Exhibit
10.12
DATED
OCTOBER
4, 2022
deed
of amendment and restatement
between
Intelligent
Fingerprinting Limited (as Borrower)
Xxxxxxx
Xxxx XXX (as Lenders)
and
GBS,
Inc. (as Guarantor)
relating
to BRIDGE FACILITY AGREEMENT dated 26 October 2021
CONTENTS
CLAUSE
1. |
Definitions
and interpretation |
ii |
2. |
Restatement
of the Original Facility Agreement |
iii |
3. |
Existing
security |
iii |
4. |
Continuity
and further assurance |
iv |
5. |
Miscellaneous |
iv |
6. |
Third
party rights |
v |
7. |
Governing
law and jurisdiction |
v |
SCHEDULE
Schedule
1 |
Form
of amended and restated facility agreement |
vi |
Execution
version
This
deed is dated October 4, 2022
Parties
(1) | INTELLIGENT
FINGERPRINTING LIMITED, (registered number 06409298) a company incorporated in England
and Wales whose registered office is at 14-17 Evolution Business Xxxx Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx, XX00 0XX (“Borrower”); |
(2) | Xxxxxxx
Xxxx III of X.X. Xxx 0000 Xxxxxx, Xxxxx 00000, (“Lenders”); and |
(3) | GBS
Inc., of 000 Xxxxxxxxx Xxx., Xxxxx 000, Xxx Xxxx, XX 00000, a Delaware corporation (“Guarantor”). |
BACKGROUND
(A) | The
Borrower and the Lenders entered into a facility agreement dated 26 October 2021 pursuant
to which the Lenders agreed to make available to the Borrower a secured sterling term loan
facility in an amount of five thousand three hundred and ten pounds sterling (£5,310)
in aggregate (the “Original Facility Agreement”). |
(B) | The
Borrower and the Lenders have agreed to amend and restate the Original Facility Agreement
as set out in this deed. |
(C) | The
Guarantor has agreed to guarantee the obligations of the Borrower under the Restated Facility
Agreement, and has therefore been added as a party to that agreement. |
Agreed
terms
1. | Definitions
and interpretation |
1.1 | Terms
defined in the Restated Facility Agreement shall have the same meaning when used in this
deed, unless defined below. In addition, the definitions below apply in this deed. |
| Closing
has the meaning given in the Share Exchange Agreement
entered into between the Borrower, the RFA Lenders and the Guarantor, among others, on or
around the date of this deed in respect of the sale of the entire issued share capital
of the Borrower. |
| Original
Facility Agreement: has the meaning given in recital (A). |
|
Restated
Facility Agreement: the Original Facility Agreement as amended and restated by this deed in the form set out in Schedule 1. |
| Secured
Liabilities: has the meaning set out in the Security Document. |
1.2 | The
rules of interpretation of the Original Facility Agreement shall apply to this deed as if
set out in this deed save that references in the Original Facility Agreement to “this
agreement” shall be construed as references to this deed. |
| (a) | any
reference to a “clause” or “Schedule” is, unless the context otherwise
requires, a reference to a clause or Schedule of this deed; and |
| (b) | clause
and Schedule headings are for ease of reference only. |
1.4 | This
deed is a designated Finance Document. |
1.5 | The
Schedule forms part of this deed and shall have effect as of set out in full in the body
of this deed. Any reference to this deed includes the Schedule. |
2. | Restatement
of the Original Facility Agreement |
| |
2.1 | With
effect on and from the date of Closing (the “Restatement Date”), the Original
Facility Agreement shall be amended and restated in the form set out in Schedule 1 so that
the rights and obligations of the parties to the Restated Facility Agreement shall, on and
from the Restatement Date, be governed by and construed in accordance with the provisions
of the Restated Facility Agreement, provided that, subject to clause 2.2, such amendment
and restatement shall be without prejudice to all and any rights and obligations which have
accrued on or prior to the Restatement Date. |
2.2 | In
consideration for the Borrower and the Guarantor having entered into this deed, with effect
on and from the Restatement Date, the Lender hereby waives any Event of Default that has
occurred prior to the Restatement Date as a result of the Borrower’s breach of clause
5.1 of the Original Facility Agreement. |
3.1 | The
Borrower confirms that the Security Document: |
| (a) | ranks
as a continuing security for the payment and discharge of the Secured Liabilities; and |
| (b) | shall
continue in full force and effect in all respects and shall secure all obligations under
the Restated Facility Agreement, and the Security Document and this deed shall be read and
construed together. |
3.2 | For
the avoidance of doubt, clause 8.2 of the Security Document provides that the Lenders cannot
commence enforcement action under the Security Document without the prior written consent
of the RFA Lenders. |
3.3 | The
Lenders acknowledge, for the benefit of the Borrower and (notwithstanding clause 7 (Third
party rights) hereof) each of the RFA Lenders, that the Liabilities evidenced by the
RFA Loan as amended and restated pursuant to an amendment and restatement deed dated on or
around the date hereof (the “RFA Amendment and Restatement Deed”) continue
to be secured by the debenture dated 24 September 2021 and entered into by the Borrower and
the RFA Lenders, and all Secured Liabilities (as defined therein), including as amended pursuant
to the RFA Amendment and Restatement Deed, continue to rank in priority to the Secured Liabilities
as defined in the Security Document. The Lenders confirm that they have received a copy of
the RFA Amendment and Restatement Deed. |
4. | Further
acknowledgements |
| |
4.1 | The
parties hereto agree that as of 30 September 2022, the outstanding amount of the Loan (including
the principal and accrued interest (including accrued default interest)), is £6,144.31. |
5. | Continuity
and further assurance |
| |
5.1 | The
provisions of the Finance Documents shall, save as amended in this deed, continue in full
force and effect. |
5.2 | The
Borrower shall, at the request of the Lenders and at its own expense, do all such acts and
things necessary or desirable to give effect to the provisions of this deed. |
6.1 | The
provisions of clauses 12 (remedies, waivers, amendments and consents), 13 (severance) and
17 (notices) of the Restated Facility Agreement shall apply to this deed as if set out in
full and so that references in those provisions to “this deed” shall be construed
as references to this deed and references to “party” or “parties”
shall be construed as references to parties to this deed. |
6.2 | This
deed may be executed in any number of counterparts, each of which when executed shall constitute
a duplicate original, but all the counterparts together shall constitute one agreement. |
7.1 | Except
as expressly provided elsewhere in this deed, a person who is not a party to this deed shall
not have any rights under the Contracts (Rights of Third Parties) Xxx 0000 to enforce, or
enjoy the benefit of, any term of this deed. |
8. | Governing
law and jurisdiction |
| |
8.1 | This
deed and any dispute or claim (including non-contractual disputes or claims) arising out
of or in connection with it or its subject matter or formation shall be governed by and construed
in accordance with the law of England and Wales. |
8.2 | Each
party irrevocably agrees that, subject as provided below, the courts of England and Wales
shall have exclusive jurisdiction over any dispute or claim (including non-contractual disputes
or claims) that arises out of or in connection with this deed or its subject matter or formation.
