EXHIBIT 1.3
Dated 2000
------------------------
KERYX BIOPHARMACEUTICALS INC.
- and -
WEST LB PANMURE LIMITED
---------------------------------
NOMINATED ADVISER AGREEMENT
---------------------------------
ASHURST ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇-▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇-▇▇▇▇ ▇▇▇▇
MCJ/PXR/051W.00027
CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION........................................... 1
2. APPOINTMENT AND TERM..................................................... 3
3. AIM APPLICATION.......................................................... 4
4. DUTIES OF THE NOMINATED ADVISER FOLLOWING ADMISSION...................... 4
5. OBLIGATIONS OF THE COMPANY AND THE DIRECTORS............................. 5
6. PUBLICITY AND OTHER MATTERS.............................................. 6
7. DIRECTORS' DEALINGS...................................................... 7
8. FEES AND EXPENSES........................................................ 7
9. INDEMNITY................................................................ 8
10. TERMINATION.............................................................. 10
11. TIME OF THE ESSENCE...................................................... 11
12. WAIVER................................................................... 11
13. INVALIDITY............................................................... 12
14. NOTICES.................................................................. 12
15. COUNTERPARTS............................................................. 13
16. ENTIRE AGREEMENT......................................................... 13
17. MISCELLANEOUS............................................................ 14
18. GOVERNING LAW AND JURISDICTION........................................... 15
THIS AGREEMENT is made on 2000.
BETWEEN:-
(1) KERYX BIOPHARMACEUTICALS INC. (incorporated in Delaware, USA) whose
executive office is at Kiryat Mada 5, Har Hotzvim, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
(the "Company");
(2) WEST LB PANMURE (incorporated in England and Wales with registered no.
2002991) whose registered office is at New ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("Nominated Adviser").
RECITALS
(A) The Company is proposing to make an application to the London Stock Exchange
for the admission to AIM of the Existing Shares and the New Shares.
(B) On and subject to the terms of this agreement, the Nominated Adviser has
agreed to act as nominated adviser to the Company for the purposes of the
AIM Rules in connection with the AIM Application and following Admission.
THE PARTIES AGREE AS FOLLOWS:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this agreement the following words and expressions shall have the
following meanings, unless the context otherwise requires:-
"Admission" means admission of the Existing Shares and the New Shares to
trading on AIM becoming effective as provided in paragraph 16.6 of the AIM
Rules;
"Admission Document" means the document proposed to be published in
connection with the AIM Application as required by paragraph 16.10 of the
AIM Rules and constituting a prospectus for the purposes of the POS
Regulations;
"AIM" means the Alternative Investment Market of the London Stock Exchange;
"AIM Application" means the application to be made for the Existing Shares
and the New Shares to be admitted to trading on AIM;
"AIM Rules" means the AIM admission rules and AIM trading rules set out in
chapters 16 and 17 of the Rules of the London Stock Exchange as amended
from time to time and those other of its rules which govern the admission
to trading on and the regulation of AIM;
"Appointment" means the appointment of the Nominated Adviser as the
Company's nominated adviser for the purposes of the AIM Rules pursuant to
this agreement;
-1-
"Business Day" means a day (excluding Saturdays) on which banks are open
for business in the City of London;
"Directors" means the directors and officers of the Company;
"Existing Shares" means the Shares in issue on the date of this document;
"Group" means the Company and its subsidiary and each of them as the
context admits and "Group Company" means any one of them;
"IPO" means the initial public offering of the Shares;
"IPO Agreement" means the underwriting agreement dated [ 2000] made between
the Company, the Directors and the Nominated Adviser and ▇▇▇▇ Capital
Partners, Inc. in connection with the IPO and more particularly described
in the Admission Document;
"London Stock Exchange" means London Stock Exchange Limited;
"New Shares" means the new Shares which are the subject of the IPO;
"POS Regulations" means the Public Offers of Securities Regulations 1995;
"Related Person" means in relation to any party its holding companies and
subsidiaries and any subsidiary undertaking of any such holding company;
"Relevant Person" means the Nominated Adviser and any subsidiary or holding
company of the Nominated Adviser and any subsidiary undertaking of any such
holding company and any of their respective shareholders, directors,
officers, employees, agents and advisers;
"Shares" means shares of common stock of par value $0.001 each in the
capital of the Company;
"VAT" means value added tax.
