EFTA01119516.pdf

Dated 2010 (1) DAVID STERN and (2) INFORMA PLC AGREEMENT for the sale and purchase of 50.1% of the issued share capital of China Medical Data Services Limited CMS Cameron McKenna LLY Mitre House 160 Aldersgate Street London EC IA 4DD Ref: AJS/SUK3C/125793.00010 (22979899.I6) 38 EFTA01119516  Table of Contents 1. Definitions and Interpretation 1 2. Sale and purchase 6 3. Consideration and Signing 6 4. Conditions and conduct of Business pending Completion 6 5. Completion 9 6. Warranties 10 7. Further assurance 12 8. Confidentiality; announcements 12 9. Assignment 13 10. General 13 11. Notices 14 12. Governing law 15 13. Disputes 15 Schedule 1 Details of the Group 17 Pan 1 The Company 17 Part 2 The Subsidiary 18 Schedule 2 Properties 19 Leases 19 Schedule 3 Completion Obligations 20 Schedule 4 General Warranties 22 Schedule 5 limitation of Seller's liability 30 Schedule 6 Conduct of Business Pending Completion 31 Schedule 7 CMDS SPA 34 Schedule 8 Business Plan 35 Schedule 9 Management Accounts 36 (22979899.16) 39 EFTA01119517 THIS AGREEMENT is made the 3rday of c 2010 BETWEEN: (1) DAVID STERN of 152 Grosvenor Road, London, SWIV 3JL (the "Seller"); and (2) INFORMA PLC (registe'red in Jersey with number 102786) whose principal office is at Gubelstrasse II, CH-6300 Zug, Switzerland (the "Informal. RECITALS (A) Details of China Medical Data Services Limited (the "Company") are set out in Part 1 of Schedule 1. (B) The Seller has agreed to sell the Shares to the Purchaser and the Purchaser has agreed to purchase the Shares on and subject to the terms and conditions of this Agreement. NOW IT IS AGREED as follows: 1. Definitions and Interpretation 1.1 In this Agreement: "Accounts" means the audited financial statements of the Subsidiary as at the Balance Sheet Date (comprising in each case a balance sheet, profit and loss account, notes, auditors' and directors' reports and a cashflow statement) and references to the Subsidiary's Accounts are to the relevant financial statements comprised in the Accounts; "Affiliate" means in relation to any body corporate (1) its parent undertaking; or (ii) any subsidiary undertaking of such body corporate or of its parent undertaking; "AIC" means the local counterparts in China to the SAIC; "Balance Sheet Date" means 31 December 2009; "Business" means collectively the businesses of each Group Company as carried on at the date of this Agreement; "Business Day" means a day (other than a Saturday or Sunday) when banks are open for business in the City of London; "Business Plan" means the business plan (in Agreed Form) attached hereto as Schedule 8; "China" means the People's Republic of China; "CMDS" means China Medical Data Services Limited, a company registered in the British Virgin Islands under number 1524823, whose registered office is at PO Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands; "CMDS SPA" means the purchase contract between CMDS and the Company to acquire the entire issued share capital of the Subsidiary attached hereto as Schedule 7; "Company" means the company named in Recital (A); "Completion" means completion of the sale and purchase of the Shares pursuant to this Agreement; (22979899.13) 1 EFTA01119518  "Conditions" means collectively the conditions to Completion set out in clause 4.1 and "Condition" shall be construed accordingly; "Conditions Precedent Date" means 31 October 2010; "Connected Person" means a person connected (within the meaning of section 839 TA 88) with the Seller or any of the directors (or any former director) of the Company or of the Subsidiary; "Consideration" means the sum of US$2,487,500; "Contracts" means the contracts set out in Condition 4.1.1 (in Agreed Form); "Disclosed" means accurately and fairly disclosed (with sufficient details to identify the nature and scope of the matter disclosed) by the Disclosure Documents (and "Disclosure" shall be construed accordingly); "Disclosure Documents" means the Disclosure Letter and the two identical bundles of documents collated by or on behalf of the Seller, the outside covers of each of which have been signed for identification by or on behalf of the Seller and the Purchaser, "Disclosure Letter means the letter described as such, dated as of the date of this Agreement and addressed by the Seller to the Purchaser; "Employees" means the employees of the Subsidiary whose names have been Disclosed; "Encumbrance" means any right to acquire, option or right of pre-emption or conversion or any mortgage, charge, pledge, lien, assignment, hypothecation, security interest, or any other security agreement or arrangement, or any agreement to create any of the above; "Environment" means any and all organisms (including man), ecosystems, property and the following media: air (including the air within buildings and the air within other natural or man- made structures, whether above or below ground); water (including water under or within land or in drains or sewers and coastal and inland waters); and land (including land under water); "Environmental