Nothing in this clause shall limit the right of the Lenders to take proceedings against the
Borrower in any other court of competent jurisdiction, nor shall the taking of proceedings
in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions,
whether concurrently or not, to the extent permitted by the law of such other jurisdiction. |
This
deed has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it.
Schedule
1 | Form
of amended and restated facility agreement |
Executed
and delivered as a deed by |
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INTELLIGENT FINGERPRINTING
LIMITED |
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Acting by Philip
Hand, |
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A director, in the
presence of |
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/s/
Xxxxxx Xxxxxx |
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/s/
Philip Hand
|
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Witness Signature |
|
Director |
|
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Witness Name: Xxxxxx
Xxxxxx |
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Witness
Address: 00 Xxxxxxxx Xxxx Xxxxxxxx XX00 0XX XX |
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Executed and delivered
as a deed by |
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Xxxxxxx Xxxx XXX
by their attorney Philip Hand |
|
/s/
Philip Hand |
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under a power of attorney |
|
Authorised
signatory |
in the presence of |
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/s/
Xxxxxx Xxxxxx |
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|
Witness Signature |
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Witness Name: Xxxxxx
Xxxxxx |
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Witness Address: 00
Xxxxxxxx Xxxx Xxxxxxxx XX00 0XX XX |
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Executed
and delivered as a deed by |
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GBS
INC. |
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acting by Xxxxx Xxxxxxx
- CFO, |
|
/s/
Xxxxx Xxxxxxx
|
CFO, in the presence
of |
|
CFO |
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/s/
Xxxxx Xxxxxxxxxx |
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Witness Signature |
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Witness
Name: Xxxxx Xxxxxxxxxx |
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Witness Address: 00
Xxxxxx Xx, Xxxxxxxx XXX 0000 Xxxxxxxxx |
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Execution
version
|
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INTELLIGENT
FINGERPRINTING LIMITED (as Borrower) |
|
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and |
|
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Xxxxxxx
Xxxx XXX (as Lenders) |
|
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and |
|
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GBS,
INC. (as Guarantor) |
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originally
dated 26 October 2021, and amended and restated on 4 October 2022 |
CONTENTS
Clause |
|
Page
Number |
1. |
Definitions
and Interpretation |
1 |
2. |
The
Facility |
5 |
3. |
Purpose |
6 |
4. |
Interest |
6 |
5. |
Repayment
/ Prepayment |
6 |
6. |
Conversion |
6 |
7. |
Security |
7 |
8. |
Payments |
7 |
9. |
Covenants |
8 |
10. |
Events
of Xxxxxxx |
00 |
00. |
Guarantee
and Indemnity |
11 |
12. |
Amendments,
Waivers and Consents and Remedies |
12 |
13. |
Severance |
12 |
14. |
Assignment
and transfer |
13 |
15. |
Counterparts |
13 |
16. |
Third
party rights |
13 |
17. |
Notices |
13 |
18. |
Governing
law and jurisdiction |
14 |
EXECUTION |
15 |
THIS
AGREEMENT is dated October 4, 2022
PARTIES
(4) | INTELLIGENT
FINGERPRINTING LIMITED, (registered number 06409298) a company incorporated in England
and Wales whose registered office is at 14-17 Evolution Business Xxxx Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx, XX00 0XX (“Borrower”); |
(5) | Xxxxxxx
Xxxx III of X.X. Xxx 0000 Xxxxxx, Xxxxx 00000 (“Lenders”); and |
(6) | GBS
Inc., of 000 Xxxxxxxxx Xxx., Xxxxx 000, Xxx Xxxx, XX 00000, a Delaware corporation (“Guarantor”). |
BACKGROUND
| A. | The
Lenders have agreed to provide the Borrower with a secured sterling term loan facility in
an amount of five thousand three hundred and ten pounds sterling (£5,310) in aggregate.
|
| B. | The
Guarantor is the holding company of the Borrower and has been made a party to this agreement
as at the Restatement Date for the purpose of, amongst other things, entering into the guarantee
and indemnity set out in clause 11. |
Agreed
terms
1. | Definitions
and Interpretation |
The
following definitions apply in this agreement.
