November 2008 UBS LIMITED MERRILL LYNCH INTERNATIONAL ENCUENTRO LIMITED THE ROYAL BANK OF SCOTLAND GROUP PLC
Exhibit
4.19
November 2008
UBS
LIMITED
XXXXXXX
XXXXX INTERNATIONAL
ENCUENTRO
LIMITED
SECOND SUBSCRIPTION
AND TRANSFER
DEED
relating
to
ENCUENTRO
LIMITED
Freshfields
Bruckhaus Xxxxxxxx LLP
00 Xxxxx
Xxxxxx
Xxxxxx
XX0X 0XX
CONTENTS
| CLAUSE | PAGE | ||
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1.
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INTERPRETATION
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1
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|
|
2.
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SUBSCRIPTION FOR
FURTHER ORDINARY SHARES AND “B” PREFERENCE SHARES
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4 | |
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3.
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SALE
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5 | |
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4.
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REPRESENTATIONS,
WARRANTIES AND UNDERTAKINGS
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6 | |
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5.
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ASSIGNMENT AND
NOVATION
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7 | |
| SCHEDULE 1 WARRANTIES | 9 | ||
| SCHEDULE 2 DEED OF NOVATION | 12 | ||
THIS DEED is made
on November 2008
BETWEEN:
|
(1)
|
UBS LIMITED, a company
incorporated under the laws of England and Wales with
registered number 2035362, whose registered office is at 0 Xxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX (UBS);
|
|
(2)
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XXXXXXX XXXXX
INTERNATIONAL, a company incorporated under the laws of England
and Wales with registered number 02312079, whose registered office is at
Xxxxxxx Xxxxx Financial Centre, 2 Xxxx Xxxxxx Street, London EC1A 1HQ
(Xxxxxxx
Xxxxx and, together with UBS, the Joint
Sponsors);
|
|
(3)
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ENCUENTRO LIMITED, a
company incorporated in Jersey with registered number 99953,
whose registered office is at Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx, Xx Xxxxxx,
Xxxxxx XX0 0XX (the Company);
and
|
|
(4)
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THE ROYAL BANK OF SCOTLAND
GROUP PLC, a company incorporated under
the laws of Scotland with registered number 45551, whose registered office
is at 00 Xx Xxxxxx Xxxxxx, Xxxxxxxxx XX0 0XX (RBSG).
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WHEREAS:
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(A)
|
As
at the date of this Deed the Company has an authorised share capital of
200 Ordinary Shares, 500,000,000 “A” Preference Shares and 500,000,000 “B”
Preference Shares, of which 100 Ordinary Shares will, at the time of
Admission, be issued and held as to 89 per cent. by RBSG and as to 11 per
cent. by the Subscriber.
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(B)
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The
Commissioners of Her Majesty’s Treasury (HM
Treasury) and RBSG, among others, have entered into a placing and
open offer agreement effective as of 13 October 2008 (the Placing
Agreement), pursuant to which, subject to the conditions stated
therein, RBSG Ordinary Shares are to be placed at 65.5 xxxxx per share
with placees procured by the Joint Sponsors, subject to clawback by
ordinary shareholders of RBSG pursuant to an open offer, and, to the
extent not placed with such placees or acquired by such ordinary
shareholders, are to be taken up by HM
Treasury.
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(C)
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Pursuant
to the terms of a subscription and transfer dated the date hereof (the
First
Subscription and Transfer Deed), the Subscriber has agreed to
subscribe for 150,000,000
“A” Preference Shares, on the terms and subject to the conditions of that
deed, and to transfer such “A” Preference Shares and the Ordinary Shares
held by it to the Company.