Laws" means any and all laws, whether civil, criminal or administrative, applicable to the Group and/or conduct of the Business and which have as a purpose or effect the protection or the provision of remedies in respect of the Environment; "Escrow Account" means the joint account held in the name of the Purchaser and the Seller with National Westminster Bank for the purpose of holding the Consideration and the Investment Amount; "Escrow Account Mandate" means the form for the opening of the Escrow Account entered into by the Purchaser and the Seller on the date hereof; "Escrow Amount" means the sum standing to the credit of the Escrow Account from time to time; "Group" means collectively the Company and the Subsidiary (and "Group Company" shall be construed accordingly); "Health and Safety Laws" means any and all laws, whether civil, criminal or administrative, applicable to the Group and/or the Business concerning health and safety matters and all and (22979899.13) 2 EFTA01119519  any regulations or orders made or issued under any such legislation and any relevant codes of practice, guidance notes and the like issued by government agencies; "Hong Kong" means the Hong Kong Special Administrative Region of China; "Intellectual Property" means patents, rights to inventions, copyright and related rights, moral rights, trade marks, service marks and trade names, domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including Know-How) and any other intellectual property rights or rights of a similar nature, in each case whether registered or unregistered, and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; "Investment Amount" means the sum of US$8,512,500 being the amount to be invested by the Purchaser for Loan Notes (as defined in the Shareholders' Agreement) upon execution of the Shareholders' Agreement in accordance with its terms; "Know-How" means all inventions, improvements, modifications, processes, formulae, models, prototypes and sketches, drawings, plans or specifications or any other matters made, devised, developed or discovered by any Group Company, alone or with one or more others, relating to or otherwise in connection with the Business; "LCIA Court" means the London Court of International Arbitration "LCIA Rules" means the LC1A Arbitration Rules "Lease" means in relation to any Property, if applicable, the lease under which the Property is held by a Group Company; "Letter of Appointment" the letter of appointment proposed to be entered into between the Company and the Seller (in Agreed Form); "Liability for Tax" means any liability to make a payment of or in respect of Tax and shall also include the set-off or use against income, profits or gains earned, accrued or received or against any Tax chargeable in respect of any act, omission or transaction occurring on or before Completion of any relief or right to repayment of Tax (including any repayment supplement) which is not available before Completion but is available after Completion and where, but for such set-off or use, the Group Company would have had a liability to make a payment of or in respect of Tax for which the Purchaser would have been liable to make a claim against the Seller under this Agreement; "Management Accounts" means the unaudited management accounts in respect of the Subsidiary as at 31 March 2010 and in respect of the 3 month period then ended and attached hereto at Schedule 9; "New Articles": the proposed new Articles of Association of the Company in the Agreed Form; "parent undertaking" means a parent undertaking within the meaning of section 1162 Companies Act 2006 but in addition as if that section provided that an undertaking is deemed to be a member of another undertaking where its rights in relation to that other undertaking are held by way of security by another person but treated for the purposes of that section as held by it; "Parties" means the Purchaser and the Seller (and "Party" shall be construed accordingly); (22979899.13) 3 EFTA01119520  "Permits" means any and all licences, consents, permits, registrations, filings, exemptions, approvals, authorisations or the like, made or issued pursuant to or under, or required by, Environment Laws in relation to the carrying on of the Business at the Properties; "Properties" means the real properties of which short particulars are set out in Schedule 2 and the expression "Property" shall mean, where the context so admits, any one or more or any part of such properties; "Purchaser's Solicitors" means CMS Cameron McKenna LLP of Mitre House, 160 Aidersgate Street, London EC1A 4DD (Ref.: AIS/SUKIU125793.00010); "Relevant Tr" means all registered Intellectual Property owned by the Company or the Subsidiary and all Intellectual Property owned by or licensed to the Company or the Subsidiary other than "shrink wrap" or "click wrap" software; "Relief" means any loss, relief, allowance, credit, exemption or set-off in respect of Taxation or any deduction in computing income, profits or gains for the purposes of