1.2 In this agreement unless otherwise specified, reference to:-
(a) a "subsidiary" or "holding company" is to be construed in
accordance with section 736 of the Act and an "associated company"
is to be construed in accordance with section 416 et seq of the
Income and Corporation Taxes ▇▇▇ ▇▇▇▇;
(b) a document in the "agreed terms" is a reference to that document
in the form approved and for the purposes of identification signed
by or on behalf of each party;
-2-
(c) a party means a party to this agreement and includes the
successors in title to substantially the whole of its undertaking
and, in the case of an individual, to his or her estate and
personal representatives;
(d) a person includes any person, individual, company, firm,
corporation, government, state or agency of a state or any
undertaking (whether or not having separate legal personality and
irrespective of the jurisdiction in or under the law of which it
was incorporated or exists);
(e) a statute or statutory instrument or any of their provisions is to
be construed as a reference to that statute or statutory
instrument or such provision as the same may have been amended or
re-enacted;
(f) "recitals", "clauses", "paragraphs" or "schedules" are to
recitals, clauses and paragraphs of and schedules to this
agreement. The schedules form part of the operative provisions of
this agreement and references to this agreement shall, unless the
context otherwise requires, include references to the recitals and
the schedules;
(g) Writing shall include typewriting, printing, lithography,
photography and other modes of representing words in a legible
form (other than writing on an electronic or visual display
screen) or other writing in non-transitory form;
(h) words denoting the singular shall include the plural and vice
versa and words denoting any gender shall include all genders; and
(i) the time of day is reference to time in London, England.
1.3 The index to and the headings in this agreement are for information only
and are to be ignored in construing the same.
2. APPOINTMENT AND TERM
2.1 The Company hereby appoints the Nominated Adviser as its nominated adviser
for the purposes of the AIM Rules on the terms set out in this agreement
and the Nominated Adviser hereby accepts such appointment. The Company
hereby confirms that the Appointment confers on the Nominated Adviser all
powers, authorities and discretions on behalf of the Company which are
reasonably necessary for, or reasonably incidental to, its role as the
Company's nominated adviser and the Company hereby agrees to ratify and
confirm everything which the Nominated Adviser may lawfully do in that
capacity and pursuant to those powers, authorities and discretions.
2.2 The Nominated Adviser confirms to the Company that it is approved by the
London Stock Exchange to act as Nominated Adviser to the Company for the
purposes of the AIM Rules. The Nominated Adviser undertakes to advise the
Company immediately upon the
-3-
Nominated Adviser being notified by the London Stock Exchange that such
approval has been withdrawn.
2.3 The Appointment shall commence on the date hereof and, subject to clause
2.4 and clause 10, the appointment shall be for an initial period of 12
months and thereafter unless and until terminated by either the Company or
the Nominated Adviser giving to the other not less than three months'
notice.
2.4 In the event that the IPO Agreement is terminated in accordance with its
terms or in the event that Admission has not taken place by 2.30 p.m. on
2000 (or such later time and/or date as the Company and the Nominated
Adviser may agree) this agreement shall ipso facto cease and determine and
except as regards any breach of any provision of this agreement which has
occurred prior to such termination, no party shall have any claim against
any other party for any costs, damages, compensation or otherwise hereunder
save that the provisions of clauses 1, 6, 9, 11, 12, 13, 14, 15, 16, 17 and
18 shall continue to apply in accordance with their respective terms.