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1. INTERPRETATION
1.1 In
this Deed, the following expressions shall have the following
meanings:
“A” Preference
Shares means redeemable “A” preference shares of £0.01 each in the capital
of the Company having the rights set out in the Articles of
Association;
“B” Preference
Shares means redeemable “B” preference shares of £0.01 each in the capital
of the Company having the rights set out in the Articles of
Association;
Business Day
means a day (other than a Saturday or Sunday) on which banks are open
for ordinary banking business in London and Edinburgh;
Dealing Day
means a day on which London Stock Exchange plc’s main market for listed
securities is open for business;
Encumbrance
means any mortgage, charge (whether legal or equitable and whether fixed
or floating), security, lien, pledge, option, right to acquire, right of
pre-emption, equity, assignment, hypothecation, title retention, claim,
restriction or power of sale;
Final
Subscription Date means the date on which the Final Subscription
Time occurs;
Final
Subscription Time means 8.00 a.m. on the date to be agreed between
RBSG, the
Joint Sponsors and Computershare Investor Services plc immediately after which
the Subscriber shall subscribe for the Further Ordinary Shares and the
Subscriber “B” Preference Shares, such date to be a Dealing Day after completion
of the transfer by the Subscriber of the Subscriber “A” Preference Shares and
Subscriber Ordinary Shares (in each case as defined in the First Subscription
and Transfer Deed) to RBSG and in any event not to be later than two calendar
months after the date of Admission;
First
Subscription and Transfer Deed has the meaning given to it in Recital
(C);
Ogier
means Ogier, solicitors and advocates of Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx,
Xx Xxxxxx,
Xxxxxx XX0 0XX;
Option Agreement
means the letter agreement entered into as a deed between the Joint
Sponsors, the Company and RBSG on the date of this Deed regarding, among other
things, the subscription by the Subscriber for Ordinary Shares;
Ordinary Shares
means ordinary shares of £1.00 each in the capital of the
Company;
Outstanding
Subscription Amount means the amount standing to the credit of the Transaction
Bank Account in cleared funds immediately prior to the Final Subscription
Time;
RBSG Ordinary
Shares means ordinary shares of 25 xxxxx each in the capital of RBSG;
Receiving Agent
Agreement means the deed of appointment and instruction appointing
Computershare Investor Services plc as receiving agents and registrars to the
Placing and Open Offer to be entered into on or about the date of this Deed,
setting out, among other things, the arrangements governing the ownership and
application of the funds standing to the credit of the Transaction Bank
Account;
Page
2
Subscriber
Ordinary Shares has the meaning given to it in the First Subscription
and Transfer
Deed;
Tax
or
Taxation means all forms of taxation and statutory, governmental,
state, provincial,
local, governmental or municipal impositions, duties, contributions and levies
in each case whether of the United Kingdom or elsewhere in the world whenever
imposed and whether chargeable directly or primarily against or attributable
directly or primarily to a person or otherwise and all penalties, charges, costs
and interest relating thereto;
Transaction
means the transactions and arrangements contemplated by the Transaction
Documents;
Transaction Bank
Account means the bank account referred to in clause 2.4 of the Placing
Agreement, being the “Acceptance Account” as defined in the Receiving Agent
Agreement;
Transaction
Documents means this Deed, the First Subscription and Transfer Deed, the
Placing Agreement, the Receiving Agent Agreement, the Option Agreement and all
documents entered into pursuant to or in connection with such deeds and
agreements; and
Warranties
means the representations and warranties given by the Company and RBSG
set out in Schedule 1.
Capitalised
terms used in this Deed, unless otherwise defined herein, shall have the meaning
given to them in the Placing Agreement.
1.2 In
this Deed, unless the context otherwise requires:
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(a)
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references
to “persons” shall
include individuals, bodies corporate (wherever incorporated),
unincorporated associations and
partnerships;
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(b)
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the
headings are inserted for convenience only and shall not affect the
construction of this Deed;
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(c)
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any
reference to an enactment or statutory provision is a reference to it as
it may have been, or may from time to time be, amended, modified,
consolidated or re-enacted except to the extent that any such amendment,
consolidation or re-enactment after the date of this Deed would increase
or extend the liability of any person
hereunder;
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(d)
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references
to “pounds”,
“£” and “xxxxx” are references to
the currency of the United Kingdom;
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Page
3
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any
schedule to this Deed shall take effect as if set out in this Deed and
references to this Deed shall be deemed to include its schedules;
and
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(f)
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when
construing any provision relating to VAT, any reference in this Deed to
any person shall (where appropriate) be deemed, at any time when such
person is a member of a group of companies for VAT purposes, to include a
reference to the representative member of such group at such
time.