Taxation; "11111B": means Renminbi, the official currency of China (excluding Hong Kong, Macau, Special Administrative Region and Taiwan); "SAIC" means the state Administration for Industry and Commerce; "Seller's Solicitors" means Winston Strewn LLP of 200 Park Avenue, New York, NY 10166- 4193 (Ref Eric Cowan); "Seller's Account" means the bank account notified by the Seller to the Purchaser prior to Completion; "Shareholders' Agreement" means the shareholders' agreement to be entered into on Completion between inter alia the Company, the Seller and the Purchaser (in the Agreed Form). "Shares" means the 501 fully-paid issued A Ordinary Shams of IIKDS1 each in the capital of the Company; "Steps Plan" means the steps plan setting out the order and the way in which steps will be taken in order to fulfil the Conditions (in Agreed Form); "Subsidiary" means the company which upon Completion shall be the subsidiary of the Company, being that company named in Part 2 of Schedule 1; "subsidiary" means a subsidiary within the meaning of section 1159 Companies Act 2006 but in addition as if that section provided that its members are deemed to include any other body corporate whose rights in relation to it are held on behalf of that other body corporate or by way of security by another person but are treated for the purposes of that section as held by that other body corporate; "subsidiary undertaking" means a subsidiary undertaking within the meaning of section 1162 Companies Act 2006 but in addition as if that section provided that its members are deemed to include any other undertaking whose rights in relation to it are held by way of security by another person but are treated for the purposes of that section as held by that other undertaking; "Taxation" or "Tax" means: (22979899.13) 4 EFTA01119521  (a) all forms of taxation and statutory, governmental, state, federal, provincial, local government or municipal charges, duties, imposts, contributions, levies, withholdings or liabilities wherever chargeable and whether of China, Hong Kong or any other jurisdiction; and (b) any penalty, fine, surcharge, interest, charges or costs payable in connection with any taxation within (a) above; "Taxation Authority" means any governmental or other authority whatsoever competent to impose any Taxation, whether in China, Hong Kong or elsewhere; "VAT" means value added tax; and "Warranties" means the warranties set out in clause 6 and Schedule 4 and "Warranty" means any of them. 1.2 Reference to any document as being "in the agreed form" means that it is in the form agreed between the Seller and the purchaser and signed for the purposes of identification by or on behalf of the Seller and the purchaser. 13 Where any statement is qualified as being limited by any person's knowledge (for example, by using expressions such as "so far as he is aware"), that statement shall be deemed to be given to the best of his knowledge, information and belief after making due and careful enquiries. 1.4 The table of contents and headings and sub-headings are for convenience only and shall not affect the construction of this Agreement. 1.5 Unless the context otherwise requires, words denoting the singular shall include the plural and vice versa, references to any gender shall include all other genders and references to any person (which shall be deemed to include the person's successor) shall include bodies corporate (wherever incorporated), unincorporated associations, partnerships and statutory bodies as well as any legal or natural person. 1.6 The words "other", "include" and "including" do not connote limitation in any way. 1.7 References to Recitals, Schedules, clauses and sub-clauses are to (respectively) recitals to, schedules to, and clauses and sub-clauses of, this Agreement and references within a Schedule to paragraphs are to paragraphs of that Schedule. References to this Agreement include a reference to each of the Schedules. 1.8 References in this Agreement to any statute, statutory provision, directive or other legislation include a reference to that statute, statutory provision, directive or legislation as amended, extended, re-enacted, consolidated or replaced from time to time (whether before or after the date of tins Agreement) and include any order, regulation, instrument or other subordinate legislation made under the relevant statute, statutory provision, directive or legislation. 1.9 Any reference to "writing" or "written" includes axes and any legible reproduction of words delivered in permanent and tangible form (but does not include e-mail). 1.10 References to times of the day arc (unless otherwise expressly provided) to London time and references to a day are to a period of 24 hours running from midnight on the previous day. (22979899.13) 5 EFTA01119522 2. Sale and purchase 2.1 Subject to the teams of this Agreement, the Seller shall sell to the Purchaser the Shares and the Purchaser shall purchase the Shares accordingly. 