CONFORMED COPY
THIS AGREEMENT is made on 10 August, 1998
BETWEEN:
(1) HUNTINGDON LIFE SCIENCES GROUP PLC, registered in England and Wales
with number 502370 whose registered office is at Xxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxxx XX00 0XX (the "Company"); and
(2) KLEINWORT XXXXXX LIMITED, a company incorporated in England with
registered number 1767419, whose registered office is at 00 Xxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX ("KB").
WHEREAS:
(A) Subject to and as provided by this Agreement, the Company proposes to
issue, pursuant to the Open Offer, on the basis and terms and for the
purposes set out in the Circular, the New Shares to rank pari passu in
all respects with Shares in issue at the date hereof;
(B) on, and subject to, the terms of this agreement, KB has agreed as agent
for and on behalf of the Company:-
(i) to offer the New Shares to Qualifying Holders at the Offer
Price under the Open Offer on the basis of 1 New Share for
every 2 Shares held on the Record Date and otherwise on the
terms and subject to the conditions in the Circular; and
(ii) in respect of any New Shares not taken up under the Open
Offer, to procure (as agent for and on behalf of the Company)
persons to subscribe and, to the extent that it does not do
so, itself to subscribe for, the New Shares at the Offer
Price; and
(C) The Company is proposing to convene an Extraordinary General Meeting at
which resolutions are to be proposed, inter alia, to authorise the
Directors to allot the New Shares.
IT IS AGREED as follows:
1. Definitions and interpretation
In this Agreement (including the recitals and schedules hereto), the following
words and expressions shall have the meanings respectively set opposite them:-
"Accountants" Xxxxxx Xxxxxxxx & Co.; admission of the
New Shares to the Official List becoming
effective by the making of an announcement in
accordance with paragraph 7.1 of the Listing
Rules;
"Admission Date" the actual date of Admission;
"Affiliate" any company or other undertaking which is
a member of the group (as defined in section
262 of the Companies
Act 1985) of which KB is a member;
"Application Form" the agreed form of application for Shares
under the Open Offer;
"Bank Deeds" has the meaning specified by the
Subscription Agreement;
"Xxxxx Service Agreement" has the meaning specified by the
Subscription Agreement;
"Board" the Company's board of directors or a duly
authorised Committee thereof;
"Brokers" Kleinwort Xxxxxx Securities Limited;
"Closing Date" 26th August, 1998;
"Circular" any circular letter in agreed form to the
shareholders and, for information only,
to option holders of the Company, giving
details of the Placing and Open Offer,
comprising a prospectus relating to the
Company and the New Shares and containing a
notice convening the Extraordinary
General Meeting;
"Conditions" the conditions set out in Clause 2.1;
"Dealing Day" any day upon which dealings in domestic
securities may take place on the London
Stock Exchange;
"Directors" the persons named in the Circular as
directors of the
Company and Mr. Xxxxxx Xxxxx;
"Extraordinary General Meeting" the meeting of the Company (notice of which
is set out in the Circular) at which, inter
alia, the Resolutions are to be proposed;
"EGM Date" 28th August, 1998;
"Facilities Agreement" the Facilities Agreement in agreed form
between, inter alia, the Company and National
Westminster Bank plc dated August, 1998;
"FSA" the Financial Services Xxx 0000;
"Group" the group of which the Company and its
subsidiary undertakings are members;
"Group Member" a member of the Group;
"KB Person" any person being KB, an Affiliate or a
director, officer or an employee of KB or of
an Affiliate;
"Latest Acceptance Time" 3p.m. on 26th August, 1998;
"Listing Rules" the listing rules made by the London Stock
Exchange pursuant to Part IV of the FSA;
"London Stock Exchange" London Stock Exchange Limited;
"New Shares" the total of 57,003,431 Ordinary Shares to
be allotted fully paid or credited as fully
paid pursuant to the Placing and Open Offer;
"Offer Documents" the Circular and the Application Form;
"Offer Price" 12.5 xxxxx per New Share;
"Official List" the Official List of the London Stock
Exchange;
"Open Offer" the invitation (contained in the Circular)
to Qualifying Holders to apply to
subscribe for New Shares on the terms and
subject to the conditions in the Offer
"Ordinary Shares" Dpcuments; ordinary shares of five xxxxx
each in the Company;
"Placees" the persons (including, if applicable,
KB) who are, pursuant to the Placing, to
subscribe for New Shares not taken up under
the Open Offer;
"Placing" the placing (subject to the rights of
Qualifying Holders) of New Shares with
Placees by KB (and, if applicable, the
subscription by KB for any new shares not
taken up under the Open Offer) pursuant
to this Agreement;
"Placing Letters" letters in the agreed form
despatched or to be despatched to
proposed Placees concerning their
commitments to subscribe for New Shares
pursuant to the Placing;
"Placing Sum" (pound)7.1 million, being the sum equal
to the aggregate value at the Offer Price of
the New Shares;
"Press Announcement" the press announcement in the agreed
form giving
details of, inter alia, the Placing and the
Open Offer;
"Proxy Card" the agreed form of proxy for use at the
Extraordinary General Meeting;
"Qualifying Shareholders" the holders of Ordinary Shares
on the register of members of the
Company at the close of business on the
Record Date other than certain overseas
Shareholders who are not entitled to
participate in the Open Offer as set out in
the Circular;
"Record Date" the close of business on 31st July, 1998;
"Receiving Agents" Computershare Services PLC, PO Box 859,
Consort House,
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx XX00 0XX;
"Resolutions" the resolutions in the agreed form to be
proposed at the Extraordinary General
Meeting (or any adjournment thereof) as set
out in the notice convening the
Extraordinary General Meeting which appears
in the Circular;
"Service Agreements" has the meaning specified by the Subscription
Agreement;
"Shares" means ordinary shares of 5p in the
capital of the Company;
"Subscribers" Focused Healthcare Partnership Limited,
Quilcap Corp., Oracle Partners, L.P.,
Xxxxxxxx Group Inc., SRK Management
Company, Xx. Xxxxx Xxxxxx and Xx. Xxxxxx
Xxxxxxxx III.