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2.
SUBSCRIPTION FOR FURTHER ORDINARY SHARES AND “B” PREFERENCE SHARES
2.1
Upon and subject to the terms and conditions of this Deed and in reliance on the
Warranties contained herein:
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(a)
|
the
Subscriber agrees to subscribe and pay for, and the Company agrees to
allot and issue to the Subscriber, 12 Ordinary Shares for a price of £1.00
per Ordinary Share, each credited as fully paid up (the Further
Ordinary Shares), immediately after the Final Subscription Time;
and
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(b)
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the
Subscriber agrees to subscribe and pay for, and the Company agrees to
allot and issue to the Subscriber, 2,000,000 “B” Preference Shares, each
credited as fully paid up (the Subscriber
“B” Preference Shares), immediately after the Final Subscription
Time,
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in each
case free from all Encumbrances and together with all rights attaching thereto
and on the condition that immediately following such allotment and following
payment of the Outstanding Subscription Amount to the Company (or as the Company
directs) the Subscriber “B” Preference Shares are transferred by the Subscriber
to RBSG as provided in clause 3.1.
2.2
The
Subscriber shall, forthwith upon demand by the Company, pay the sum of £12.00 to
the Company in consideration for, and following the allotment to the Subscriber
by the Company of the Further Ordinary Shares.
2.3
In
consideration of the agreement to allot, and following the allotment of, the
Subscriber “B” Preference Shares, and subject to clause 2.4 below, the
Subscriber hereby undertakes to procure the payment of the Outstanding
Subscription Amount from the Transaction Bank Account to the Company (or as the
Company directs) immediately before the transfer of the Subscriber “B”
Preference Shares to RBSG pursuant to this Deed, and in any event by no later
than 5.00 p.m. (or as otherwise agreed between the parties) on the Final
Subscription Date (the Payment
Undertaking).
Each Subscriber “B” Preference Share so allotted shall be credited as fully
paid against the Payment Undertaking.
2.4
The
obligations of the Subscriber and the Company pursuant to clauses 2.1,
2.2and 2.3
of this Deed are conditional upon completion of the transfer by the Subscriber
of the Subscriber “A” Preference Shares and Subscriber Ordinary Shares (in each
case as defined in the First Subscription and Transfer Deed) to RBSG and the
Final Subscription Time having passed. The Payment Undertaking shall
become
Page
4
2.5
For the
avoidance of doubt, the Subscriber shall be under no obligation to subscribe for
“B” Preference Shares in an amount in excess of the Outstanding Subscription
Amount (without prejudice to the Payment Undertaking).
2.6
Following
allotment as aforesaid, the Company shall procure that, within the jurisdiction
of Jersey, the name of the Subscriber shall be entered in the register of
members of the Company (itself held in Jersey) in respect of the Ordinary Shares
and “B” Preference Shares allotted to it and prepare and deliver to the
Subscriber (or as the Subscriber directs):
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(a)
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share
certificate evidencing the number of Ordinary Shares and “B” Preference
Shares allotted and issued to it;
and
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(b)
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a
copy of the minutes of the board meeting approving the allotment and the
updated register of members (the name of the Subscriber having been
entered into the register), certified as a true copy by the secretary or a
director of the Company.
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2.7
For the avoidance of doubt, nothing in this Deed shall confer or impose on any
Placee (including HM Treasury) or any Qualifying Shareholder and right or
obligation (conditional or otherwise) to subscribe for or acquire any Ordinary
Shares, Subscriber “A” Preference Shares or Subscriber “B” Preference
Shares.
3. SALE
3.1
Subject to the Further Ordinary Shares and the Subscriber “B” Preference Shares
having been allotted to the Subscriber in accordance with clause 2, the
Subscriber shall, on the Final Subscription Date and immediately following such
allotments and following payment of the Outstanding Subscription Amount to the
Company (or as the Company directs), transfer to RBSG:
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(a)
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the
Further Ordinary Shares allotted and issued to it pursuant to clause 2;
and
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(b)
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the
Subscriber “B” Preference Shares allotted and issued to it pursuant to
clause 2,
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in each
case fully paid up.