3. AIM APPLICATION
The Company shall, through the Nominated Adviser, make application to the
London Stock Exchange for the admission of the Existing Shares and the New
Shares to trading on AIM. The Company undertakes to the Nominated Adviser
that it will use all reasonable endeavours to procure that Admission takes
place by not later than 2.30 p.m. on 2000 and, for such purpose, the
Company shall supply or procure the supply of all such information and
documentation, give or procure the giving of all such undertakings, execute
all such documents, pay all such fees and generally do or procure to be
done all such things, in each case as may be necessary, or properly
required by the London Stock Exchange, in connection therewith.
4. DUTIES OF THE NOMINATED ADVISER FOLLOWING ADMISSION
The Nominated Adviser's services as nominated adviser will comprise the
following:-
(a) advising, guiding and consulting with the Directors and the Company as
to their respective responsibilities and obligations so as to
facilitate their compliance, on an ongoing basis, with the AIM Rules
insofar as they relate to the Company and its directors;
(b) providing to the London Stock Exchange such information in relation to
the Company in such form and within such time limits as the London
Stock Exchange may require (provided that the Nominated Adviser has
been given the requisite information by the Directors in accordance
with the provisions of this agreement);
(c) complying with the AIM Rules to the extent that they affect the
Nominated Adviser in its capacity as the Company's nominated adviser
and performing all of the duties
-4-
and obligations imposed upon the Company's nominated adviser by the
AIM Rules; and
(d) providing guidance to the Company and the Directors in respect of
making press releases and other public and/or shareholder
communications by the Company.
5. OBLIGATIONS OF THE COMPANY AND THE DIRECTORS
5.1 The Company undertakes that it will for so long as the Nominated Adviser
remains the nominated adviser to the Company:-
(a) except with the prior written consent of the Nominated Adviser, comply
in all material respects with all undertakings contained in the
Admission Document;
(b) consult with the Nominated Adviser prior to entering into or procuring
or permitting any Group Company to enter into (i) any material
commitment or material agreement or material arrangement or (ii)
knowingly doing or permitting to be done any other act or thing which
in any such case constitutes a significant change to the business of
the Company as described in the Admission Document;
(c) keep the Nominated Adviser fully informed in respect of all material
changes or material developments concerning or affecting the financial
or trading position or prospects of the Company;
(d) execute and procure the execution of all such documents and do or
procure the doing of all such things as (in each case) may be
considered by the Nominated Adviser (acting reasonably) as necessary
to comply with the requirements of the London Stock Exchange for the
purposes of or in connection with its role as nominated adviser to the
Company;
(e) for so long as the Company has securities admitted to AIM, comply with
and abide by (on a timely basis) all relevant laws and regulations
including without limitation the AIM Rules, the Financial Services ▇▇▇
▇▇▇▇, the POS Regulations and the Criminal Justice ▇▇▇ ▇▇▇▇;
(f) provide to the Nominated Adviser without delay all information which
the Company is obliged in accordance with the AIM Rules to notify to
the Company Announcements Office of the London Stock Exchange;
(g) notify the Nominated Adviser in advance of and discuss with the
Nominated Adviser any event or matter the occurrence or existence of
which may give rise directly or indirectly to an obligation under the
AIM Rules for a notification to be made to the Company Announcements
Office (including, without prejudice to the generality of the
foregoing, any contractual or other commitment or agreement which may
require such notification, or the issue or creation of any shares in
the capital of the Company);
-5-
(h) notify the Nominated Adviser of and consult with the Nominated Adviser
in advance concerning the content and timing and manner of release or
despatch of any circular, statement, announcement or document released
or made available to the public or to shareholders of the Company or
otherwise or proposed to be released or made so available which
relates to the Company's results, dividends or prospects, or to any
acquisition, disposal, re- organisation, takeover, management
development (including the appointment or removal of directors of the
Company whether executive or non-executive), material change between
the Company's actual trading performance or financial position and any
profit forecast, estimate or projection made public, or any other
significant matter (similar or not to the foregoing) and which the
Company proposes to publish;
(i) promptly forward to the Nominated Adviser proofs in final form of any
accounts or of any public statement or document or information which
the Company or any Group Company proposes to make or publish;
(j) inform the Nominated Adviser forthwith upon becoming aware of any
breach by the Company and/or any of its directors of the AIM Rules and
will request the advice and guidance of the Nominated Adviser in
relation to all matters relevant to the Company's compliance with the
AIM Rules;
(k) forward to the Nominated Adviser for discussion and approval and prior
to the execution thereof, copies of all prospective agreements and/or
arrangements which fall within Rules 16.24 and 16.25 of the AIM Rules
(including variations or amendments thereto or termination thereof) to
be entered into between the Company and/or its subsidiaries on the one
hand and any related party (as such term is defined in the AIM Rules)
on the other.