"Subscription Xxxxxx" (xxxxx)00 million, being the sum
equal to the aggregate value at the
Subscription Price of the Ordinary Shares
to be allotted and issued by the Company
and the Subscribers pursuant to the
Subscription Agreement;
"Subscription Agreement" means the subscription agreement in agreed
form dated 5th August, 1998 between the
Subscribers and the Company;
"Subscription Price" has the meaning specified by the
Subscription Agreement;
"Supplementary Prospectus" any prospectus to be published by the
Company pursuant to section 147(1) of
the FSA supplementary to the Circular
(or to any previously published prospectus);
"taken up" has the meaning ascribed to it in Clause 4.3;
"Transaction Documents" means the Facilities Agreement, the
Subscription Agreement, the Bank Deeds,
the Xxxxx Service Agreement and the Service
Agreements;
"VAT" value added tax;
"Verification Notes" verification notes prepared for the purpose
of substantiating the accuracy of the
Circular ;
"Warranties" the representations and warranties set out
in Schedule 1 and given by the Company
pursuant to Clause 8; and
"Working Capital Memorandum" the cash flow and
working capital memorandum prepared by the
Company for the period to
31st December, 1999.
In this Agreement (including the Recitals and Schedules):
(A) any reference to a document in "agreed form" means the form
thereof agreed between the Company and KB and initialled on
behalf of each of them for the purpose of identification, in
each case with such amendments as may be agreed between the
Company and KB;
(B) except as otherwise provided or where the context otherwise
requires, "material" and "materially" shall mean material in
the context of the Placing and the Open Offer;
(C) all references to hours of the day shall be to the time as it
is in England;
(D) headings are for convenience only and do not affect the
construction of this Agreement;
(E) reference to Recitals, Clauses or Schedules are, unless
otherwise stated, to the recitals and clauses respectively of,
and schedules to, this Agreement;
(F) words denoting the singular include the plural and vice versa,
words importing gender shall include all genders;
(G) words and expressions defined in the Companies Xxx 0000 shall
bear the same meaning herein, except as otherwise provided or
where the context otherwise requires;
(H) any statement qualified by the expression "so far as the
Company is aware" or the expression "so far as the Directors
are aware" or any similar expression shall be deemed to
include an additional statement that it has been made after
the Company and the Directors have made all reasonable
enquiries; and
(I) references to any statute or statutory provision
include any re-enactment or modification or extension
thereof (whether before or after the date hereof), any
statutory provision of which a provision referred to is a
re-enactment(whether with or without modification),
and any orders, regulations, instruments or other
subordinate legislation made under the statute or
statutory provision referred to, save that this Clause 1
shall not operate to the extent that it would create or
increase any liability for any party to this Agreement.
2. Conditions
2.1 The obligations of KB under this Agreement are in all respects conditional
on:
(A) satisfaction of each of the conditions precedent to which the
Subscription Agreement is subject, excluding any condition
relating to this Agreement becoming unconditional;
(B) without limitation to the generality of paragraph (A) above,
the Facilities Agreement, the Bank Deed, the Xxxxx Service
Agreement and the Service Agreements becoming unconditional in
all respects except:
(i) for any condition relating to this Agreement becoming unconditional; and
(ii) for receipt by National Westminster Bank plc of the
Transaction Proceeds and for repayment of all
Indebtedness outstanding in respect of the Bridging
Facility (in each case as defined by the Facilities
Agreement);
(C) receipt from NM Rothschild & Sons Limited of a letter
confirming that the Subscription Amount is held by them, or to
their order, in escrow and that release and payment of the
whole of such sum to the Company in accordance with the
Subscription Agreement is subject only to satisfaction of the
conditions precedent to such payment provided by the
Subscription Agreement;
(D) delivery by the Company to KB with effect immediately prior to
Admission of a certificate, signed for and on behalf of the
Company by a Director, in the form set out as Schedule 2;
(E) none of the Transaction Documents having been terminated;
(F) no variation or waiver or agreement not to exercise its rights
under any Transaction Document having been granted or agreed
by the Company without the prior written consent of KB; and
(G) the Resolutions having been passed without amendment (except
as previously agreed in writing by KB);
in each case by 4th September, 1998 (or such later time as KB may agree
with the Company).
2.2 If any of the Conditions is not fulfilled or shall have become
incapable of being fulfilled on or by 4th September, 1998 or such later
date as KB and the Company may agree, the Company shall forthwith make
an announcement to the London Stock Exchange to that effect in a form
agreed by KB and the remaining obligations of each of the parties under
this Agreement shall terminate, other than to the extent provided in
Clause 10.
2.3 The Company shall use all reasonable endeavours to procure that each of
the Conditions is satisfied by 4th September, 1998.
3. Document Delivery
3.1 The Company shall deliver or procure to be delivered to KB immediately
on execution of this Agreement:
(A) certified copies of each of the Transaction Documents executed
by each of the parties thereto;
(B) six copies of the Press Announcement, the Circular and the
Application Form initialled on behalf of the Company;
(C) a copy of the Working Capital Memorandum initialled on behalf of the
Company;
(D) two signed originals of the written verification of the
Accountants to the inclusion in the Circular of the financial
information included in Parts IV and V of that document and
the respective references thereto in the forms and contexts
included in the Circular;
(E) two signed originals of a letter (in a form previously
approved by KB) addressed to KB from the Directors confirming
that working capital available to the Group is sufficient;
(F) four certified copies of signed responsibility letters
addressed to the Company from each Director and a certified
copy of the letter to the Stock Exchange containing the
confirmations required by paragraph 5.5 of the Listing Rules;
(G) (to the extent relied upon in executing any other document to
be delivered to KB pursuant to this Clause 3.1) certified
copies of powers of attorney executed by each Director;
(H) a certified copy of the Verification Notes signed by or on
behalf of each of the persons stated therein as being the
signatories thereto, together with a copy of each supporting
document referred to therein;
(I) a certified copy of the minutes of a meeting of the Board (or of
a duly authorised committee thereof) in the agreed form approving,
inter alia, (i) the Company's execution of this Agreement, (ii) the
making of the Placing and Open Offer by KB on the Company's behalf,
(iii) the Press Announcement and its release by KB in accordance
with this Agreement, (iv) the making of the application to the
London Stock Exchange for Admission; and (v) the Circular,
the Application Form and the Proxy Card and their issue to Qualifying
Holders and (as the case may be) potential Placees; and
(J) a certified copy of the minutes of the meeting of the Board at
which any committee referred to at Clause 3.1((I)) was
appointed.