|
“Articles” |
|
means
the articles of association of the Borrower from time to time. |
|
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“Board”
|
|
means
the board of directors of the Company from time to time. |
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“Borrowed
Money” |
|
means
Financial Indebtedness in respect of which an Obligor is the debtor or otherwise has a liability. |
|
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“Business
Day” |
|
means
a day (other than a Saturday, Sunday or public holiday) when clearing banks in the City of London are open for business. |
|
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“Capped
Outstanding Loan Amount” |
|
means
the lesser of: (i) the Outstanding Loan as at the Conversion Date; and (ii) the Maximum Conversion Amount. |
|
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“Closing” |
|
has
the meaning given in the SEA. |
|
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“Company
Convertible Preferred Stock Conversion” |
|
has
the meaning given in the SEA. |
|
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“Company
Stockholder Approval” |
|
has
the meaning given in the SEA. |
|
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“Conversion” |
|
means
the conversion of the Capped Outstanding Loan Amount into Ordinary B Shares in accordance with Clause 6. |
|
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“Conversion
Date” |
|
means
the first Business Day following the date on which the Company Stockholder Approval is obtained in respect of the Company Convertible
Preferred Stock Conversion. |
|
“Conversion
Price” |
|
means
£0.029425 (being 55% of £0.0535, the current price of the Ordinary B Shares for the purposes of this agreement); |
|
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“Equity
Securities” |
|
has
the meaning given to “ordinary shares” in section 560(1) of the Companies Xxx 0000. |
|
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“Event
of Default” |
|
means
any event or circumstance set out in clause 10 (other than clause 10.11). |
|
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“Existing
Shareholder Loans” |
|
means
the RFA Loan and the five separate bridge facility agreements entered into between the Borrower and each of Xxxxx Xxxxxx, Xxxx Xxxxxx,
Xxxxx Xxxxxx, Xxxxxxx Xxxx XXX Exempt Trust, and Xxxxxx Xxxxxxx, respectively, dated 26 October 2021, as amended and restated on
or about the Restatement Date; |
|
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“Facility” |
|
means
the term loan facility made available under this agreement. |
|
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“Finance
Document” |
|
means
this agreement, the Security Document and any other document designated as such by the Lenders and the Borrower. |
|
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“Financial
Indebtedness” |
|
means
any Liability comprising or in connection with any: |
|
(a) |
moneys
borrowed; |
|
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|
(b) |
debit
balance on any account with a bank or other financial institution (including any credit card or payment services provider); |
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(c) |
amount
raised by acceptance under any acceptance credit facility or dematerialised equivalent; |
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(d) |
amount
raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar
instrument; |
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(e) |
hire
purchase, finance lease, capital lease or any other lease which has the same economic effect as a finance lease or capital lease; |
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(f) |
receivables
sold or discounted; |
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(g) |
obligation
to deliver assets or services paid for in advance by a financier or otherwise relating to a financing transaction; |
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(h) |
arrangement
pursuant to which an asset sold or otherwise disposed of may be re-acquired; |
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(i) |
derivative
transaction (including any future, forward, option, swap and contract for differences), whether entered into in connection with protection
against or benefit from fluctuation in any rate or price or otherwise; |
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(j) |
amount
raised under any other transaction (including any forward sale or purchase, sale and sale back and sale and leaseback agreement) of
a type not referred to in any other paragraph of this definition having the commercial effect of borrowing or otherwise classified
as borrowings under the accounting standards applicable to that person; or |
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(k) |
counter-indemnity
obligation in respect of a guarantee entered into by any person. |
|
“Final
Repayment Date” |
|
means
the date that falls 24 months after the date of Closing. |
|
“Fundraising” |
|
means
the Borrower raising financing from an issue of Equity Securities to any person(s) but excluding any issue of Equity Securities of
the Borrower resulting from: |
| i. | the
exercise of any options granted to employees or consultants of the Borrower or which are
permitted under the Articles; or |
| ii. | the
exercise of any rights of conversion under any Existing Shareholder Loans. |
|
“GBS
Loan Agreement” |
|
means
the bridge facility agreement dated 16 June 2022 made between the Guarantor and the Borrower. |
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“Group” |
|
means,
the Guarantor, the Borrower and any subsidiary of the Borrower. |
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“Guaranteed
Obligations” |
|
all
monies, debts and liabilities of any nature from time to time due or owing from or incurred by the Borrower to a Lender under the
Finance Documents. |
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“Investor
Rights Agreement” |
|
has
the meaning given in the SEA. |
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“Insolvency
Event” |
|
means
in respect of any person, the commencement or taking (in each case by that or any other person) of any legal proceedings or other
formal legal step or procedure for: |
| (a) | the
winding up, bankruptcy, dissolution or administration of, or in relation to, such person; |
| | |
| (b) | the
appointment of a liquidator, receiver, administrator, administrative receiver, compulsory
manager, or other similar officer in respect of such person or any assets of such person;
or |
| | |
| (c) | the
entry by that person into a general composition assignment or arrangement with the creditors
of such person generally (whether by way of voluntary arrangement, scheme of arrangement
or otherwise); |
| | |
| (d) | the
moratorium, stay or limitation of creditors’ rights; or |
| | |
| any
corporate action, legal proceedings or other formal legal procedure or step analogous in
any other jurisdiction to those referred to in paragraphs (a) to (c) above. |
|
“Insolvent” |
|
in respect
of any person: |
| (a) | that
person being unable to (or admitting inability to) pay its debts as they fall due; |
| | |
| (b) | that
person suspending payment of its debts generally; |
| | |
| (c) | the
value of that person’s assets being less than its Liabilities; or |
| | |
| (d) | that
person being deemed unable to pay his or her debts as they fall due within the meaning of
section 123(1) or (2) of the Insolvency Xxx 0000. |
|
“Liabilities” |
|
means