6. PUBLICITY AND OTHER MATTERS
6.1 The Company undertakes to the Nominated Adviser that the Company will not
publish or arrange the publication of any document which refers to the
Nominated Adviser or any Relevant Person without the prior written consent
of the Nominated Adviser save where such publication is required by law or
regulation.
6.2 Neither the Nominated Adviser nor any Relevant Person will have any duty to
disclose to the Company and the Directors any information which comes to
their notice in the course of carrying on any other business or as a result
of, or in connection with, the provision of services to other persons. The
Company and the Directors acknowledge and agree that the Nominated Adviser
and Relevant Persons may be prohibited from disclosing, or it may be
inappropriate for them to disclose, information to the Company and the
Directors even if it relates to the Company and/or the Directors.
6.3 The Company acknowledges that, when the Nominated Adviser gives the Company
advice or provides other services in accordance with this agreement, the
Nominated Adviser or any
-6-
Relevant Person or another client may have an interest, relationship or
arrangement that is material in relation to the transaction or investment
concerned. Where the Nominated Adviser 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.
6.4 Any advice given by the Nominated Adviser under the Appointment will be
confidential to the Company and solely for the Company's benefit. Such
advice may not be relied on by the Company for any purpose other than for
that which it is given and may not be disclosed to any third party (other
than by the Company pursuant to a legal or regulatory obligation to
disclose it) nor used or relied upon by any third party without the
Nominated Adviser's prior written consent.
6.5 The Company undertakes that no information will be supplied to the
Nominated Adviser in breach of any duty of confidentiality (whether
contractual or arising at common law) owed by the Company to any third
party.
7. DIRECTORS' DEALINGS
The Company undertakes to the Nominated Adviser that the Company shall
adopt, maintain and enforce a code for dealings in the securities of the
Company in terms agreed with the Nominated Adviser but in any event no less
exacting than the model code for dealings in the securities of a company
whose securities have been admitted to trading on AIM as set out in
appendix 12 to the Rules of the London Stock Exchange as amended from time
to time.
8. FEES AND EXPENSES
8.1 The Company shall reimburse the Nominated Adviser the amount of any
reasonably and properly incurred or paid expenses incurred in connection
with, and during the course of, the Appointment. Such expenses shall be
paid by the Company within 15 Business Days of production of an appropriate
invoice.
8.2 Where pursuant to clause 8.1 or clause 9, a sum (a "Relevant Sum") is to be
paid or reimbursed to the Nominated Adviser in respect of any cost or
expense paid or incurred by the Nominated Adviser and that cost or expense
includes an amount in respect of VAT (the "VAT Element"), the Company shall
pay an amount to the Nominated Adviser in respect of the VAT Element that
shall be determined as follows:-
(a) if the Relevant Sum constitutes for VAT purposes payment to the
Nominated Adviser for the supply by it of goods or services to the
Company, a sum equal to the proportion of the VAT Element that the
Nominated Adviser certifies as representing irrecoverable input tax in
the hands of the Nominated Adviser, that certificate to be conclusive
save in the case of manifest error; and
-7-
(b) if the Relevant Sum constitutes for VAT purposes the reimbursement of
a cost or expense incurred by the Nominated Adviser as agent for the
Company, a sum equal to the whole of the VAT Element,
and where a sum equal to the VAT Element has been reimbursed to the
Nominated Adviser under clause 8.2(b) above, the Nominated Adviser shall
provide the Company with a proper tax invoice in respect of the supply to
which the Relevant Sum relates, that is to say a tax invoice naming the
Company as the recipient of the supply and issued either by the Nominated
Adviser or, if the Nominated Adviser has treated the relevant cost or
expense as a disbursement for VAT purposes, by the person making the
supply.