(K) a copy of the Circular certified by a Director or the
secretary of the company to be a true copy of the original)
bearing evidence of the London Stock Exchange's formal
approval of the Circular as listing particulars pursuant to
the Listing Rules;
(L) a letter from the Company to KB (in a form previously approved
by KB) relating to the declaration required from KB by
paragraph 2.8 of the Listing Rules; and
(M) all such further information and documents (including, without
limitation, all documents specified by paragraph 7.9 of the
Listing Rules) as KB may reasonably require, on or before or
after such date, for the purpose of assisting the Company to
obtain Admission or otherwise to facilitate the Open Offer and
Placing.
3.2 KB may, in its absolute discretion, waive or vary any obligation of the
Company under Clause 3.1 and may extend the time for delivery of any of
the documents referred to therein. Any waiver, variation or extension
may be made subject to such terms as KB may determine in its absolute
discretion.
3.3 The Company undertakes to procure that:
(A) two copies of the Circular shall be delivered by the Company
to the Registrar of Companies in England and Wales for
registration as required by section 149(1) of the FSA;
(B) the Circular (and any Supplementary Prospectus) be published
and copies be made available at the Company Announcements
Office of the London Stock Exchange and elsewhere as required
by Chapter 8 of the Listing Rules;
(C) it will notify the information referred to in paragraph
9.10(j) of Chapter 9 of the Listing Rules to the London Stock
Exchange as required by such paragraph;
(D) the documents stated in the Circular as being available for
inspection shall so be made available; and
(E) it will deal with any change or matter relating to the
Circular referred to in section 147(1) of the FSA which arises
on or after the date of the Circular and prior to Admission in
full compliance with all applicable provisions of Part VI of
the FSA and paragraphs 5.14 to 5.16 of Chapter 5 and paragraph
8.20 of Chapter 8 of the Listing Particulars (subject to
Clauses 9 and 10).
4. The Placing and the Open Offer
4.1 Subject to satisfaction of the Conditions and to the other terms of
this Agreement, KB agrees:
(A) as agent for the Company to make the Open Offer to Qualifying
Shareholders on the terms and subject to the conditions set
out in the Offer Documents;
(B) as agent for the Company to use its reasonable endeavours to
procure persons (other than persons who would, if they were
existing holders of Ordinary Shares, not be Qualifying
Shareholders, unless the Company shall otherwise consent in
writing) to subscribe for the New Shares pursuant to the
Placing to the extent that the New Shares are not taken up
under the Open Offer; and
(C) if any New Shares are not taken up under the Open Offer and
are not otherwise subscribed for pursuant to the Placing,
itself to subscribe for such New Shares,
in each case at the Offer Price free of all expenses and otherwise on
the terms and subject to the conditions set out in the Offer Documents
and this Agreement.
4.2 The Company authorises KB to issue the Press Announcement and subject
to its release to make arrangements for the Placing and, in particular,
for the distribution of the Press Announcement and placing proofs of
the Circular and Placing Letters to such persons as KB shall in its
absolute discretion determine.
4.3 The Company shall, or shall procure that the Receiving Agents shall,
notify KB in writing as soon as reasonably practicable (and in any
event not later than 10.30a.m. on the first Dealing Day after the
Closing Date) of the number of New Shares taken up under the Open
Offer, being those Offer Shares in respect of which valid applications
have been received in accordance with the terms of the Open Offer (and
have not been rejected in accordance with such terms) by the Latest
Acceptance Time accompanied by remittances for the full amount payable
in respect thereof (other than applications, if any, for which the
relevant remittances have been notified to the Receiving Agents by the
Latest Acceptance Time as having been refused by the drawee on
presentation). For the avoidance of doubt, any New Shares which are
taken up for the purpose of this Clause 4.3 but which are comprised in
an Application Form which is at the Latest Acceptance Time, or
thereafter may become subject to verification of identity enquiries by
the Receiving Agents in compliance with the Money Laundering
Regulations 1993 or otherwise shall be treated as taken up for all
purposes of this Agreement.
4.4 KB shall notify the Receiving Agents of the names and registration
details of the Placees and the number of Offer Shares to be subscribed
by each of them pursuant to the Placing as soon as reasonably
practicable after it has been notified, pursuant to Clause 4.3, of the
number of New Shares not taken up and, in any event, by 3.00 p.m. on
the third Dealing Day immediately following the Closing Date and in
default of KB so doing and such default not having being remedied by KB
by 12 midnight on the fifth Dealing Day immediately following the
Closing Date the Company is hereby irrevocably authorised to treat this
Agreement as an application by KB on its terms and subject to the
Conditions for such number of New Shares.
4.5 The Company shall allot the New Shares (if it has not done so
previously) pursuant to a resolution of the Board or of a duly
authorised committee thereof as soon as practicable following the
Closing Date and the satisfaction of each of the Conditions:
(A) in accordance with the terms of the Open Offer, to persons who
have validly applied for New Shares under the Open Offer; and
(B) in accordance with the details notified to the Receiving
Agents pursuant to Clause 4.4, to the Placees and/or (as
appropriate) KB.