any liabilities, obligations, damages, penalties, fees, charges, fines, costs and expenses, in each case (unless otherwise specified)
howsoever arising, including whether: |
| (a) | arising
under any applicable law, in contract, tort, delict, unjustified enrichment, or otherwise; |
| | |
| (a) | arising
as a result of any negligence of any person, any breach by any person of duty under any applicable
law, or otherwise; and / or |
| | |
| (b) | present,
future, contingent, unascertained, or otherwise. |
|
“Loan”
|
|
means
the principal amount of the loan made or to be made by the Lenders to the Borrower under this agreement or (as the context requires)
the principal amount outstanding for the time being of that loan. |
|
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|
“Maximum
Conversion Amount” |
|
means
an amount equal to £7,047.01, representing the principal amount of the Loan together with interest at 17% per annum accrued
pursuant to Clause 4 calculated up until the Closing Anniversary. |
|
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“Obligor” |
|
means
each of the Borrower and the Guarantor. |
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“Ordinary
Shares” |
|
means
the Ordinary Shares of £0.00001 each in the capital of the Borrower with the rights set out in the Articles. |
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|
“Ordinary
B Shares” |
|
means
the Ordinary B Shares of £0.00001 each in the capital of the Borrower with the rights set out in the Articles. |
|
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“Outstanding
Loan” |
|
means
the principal amount of the Loan together with all accrued interest pursuant to Clause 4 and all other amounts accrued or outstanding
under the Finance Documents. |
|
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|
“Registration
Rights Agreements” |
|
has
the meaning given in the SEA. |
|
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“Restatement
Date” |
|
means
the date of Closing. |
|
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“RFA
Loan” |
|
means
the bridge facility agreement entered into between the Borrower and the RFA Lenders, originally dated 24 September 2021, as amended
and restated on or about the Restatement Date. |
|
|
|
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|
“RFA
Debenture” |
|
means
the debenture dated 24 September 2021 between the Borrower and RFA Lenders. |
|
|
|
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|
“RFA
Lenders” |
|
means
the Ma-Ran Foundation and The Xxxx X. Xxxxxxx Foundation. |
|
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“Security” |
|
any
mortgage, charge (whether fixed or floating, legal or equitable), pledge, lien, assignment by way of security or other security interest
securing any obligation of any person or any other agreement or arrangement having a similar effect. |
|
|
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|
“Security
Document” |
|
means
the debenture dated 26 October 2021 between the Borrower and the Lenders. |
|
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|
“SEA” |
|
means
the Share Exchange Agreement entered into among the Borrower, the Lenders and the Guarantor, among others, on or around the Restatement
Date in respect of, among other things, the sale of the shares in the Borrower to the Guarantor. |
|
|
|
|
|
“Tax” |
|
means
any tax, levy, impost, duty or other charge, fee, deduction or withholding of a similar nature (including any penalty or interest
payable in connection with the failure to pay, or delay in paying, any of these). |
|
|
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|
“Tax
Deduction” |
|
means
a deduction or withholding for, or on account of, Tax from a payment under a Finance Document. |
|
|
|
|
|
“Transaction
Documents” |
|
means
each of the SEA, the Investor Rights Agreement and the Registration Rights Agreements. |
In
this agreement:
| 1.2.1 | a
reference to a person shall include a reference to an individual, firm, company, corporation,
partnership, unincorporated body of persons, government, state or agency of a state or any
association, trust, joint venture or consortium (whether or not having separate legal personality)
and that person’s personal representatives, successors, permitted assigns and permitted
transferees; |
| 1.2.2 | unless
the context otherwise requires, words in the singular shall include the plural and in the
plural shall include the singular; |
| 1.2.3 | unless
the context otherwise requires, a reference to one gender shall include a reference to the
other genders; |
| 1.2.4 | a
reference to a party shall include that party’s successors, permitted assigns and permitted
transferees; and |
| 1.2.5 | a
reference to a statute or statutory provision is a reference to it as amended, extended or
re-enacted from time to time. |
| |
2.1 | The
Lenders grant to the Borrower a secured sterling term loan facility of five thousand three
hundred and ten pounds sterling (£5,310), to be drawn in a single advance on the terms,
and subject to the conditions, of this agreement. |
| |
3.1 | The
Borrower shall use all money borrowed under this agreement for general working capital requirements. |
3.2 | The
Lenders are not obliged to monitor or verify how any amount advanced under this agreement
is used. |
| |
4.1 | Subject
to clause 4.3, the Loan shall bear interest at 17% per annum on a compounded basis, increasing
to 22% per annum on a compounded basis with effect from the date that falls 12 months following
the Restatement Date (the “Closing Anniversary”), if the Conversion has
not taken place by the Closing Anniversary. |
4.2 | If
any Obligor fails to make any payment due under this agreement on the due date for payment,
interest on the unpaid amount shall accrue daily on a compounded basis, from the date of
non-payment to the date of actual payment (both before and after judgment), at 2% above the
applicable interest rate specified in clause 4.1 above. |
4.3 | Any
interest under this agreement shall accrue on a day-to-day basis, calculated according to
the number of actual days elapsed and a year of 365 days. |
4.4 | The
Lenders’ calculation of any interest under this agreement shall be final. |
| |
5.1 | Subject
to clause 5.2, the Loan shall be repayable in full by the Borrower, together with accrued
interest and all other amounts accrued or outstanding under the Finance Documents, on the
Final Repayment Date or earlier with the prior written consent of the Lenders. |
5.2 | In
the event that the Company Stockholder Approval in respect of the Company Convertible Preferred
Stock Conversion is obtained prior to the Final Repayment Date: |
5.2.1 | the
Capped Outstanding Loan Amount shall convert into Ordinary B Shares in accordance with clause
6; and |
5.2.2 | if
the amount of the Outstanding Loan as at the Conversion Date is greater than the Maximum
Conversion Amount, the sum of the Outstanding Loan minus the Maximum Conversion Amount shall
be repaid in full in cash and in cleared funds by the Borrower on the Conversion Date. |
5.3 | The
Borrower shall not be entitled to prepay all or any part of the Loan prior to the Final Repayment
Date without the prior written consent of both Lenders. |
| |
6.1 | On
the Conversion Date, the Borrower shall issue to the Lenders new fully paid Ordinary B Shares
(the “Conversion Shares”) in an aggregate amount equal to the Capped Outstanding
Loan Amount divided by the Conversion Price. For the avoidance of doubt, the maximum amount
of the Outstanding Loan that shall be capable of converting into Ordinary B Shares in accordance