8.3 If the performance by the Nominated Adviser of any of its obligations under
this agreement shall represent for VAT purposes the making by the Nominated
Adviser of any supply of goods or services to the Company that is taxable
at a positive rate, the Company shall pay to the Nominated Adviser, in
addition to the amounts otherwise payable by the Company to the Nominated
Adviser pursuant to this agreement (including, without limitation, amounts
payable by the Company to the Nominated Adviser pursuant to clause 8.1), an
amount equal to the VAT chargeable on any such supply, that payment to be
made within seven days of the Nominated Adviser requesting the same and
against production by the Nominated Adviser of a proper tax invoice.
9. INDEMNITY
9.1 No claim shall be made against any Relevant Person by the Company, the
Directors or any of them to recover any damage, loss, cost or expense which
the Company or any of its shareholders, directors, officers, agents or
employees or any other person may suffer or incur or claim to have suffered
or incurred by reason of or arising out of the carrying out or performance
by the Nominated Adviser, or on its behalf, of any obligations or services
(or exercise of rights) hereunder or otherwise in connection with the
Appointment or its role as the Company's nominated adviser for the purposes
of the AIM Rules unless and to the extent that such loss or damage results
from the negligence, wilful default or fraud of the Nominated Adviser.
9.2 The Company undertakes to and with the Nominated Adviser (for itself and,
on the basis that it shall enjoy an absolute discretion as to the
enforcement of any claim under this clause 9.2, as trustee for each and
every Relevant Person) to the fullest extent permitted by law to indemnify
each Relevant Person and hold each Relevant Person fully and effectively
harmless from and against all claims, actions, demands, liabilities,
proceedings or judgments made, brought, threatened or established against
any Relevant Person (whether or not successful, compromised or settled) in
any jurisdiction by any subscriber, allottee, acceptor, buyer, placee or
underwriter of any of the New Shares or any subsequent buyer or transferee
thereof or by any governmental agency or regulatory body or any other
person whatsoever and against all liabilities, losses, charges, costs,
expenses and taxes which any Relevant Person may pay, suffer or incur
(including, but not limited to, those paid, suffered or incurred in
investigating, seeking advice as to defending or disputing any claim,
action,
-8-
liability, demand or proceedings and/or in establishing its right to be
indemnified pursuant to this clause 9.2 and/or in seeking advice as to any
claim, action, liability, demand or proceedings aforesaid or in any way
related to or in connection with this indemnity or the Appointment or the
Nominated Adviser's role as the Company's nominated adviser pursuant to the
AIM Rules) and which in any such case is occasioned by or results from or
is attributable to or would not have arisen but for (in each case whether
directly or indirectly):-
(a) any breach, or alleged breach, by the Company of any of its
obligations under this agreement or of any of the warranties set out
in the IPO Agreement; or
(b) the approval or issue by any Relevant Person of any press release or
of any investment advertisement (as defined in section 57(2) of the
Financial Services Act 1986) issued by or on behalf of the Company; or
(c) the Admission Document not containing, or being alleged not to
contain, all the information required by law or regulation (including,
for the avoidance of doubt, the POS Regulations and the AIM Rules) to
be contained therein or any statement contained in the Admission
Document being, or being alleged to be, untrue, inaccurate, misleading
or defamatory in any respect or not based on reasonable grounds or any
misrepresentation or alleged misrepresentation by whomsoever being
contained or being alleged to be contained in the Admission Document;
or
(d) any of the transactions expressly contemplated by this agreement; or
(e) the performance by the Nominated Adviser, or on its behalf, of any of
its obligations or services (or exercise of rights) under this
agreement or otherwise in connection with the Appointment or its role
as the Company's nominated adviser for the purposes of the AIM Rules
or its role in the preparation and distribution of the Admission
Document,
unless and to the extent that the same result from the negligence, wilful
default or fraud of the Nominated Adviser provided that a Relevant Person
shall not be entitled to be indemnified pursuant to this clause 9.2 in
respect of any liabilities, losses, costs, charges, expenses or taxes
suffered or incurred by such person as a result of it having been required
to subscribe or purchase New Shares under the IPO Agreement unless such
liabilities, losses, costs, charges, expenses and taxes are occasioned by,
or result from, or are attributable to or would not have arisen but for (in
each case directly or indirectly) any breach by the Company of any of its
obligations under this agreement.
