|
Directors
|
means
the Existing Directors and any New
Director;
|
|
|
FSMA
|
means
the Financial Services and Markets ▇▇▇
▇▇▇▇;
|
|
FSMA
Financial Promotion
|
means
any communication to which section 21(1) of FSMA applies or would (but for
an exemption pursuant to section 21(2) or section 21(5) of FSMA)
apply;
|
|
|
FSA
|
means
Financial Services Authority
Limited;
|
|
|
FSA
Rules
|
means
the rules and regulations from time to time of the FSA or any successor
body including the applicable rules of the UK Financial Services
Authority’s “Conduct of Business
Sourcebook”;
|
|
|
Group
|
means
the group of which the Company and its subsidiary undertakings are
members;
|
Page 15
of 17
|
|
LSE
|
means
London Stock Exchange plc;
|
|
Nominated
Adviser
|
means
the nominated adviser to the Company for the purposes of the AIM
Rules;
|
|
|
New
Director
|
shall
have the meaning in clause 5.5.3;
|
|
Ordinary
Shares
|
means
fully paid ordinary shares of $0.0001 each in the capital of the
Company;
|
|
Relevant
Person
|
means
any person being (i) BCF, (ii) an undertaking which is a subsidiary
undertaking of BCF, (iii) a parent undertaking of either of BCF or (other
than BCF) a subsidiary undertaking of any such parent undertaking, or (iv)
a director, officer or employee of any such
person;
|
|
Prospectus
Regulations
|
The
Prospectus Regulations 2005 issued under Part VI of
FSMA
|
|
Termination
Event
|
means
one of the events or circumstances mentioned in sub-clause 11.2 or any
event or circumstance which, with the giving of notice, or lapse of any
period of time, or any determination of materiality, or the fulfilment of
any other requirement might become one of the events or circumstances
mentioned in that sub-clause.
|
|
2.
|
Interpretation
|
|
2.1
|
In
this Agreement, including this
Appendix:
|
|
2.1.1
|
headings
are for convenience only and do not affect the construction of this
Agreement;
|
|
2.1.2
|
references
to any statute or any statutory provisions shall be construed first as a
reference to such statute or statutory provision as in force at the date
of this Agreement and as respectively re-enacted or consolidated and
second as a reference to any statute or statutory provision of which such
statute or statutory provision is a re-enactment or
consolidation;
|
|
2.1.3
|
any
obligations arising from undertakings made or given under the provisions
of this Agreement which are incurred, made or given by two or more persons
shall, unless otherwise specified, be joint and
several;
|
|
2.1.4
|
references
to this Agreement or any other document shall, where appropriate, be
construed as references to this Agreement or such other document as
varied, supplemented, novated and/or replaced in any manner from time to
time;
|
Page 16
of 17
|
2.1.5
|
references
to Clauses are to the clauses of this Agreement and the Appendix to this
Agreement, unless otherwise stated;
and
|
|
2.1.6
|
words
denoting the singular include the plural and vice versa, words importing
gender include all genders and words denoting persons only include
corporations, unincorporated associations and
partnerships.
|
If the
above correctly sets out the agreement between us, please sign, date and return
the enclosed copy, whereupon it will constitute a binding agreement between
us.
Yours
faithfully
for and
on behalf of
BLOMFIELD
CORPORATE FINANCE LIMITED
|
/s/
▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Chief
Executive Officer
|
Signed by for and on behalf
of
and
the Directors
|
/s/
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
President
and CEO
|
Page 17
of 17