with this clause 6 shall be the Maximum Conversion Amount. The Lenders shall provide the
Borrower with the calculation for such Conversion and such calculation will be final. |
6.2 | Ordinary
B Shares arising on Conversion shall be issued and allotted by the Borrower on the Conversion
Date and the certificates for such Ordinary B Shares shall be despatched to the persons entitled
to them. |
6.3 | The
Ordinary B Shares arising on Conversion shall be credited as fully paid and rank pari
passu with Ordinary B Shares of the same class in issue on the Conversion Date and shall
carry the right to receive all dividends and other distributions declared after the Conversion
Date. |
6.4 | The
entitlement of each Lender to a fraction of an Ordinary B Share on Conversion shall be rounded
up to the nearest whole number of Ordinary B Shares. |
6.5 | The
parties have agreed that, following the issue of the Conversion Shares, the Conversion Shares
shall immediately be transferred by the Lenders to the Guarantor pursuant to article 1.5
of the SEA, on the terms set out in that agreement. |
6.6 | If
clause 5.2 of this agreement applies, notwithstanding any provision in the Transaction Documents
to the contrary, the Capped Outstanding Loan Amount shall be deemed to remain outstanding
as a Loan under this Agreement until the Lenders have received the IFP Convertible Loan Consideration
(as defined in the SEA) to which they are entitled in accordance with the terms of the SEA
(the time at which the Lenders receive such IFP Convertible Loan Consideration being the
“Final Conversion Time”). On occurrence of the Final Conversion Time,
the Capped Outstanding Loan Amount which is required to convert into Ordinary B Shares in
accordance with clause 5.2.1 above shall be considered so converted. |
6.7 | Each
of the parties consents to and authorises, and shall do all such acts and things necessary
or desirable to effect, the Conversion. |
| |
7.1 | The
Borrower entered into the Security Document by way of Security for the payment and discharge
of the Loan on 26 October 2021. |
7.2 | The
Borrower represents and warrants that as of and from the date of agreement it has not granted
and undertakes that it will not grant any Security to any other person that has or will have
priority over the Security created in the Security Document other than in respect of the
existing registered security created pursuant to the RFA Debenture. |
| |
8.1 | All
payments made by each Obligor under the Finance Documents shall be in sterling and in immediately
available cleared funds to the Lenders at the account to be notified by the Lenders to the
relevant Obligor. |
8.2 | If
any payment becomes due on a day that is not a Business Day, the due date of such payment
will be extended to the next succeeding Business Day, or, if that Business Day falls in the
following calendar month, such due date shall be the immediately preceding Business Day. |
8.3 | All
payments made by each Obligor under the Finance Documents shall be made in full, without
set-off, counterclaim or condition, and free and clear of, and without any deduction or withholding,
provided that, if an Obligor is required by law or regulation to make such deduction or withholding,
it shall: |
|
8.3.1 | ensure
that the deduction or withholding does not exceed the minimum amount legally required; |
|
8.3.2 | pay
to the relevant taxation or other authorities, as appropriate, the full amount of the deduction
or withholding; |
|
8.3.3 | furnish
to the Lenders, within the period for payment permitted by the relevant law, either: |
| (i) | an
official receipt of the relevant taxation authorities concerned on payment to them of amounts
so deducted or withheld; or |
| (ii) | if
such receipts are not issued by the taxation authorities concerned on payment to them of
amounts so deducted or withheld, a certificate of deduction or equivalent evidence of the
relevant deduction or withholding; and |
|
8.3.4 | pay
to the Lenders such additional amount as is necessary to ensure that the net full amount
received by the Lenders after the required deduction or withholding is equal to the amount
that the Lenders would have received had no such deduction or withholding been made. |
8.4 | If
an Obligor makes a payment in accordance with clause 8.3 (Tax Payment) and the Lenders
determine that: |
|
8.4.1 | a
credit against, relief or remission for, or repayment
of, any Tax (Tax Credit) is attributable to an increased payment of which that
Tax Payment is a part, to that Tax Payment or to a Tax Deduction in consequence of which
that Tax Payment was required; and |
|
8.4.2 | it
has obtained and used (in whole or in part) that Tax Credit, |
| the
Lenders shall pay an amount to the relevant Obligor that the Lenders determine will leave
the Lenders (after that payment) in the same after-Tax position as it would have been in
had the Tax Payment not been required to be made by the Obligor. |
8.5 | Without
prejudice and subject to clause 8.3, the parties hereto will, to the extent they are entitled
under applicable law, use reasonable endeavours to apply for relief under a double tax treaty
to minimise any withholding obligations and to obtain and utilise any Tax Credit as referred
to in clause 8.4. The parties will provide all documentation as reasonably requested by the
other party to minimise any withholding obligations and to enable a Lender to obtain a credit
for tax withheld. |
Notwithstanding
any other provision herein, each Obligor covenants with the Lenders that on and from the date of this agreement until all its Liabilities
under the Finance Documents have been discharged in full:
9.1 | the
Borrower, and the Guarantor shall procure that the Borrower, will not: |
| |
|
9.1.1 | create,
or permit to subsist, any Security on or over any of its assets other than, in respect of
the Borrower only, Security created pursuant to the Security Document or Security in relation
to Existing Shareholder Loans; or |
|
9.1.2 | other
than in relation to the RFA Debenture or the Security relating to each other Existing Shareholder
Loan, create or permit to subsist, any Security on or over any of its assets in priority
to the Security created pursuant to the Security Document; or |
|
9.1.3 | other
than in relation to the RFA Debenture or the Security relating to each other Existing Shareholder
Loan, create or permit to subsist, any right in favour of any person, other than the Lenders,
to commence or to pursue any enforcement action against the Borrower in respect of the Security
subject to the Security Document, other than with the consent of the Lenders (not to be unreasonably
withheld); or |
|
9.1.4 | sell,
transfer or otherwise dispose of any of its assets on terms whereby such assets are or may
be leased to or re-acquired or acquired by it; or |
|
9.1.5 | sell,
transfer or otherwise dispose of any of its receivables on recourse terms; or |
|
9.1.6 | enter
into any arrangement under which money or the benefit of a bank or other account may be applied,
set-off or made subject to a combination of accounts; or |
|
9.1.7 | enter
into any other preferential arrangement having a similar effect; or |
|
9.1.8 | incur
or permit to subsist, any obligation for Financial Indebtedness other than pursuant to the
Existing Shareholder Loans or the GBS Loan Agreement in their forms as of the Restatement
Date |
in
circumstances where the arrangement or transaction is entered into primarily as a method of raising Borrowed Money or of financing the
acquisition of an asset.