4.6 The Company shall deliver to KB a certified copy of the resolution
referred to at Clause 4.5 by 4.00 p.m. on 28th August, 1998.
4.7 Subject to the Conditions and to the Company's compliance with Clauses
4.3, 4.5 and 4.6, KB shall transfer or procure the transfer to the
Company's account with
of the sum equal to the aggregate value at the Offer Price of all New
Shares not taken up under the Open Offer (less any deduction therefrom
made pursuant to Clause 6.6) in cleared funds for value on the
Admission Date.
4.8 On making of the transfer in accordance with Clause 4.7, KB's
obligations under this Agreement shall cease and determine and KB shall
have no further obligations to the Company under this Agreement
(without prejudice to the rights of the Company in respect of any
antecedent breach of this Agreement). Such transfer shall constitute a
complete discharge of the Placees in respect of the amounts payable by
them for their subscription of New Shares pursuant to the Placing.
4.9 The Company shall procure the registration of the persons to whom New
Shares are allotted pursuant to Clause 4.5 as the holders thereof
promptly (without registration fee) and shall procure that definitive
certificates in respect of the New Shares are despatched to such
persons as soon as reasonably practicable and, in any event, not later
than 7th September, 1998 and that, pending such despatch, transfers of
New Shares are certified against the Company's register of members.
4.10 The Company irrevocably appoints KB to act as its agent for the
purposes of the Placing and the Open Offer on terms that KB may
exercise all powers, authorities and discretions on behalf of the
Company which are necessary for or, in the reasonable opinion of KB are
desirable for the purposes of, the Placing and/or the Open Offer.
4.11 The Company confirms that application for Admission has been made to
the London Stock Exchange in accordance with section 143 of the FSA and
the Company undertakes to supply all such information, pay such fees,
give such undertakings, execute such documents and do or procure to be
done all such acts or things as may reasonably be required by the
London Stock Exchange to procure Admission.
4.12 The Company shall give all such assistance and provide all such
information as KB may reasonably require for the making and
implementation of the Placing and Open Offer and will do (or use its
reasonable endeavours to procure to be done) all such things and
execute (or use its reasonable endeavours to procure to be executed)
all documents as may be necessary or desirable in the reasonable
opinion of KB to be done or executed by the Company or by its officers,
employees or agents for the making and implementation of the Placing
and Open Offer.
5. Overseas Shareholders
The Company will, and will use reasonable endeavours to procure that
the Receiving Agents will, observe and comply with the provisions in
respect of overseas shareholders set out in Part III of the Circular
under the heading "Overseas Shareholders" and will not knowingly allot
New Shares to or accept a completed Application Form from any person
who is not a Qualifying Shareholder without the consent of KB, such
consent not to be unreasonably withheld or delayed.
6. Fee, Commissions and Expenses
6.1 The Company shall, whether or not KB's obligations hereunder become
unconditional, pay to KB:
(A) a fee of (pound)750,000 for advisory services in connection
with the Company's raising new capital; and
(B) in respect of KB's services described in Clause 4.1, a
commission of 2 1/4 per cent. of the Placing Sum, of which KB
shall apply a sum of up to 1 1/4 per cent. of the Placing Sum
in payment, on behalf of the Company, to Placees in accordance
with the Placing Letters.
6.2 The amount referred to in Clause 6.1 shall be paid together with VAT,
if any, thereon by the Company for value on the earlier of (i) the
Admission Date and (ii) the date on which the obligations of KB
hereunder cease and determine.
6.3 The fee and commissions set out in Clause 6.1 are payable whether or
not KB shall itself be called upon to subscribe any of the New Shares
pursuant to this Agreement.
6.4 Whether or not KB's obligations under Clause 4 become unconditional or
this Agreement is terminated, the Company will pay all other expenses
of or relating to this Agreement, the Placing, the Open Offer, securing
Admission, the issue of the New Shares and including (but without
limitation) all stamp duty and/or stamp duty reserve tax payable by any
Placee or any other person in respect of his subscription of New Shares
pursuant to the Placing or to the Open Offer, Stock Exchange listing
fees, registrars' and receiving agents' fees, printing, advertising and
distribution costs, the Company's out-of-pocket expenses, the Company's
legal, accountancy, brokerage and other professional fees and expenses
and the out-of-pocket and reasonable legal expenses of KB and all
related VAT, and the Company will forthwith upon request reimburse KB
for any such expenses for which the Company is responsible pursuant to
this Clause but which KB or (in relation to any such stamp duty or
stamp duty reserve tax) any Placee or other person subscribing New
Shares pursuant to the Placing or to the Open Offer may have incurred.
6.5 Where in pursuance of any provision of Clause 6.4 or Clause 7 a sum
is reimbursed to KB the Company shall, in addition, pay to KB:
(A) such amount as equals the VAT for which KB is properly liable
in respect of the costs or expenses referred to at Clause 6.4
or Clause 7 which KB is unable to reclaim as input tax from HM
Customs and Excise by reason of:
(i) such costs or expenses relating to or constituting
part of the consideration for a supply of services by
KB to the Company which is exempt from VAT; or
(ii) such costs or expenses constituting disbursements
incurred by KB as agent of the Company (provided that
KB procures that any appropriate VAT invoices naming
the Company as recipient of the relevant supply are
issued in respect of such items by the person making
the supply); and
(B) on receipt of a VAT invoice such an amount as equals VAT
properly chargeable by KB by reason of such costs or expenses
constituting consideration for a taxable supply of services by
KB to the Company.
6.6 Payment of the fee and commissions in accordance with Clause 6.1 and
reimbursement of expenses in accordance with Clause 6.4 may be made by
deduction thereof at KB's discretion from the amount to be transferred
in respect of any New Shares in accordance with Clause 4.7.