3.2
The transfer of the Further Ordinary Shares and the Subscriber “B” Preference
Shares pursuant to clause 3.1, together with the transfer of the Subscriber
Ordinary Shares and the Subscriber “A” Preference Shares pursuant to the First
Subscription and Transfer Deed, shall be the consideration for the allotment and
issue by RBSG of the RBSG Ordinary Shares as set out in the Placing Agreement,
provided that the value of the consideration allocated to the Subscriber
Ordinary Shares and the Further Ordinary Shares shall respectively be £11.00 and
£12.00, and the remainder of the consideration shall be allocated to the
Subscriber “A” Preference Shares and the Subscriber “B” Preference
Shares.
Page
5
3.3 The obligation of the Subscriber to transfer Subscriber “B”
Preference Shares and Further Ordinary Shares pursuant to clause 3.1 shall be
satisfied by the execution of and the delivery to RBSG, or as it may direct, of
duly executed stock transfer forms in favour of RBSG (the originals being kept
in Jersey insofar as reasonably practicable) together with the share
certificates in respect of the Subscriber “B” Preference Shares and Further
Ordinary Shares transferred pursuant to clause 3.1.
3.4
The
Company shall hold a board meeting in the United Kingdom at which it shall be
resolved that the transfers relating to the Subscriber “B” Preference Shares and
Further Ordinary Shares shall be approved for registration, subject to
performance by the Subscriber of its obligations under clause 3.1, 3.2 and 3.3,
and that RBSG be registered as the holder of the Subscriber “B” Preference
Shares and Further Ordinary Shares in the Company’s register of members (itself
held in Jersey).
3.5
The
Subscriber, as security for its obligations hereunder, hereby
appoints:
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(a)
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Ogier
(and all partners and other authorised signatories of Ogier (in each case
acting singly)); and
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(b)
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RBSG
(and each of its directors, officers and authorised signatories (in each
case acting singly))
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as its
attorney, in its name and on its behalf or otherwise, at such time and in such
manner as the attorney thinks fit, to do and perform all such acts or things,
and to execute, complete and deliver all such documents (including any stock
transfer forms), as the attorney may, in its absolute discretion, consider
necessary or desirable in connection with the transfer of all or any of the
Further Ordinary Shares and all or any of the Subscriber “B” Preference Shares
to RBSG in accordance with this Deed, provided always that such power of
attorney shall not be exercisable until the Payment Undertaking has become
effective in accordance with the terms of clause 2.4 hereof. Such appointment
shall be irrevocable unless the rights and obligations of the Subscriber for the
time being under this Deed are novated to a third party in accordance with the
provisions of clause 5.2 or Xxxxxxx Xxxxx replaces UBS as the Subscriber
pursuant to clause 5.4, in which case such appointment shall lapse and have no
further effect. For the avoidance of doubt, the New Subscriber appointed
pursuant to clause 5.2 or Xxxxxxx Xxxxx, if it replaces UBS as Subscriber
pursuant to clause 5.4, shall be deemed to have appointed Ogier (and all
partners and other authorised signatories of Ogier (in each case acting singly)
and RBSG (and each of its directors, officers and authorised signatories (in
each case acting singly) as its attorney in accordance with this clause. This
power of attorney shall remain in full force and effect until the date occurring
one year from the date hereof.
4.
REPRESENTATIONS,
WARRANTIES AND
UNDERTAKINGS
4.1
The Company and RBSG jointly and severally represent and warrant on the date
hereof to each of the Joint Sponsors in the terms of the Warranties set out in
paragraphs 1, 3, and 4 of Schedule 1 (the Joint
Warranties) and RBSG represents and warrants on the date hereof to each
of the Joint Sponsors in the terms of the Warranties set out in paragraph 2 of
Schedule 1 (the Issuer
Warranties). The Company and RBSG further jointly and severally represent
and warrant to each of the
Page
6
4.2
Until the
date upon which the Subscriber has transferred the Subscriber “B” Preference
Shares and Further Ordinary Shares to RBSG pursuant to clause 3, the parties
undertake to each other to procure (in so far as they are able) that no
amendments will be made to the Articles of Association.