2.2 The Shares shall be sold with the benefit of all rights attaching to them as at the date of this Agreement, including all dividends and distributions declared, paid or made by the Company on or after the date of this Agreement, but legal title to the Shares shall not transfer to the Purchaser until Completion. 2.3 The Purchaser shall not be obliged to complete the purchase of any of the Shares unless the purchase of all the Shares is completed simultaneously. 2.4 The Seller covenants that he has and will at Completion have the right to transfer the legal and beneficial title to the Shares and that they arc and will at Completion be free from all Encumbrances. 2.5 The Seller waives all rights of pre-emption or similar rights over any of the Shares conferred on him either by the articles of association of the Company or in any other way. 3. Consideration and Signing 3.1 The Shares shall be sold for the aggregate sum of US$2,487,500, which shall be payable to the Seller upon Completion. 3.2 Within three Business Days of the date of this Agreement the Purchaser shall pay the Consideration and the Investment Amount into the Escrow Account. 3.3 The Escrow Account will be operated in accordance with the Escrow Account Mandate as regards the Escrow Amount and any sum standing to the credit of the Escrow Account and any interest accrued on the Escrow Amount will be dealt with in accordance with this Agreement. 4. Conditions and conduct of Business pending Completion 4.1 Subject in each case to waiver in accordance with clause 4.2, Completion is subject to and conditional on: 4.1.1 due execution of contracts (including chop) between the Subsidiary and (a) the Administration of Social Security of the Ministry of Human Resources and Social Security, and (b) The National Technical Committee on Social Insurance of Standardization Administration of China (SAC TC474) (both in Agreed Form); and 4.1.2 the receipt of approvals from the relevant Chinese authority for (a) a change of the shareholder of the Subsidiary from CMDS to the Company; and (b) increasing the Registered Capital of the Subsidiary by US$7,840,000 or such amount as the Parties may otherwise agree; and (c) increasing the Total Investment of the Subsidiary by US$16,000,000 or such amount as the Parties may otherwise agree; and (d) a change in the scope of business of the Subsidiary to the scope as agreed between the Parties; (22979899.13) 6 EFTA01119523  4.1.3 the receipt of : (a) a new Foreign Invested Enterprise Certificate in relation to the Subsidiary from the relevant Chinese authority evidencing the approvals in clause 4.1.2 (a) and (d) above; and (b) a business licence in respect of the Subsidiary issued by the A1C following the approvals in clause 4.1.2 (a) and (d); and (c) a new Foreign Invested Enterprise Certificate in relation to the Subsidiary from the relevant Chinese authority evidencing the approvals in clause 4.1.2 (b) and (c) above; and (d) a business licence in respect of the Subsidiary issued by the AIC following the approvals in clause 4.1.2 (b) and (c); and 4.1.4 the execution of the CNIDS SPA. 4.2 The Purchaser shall be entitled by notice in writing given to the Seller to waive (to such extent as it may think fit) compliance with the Conditions stated in clause 4.1 to the extent that the Seller agrees. 4.3 The Parties shall use all reasonable endeavours to procure that the Conditions are fulfilled as soon as practicable and in any event on or before the Conditions Precedent Date; and the Parties shall, as soon as it comes to their attention, disclose to the other in writing anything which will or may prevent any of the Conditions from being fulfilled in that time. 4.4 The Seller undertakes to the Purchaser that in the period between the date of this Agreement and the date of Completion (both dates inclusive): 4.4.1 he shall use his best endeavours to obtain approvals from the relevant Chin authority for a change of name of the Subsidiary to: ten MtliTi IIC..-rfit 441, 114 4 Itra) Mit .12. 1.3 4.4.2 he shall use his best endeavours to preserve and retain the goodwill of the Business and existing relationships with customers and suppliers; 4.4.3 he shall keep the Purchaser promptly and fully informed in relation to the Business, and the financial position and/or assets of the Group; and 4.4.4 except as otherwise required in this Agreement, neither the Company nor the Subsidiary will (except with the written consent of the Purchaser) do, suffer or permit to be done or agree to do any of the matters referred to in Schedule 6 or anything else which is not of a routine or unimportant nature. 4.5 The Seller and the Purchaser undertake to each other than between the date of this Agreement and the date of Completion they shall use all reasonable endeavours to agree the form of: 4.5.1 service agreements to be executed and entered into by the Employees and the Subsidiary; and 4.5/ an agreement between the Company and the Subsidiary for the Company's right to exploit and use any data collected by the Subsidiary pursuant to the Contracts in (22979899.13) 7 EFTA01119524  consideration for US$506,000, which shall be entered into by the Company and the Subsidiary on or around 1 June 2010 or such other time period as provided in clause 4.6 below. 