7. Indemnity
7.1 Subject to Clause 7.2, the Company undertakes to KB, for itself and as
agent and trustee on behalf of and for the benefit of each of the other
KB Persons, to keep each and every KB Person indemnified against all
losses, claims, demands, damages, costs, charges, expenses or
liabilities, (or actions proceedings or investigations in respect
thereof) which such KB Person may suffer or incur or which may be made
against such KB Person and which arise, directly or indirectly, out of
or in connection with:
(A) any breach or alleged breach by the Company of this Agreement;
(B) the carrying out or performance by or on behalf of KB of any
of its obligations or services under this Agreement or of any
other action authorised or approved by the Company in
connection with the Placing and/or the Open Offer;
(C) the issue or approval of any investment advertisement (as
defined in the FSA) made with the Company's prior approval in
connection with the Placing and/or the Open Offer;
(D) the release or despatch of the Press Announcement and/or the
Offer Documents and/or any Supplementary Prospectus; or
(E) any failure or alleged failure by the Company or any of the
Directors to comply with any legal, statutory or regulatory
requirement in relation to any of the Placing, the Open Offer,
the allotment and/or issue of the New Shares, the publication
of any of the Offer Documents and any transaction or matters
referred to in the Circular;
together with the properly incurred costs and expenses of such KB
Person in enforcing its rights under this Clause 7.
7.2 The indemnity in Clause 7.1 shall not extend or apply to the extent
that any loss, claim, liability, action, demand, cost or expense
referred to therein:
(A) arises by reason of the negligence or wilful default of any KB
Person or from wilful breach of any KB person's duty or
obligation under any legal statutory or regulatory
requirement; and/or
(B) is suffered or incurred by a KB Person as a result of its
having been required itself to subscribe for New Shares
pursuant to Clause 4.1, unless such loss, claim, liability,
action, demand or expense results from any breach or alleged
breach by the Company of this Agreement (including, for the
avoidance of doubt, the Warranties).
7.3 All sums payable by the Company under this Clause 7 shall be paid free
and clear of all set-off, counterclaims, deductions or withholdings
whatsoever save only as may be required by law. If any such set-offs,
counterclaims, deductions or withholdings are required by law or if the
United Kingdom Inland Revenue or any other taxing authority in any
jurisdiction brings into any charge to taxation (or into any
computation of income, profits or gains for the purposes of any charge
to taxation) any sum payable by the Company under this Clause 7, the
amount so payable shall be grossed up by such amount as will ensure
that after such deduction or withholding or the deduction of such
taxation there shall remain a sum equal to the amount which would
otherwise be payable under this Clause 7 (additional payments being
made by the Company as may be necessary from time to time).
7.4 As soon as reasonably practicable and in any event within 14 days of KB
becoming aware of any action or claim or other matter in respect of
which indemnity may be sought pursuant to this Clause 7, KB shall give
notice and reasonable details thereof to the Company. In such event, KB
shall consult with the Company and keep the Company informed in
relation thereto to the extent reasonable and practicable in the
circumstances subject to any requirement imposed by any insurer of KB
or any Affiliate.
8. Warranties
8.1 The Company represents and warrants to KB in the terms of each of the
Warranties set out in Schedule 1 and acknowledges that KB is entering
into this Agreement in reliance upon each of the Warranties.
8.2 Each of the Warranties shall be construed separately and shall not be
limited or restricted by reference to or inference from the terms of
any other of them or any other term of this Agreement.
8.3 Without prejudice to Clause 10.3, the Warranties shall remain in full
force and effect notwithstanding the completion of the Placing or the
Open Offer.
8.4 The Company undertakes to KB that it shall not do, allow or procure any
act or omission before Admission which would constitute a breach of any
of the Warranties or would make any of them untrue or inaccurate or
misleading if repeated by reference to facts and circumstances
subsisting at any time prior to Admission.
8.5 The Company shall notify KB at any time before Admission forthwith of
any matter of which it becomes aware which causes any of the Warranties
to be untrue or inaccurate or misleading in any respect when made
and/or, if any such Warranty was repeated at any time prior to
Admission by reference to the facts and circumstances then in
existence, would cause it to be untrue or inaccurate or misleading in
any respect.
8.6 The Company hereby acknowledges that neither KB nor any Affiliate has
(except to the extent that such person has expressly, by signature of
the Verification Notes (or by the provision of any specific assurance
or confirmation in respect of specific questions contained therein),
taken responsibility for the accuracy of any part of the Offer
Documents) been requested by the Company to carry out any form of
investigation or verification exercise relating to the accuracy and
fairness of any information contained in the Offer Documents or
otherwise published by or on behalf of the Company in connection with
the Placing or the Open Offer (this acknowledgement is, for the
avoidance of doubt, without prejudice to KB's responsibilities as
sponsor to the Placing and Open Offer and under the rules of the
Securities and Futures Authority). The Company also acknowledges that
the replies to the Verification Notes have been prepared and given by
persons reasonably believed by the Board to have the knowledge and
responsibility to enable them properly to provide such replies and, so
far as the Company is aware, that all such replies have been given in
good faith.
9. Announcements and Agreements
9.1 The Company shall not (and shall procure that each other Group Member)
and KB shall not, in each case without the prior consent in writing of
the other (not to be unreasonably withheld or delayed), between the
date of this Agreement and the date thirty consecutive days after the
Admission Date:-
(A) make any public statement, public announcement or communication
(other than the Offer Documents and the Proxy Card) concerning this
Agreement, the Placing, the Open Offer, the securities of the
Company or any Group Member which is material or in relation to
the market in the Company's issued Ordinary Shares, save as may
strictly be required by law or the rules and regulations of the London
Stock Exchange or any governmental or quasi-governmental
authority or other regulatory body having jurisdiction over the
Company or KB (as the case may be); or
(B) enter into any commitment or agreement or arrangement (other than as
envisaged in this Agreement) or knowingly do or permit to be done any
other act or thing which, in any such case, is material in the context
of the Placing or the Open Offer or in relation to the market in the
Company's issued Ordinary Shares which would give rise to any
obligation for the Company to publish any Supplementary
Prospectus or for the Company or any other Group Member to make any
announcement through or notification to the London Stock Exchange or any
other governmental or quasi-governmental authority or other
regulatory body having jurisdiction over any Group Member or KB or
by virtue of any law to which such Group Member or KB (as the case
may be) is subject or which may (except pursuant to the exercise of
existing subscription rights) involve any increase in, or obligation
(whether contingent or otherwise) to allot any of,
the capital of the Company or any other Group Member, save for the
grant or exercise of options pursuant to an existing share option scheme.