4.3
Until the
date upon which the Subscriber no longer holds any interest in the Company’s
share capital, the Company undertakes to each of the Joint Sponsors that it will
not, and RBSG undertakes to each of the Joint Sponsors that it will procure
(insofar as it is able) that the Company will not, undertake any activities
other than those contemplated under this Deed, the First Subscription and
Transfer Deed or the Option Agreement.
5.
ASSIGNMENT AND
NOVATION
5.1
Subject to clauses 5.2 and 5.4, no party may assign or purport to
assign:
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(a)
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this
Deed;
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(b)
|
all
or any of its rights or obligations arising under or out of this Deed;
or
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(c)
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the
benefit of all or any of any other party’s obligations under this
Deed.
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5.2
Notwithstanding
clause 5.1, the parties agree that they shall execute a deed of novation
substantially in the terms of Schedule 2 to this Deed (the Deed of
Novation) which shall operate so as to novate the rights and obligations
of the Subscriber under this Deed to any third party nominated by RBSG (the
New
Subscriber), provided that the parties receive written notice from RBSG
at least 3 Business Days prior to Admission requesting that the parties enter
into such Deed of Novation and that a corresponding deed of novation is also to
be entered into in connection with the First Subscription and Transfer Deed and
the Option Agreement.
5.3
For the
avoidance of doubt, if the rights and obligations of the Subscriber are novated
to a third party in accordance with clause 5.2:
|
(a)
|
the
Subscriber shall have no rights or obligations under the terms of this
Deed after the execution of the Deed of Novation except in respect of
rights and obligations accrued prior to such execution and not novated to
the New Subscriber; and
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(b)
|
the
right of RBSG to elect that Xxxxxxx Xxxxx shall replace UBS as the
Subscriber in accordance with the terms of this Deed shall
terminate.
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Page
7
6.
OTHER
6.1
Clauses 4.4 to 4.13, 5 to 7 and 9 to 24 of the First Subscription and Transfer
Deed shall apply, mutatis
mutandis, as if: (i) references to the “First Subscription and Transfer
Deed” were references to this Deed; (ii) references to the “Subscriber Ordinary
Shares” were references to the “Further Ordinary Shares”; and (iii) references
to the “Subscriber “A” Preference Shares” were references to the “Subscriber “B”
Preference Shares”, and as modified by clause 1.2(g) of the First Subscription
and Transfer Deed.
IN
WITNESS whereof the parties have
executed this Deed on the date and year first above
written.
Page
8
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as
a DEED
by ENCUENTRO
LIMITED
acting by two Directors or
a
Director and the Secretary
|
)/s/
[illegible]
)/s/
[illegible]
)
)
|
|
SIGNED
and
DELIVERED
as a DEED
by THE
ROYAL BANK OF
SCOTLAND
GROUP PLC
acting
by two Directors or
a
Director and the Secretary
|
)/s/
[illegible]
)/s/
[illegible]
)
)
)
|
|
SIGNED
and
DELIVERED
as
a DEED by
UBS
LIMITED
acting
by authorised signatories
|
)/s/
[illegible]
)/s/
Xxxxx Xxxx
)Associate
Director
|
Witnessed
by: /s/ Xxxxxxx
Xxxxx
Name:
Xxxxxxx
Xxxxx
Occupation: AVP, Origination
counsel
Address:
0 Xxxx Xxxxxx Xx, Xxxxxx XX0X
0XX
WARRANTIES
1.
THE COMPANY’S CAPACITY
1.1
The Company is a private limited company incorporated under Jersey law and since
incorporation:
|
(a)
|
it
has been in continuous existence;
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(b)
|
it
has not traded or carried on any business or activity of any nature other
than amending its memorandum and articles of association in contemplation
and for the purposes of the steps contemplated by the Transaction
Documents; and
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(c)
|
it
has not incurred any liabilities in excess of
£100.
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1.2
This Deed
has been duly authorised, executed and delivered by, and constitutes a valid and
legally binding agreement of, the Company, and is enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally and to general principles of
equity.