9.3 The Nominated Adviser shall, as soon as practicable after becoming aware of
any claim made or threatened against any Relevant Person in respect of
which indemnity may be sought pursuant to clause 9.2, notify the Company in
writing thereof and enter into and thereafter maintain consultation with
the Company on all material aspects of such claim and, subject to the
Nominated Adviser and any other Relevant Person subject to the claim being
fully indemnified and secured by the Company to the reasonable satisfaction
of the Nominated Adviser against all costs, damages and expenses thereby
incurred, the
-9-
Nominated Adviser shall, at the request of the Company, take such action as
the Company may reasonably require to avoid, dispute, resist, appeal,
compromise or defend any such claim unless in the reasonable opinion of the
Nominated Adviser the repute or standing of the Nominated Adviser or any
other Relevant Person would thereby be adversely affected.
10. TERMINATION
10.1 The Nominated Adviser shall be entitled to terminate this agreement
forthwith if:-
(a) the Nominated Adviser shall become aware of:-
(i) any breach by the Company or any of the Directors of any of their
respective obligations under this agreement or the AIM Rules or
the code for dealings adopted pursuant to clause 7 or the POS
Regulations or the Financial Services ▇▇▇ ▇▇▇▇ or any other laws
or regulations to which the Company and/or its directors are
subject from time to time and if the breach is capable of remedy,
failing to remedy the breach within 14 days; or
(ii) any fraudulent act by such persons; or
(b) any warranty or representation given in the IPO Agreement is found to
be untrue, inaccurate or misleading in any material respect or any
other term of the IPO Agreement is breached in any material respect by
the Company or the Directors; or
(c) an administration order is made in relation to the Company or a
receiver is appointed over or an encumbrancer takes possession of or
sells an asset of the Company; or
(d) the Company makes an arrangement or composition with its creditors
generally or makes an application to a court of competent jurisdiction
for protection from its creditors generally; or
(e) the Company passes a resolution for its winding up, a court of
competent jurisdiction makes an order for the Company's winding up or
a petition is presented for the Company's winding up which is not
dismissed within seven days (other than, in each case, for the
purposes of solvent amalgamation or reconstruction and in such manner
that the entity resulting from the amalgamation or reconstruction
effectively agrees to be bound by or assume the Company's obligations
under this agreement); or
(f) any director of the Company or any person connected with any director
of the Company (as such term is defined in section 346 of the Act)
breaches the terms of any orderly market undertaking and/or lock-in
arrangement entered into with the Nominated Adviser whether such
undertakings or arrangements constitute terms of the IPO Agreement or
a stand-alone agreement.
10.2 In the event that this agreement is terminated pursuant to clauses 10.1 or
10.4, except in relation to:-
-10-
(a) any breach of any provision of this agreement prior thereto; and
(b) any right to damages or other remedy which the terminating party may
have in respect of the event or circumstance which gave rise to the
termination; and
(c) the rights of the Nominated Adviser in respect of its fees and
expenses as set out in clause 8, which will remain in full force and
effect to the extent that the Company shall be obliged to pay to the
Nominated Adviser such fees and expenses on a pro rata basis up to the
effective date of termination of its appointment to the extent that
the same have not already been paid in accordance with clause 8 (and
the Nominated Adviser shall rebate to the Company any amount of
overpayment),
no party shall have any claim against any other for any costs, damages,
compensation or otherwise hereunder save that the provisions of clauses 1,
6, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 shall continue to apply in
accordance with their respective terms.