9.2 The Company and KB undertake so far as is reasonably practicable to
consult with the other in relation to any proposed statement,
announcement or communication which either of them is required to make
as stated in Clause 9.1 (including any Supplementary Prospectus) and
which would, save for this requirement, necessitate a consent in
accordance with Clause 9.1 and to take account of the reasonable
representations of the other in determining the terms thereof and the
manner in which it is made.
9.3 The Company undertakes to KB to make all such announcements concerning
the Placing and the Open Offer as shall be necessary to comply with
paragraph 1 of Chapter 9 of the Listing Rules and/or any other
applicable regulatory or statutory requirement. KB may, following
consultation with and after taking into account the reasonable
representations of the Company, make any such announcement if the
Company fails (in the opinion of KB acting in good faith) to fulfil its
obligations under this Clause promptly (but without any obligation for
KB to do so).
10. Termination
10.1 If KB becomes aware, at any time prior to Admission, that:-
(A) the Company is in breach of any of its obligations hereunder
or cannot comply with any such obligation in each case in a
respect which KB regards as material; or
(B) any of the Warranties is or if repeated at any time up to
Admission (by reference to the facts and circumstances then
existing) would be untrue, inaccurate or misleading in any
material respect,
KB shall be entitled in its absolute discretion by notice in writing to
the Company to be delivered prior to Admission forthwith to terminate
its obligations hereunder and the Company shall forthwith make an
announcement to the London Stock Exchange to that effect.
10.2 Cessation of and termination of KB's obligations in accordance with
Clause 2 or this Clause 10 shall be without prejudice to KB's rights
under Clauses 6, 7, 9, 11 and 12 (which Clauses shall continue in full
force and effect for all purposes) and to the rights of each party in
respect of any antecedent breach hereof.
10.3 The representations, warranties and undertakings set out or referred to
in Clause 7 and in Clause 8 shall remain in full force and effect
notwithstanding Admission and/or performance of KB of its obligations
hereunder and shall be in addition to and shall not limit, affect or
prejudice any other right or remedy available to the person in whose
favour such representation, warranty or undertaking is made.
11. Notices
11.1 Any notice to be given under this Agreement shall be in writing for the
attention of the person stated below and served personally or sent by
pre-paid registered mail to the respective addresses shown above or by
facsimile as set out below, or as the party required to receive the
same may otherwise from time to time notify to the other:-
The Company KB
Address: Huntingdon Life Sciences Kleinwort Xxxxxx Securities
Group plc Limited
Xxxxxxx Xxxx 00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxx XX0X 0XX
Xxxxxxxxxx
Xxxxxxxxxxxxxx
XX00 0XX
Facsimile: 01480 892195 0171 623 5535
Attn: The Company Secretary Xxxxxxx Xxxxxxx, Director
11.2 Any such notice or communication shall be deemed to have been served:
(A) if delivered, at the time of delivery;
(B) if posted by first class post, at 10.00 a.m. on the second business
day after it was put into the post; and
(C) if sent by facsimile, at the time of effective transmission.
11.3 In proving such service by post it shall be sufficient to prove that
the letter containing the notice or other communication was properly
addressed and delivered or put into the post as a pre-paid registered
letter. In proving effective transmission by facsimile it shall be
sufficient to prove that the facsimile containing such notice or other
communication was sent to the appropriate number and the appropriate
answerback was received at the end of the transmission in respect of
the number of pages comprised in the notice or other communication.
12. Miscellaneous
12.1 The Company undertakes to KB to comply with all material obligations
applicable to it contained or represented in the Transaction Documents
and to execute and/or provide or procure to be executed or provided all
such documents and to do or procure to be done all such other acts and
things as KB may reasonably request for the purpose of the Company
complying with its obligations under this Agreement and/or in order to
cause persons to acquire New Shares which are to be allotted to them
pursuant to the Placing and/or the Open Offer and/or this Agreement
with the entire right, title and interest to and in the New Shares.
12.2 The Company confirms that it has instructed the Receiving Agents to act
as receiving agents in connection with the Placing, the Open Offer and
the Extraordinary General Meeting and to perform the obligations
assigned to them under the Offer Documents and this Agreement and on
terms that monies received in respect of applications under the Open
Offer shall be paid in to a separate account pending the closing of the
Open Offer shall thereupon held to KB's order (provided that KB shall
direct that such monies shall be paid from such account in accordance
with the Offer Documents).
12.3 The Company confirms that, in addition to any remedy or right of action
available under this Agreement, KB shall be entitled (as allottees of
the New Shares or otherwise) to the same remedies and rights of action
against the Company and/or the Directors to the same extent as any
other person acquiring any New Shares on the basis of the Offer
Documents and pursuant to the Open Offer.
12.4 The rights and remedies of each party under this Agreement are without
prejudice to any other rights and remedies available to it. No neglect,
delay or indulgence on the part of any party hereto in enforcing any
term of this Agreement will be construed as a waiver and no single or
partial exercise of any rights or remedy of any party hereto under this
agreement will preclude or restrict the further exercise or enforcement
of any such right or remedy.
12.5 Time shall be of the essence of this Agreement, both as regards the
times, dates and any period mentioned herein and as to any times, dates
and periods which may, by agreement in writing between the parties
hereto, be substituted for them.