1.3
The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Deed:
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(a)
|
have
been duly authorised by all corporate or other action required under
Jersey law;
|
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(b)
|
do
not and will not require any consent, approval, authorisation or order of,
or filing with, any governmental or other agency or body or any court;
and
|
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(c)
|
will
not conflict with or result in a breach or violation of any of the terms
and provisions of, or constitute a default
under:
|
|
|
(i)
|
any
statute, or any rule, regulation or order, judgement or decree of any
government, governmental agency or body or any court applicable in respect
of the Company or any of its property;
|
|
(ii)
|
any
agreement or instrument or other obligation to which the Company is a
party or by which the Company or any of its properties, undertakings,
assets or revenues are bound; or
|
|
|
(iii)
|
the
constitutional documents of the
Company.
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2.
RBSG’S CAPACITY
2.1
RBSG is a public limited company incorporated under the laws of Scotland and
since incorporation has been in continuous existence.
Page
9
2.3
The
execution and delivery by RBSG of, and the performance by RBSG of its
obligations under, this Deed:
|
(a)
|
have
been duly authorised by all corporate or other action required under
Scottish law;
|
|
(b)
|
do
not and will not require any consent, approval, authorisation or order of,
or filing with, any governmental or other agency or body or any court;
and
|
|
(c)
|
will
not conflict with or result in a breach or violation of any of the terms
and provisions of, or constitute a default
under:
|
|
|
(i)
|
any
statute, or any rule, regulation or order, judgment or decree of any
government, governmental agency or body or any court applicable in respect
of RBSG or any of its property;
|
|
(ii)
|
any
agreement or instrument or other obligation to which RBSG is a party or by
which RBSG or any of its properties, undertakings, assets or revenues are
bound; or
|
|
|
(iii)
|
the
constitutional documents of
RBSG.
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3. THE SHARES
3.1
Save for
any Encumbrance created pursuant to this Deed, there will be no Encumbrance over
or in relation to the Further Ordinary Shares or the Subscriber “B” Preference
Shares at the time of their allotment and issue.
3.2
At the
date of allotment of the Subscriber “B” Preference Shares, the directors of the
Company shall have due authority to allot the Subscriber “B” Preference Shares
and such shares shall be:
|
(a)
|
issued
as freely transferable shares with the rights set out in the Articles of
Association and ranking pari passu among
themselves; and
|
|
(b)
|
duly
authorised and validly issued and will be credited as fully paid
up.
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3.3
At the date of allotment of the Further Ordinary Shares, the directors of the
Company shall have due authority to allot the Further Ordinary Shares and such
shares when allotted and issued will have been duly and validly authorised and,
upon allotment and issue as provided in this Deed, will be fully paid and free
from any Encumbrances.
Page
10
4.1
The
Company is and, during any period in which the Subscriber holds, or is
contractually obliged to subscribe for, shares in the Company (and for the time
immediately thereafter) will remain, resident in the United Kingdom and nowhere
else for United Kingdom Taxation purposes.
4.2
RBSG has
not caused or permitted any issue or transfer of shares or debentures in the
Company which is unlawful for the purposes of section 765 of the Income and
Corporation Taxes Xxx 0000.
4.3
No share
register of the Company is located or kept in the United
Kingdom.
Page
11
DEED
OF NOVATION
THIS DEED is made on [ ] 2008
BETWEEN:
|
(1)
|
UBS LIMITED, a company
incorporated under the laws of England and Wales with
registered number 2035362, whose registered office is at 0 Xxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX [(the Subscriber)] [(UBS)];
|
|
(2)
|
XXXXXXX XXXXX, a company
incorporated under the laws of England and Wales with
registered number 02312079, whose registered office is at Xxxxxxx Xxxxx
Financial Centre, 0 Xxxx Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX [(the Subscriber)]
[(Xxxxxxx
Xxxxx)];
|
|
(3)
|
ENCUENTRO LIMITED, a
company incorporated in Jersey with registered number 99953,
whose registered office is at Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx, Xx Xxxxxx,
Xxxxxx XX0 0XX (the Company);
|
|
(4)
|
THE ROYAL BANK OF SCOTLAND
GROUP PLC, a company incorporated under
the laws of Scotland with registered number 45551, whose registered office
is at 00 Xx Xxxxxx Xxxxxx, Xxxxxxxxx XX0 0XX (RBSG);
and
|
|
(5)
|
[ ], a company
incorporated under the laws of [ ] with registered
number [ ], whose registered
office is at [ ]
(the New
Subscriber).