10.3 The Company and/or the Directors shall notify the Nominated Adviser
promptly upon becoming aware that any of the events or circumstances
referred to in clause 10.2 has occurred.
10.4 The Company shall be entitled to terminate this agreement forthwith if the
Nominated Adviser shall be in material breach of its obligations hereunder
or under the IPO Agreement or if the Nominated Adviser shall cease to be
registered as a nominated adviser for the purpose of the London Stock
Exchange.
11. Time of the Essence
Save as otherwise expressly provided, time is of the essence to every
obligation of this agreement and any agreement amending or substituting its
terms.
12. Waiver
12.1 A waiver of any term, provision or condition of, or consent granted under,
this agreement shall be effective only if given in writing and signed by
the waiving or consenting party and then only in the instance and for the
purpose for which it is given.
12.2 No failure or delay on the part of any party in exercising any right, power
or privilege under this agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or privilege
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
12.3 No breach of any provision of this agreement shall be waived or discharged
except with the express written consent of the parties.
-11-
12.4 The rights and remedies herein provided are cumulative with and not
exclusive of any rights or remedies provided by law.
13. Invalidity
If any provision of this agreement is or becomes (whether or not pursuant
to any judgment or otherwise) invalid, illegal or unenforceable in any
respect under the law of any jurisdiction:-
13.1 the validity, legality and enforceability under the law of that
jurisdiction of any other provision; and
13.2 the validity, legality and enforceability under the law of any other
jurisdiction of that or any other provision,
shall not be affected or impaired in any way thereby.
14. NOTICES
14.1 Any notice, demand or other communication given or made under or in
connection with the matters contemplated by this agreement shall be in
writing and shall be delivered personally or sent by fax or prepaid first
class post (air mail if posted to or from a place outside the United
Kingdom):-
in the case of the Company and the Directors to:-
Keryx Biopharmaceuticals, Inc.
Kiryat Mada 5
Har Hotzvim
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Fax: 00 972 2537 5098
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
in the case of the Nominated Adviser to:-
WestLB Panmure Limited
New ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: 0207 920 9305
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-12-
and shall be deemed to have been duly given or made as follows:-
(a) if personally delivered, upon delivery at the address of the relevant
party;
(b) if sent by first class post, two Business Days after the date of posting;
(c) if sent by air mail, five Business Days after the date of posting; and
(d) if sent by fax, when despatched provided always that a fax transmission
report provides evidence of the successful transmission of the same;
provided that if, in accordance with the above provision, any such notice,
demand or other communication would otherwise be deemed to be given or made
after 5.00 p.m. such notice, demand or other communication shall be deemed
to be given or made at 9.00 a.m. on the next Business Day.
14.2 A party may notify the other parties to this agreement of a change to its
name, relevant addressee, address or fax number for the purposes of clause
14.1 provided that such notification shall only be effective on:-
(a) the date specified in the notification as the date on which the change
is to take place; or
(b) if no date is specified or the date specified is less than five
Business Days after the date on which the notice is given, the date
falling five Business Days after notice of any such change has been
given.
15. COUNTERPARTS
This agreement may be executed in any number of counterparts which together
shall constitute one agreement. Any party may enter into this agreement by
executing a counterpart and this agreement shall not take effect until it
has been executed by all parties.