12.6 This Agreement may be executed in any number of counterparts and by the
parties hereto on separate counterparts, each of which when executed
shall constituted an original, but all of which shall together
constitute one and the same instrument.
12.7 This Agreement shall be governed by and construed in accordance with the
laws of England.
IN WITNESS WHEREOF this Agreement has been executed by the duly authorised
signatories of the parties the day and year first above written.
SIGNED BY XXXXXXXXXXX XXXXXX )
for and on behalf of the )
HUNTINGDON LIFE SCIENCES GROUP PLC ) XXXXXXXXXXX XXXXXX
in the presence of: )
XXXXX XXXXXXX XXXXXX
..............................................
Name: XXXXX XXXXXXX XXXXXX
Address: XXXXXXX & XXXXXXX, LONDON
Occupation:
SIGNED BY XXXXXXX XXXXXXX )
for and on behalf of )
KLEINWORT XXXXXX ) XXXXXXX XXXXXXX
LIMITED in the presence )
of: )
XXXXX XXXXXXXXX
.............................................
Name: XXXXX XXXXXXXXX
Address: DRESDNER KLEINWORT XXXXXX, LONDON
Occupation:
SCHEDULE 1:
Warranties
1. Accuracy of information - Each statement of fact contained in the Press
Announcement and the Circular is true and accurate in all material
respects and is not misleading (by itself or in its context) in any
material respect and each expression of opinion, intention or
expectation (unless expressly attributed to a person other than the
Directors or the Company) (including any forecast or estimate of
dividends), contained in the Press Announcement and the Circular is
fairly based and honestly held by the Directors and has been made on
reasonable grounds after due and careful consideration and there are no
other facts the omission of which would make any such statement of
fact or expression of opinion, intention or expectation false or
misleading in any material aspect.
2. The New Shares - The New Shares will be allotted and issued in accordance
with the Offer Documents free from all encumbrances, claims, liens or
other third party rights of whatsoever nature without any need for any
person to receive a report in respect of any New Shares pursuant to
section 103 of the Companies Xxx 0000 or to pay any stamp duty reserve
tax in respect thereof. The New Shares will rank pari passu in all
respects with the existing issued Ordinary Shares including (save as
stated in the Circular) the right to participate in all dividends and
other distributions hereafter declared, paid made on or in respect of
such existing Ordinary Shares .
3. Accounts - The audited consolidated balance sheets of the company and
its subsidiaries and the audited consolidated profit and loss account for
the three successive accounting periods ended 30th December 1997,
as set out in the annual report and accounts of the Company for such
periods (including the notes thereon) give a true and fair view of the
state of affairs of the Group as at, and the profits for the
financial year ended at, the end of such periods, as applicable,
make adequate provision for all liabilities, whether actual, deferred,
contingent or disputed, and were prepared in accordance with the
accounting policies stated therein (save to the extent disclosed
therein) in accordance with generally accepted accounting principles
consistently applied and all relevant Statements of Standard Accounting
Practice and Financial Reporting Standards, and comply with each
applicable provision of the Companies Xxx 0000.
4. Previous announcements - In respect of all announcements made by or on
behalf of the Company to the London Stock Exchange since the date of
publication of the Accounts ("previous announcements"), all statements
of fact contained therein were true and accurate in all material respects
and not misleading in any material respect and all expressions of opinion
or intention or expectation contained therein (unless expressly
or by implication attributed to a person other than the Directors
or the Company) which are material were made on reasonable grounds and
were truly and honestly held by the Directors and were fairly based
and there were no other facts or which could on reasonable enquiry have
been known to the Directors the omission of which would make
any such statement or expression in any of the previous announcements
misleading or which were or might have been material in the
context in which the previous announcements were made and all previous
announcements complied with the Listing Rules.
5. Compliance - The entry into this Agreement and the performance by the
Company of its obligations hereunder or in connection therewith, including
the offer, allotment and issue of the New Shares in accordance with the
Offer Documents and the provisions of this Agreement, are within the
powers of the Company and its Directors without (subject to the
passing of the Resolutions) the need for any further sanction or
consent by the members of the Company or any class of them or any
other person and will comply with all relevant requirements of all
applicable legislation, the Listing Rules and all other applicable
rules and regulations and will not constitute an infringement or
default of any obligation under any agreement to which any Group
Member is a party or by which it or any of them or its or any of their
property is bound (but limited to agreements where such infringement
or default would have a material adverse effect on the financial position
of the Group).
6. Third party authorisations - All authorisations, approvals, consents
and licences required by the Company to enter into and complete this
Agreement have been unconditionally obtained and are in full force and
effect (save for the passing of the Resolution and Admission).
7. Prospectus - The Circular contains all such information as, having
regard to the matters referred to in section 146(3) of the FSA,
investors and their professional advisers would reasonably require, and
reasonably expect to find there, for the purpose of making an informed
assessment of the assets and liabilities, financial position, profits
and losses and prospects of the Company and of the rights attaching to
the New Shares.
8. Working capital and indebtedness - The Working Capital Memorandum and
the statement of indebtedness of the Group, which is set out in the
Circular, have in each case been approved by the Board (or a duly
appointed committee thereof) and have been prepared after due and
careful enquiry and on the bases and assumptions stated in the Working
Capital Memorandum which each Director believes to be reasonable and,
so far as the Directors are aware after making due and careful
enquiries, there are no facts or assumptions not set out in the Working
Capital Memorandum which ought to have been reasonably taken into
account but which have not been taken into account in the preparation
of the Working Capital Memorandum. The statement in relation to the
working capital available to the Group set out in the Circular has been
properly made after due and careful enquiry and has been made after
taking into account all relevant factors.
9. Material changes - since 30th December 1997 the operations of the
Group have been carried on in the ordinary and usual course and there
has been no material change in the financial or trading position or
prospects of the Group save as disclosed by the Company through the
Regulatory News Service of the London Stock Exchange and since
such relevant date no member of the Group has made any material
acquisition or disposal or agreed to make any material acquisition or
disposal of any business, company or material asset other than in the
ordinary course of business nor has it made any material commitments
other than in the ordinary course of business, and no
contracts have been entered into by any Group Member otherwise than in
the ordinary course of business which are material for disclosure.