|
WHEREAS:
(A)
Pursuant
to the Second Subscription and Transfer Deed, the Subscriber has agreed to
subscribe for, and the Company has agreed to allot and issue to the Subscriber,
the Further Ordinary Shares and Subscriber “B” Preference Shares, and Subscriber
has agreed to transfer the Subscriber “B” Preference Shares and the Further
Ordinary Shares to RBSG.
(B)
RBSG
wishes the Subscriber to be released and discharged from the Second Subscription
and Transfer Deed as from the date of this Deed (the Effective
Date) and the New Subscriber has agreed to release and discharge the
Subscriber from the Effective Date upon the terms of the New Subscriber’s
undertaking to perform and discharge the Subscriber’s obligations, duties and
liabilities under the Second Subscription and Transfer Deed and be bound by the
terms of the Second Subscription and Transfer Deed in place of the
Subscriber.
1.
INTERPRETATION
1.1
In this Deed, the following expressions shall have the following
meanings:
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12
Capitalised
terms used in this Deed, unless otherwise defined herein, shall have the meaning
given to them in the Second Subscription and Transfer Deed.
1.2
In this Deed, unless the context otherwise requires:
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(a)
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references
to “persons” shall
include individuals, bodies corporate (wherever incorporated),
unincorporated associations and
partnerships;
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(b)
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the
headings are inserted for convenience only and shall not affect the
construction of this Deed; and
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(c)
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any
reference to an enactment or statutory provision is a reference to it as
it may have been, or may from time to time be, amended, modified,
consolidated or re-enacted except to the extent that any such amendment,
consolidation or re-enactment after the date of this Deed would increase
or extend the liability of any Joint Sponsor hereunder (whether in its
capacity as Subscriber or not).
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2.
NOVATION
On the
date of this Deed, and in consideration for the parties’ mutual obligations
under this Deed:
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2.1
|
the
Subscriber novates to the New Subscriber its rights and benefits under the
Second Subscription and Transfer
Deed;
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2.2
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the
New Subscriber assumes and shall be obliged and undertakes to perform and
discharge the Subscriber’s obligations, duties and liabilities under the
Second Subscription and Transfer Deed in place of the Subscriber to the
extent falling to be performed and discharged after the date of this
Deed;
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2.3
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the
New Subscriber shall have all the rights and benefits, and shall bear all
the obligations, duties and liabilities, of the Subscriber under the
Second Subscription and Transfer Deed from the date of this
Deed;
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2.4
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the
Subscriber is released from all of its obligations, duties and liabilities
under the Second Subscription and Transfer Deed to the extent falling to
be performed and discharged after the date of this Deed (but without
prejudice to any accrued rights);
and
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2.5
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the
Company, RBSG and [UBS] [Xxxxxxx Xxxxx] consent and
agree:
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|
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(i)
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to
the terms of this Deed and the novation effected by
it;
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|
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(ii)
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to
be bound by the Second Subscription and Transfer Deed in every way as if
the New Subscriber were expressly named as the Subscriber under the Second
Subscription and Transfer Deed; and
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13
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to
discharge the Subscriber from all claims, liabilities and demands by the
Company, RBSG or [UBS] [Xxxxxxx Xxxxx] under the Second
Subscription and Transfer Deed save to the extent these have accrued prior
to the date of this Deed.
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3.
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NOTICE AND
ACKNOWLEDGMENT
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3.1
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The
Subscriber notifies each of the other parties of the novation referred to
in clause 2.
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3.2
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Each
of the other parties consents to the novation referred to in clause 2 and
acknowledges receipt and sufficiency of the notification given by the
Subscriber in clause 3.1.