| 9.2 | The
Borrower warrants as of the date of this agreement and as of the Restatement Date and the
Guarantor warrants as of the Restatement Date: |
| | |
|
9.2.1 | that
it is not insolvent or unable to pay its debts within the meaning of the Insolvency Xxx 0000
or any other applicable insolvency legislation, including, but not limited to, in any jurisdiction
in which the Borrower or Guarantor is qualified to do business or incorporated, nor has it
stopped paying its debts as they fall due; |
|
9.2.2 | that
no order has been made or resolution passed and no petition has been presented, meeting convened,
procedure commenced or other step threatened or taken or order made for: |
| (i) | an
Obligor’s winding-up, bankruptcy, liquidation or dissolution; |
| (ii) | an
Obligor to enter into any arrangement or composition for the benefit of creditors; |
| (iii) | the
appointment of an administrator in respect of an Obligor; or |
| (iv) | the
appointment of a receiver (including an administrative receiver), liquidator, supervisor,
compulsory manager, trustee or similar person in respect of an Obligor or any of its revenue,
assets or undertakings; |
| | |
9.2.3 | that
there has been no scheme of arrangement, compromise, stay, limitation on creditors rights
or other arrangement between an Obligor and its creditors and/or members or any class of
its creditors and/or members sanctioned or approved or proposed; |
| 9.2.4 | that
there is no unsatisfied judgment or court order outstanding against an Obligor and no distress,
execution or other process has been levied on any of its assets; |
| 9.2.5 | that
there has been no corporate action, legal proceedings or other formal legal procedure, circumstance
or step analogous in any other jurisdiction to those referred to in clauses 9.2.1 to 9.2.4; |
| 9.2.6 | that
no creditor of it or any Group company has taken steps to enforce any debt or other sum owed
by it or that Group company which is subsisting; |
| 9.2.7 | that
neither it nor a Group company has entered into a general assignment, arrangement or composition
with or for the benefit of its creditors; |
| 9.2.8 | that
the Borrower has, at the Restatement Date, sufficient authorised but unissued equity share
capital in the Company or shareholder authority to enter into this agreement and the Loan
and to satisfy in full, without the need for the passing of any further resolutions of its
shareholders (whether a special or an ordinary resolution in accordance with section 551
of the Companies Act 2006), the outstanding rights of conversion for the time being attaching
to the Outstanding Loan, without first having to offer the same to any existing shareholders
of the Borrower or any other person in accordance with the Articles including Article 33
thereof; and |
| 9.2.9 | that
it is duly incorporated and validly existing under the law of its jurisdiction of incorporation,
has the power to own assets and carry on the business being conducted. Further each Obligor
has full corporate authority to enter into, perform and deliver this agreement and has entered
into this agreement in good faith for its benefit and on arm’s length commercial terms.
This agreement is the valid and legally binding obligation of each Obligor, enforceable against
each Obligor in accordance with its terms. |
| | |
9.3 | The
Borrower will, while any part of the Outstanding Loan remains outstanding: |
| |
| 9.3.1 | not
alter the Articles adopted at Closing or amend the rights attaching to the Ordinary B Shares
in any way which would adversely affect the rights of the Lenders (in any capacity) without
the prior written approval of the Lenders; |
| 9.3.2 | maintain
sufficient authorised but unissued equity share capital in the Company or shareholder authority
to satisfy in full, without the need for the passing of any further resolutions of its shareholders
(whether a special or an ordinary resolution in accordance with section 551 of the Companies
Act 2006), the outstanding rights of conversion for the time being attaching to the Outstanding
Loan, without first having to offer the same to any existing shareholders of the Borrower
or any other person in accordance with Article 33 of the Articles; |
| 9.3.3 | not
proceed with a Fundraising without having sufficient authorised but unissued equity share
capital in the Company or obtaining shareholder authority to both consummate the Fundraising
and to satisfy in full, without the need for the passing of any further resolutions of its
shareholders, the outstanding rights of conversion for the time being attaching to the Outstanding
Loan, without first having to offer the same to any existing shareholders of the Borrower
or any other person; |
| 9.3.4 | not
redeem, or enter into a contract to purchase, any shares in the capital of the Borrower (including
Ordinary Shares and Ordinary B Shares); |
| 9.3.5 | not
reduce its issued share capital; |
| 9.3.6 | not
invest in any other company or partnership or dispose of any such investment; |
| 9.3.7 | not
enter into or amend any transaction (or series of transactions), including loans which are:
(a) not in the ordinary course of business; or (b) not on an arms-length basis; or (c) with
any Director, Shareholder or affiliate (other than in relation to such person’s employment
or engagement by the Borrower to provide services); |
| 9.3.8 | not
pay dividends or distribute, or redeem or purchase, any equity securities; |
| 9.3.9 | not
give any guarantee, indemnity or suretyship on the obligations of any other person outside
of the ordinary course of business; and |
| 9.3.10 | not
issue any shares or other equity interests to any entity other than the Guarantor. |
| | |
9.4 | The
Borrower will not sell, assign, lease, transfer or otherwise dispose of in any manner (or
purport to do so) all or any part of, or any interest in, any of its assets at any time other
than trading stock in the ordinary course of its business. |
9.5 | The
Borrower will not incur or otherwise be a creditor in respect of any Financial Indebtedness
ranking senior to the indebtedness created hereunder without the Lenders’ prior written
consent. |
9.6 | The
Borrower shall use all money borrowed under this agreement for general working capital requirements
only as so evidenced in its regular reporting to its Board. |
9.7 | No
Obligor shall amend, vary, novate, supplement, supersede, waive or terminate any term of
the GBS Loan Agreement without the prior written consent of the Lenders. |
9.8 | The
Borrower shall not (and the Guarantor shall procure that the Borrower shall not), prior to
the date on which the Outstanding Loan has been repaid in full by the Borrower, make any
payment, prepayment, repayment, redemption, defeasance or discharge of any amounts owed by
the Borrower to the Guarantor pursuant to the GBS Loan Agreement. |
9.9 | The
Guarantor shall not amend, modify or supplement (or agree to amend, modify or supplement)
the rights attaching to the Company Common Stock or the Company Convertible Preferred Stock
(each as defined in the SEA), provided that the Guarantor shall be permitted to change the
number of shares of Company Common Stock or the Company Convertible Preferred Stock issued
and outstanding pursuant to a reverse stock split. |
Each
of the events or circumstances set out in this clause 10 (other than clause 10.11) is an Event of Default.