4.6 If by 5pm on 31 May 2010 Condition 4.1.1 has been satisfied, but any other Condition is still outstanding, and as long as the contracts (in a form approved by Informa) pursuant to clause 4.5.2 have been entered into by the Company and the Subsidiary by that time, the Purchaser shall on 1 June 2010 advance US$506,000 to the Company by way of loan notes, to be on substantially the same terms as the Loan Notes ("Initial Loan Notes"). If Condition 4.1.1 is satisfied after 5pm on 31 May 2010 but before the Conditions Precedent Date, and as long as the contracts (in a form approved by Informa) pursuant to clause 4.5.2 have been entered into by the Company and the Subsidiary, the Purchaser shall advance US$506,000 to the Company by way of the Initial Loan Notes as soon as reasonably practicable after Condition 4.1.1 is fulfilled. The parties further agree to release the sum of US$506,000 from the Escrow Account in order to satisfy the advance to the Company by way of the Initial Loan Notes, such amount to be deducted from the Investment Amount. 4.7 As soon as reasonably practicable following the satisfaction of Conditions 4.1.1, 4.12 (a) to (d), 4.1.3 (a) to (c) and 4.1.4 and in any event, within twenty five days of Condition 4.12 (b) and (c) being satisfied, Informa shall advance to the Company a sum equal to 20% of the increase in Registered Capital applied for under Condition 4.12(b) (the "Agreed Amount") to the Company by way of loan notes, to be on substantially the same terms as the Loan Notes ("Second Loan Notes"). The parties further agree to release the sum of the Agreed Amount from the Escrow Account in order to satisfy the advance to the Company by way of the Second Loan Notes, such amount to be deducted from the Investment Amount (in addition to any amount to be deducted pursuant to clause 4.6). 4.8 If by 5pm on the Conditions Precedent Date, the Conditions set out in clause 4.1.2(a) shall not have been satisfied (or waived by the Purchaser) but the other Conditions have been satisfied (Condition 4.1.3 having been satisfied to the extent applicable to Conditions 4.1.2 (b), (c) and OD: 4.8.1 the CMDS SPA shall be rescinded or terminated (as appropriate); 4.8.2 this Agreement shall have no further force and effect and no Party shall have any liability in respect of it except as regards any antecedent breach and save that the following clauses shall continue to have effect 1, 4.8.1, 4.8.3, 8, 9, 10 and 11; 4.8.3 the Seller and the Purchaser shall as soon as reasonably practicable after the Conditions Precedent Date: (a) enter into and complete a sale and purchase agreement (on substantially the same terms as this Agreement, but with such amendments as may be necessary to make it compliant with the laws of the British Virgin Islands) for the sale and purchase of 50.1% of the issued share capital of CMDS; (b) enter into a shareholders' agreement on substantially the same terms as the Shareholders' Agreement, but with such amendments necessary as may be necessary to make it compliant with the laws of the British Virgin Islands; (c) procure that CMDS shall adopt Articles and Memorandum of Association substantially in the form of the New Articles but with such amendments as may be necessary to make them compliant with the laws of the British Virgin Islands; and (22979899.13) 8 EFTA01119525  (d) novate the Initial Loan Notes from the Company to CMDS and the Seller shall procure that aiDS and the Company enters into such novation. 4.9 If by 5pm on the Conditions Precedent Date, any of Conditions 4.1.1, 4.1.2(b), (c) and (d) and 4.1.3 (a), (10, (c) and (d) shall not have been satisfied (or waived by the Purchaser with the Seller's agreement); 4.9.1 the Parties hereby irrevocably agree that the Escrow Amount shall be released from the Escrow Account and paid to the Purchaser, and 4.9.2 this Agreement shall have no further force and effect and no Party shall have any liability in respect of it except as regards any antecedent breach and save that the following clauses shall continue to have effect 1, 4.9.1, 8, 9,10 and 11. 4.10 The Parties hereby undertakes to each other that, other than with the consent of the other (not to be unreasonably withheld or delayed), they shall ensure that all the steps they are required to take in order to &Wit the Conditions will be taken in the order and as set out in the Steps Plan. 5. Completion 5.1 Unless the Purchaser shall have rescinded the Agreement as permitted under clause 6.8, a completion meeting shall take place at the offices of the Seller's Solicitors on the fifth Business Day after the satisfaction of the Conditions (other than any which have been waived in accordance with this Agreement) or at such other place and/or time as the Parties may agree in writing. 