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4. VARIATION
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4.1
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No
variation of this Deed shall be valid unless it is in writing and signed
by or on behalf of each of the parties. The expression “variation” shall
include without limitation any supplement, deletion, novation or
replacement howsoever effected.
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4.2
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Unless
expressly agreed, no variation shall constitute a general waiver of any
provisions of this Deed, nor shall it affect any rights, obligations or
liabilities under or pursuant to this Deed which have already accrued up
to the date of variation, and the rights and obligations of the parties
under or pursuant to this Deed shall remain in full force and effect,
except and only to the extent that they are so
varied.
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5. FURTHER ASSURANCE
Each
party agrees to perform all further acts and things, and execute and deliver
such further documents, as may be required by law or as may be necessary or
reasonably desirable to implement and/or give effect to this Deed.
6. ASSIGNMENTS AND
TRANSFER
Other
than in accordance with the provisions of clause 5 of the Second Subscription
and Transfer Deed, no party may assign any of its rights or transfer any of its
rights or obligations under this Deed.
7. PARTIAL INVALIDITY
If any
provision of this Deed is or becomes invalid, illegal or unenforceable in any
jurisdiction, that shall not affect the legality, validity or enforceability of
the remaining provisions in that jurisdiction or of that provision in any other
jurisdiction.
8. WAIVER OR VARIATION
No
failure or delay by any Party in exercising any right or remedy relating to this
Deed shall affect or operate as a waiver or variation of that right or remedy or
preclude its exercise at any subsequent time. No single or partial exercise of
any such
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14
9. NOTICES
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9.1
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The
provisions of clause 18 (Notices) of the Second
Subscription and Transfer Deed shall apply to this
Deed.
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9.2
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For
the purpose of the Second Subscription and Transfer Deed, the New
Subscriber’s address for notices shall be as
follows:
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For the
attention of [name or position]
[address]
Facsimile
number: [number]
10. COUNTERPARTS
This Deed
may be executed in any number of counterparts and by the parties on different
counterparts, but shall not be effective until each party has executed at least
one counterpart. Each counterpart shall be deemed an original, but all the
counterparts shall together constitute one and the same agreement.
11. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person
who is not a party to this Deed shall have no right under the Contracts (Rights
of Third Parties) Xxx 0000 to enforce any of its terms.
12. SERVICE OF PROCESS
The
Company hereby irrevocably appoints Hackwood Secretaries Limited at the date
hereof situated at Xxx Xxxx Xxxxxx, Xxxxxx XX0X 0XX (for the attention of the
Company Secretary for the time being) or such other person as the Company may
from time to time approve for the purpose of accepting service of process on its
behalf in England in respect of any proceedings arising out of or in connection
with this Deed. Such service shall be deemed completed on delivery to Hackwood
Secretaries Limited whether or not it is forwarded to or received by the
Company).
13. GOVERNING LAW
This Deed
and any non-contractual obligations arising out of or in relation to this Deed
are governed by and shall be construed in accordance with English
law.
14. JURISDICTION
The
parties irrevocably agree that the English courts shall have exclusive
jurisdiction to settle any dispute arising out of or in connection with this
Deed and each party irrevocably agrees to submit to the exclusive jurisdiction
of the English courts for all purposes relating to this Deed.
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15
Page
16
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as
a DEED
by ENCUENTRO
LIMITED
acting by two Directors and
[a
Director] and [the Secretary]
|
)
)
)
)
|
|
SIGNED
and
DELIVERED
as
a DEED
by THE
ROYAL BANK OF
SCOTLAND
GROUP PLC
acting
by a Director and
[a
Director]
[the
Secretary]
|
)
)
)
)
)
|
|
SIGNED
and
DELIVERED
as
a DEED by
UBS
LIMITED
acting
by authorised signatories
|
)
)
)
|
|
|
)
)
)
|
Witnessed
by: ……………………………….
Name:
……………………………………….
Occupation: ……………………………….
Address:
……………………………………..
|
SIGNED
and
DELIVERED
as
a DEED
by
[NEW
SUBSCRIBER]
acting
by a Director and
[a
Director]
[the
Secretary]
|
)
)
)
)
)
|