10.1 | Any
Obligor fails to pay any sum payable by it under any Finance Document, unless its failure
to pay is caused solely by an administrative error or technical problem and payment is made
within three Business Days of its due date. |
10.2 | Any
Obligor fails (other than by failing to pay), to comply with any provision of any Finance
Document, or the Guarantor fails to comply with any material provision of any Transaction
Document (including for the avoidance of doubt a misrepresentation or breach of warranty
thereunder), and (if the Lenders consider, acting reasonably, that the default is capable
of remedy), such default is not remedied within 10 Business Days of the earlier of: |
| |
|
10.2.1 | the
Lenders notifying the Borrower of the default and the remedy required; and |
|
10.2.2 | the
relevant Obligor becoming aware of the default. |
|
| |
| 10.3.1 | any
Borrowed Money is not paid when due or within any originally applicable grace period; or |
| 10.3.2 | any
Borrowed Money becomes due, or capable or being declared due and payable prior to its stated
maturity by reason of an event of default (howsoever described); or |
| 10.3.3 | any
commitment for Borrowed Money is cancelled or suspended by a creditor of a member of the
Group by reason of an event of default (howsoever described); or |
| 10.3.4 | any
creditor of a member of the Group becomes entitled to declare any Borrowed Money due and
payable prior to its stated maturity by reason of an event of default (howsoever described). |
| | |
10.4 | An
Insolvency Event occurs in respect of an Obligor or an Obligor becomes Insolvent. |
10.5 | Any
provision of any Finance Document or Transaction Document is or becomes, for any reason,
invalid, unlawful, unenforceable, terminated, disputed or ceases to be effective or to have
full force and effect. |
10.6 | An
Obligor repudiates or evidences an intention to repudiate any Finance Document or any Transaction
Document. |
10.7 | A
member of the Group suspends or ceases to carry on (or threatens to suspend or cease to carry
on) all or a substantial part of its business. |
10.8 | Any
event occurs (or circumstances exist) which, in the reasonable opinion of the Lenders, has
or is likely to materially and adversely affect the any Obligor’s ability to perform
all or any of its obligations under, or otherwise comply with the terms of, any Finance Document
or any Transaction Document. |
10.9 | Any
Transaction Document is terminated or ceases to have full force and effect. |
10.10 | The
Borrower ceases to be a wholly-owned subsidiary of the Guarantor. |
10.11 | At
any time after an Event of Default has occurred which is continuing, the Lenders may, by
notice to the Borrower: |
| |
| 10.11.1 | cancel
all of its outstanding obligations to advance the Outstanding Loan or any part of it under
this agreement whereupon they shall immediately be cancelled; and/or |
| 10.11.2 | declare
that the Outstanding Loan is immediately due and payable, whereupon they shall become immediately
due and payable; and/or |
| 10.11.3 | declare
that the Loan be payable on demand, whereupon it shall become immediately payable on demand
by the Lenders; and/or |
| 10.11.4 | declare
the Security Document to be enforceable. |
11. | Guarantee
and Indemnity |
| |
11.1 | In
consideration of the Lenders entering into this agreement, the Guarantor guarantees to the
Lenders that, whenever the Borrower does not discharge any of the Guaranteed Obligations
as and when they fall due, the Guarantor shall on demand make all payments to the Lenders
necessary to discharge the Guaranteed Obligations. |
11.2 | If
the Guaranteed Obligations are, or become, unenforceable, invalid or illegal, the Guarantor
agrees to indemnify and keep indemnified the Lenders in full and on demand from and against
all and any losses, costs, claims, liabilities, damages, demands, and expenses suffered or
incurred by such Lender arising out of, or in connection with, any failure of the Borrower
to perform or discharge the Guaranteed Obligations. |
11.3 | The
Guarantor as principal obligor and as a separate and independent obligation and liability
from its obligations and liabilities under clause 11.1 agrees to indemnify and keep indemnified
the Lenders in full and on demand from and against all and any losses, costs claims, liabilities,
damages, demands, and expenses suffered or incurred by the such Lender arising out of, or
in connection with, any failure of the Borrower to perform or discharge the Guaranteed Obligations
except where the Borrower’s failure to perform or discharge the Guaranteed Obligations
results from such Lender’s failure to comply with its obligations under this agreement
or the Borrower contesting any payment or part of a payment in good faith. |
11.4 | This
guarantee is and shall at all times be a continuing security and shall cover the ultimate
balance of all monies payable under this agreement, irrespective of any intermediate payment
or discharge in full or in part of the Guaranteed Obligations. |
11.5 | The
liability of the Guarantor under clause 11.1 shall not be reduced, discharged or otherwise
adversely affected by: |
| |
| 11.5.1 | any
act, omission, matter or thing which would not have discharged or affected the liability
of the Guarantor had it been a principal debtor instead of a guarantor; |
| 11.5.2 | any
variation, extension, discharge, compromise, dealing with, exchange or renewal of any right
or remedy which any Lender may now or after the date of this guarantee have from or against
any of the Borrower and any other person in connection with the Guaranteed Obligations; |
| 11.5.3 | any
act or omission by any Lender or any other person in taking up, perfecting or enforcing any
Security, indemnity, or guarantee from or against the Borrower or any other person; |
| 11.5.4 | any
termination, amendment, variation, novation, replacement or supplement of or to any of the
Guaranteed Obligations including, without limitation, any change in the purpose of, any increase
in or extension of the Guaranteed Obligations and any addition of new Guaranteed Obligations; |
| 11.5.5 | any
grant of time, indulgence, waiver or concession to the Borrower or any other person; |
| 11.5.6 | the
insolvency, bankruptcy, liquidation, administration or winding up, or any incapacity, limitation,
disability, discharge by operation of law or change in the constitution, name or style, of
the Borrower, any Lender or any other person; |
| 11.5.7 | any
invalidity, illegality, unenforceability, irregularity or frustration of any actual or purported
obligation of, or Security held from, the Borrower or any other person in connection with
the Guaranteed Obligations; |
| 11.5.8 | any
claim or enforcement of payment from the Borrower or any other person; |
| 11.5.9 | any
other act or omission except an express written release by deed of the Guarantor by any Lender;
or |
| 11.5.10 | anything
done or omitted by any person which, but for this provision, might operate or exonerate or
discharge the Guarantor or otherwise reduce or extinguish its liability under clause 11.1. |
| | |
11.6 | The
Guarantor waives any right it may have to require a Lender (or any trustee or agent on its