16. ENTIRE AGREEMENT
16.1 Each party on behalf of itself and as agent for each of its Related Persons
acknowledges and agrees with the other party (each such party acting on
behalf of itself and as agent for each of its Related Persons) that:-
(a) this agreement together with the Nominated Broker Agreement between
the Nominated Advisor and the Company of even date herewith and any
other documents referred to in this agreement (together the
"Transaction Documents") constitutes the entire and only agreement
between the parties and their respective Related Persons relating to
the subject matter of the Transaction Documents; and
-13-
(b) neither it nor any of its Related Persons have been induced to enter
into any Transaction Document in reliance upon, nor have they been
given, any warranty, representation, statement, assurance, covenant,
agreement, undertaking, indemnity or commitment of any nature
whatsoever other than as are expressly set out in the Transaction
Documents and, to the extent that any of them have been, it (acting on
behalf of itself and as agent on behalf of each of its Related
Persons) unconditionally and irrevocably waives any claims, rights or
remedies which any of them might otherwise have had in relation
thereto;
PROVIDED THAT the provisions of this clause 16.1 shall not exclude any
liability which any of the parties or, where appropriate, their Related
Persons would otherwise have to any other party or, where appropriate, to
any other party's Related Persons or any right which any of them may have
to rescind this agreement in respect of any statements made fraudulently by
any of them prior to the execution of this agreement or any rights which
any of them may have in respect of fraudulent concealment by any of them.
16.2 This agreement may be varied only by a document signed by both of the
parties.
17. MISCELLANEOUS
17.1 Nominated Adviser not providing legal advice
The Company acknowledges that the Nominated Adviser is not responsible for
providing any legal advice to the Company in respect of any applicable laws
and regulations and the Company undertakes to obtain appropriate legal
advice in respect of these matters.
17.2 Nominated Adviser's services subject to SFA Rules
The Company acknowledges that all services provided by the Nominated
Adviser pursuant to this agreement are subject to the rules and regulations
from time to time of The Securities and Futures Authority Limited (or any
replacement body which takes over its functions) (the "SFA Rules") and to
the applicable rules and regulations for the time being of the Bank of
England and the Securities and Investments Board. In providing its
services, the Nominated Adviser is proposing to treat the Company as a
"non-private customer" within the meaning of the SFA Rules and, as such,
the Company will not obtain the benefit of those SFA Rules designed
exclusively for the protection of private customers.
17.3 Assignment
(a) This agreement shall be binding upon and inure for the benefit of the
successors in title of the parties but, except as set out in clause
17.3(b), shall not be assignable by any party without the prior
written consent of the other;
(b) The Nominated Adviser may assign the benefit of this agreement to any
undertaking which is, whether on or at any time after the date hereof,
its subsidiary undertaking or its parent undertaking.
-14-
18. GOVERNING LAW AND JURISDICTION
18.1 Any dispute, controversy or claim of whatever nature arising out of or
relating to this agreement or breach of this agreement shall be governed by
and this agreement shall be construed in all respects in accordance with
English law.
18.2 The Company and the Nominated Adviser each irrevocably agree that the
courts in England are to have exclusive jurisdiction to hear and decide any
action or proceedings and/or to settle any disputes which do or might arise
out of or in connection with this agreement and for the purpose of
enforcement of any judgment against any of their respective assets
("Proceedings"). Nothing in this agreement shall (or shall be construed so
as to) limit the right of either party to take Proceedings against the
other in the courts of any country in which either party has assets to
enforce a judgment obtained in England.
18.3 The parties agree that service of any claim form, notice or other document
for the purpose of any proceedings begun in England shall be duly served
upon it if delivered or sent by registered post, in the case of:-
(a) any of the Company to ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (marked for the attention of ▇▇▇ ▇▇▇▇▇▇▇▇); and
(b) the Nominated Adviser to its address as set out on page 1 hereof
(marked for the attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇),
or such other address in England and/or Wales as the Company (on behalf of
the Company or the Directors) shall notify the Nominated Adviser in writing
or vice versa from time to time. Nothing contained in this clause 18.3
affects the right to serve process in another manner permitted by law.
IN WITNESS whereof this agreement has been executed on the date first above
written.
-15-
Signed by )
for and on behalf of )
KERYX BIOPHARMACEUTICALS )
INC. )
Signed by )
for and on behalf of )
WESTLB PANMURE LIMITED )
-16-