5.2 At Completion: 5.2.1 the Seller shall perform his obligations and deliver to the Purchaser each of the documents as set out in Schedule 3; 5.2.2 the Parties shall (subject to clause 5.2.1) release the Consideration from the Escrow Account to the Seller's Account (who are irrevocably authorised to receive the same); 5.2.3 the Purchaser shall execute the Shareholders' Agreement and the Parties shall procure that the matters to take place on signing of that agreement in accordance with its terms shall be performed and the Parties shall procure that the Investment Amount (minus any amounts advanced to the Company pursuant to clause 4.6 and 4.7) is released from the Escrow Account to the Company or as the Company shall (with the consent of the Purchaser and the Seller) direct; and 5.2.4 the Parties shall direct that all interest earned on the Escrow Amount shall be paid to the Seller. 5.3 Notwithstanding Completion: 5.3.1 each provision of this Agreement (and any other document referred to in it) not performed at or before Completion but which remains capable of performance; 5.3.2 the Warranties (subject to Schedule 5); and 5.3.3 all covenants and other undertakings contained in or entered into pursuant to this Agreement (22979899.13) 9 EFTA01119526  will remain in full force and effect and (except as otherwise expressly provided) without limit in time. 6. Warranties 6.1 The Seller warrants, represents and undertakes to the Purchaser in the tams set out in Schedule 4 in relation to the Company and the Subsidiary subject to any matters Disclosed. Each of the Warranties shall be construed independently and (except as expressly otherwise provided) shall not be limited by reference to any other Warranty or by anything in this Agreement. Any matter set forth in any provision of the Disclosure Documents which is Disclosed shall also be deemed a disclosure to other Warranties to which the relevance of such disclosure is reasonably apparent on its face. 6.2 The Seller in relation to the Company and the Subsidiary warrants, represents and undertakes to the Purchaser that the Warranties will be true and accurate in all respects and not misleading at all times from the exchange of this Agreement up to and including Completion in all respects; provided, however, that any matter set forth in any provision of the Disclosure Documents which is Disclosed shall also be deemed a disclosure to other Warranties to which the relevance of such disclosure is reasonably apparent on its face: 6.2.1 as if they had been repeated on each such day by reference to the circumstances at the time of repetition; and 6.22 on the basis that a reference to the time of repetition were each time substituted for any express or implied reference to the time of this Agreement (but so that any period of time expressed to start at the date of this Agreement shall continue to be deemed to start then), and references in this Agreement to the Warranties shall include them as so repeated. 6.3 Save as provided in clause 6.4, none of the Warranties shall be deemed in any way modified or discharged by reason of any investigation or inquiry made or to be made by or on behalf of the Purchaser. Save as provided in clause 6.4, no information relating to the Company or to the Subsidiary that has not been Disclosed but of which the Purchaser has knowledge (whether actual or constructive) shall prejudice any claim which the Purchaser shall be entitled to bring or shall operate to reduce any amount recoverable by the Purchaser under this Agreement. 6.4 At the time of entering into this Agreement, the Purchaser confirms to the Seller that Rachel Jacobs and Giles Catron are not actually aware (and there shall be no implication that any enquiry has been made into the relevant subject matter with any person) of any fact, matter, event or circumstance which would reasonably be expected to give rise to a claim under the Warranties. 6.5 The Seller undertakes to the Purchaser to waive any and all claims (including for negligence) that he might otherwise have against the Company, the Subsidiary and/or their respective officers, employees, agents and consultants or any of them in respect of any information that any such person has in any capacity supplied to them in connection with the Warranties and/or the information Disclosed. 6.6 The Seller accepts that the Purchaser has been induced to enter into this Agreement, and has entered into it, upon the basis of and in reliance upon the Warranties. 6.7 The Seller shall use all reasonable endeavours to ensure that it will not do or omit to do anything before Completion which would, at any time before or at Completion, be materially (22979899.13) 10 EFTA01119527  inconsistent with any of the Warranties, breach any Warranty or make any Warranty untrue or misleading. 