behalf) to proceed against or enforce any other right or claim for payment against any person
before claiming from the Guarantor under this clause 11. |
11.7 | The
Guarantor shall on a full indemnity basis pay to the Lenders on demand the amount of all
costs and expenses (including legal and out-of-pocket expenses and any value added tax on
those costs and expenses) which such Lender incurs in connection with: |
| |
| 11.7.1 | the
preservation, or exercise and enforcement, of any rights under or in connection with this
clause 11 or any attempt so to do; and |
| 11.7.2 | any
discharge or release of the obligations set out in this clause 11. |
| | |
11.8 | Until
all amounts which may be or become payable by the Borrower under this agreement have been
irrevocably paid in full, and unless the RFA Lenders otherwise both approve in writing, the
Guarantor shall not exercise any security or other rights which it may have by reason of
performance by it of its obligations under this clause 11, whether such rights arise by way
of set-off, counterclaim, subrogation, indemnity or otherwise. |
11.9 | The
rights of the Lenders under this clause 11 shall be in addition to and independent of all
other security which such Lender may hold from time to time in respect of the discharge and
performance by the Borrower of the Guaranteed Obligations. |
| 12. | Amendments,
Waivers and Consents and Remedies |
| |
12.1 | No
amendment of any Finance Document shall be effective unless it is in writing and signed by,
or on behalf of, each party to it (or its authorised representative). |
12.2 | A
waiver of any right or remedy under any Finance Document or by law, or any consent given
under any Finance Document, is only effective if given in writing by the waiving or consenting
party and shall not be deemed a waiver of any other breach or default. It only applies in
the circumstances for which it is given and shall not prevent the party giving it from subsequently
relying on the relevant provision. |
12.3 | A
failure or delay by a party to exercise any right or remedy provided under any Finance Document
or by law shall not constitute a waiver of that or any other right or remedy, prevent or
restrict any further exercise of that or any other right or remedy or constitute an election
to affirm any Finance Document. No single or partial exercise of any right or remedy provided
under any Finance Document or by law shall prevent or restrict the further exercise of that
or any other right or remedy. No election to affirm any Finance Document by the Lenders shall
be effective unless it is in writing. |
12.4 | The
rights and remedies provided under the Finance Documents are cumulative and are in addition
to, and not exclusive of, any rights and remedies provided by law. |
If
any provision (or part of a provision) of any Finance Document is or becomes invalid, illegal or unenforceable, it shall be deemed modified
to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision
(or part of a provision) shall be deemed deleted. Any modification to or deletion of a provision (or part of a provision) under this
clause shall not affect the legality, validity and enforceability of the rest of the Finance Documents.
14. | Assignment
and transfer |
Neither
party may assign any of its rights or transfer any of its rights or obligations under the Finance Documents without the prior written
consent of the other party.
Each
Finance Document may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but
all the counterparts shall together constitute one agreement.
| |
16.1 | A
person who is not a party to this agreement has no right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce or enjoy the benefit of any term of this agreement. This does
not affect any right or remedy of a third party which exists, or is available, apart from
the Contracts (Rights of Third Parties) Xxx 0000. |
16.2 | The
rights of the parties to rescind or agree any amendment or waiver under this agreement are
not subject to the consent of any other person. |
| | |
| 17.1 | Any
notice or other communication given to a party under or in connection with any Finance Document
shall be: |
| 17.1.2 | delivered
by email, hand, by pre-paid first-class post, airmail or other next working day delivery
service or sent by fax; and |
| Address: | 14-17
Evolution Business Xxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx, XX00 0XX |
| Email: | xxxxxx.xxxx@xxxxxxxxxxxxxxxxxxxxxxxxx.xxx |
| For
the attention of: | Philip
Hand |
| Address: | X.X
Xxx 0000 Xxxxxx, Xxxxx 00000 |
| Email: | xxxxxxx.xxxx@xxxxx.xxx |
| For
the attention of: |
Xxxxxxx
Xxxx XXX |
| Address: | 000
Xxxxxxxxx Xxx, Xxxxx 000, Xxx Xxxx, XX, Xxxxxx Xxxxxx |
| Email: | xxxxx.xxxxxxx@xxx.xxx |
|
For
the attention of: | Xxxxx
Xxxxxxx |
or
to any other address as is notified in writing by one party to the other from time to time.
17.2 | Any
notice shall be deemed to have been received: |
| | |
| 17.2.1 | if
sent by email or fax, at time of sending, provided that: |
| (i) | the
receipt shall not occur if the sender receives an automated message indicating that the message
has not be delivered to the recipient; and |
| (ii) | if
sent after 5.00pm (local time at the address of the recipient set out above) on any Business
Day, notice shall be deemed to be received at 9.00am (local time at such address) on the
next Business Day; and |
| 17.2.2 | if
sent by hand, when left at the recipient’s address or if sent by first class post,
72 hours from the time of posting or if sent to or from the United Kingdom by airmail, five
Business Days from the time of posting. |
| 18. | Governing
law and jurisdiction |
| |
18.1 | This
agreement and any dispute or claim arising out of or in connection with it or its subject
matter or formation (including non-contractual disputes or claims) shall be governed by and
construed in accordance with the law of England. |
18.2 | Each
party irrevocably agrees that the courts of England shall have exclusive jurisdiction over
any dispute or claim that arises out of, or in connection with this agreement or its subject
matter or formation (including non-contractual disputes or claims). |
18.3 | The
Guarantor irrevocably appoints Worldwide Corporate Advisors, located at 000 Xxxxxxxx, Xxxxxx,
XX0X 0XX as its agent to receive on its behalf in England service of any proceedings under
clause 18.2. Such service shall be deemed completed on delivery to such agent (whether or
not it is forwarded to and received by the Guarantor) and shall be valid until such time
as Xxxxxx has received prior written notice that such agent has ceased to act as agent. If
for any reason such agent ceases to be able to act as agent or no longer has an address in
England, the Guarantor shall forthwith appoint a substitute and provide to the Lender notice
in writing of the new agent’s name and address in England. |
This
agreement has been entered into on the date stated at the beginning of it.
EXECUTION
Signed
by |
|
|
|
for
and on behalf of INTELLIGENT FINGERPRINTING LIMITED |
|
Director
/ Authorised Signatory |
|
|
|
Signed
by |
|
|
|
for
and on behalf of GBS INC. |
|
Director
/ Authorised Signatory |
|
|
|
Signed |
|
|
|
by
Xxxxxxx Xxxx XXX |
|
|