10. Litigation - Save as disclosed in the Circular no Group Member
nor, so far as the Directors are aware, any person for whom a Group Member
or any of its subsidiaries is or may be vicariously liable is engaged
in any litigation or arbitration proceedings which individually or
collectively may have or have had during the twelve months preceding the
date of this Agreement a significant effect on the financial position of
the Group or are material for disclosure nor, to the best of
the knowledge, information and belief of the Directors (having made all
reasonable enquiries), are there any circumstances which may give
rise to any such legal or arbitration proceedings.
11. Supplementary Prospectus - All statements of fact contained in any
Supplementary Prospectus will be true and accurate in all material
respects and not misleading and all expressions of opinion or
intention contained therein (unless expressly or by implication
attributed to a person other than the Directors or the Company) will be
made on reasonable grounds and will be truly and honestly held by the
Directors and will be fairly based and there will be no other facts
known or which could on reasonable enquiry have been known to the
Directors the omission of which would make any such statement or
expression in any such Supplementary Prospectus misleading or which
will be or might be material. If any Supplementary Prospectus is
published, then the Circular, together with such Supplementary Prospectus,
will contain all such information as, having regard to the matters
referred to in section 146(3) of the FSA, investors and their professional
advisers would reasonably require, and reasonably expect to find there,
for the purpose of making an informed assessment of the assets
and liabilities, financial position, profits and losses and prospects
of the Company and of the rights attaching to the New Shares.
12. Subscription Agreement - No breach of the Subscription Agreement has
occurred prior to Admission that would give any party to the
Subscription Agreement the right to terminate the Subscription
Agreement irrespective of whether any such party either has or has
notified in writing an intention to terminate the Subscription
Agreement.
13. Verification Notes - The replies given by the Company and/or the
Directors to the Verification Notes have been prepared or approved by
persons having appropriate knowledge and responsibility to enable them
properly to provide such replies.
14. Insolvency - Neither the Company nor any of its Subsidiaries has taken
any action, nor have any other steps been taken or legal proceedings
been started or (so far as the Directors are aware) threatened against
the Company or any of its subsidiaries for its or their winding up or
dissolution, or for it or any of them to enter into any arrangement or
composition for the benefit of creditors, or for the appointment of a
receiver, trustee, administrator, administrative receiver or similar
officer of any of them or any of their respective properties, revenues
or assets.
15. Material contracts - All subsisting material contracts entered into
within two years of the date of the Circular (other than contracts
entered into in the ordinary course of business) by the Company or any
of its subsidiaries will be disclosed in the Circular and no material
contracts (other than those so disclosed and those entered into in the
ordinary course of business) will without the written consent of KB be
varied prior to Admission.
16. Repayment of indebtedness - Except as may be disclosed in the Circular,
no event or circumstance has arisen nor, so far as the Company is
aware, is about to arise (including, for the avoidance of doubt,
pursuant to the issue of the New Shares or the entry into of this
Agreement), such that any person is or, with the giving of notice
or the lapse of time, would be entitled to require payment of any
indebtedness in respect of borrowed monies of any Group Member before
its stated maturity or to take any step to enforce any security therefor,
no material repayment of any indebtedness of any Group Member has been
demanded, before its due date for repayment, by reason of any default of
any such Group Member and no person to whom any such indebtedness which
is payable on demand is owed has demanded or threatened to demand
repayment of, or to take any step to enforce any security for, such
indebtedness.
17. Options - Save as disclosed in the Circular, there are in force no
options or other agreements which call for the issue of, or afford to
any person the right to call for the issue of any shares in the
capital, or other securities, of the Company.
SCHEDULE 2:
Clause 2.1(C) Certificate
[Letterhead of the Company]
The Directors
Kleinwort Xxxxxx Securities Limited [ ] 1998
Dear Sirs,
Placing and Open Offer
We refer to Clause 2.1(C) of a placing and open offer agreement between us
relating to the Open Offer dated August, 1998 (the "Placing Agreement"). Words
and expressions defined in the Placing Agreement have the same meanings herein.
We hereby confirm to you that:
(a) each of the Conditions referred to in Clause 2.1 to of the Placing
Agreement has been either fulfilled or waived by you in accordance with
the terms of the Placing Agreement; and
(b) the Company is not aware that any of the Warranties was breached or
untrue or inaccurate or misleading in any material respect at the date
of the Placing Agreement or that there has been any change of
circumstances such that if repeated at the date hereof by reference to
the facts and circumstances subsisting at the date hereof any Warranty
would be breached or untrue or inaccurate or misleading in any material
respect.
Yours faithfully,
......................................
Director, duly authorised,
for and on behalf of Huntingdon Life Sciences Group plc
CONTENTS
Page
1. Definitions and interpretation 1
2. Conditions 6
3. Document Delivery 7
4. The Placing and the Open Offer 9
5. Overseas Shareholders 12
6. Fee, Commissions and Expenses 12
7. Indemnity 13
8. Warranties 14
9. Announcements and Agreements 15
10. Termination 16
11. Notices 17
12. Miscellaneous 18
SCHEDULE 1: Warranties 21
SCHEDULE 2: Clause 2.1(C) Certificate 25
Agreed form documents:
Application Form
Circular
Completion Board Minutes (see Clause 3.1((I)))
Placing Letters
Press Announcement
Proxy Card
Resolutions
CONFORMED COPY
DATED 10 August, 1998
HUNTINGDON LIFE SCIENCES GROUP PLC
- and -
KLEINWORT XXXXXX LIMITED
--------------------------------------------------------------
PLACING AND OPEN
OFFER AGREEMENT
--------------------------------------------------------------
Xxxxxxxxx and May
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
(ANH/HKG)