6.8 If at any time before or at Completion the Purchaser is actually aware that a Warranty will at Completion be breached or at Completion be untrue or misleading, in a material manner or the Seller has committed a material breach of its obligations under clause 4.4, the Purchaser (without prejudice to any other rights it may have in relation to the breach): 6.8.1 shall if the breach is capable of being remedied, notify the Seller that it has the greater of 10 Business Days or the period prior to the Completion Precedent Date to remedy such breach, and may if the Breach is not remedied within such period: (a) rescind this Agreement by written notice to the Seller; or (b) proceed to Completion; or 6.82 may if the breach is not capable of being remedied: (a) rescind this Agreement by written notice to the Seller; or (b) proceed to Completion. 6.9 The Purchaser undertakes, that if it is actually aware that a Warranty will at Completion be breached or be untrue or misleading and proceeds to Completion without informing the Seller of such actual knowledge, the Purchaser shall only be able to bring a claim for breach of that Warranty if that breach is reasonably likely to give rise to a claim exceeding USS25,000. 6.10 The Seller hereby further accepts that the Purchaser or such other entity as the Purchaser may nominate shall make additional advances in a form to be determined by the Purchaser or any other entity it may nominate into either the Company or the Subsidiary (as provided for in the Shareholders' Agreement) upon the basis of and in reliance upon the Warranties and that the monetary limitation of liability in respect of any claims under the Warranties shall therefore be the aggregate amount which the Purchaser has invested and is obliged to invest in the Company. 6.11 The liability of the Seller in respect of any claim under the Warranties shall be limited as provided in Schedule 5 BUT PROVIDED ALWAYS THAT: 6.11.1 such limitations shall not apply in relation to the Warranties set out in paragraphs 1 and 3.8 of Schedule 4; and 6.11.2 notwithsts ding any other provision of this Agreement, the provisions of this sub- clause 6.10 and Schedule 5 shall not apply to any claim made against the Seller in the case of any fraud, dishonesty, wilful misstatement or wilful omission by or on behalf of the Seller. 6.12 Subject to clause 6.12, the Seller hereby covenants to pay to the Purchaser an amount equal to any Liability for Tax of any Group Company: 6.12.1 which arises from income, profits or gains earned, accrued or received (or deemed to be earned, accrued or received) or attributable to any act, omission or transaction occurring (or deemed to have occurred) on or before Completion; or 6.12.2 for which the Group Company would not have been liable but for being treated as being or having been a member of the same group as or associated with any company at any time prior to Completion for the purposes of any Tax; (22979899.13) 11 EFTA01119528  and all reasonable costs and expenses properly incurred and payable by the Group Company and the Purchaser in connection with any action taken to avoid any Liability for Tax. 6.13 The Seller shall have no liability under clause 6.11: 6.13.1 to the extent that such Liability for Tax arises from any act or transaction of the Group in the ordinary course of its trading since the Balance Sheet Date provided that the profits in question have not been distributed or otherwise withdrawn from the Group as at Completion; or 6.13.2 to the extent that provision or reserve in respect thereof is made in the Accounts; or 6.13.3 to the extent that such Liability for Tax arises or is increased as a result only of any change in law announced and coming into force after the date of Completion with retrospective effect or as a result of a change after Completion in any accounting policy of the Company (other than any change necessary to comply with the law or intended to bring the accounting policy into line with generally accepted accounting practice as at Completion). 6.14 The Seller hereby covenants to pay to the Purchaser an amount equal to any liability of any Group Company, other than those specifically noted in the ATTounts, which arise prior to, or as a result of any action or inaction taken prior to Completion. 7. Further assurance 7.1 The Parties shall, from time to time on being required to do so by each other, promptly and at the cost and expense of the Party being requested to take any action, do or procure the doing of all such acts and/or execute or procure the execution of all such documents in a form satisfactory to the other as the requesting Party may reasonably consider necessary for giving full effect to this Agreement (or to such parts of it as remain operative after termination) and securing to the other the full benefit of the rights, powers and remedies conferred upon the Parties in this Agreement; provided, however, that no Party shall be required to make any additional representations or warranties pursuant to this obligation. 8. Confidentiality; announcements 8.1 The Seller undertakes with the Purchaser, and the Purchaser undertakes with the Seller, to keep confidential (except as expressly provided in this Agreement) at all times after the date of this Agreement, and not directly or indirectly reveal, disclose or use for his or its own or any other purposes, any confidential information received or obtained as a result of entering into or performing, or supplied by or on behalf of a Party in the negotiations leading to, this Agreement and which relates to: 8.1.1 the negotiations relating to this Agreement 8.1.2 the subject matter and/or provisions of this Agreement; or 8.13 (in the Seller's case) the Purchaser or (in the Purchaser's case) the Seller. 82 The prohibition in sub-clause 8.1 does not apply if: 8.2.1 the information was in the public domain before it was furnished to the relevant Party or, after it was furnished to that Party, entered the public domain otherwise than as a result of (a) a breach by that Party of this clause or (b) a breach of a confidentiality obligation by the discloser, where the breach was known to that Party, or (22979899.13) 12 EFTA01119529  8.2.2 disclosure is necessary in order to comply with applicable legislation, regulatory requirements or obtain tax or other clearances or consents from any relevant Taxation Authority, provided that any such information disclosable pursuant to sub-clause 8.2.2 shall be disclosed (unless such consultation is prohibited by applicable law or regulatory requirements) only after consultation with the Purchaser or the Seller (as the case may be). 8.3 No Party shall make any press release or other public announcement in connection with any of the transactions contemplated by this Agreement except: 8.3.1 an announcement in the agreed form or in any other form agreed by the Purchaser and the Seller; or 8.3.2 any announcement required by any applicable law or regulatory requirements to which any Party is subject (including the London Stock Exchange plc) (provided that, unless such consultation is prohibited by legal or regulatory requirements, it is made only after consultation with the Purchaser or the Seller (as the case may be)). 9. Assignment 9.1 Neither Party may assign, transfer, charge or deal in any way with the benefit of, or any of their respective rights under or interest in, this Agreement, and any attempted assignment or delegation in violation of this provision shall be null and void, except in accordance with a prior written waiver given by the other Party. Notwithstanding the foregoing, the Purchaser may, without a prior written waiver of the Seller, assign all of the benefit and its rights under this Agiveumit (including under the Warranties) to any Affiliate of the Seller or to any purchaser; provided that the Purchaser remains liable for all of its obligations hereunder. 9.2 Notwithstanding the provisions of clause 8 but subject to the proposed assignee entering into an agreement in favour of the Company to keep such information confidential, the Purchaser may disclose to a bona fide proposed assignee information (including confidential information) in its possession relating to the provisions of this Agreement, the negotiations relating to this Agreement, the subject matter of this Agreement and the Seller to the extent it is reasonably required by the proposed assignee in connection with the proposed assignment. 9.3 This Agreement shall be binding upon and operate for the benefit of the personal representatives and permitted assigns and successors in title of each of the Parties and references to the Parties shall be construed accordingly. 10. General 10.1 No delay or omission by the Purchaser in exercising any right, power, privilege or remedy hereunder shall operate to impair such right, power, privilege or remedy or be construed as a waiver thereof and no single or partial exercise or non-exercise of any right, power, privilege or remedy shall in any circumstances preclude any further or other exercise thereof or the exercise of any other right, power, privilege or remedy. Any waiver of any right, power or remedy under this Agreement must be in writing and may be given subject to any conditions thought fit by the grantor. 10.2 No variation to this Agreement shall be of any effect unless it is agreed in writing and signed by or on behalf of each Party. 10.3 Each of the provisions of this Agreement is severable. Accordingly, if any such provision is or becomes invalid or unenforceable in any respect under the law of any jurisdiction that shall not (22979899.13) 13 EFTA01119530  affect or impair the validity or enforceability in that jurisdiction of the other provisions of this Agreement (or of that or any provisions of this Agreement in any other jurisdiction) and the Parties will use all reasonable endeavours to negotiate in good faith with a view to replacing it with one or more provisions satisfactory to any relevant competent authority but differing from the replaced provision as little as possible. 10.4 Except as otherwise stated in this Agreement, each Party shall bear its own costs and expenses in relation to the negotiation, preparation, execution and carrying into effect of this Agreement and all other agreements forming part of the transactions contemplated by this Agreement. Without prejudice to the generality o