BEAUMONT CORNISH LIMITED (2) LOCK-IN AND ORDERLY MARKET AGREEMENT relating to shares in the capital of General Industries plc

Transcription

1 DATED 2011 COLIN BIRD (1) BEAUMONT CORNISH LIMITED (2) and GENERAL INDUSTRIES PLC (3) LOCK-IN AND ORDERLY MARKET AGREEMENT relating to shares in the capital of General Industries plc 25688\0002

2 CONTENTS INTERPRETATION 1 2 CONDITION PRECEDENT 3 3 UNDERTAKINGS 3 4 ANNOUNCEMENTS OR DISCLOSURES IN RELATION TO THIS UNDERTAKING 6 5 NOTICES AND SERVICE DOCUMENTS 6 6 GENERAL 7 7 GOVERNING LAW \0002

3 THIS DEED 2011 PARTIES (1) COLIN BIRD, whose address is at 1 Montgomerie, Emirates Hills 3, Dubai, UAE (the "Covenantor"); (2) BEAUMONT CORNISH LIMITED (registered in England and Wales under company number ), whose registered office is at Cedar House, Sandbrook Business Park, Sandbrook Way, Rochdale, Lancashire OL11 1LQ; and (3) GENERAL INDUSTRIES PLC (registered in England and Wales under company number ), whose registered office is at 56 Station Road, Egham, Surrey TW20 9LF(the "Company") INTRODUCTION: A The Broker is acting as Nominated Adviser to the Company in connection with the admission of the whole of its ordinary share capital, issued and to be issued, to trading on AIM. The Broker and the Company require that certain shareholders of the Company, including the Covenantor, shall undertake to the Broker and the Company not to dispose of their shares in the Company held at the date of execution of this Deed or at any time before the Orderly Market Date for a certain period of time following the execution of this Deed other than in accordance with the terms, conditions and provisions of this Deed and the Covenantor has accordingly agreed to enter into this Deed. 1 INTERPRETATION 1.1 Definitions In this Deed, where the context so admits: "Act" means the Companies Act "Acquisition Agreement" means the proposed conditional agreement in the agreed form to be entered into between (1) the Covenantor and (2) the Company to purchase the entire issued share capital of Skiptons Global Investments Limited (BVI). "Admission" means the admission to trading on AIM of the entire issued share capital of the Company becoming effective in accordance with Rule 6 of the AIM Rules. "Admission Document" means the document in an agreed form to be published by the Company in connection with Admission as required by and in accordance with the AIM Rules. "AIM" means AIM, a market operated by the London Stock Exchange \0002

4 "AIM Rules" means the rules (as amended from time to time) in a booklet called "The AIM Rules" and those other rules of the London Stock Exchange which govern the admission of securities to trading on and the regulation of AIM. "Broker" means Beaumont Cornish Limited, as indicated above acting as broker and Nominated Adviser to the Company, or such other person as may be appointed as broker to the Company from time to time. "Business Day" means a day (other than a Saturday or Sunday) on which banks are open in London for ordinary banking business. "City Code" means the City Code on Takeovers and Mergers. "Connected Person" has the meaning set out in sections 252 to 254 of the Act. "Deed of Adherence" means a Deed in substantially the form set out in the Schedule, or in such other form as may, in any individual case, be approved by the Broker and the Company. "Disposal" means, in respect of the Shares, any sale, any offer or agreement to sell, the grant of any option, right or warrant to purchase from the Covenantor, a swap or other agreement or transaction which transfers economic ownership in whole or in part, a gift, a lending, the creation of any mortgage, charge, pledge or other security interest or encumbrance, the exercise of any option to sell, the public announcement of an intention to enter into any of these transactions and any other transaction whereby the Covenantor disposes of any Interest he has in the Shares from time to time, whether absolutely or by way of security or agrees to do, whether conditionally or unconditionally. "Family Member" means the spouse, parent, widow, widower, co-habitee, adult-sibling, adult child or grandchild (including such child or grandchild by adoption or step-child) of the Covenantor. "Interest" in relation to any Shares means an interest of any kind in such Shares, whether direct or indirect, legal or beneficial, conditional or absolute, joint or sole, including without limitation: (a) (b) any option to acquire Shares; any right to subscribe for Shares or to convert or exchange other securities or rights into Shares; (c) any contract, conditional or otherwise, to acquire Shares or to call for delivery of Shares; I 1, (d) any interest in Shares held pursuant to a trust or settlement; or I 1 (e) the ability to exercise, or direct the exercise, of any voting rights attached to any Shares. "Lock-in Date" means the first anniversary of Admission. "London Stock Exchange" means London Stock Exchange plc \0002

5 "Nominated Adviser" means a person who assumes the responsibilities set out in Rule 39 of the AIM Rules (be this the Broker or another person). "Orderly Market Date" means the second anniversary of Admission. "Shares" means any shares in the capital of the Company of whatever class in which the Covenantor currently has or will have an Interest at the time of Admission or at any time before the Orderly Market Date and any shares in the capital of the Company issued to the Covenantor under any subdivision, consolidation or bonus issue in respect of such shares. 1.2 Construction of certain references In this Deed where the context admits: (a) (b) (c) (d) (e) references to clauses and schedule are references to clauses of and schedule to this Deed; references to the singular shall include the plural and vice versa and references to the masculine, the feminine and the neuter shall include each other such gender; "person" includes any individual, partnership, body corporate, corporation sole or aggregate, state or agency of a state, and any unincorporated association or organisation, in each case whether or not having a separate legal personality; words and phrases the definitions of which are contained or referred to in the Act (as listed in Schedule 8 to the Act) shall be construed as having the respective meanings thereby assigned to them; and headings to clauses are for convenience only and do not affect the interpretation of this Deed. 2 CONDITION PRECEDENT The obligations of the parties in this Deed are conditional upon Admission occurring not later than midnight on 30 th September 2011 failing which this Deed shall cease to be of any force and effect and no party shall have any claim against the others under it, but without prejudice to the accrued rights and obligations of the parties in respect of any breaches of this Deed before that termination. 3 UNDERTAKINGS 3.1 Lock-in Save as provided for in clause 3.3, the Covenantor covenants to the Broker and the Company that he shall not and shall use all reasonable endeavours to procure that his Connected Persons shall not effect a Disposal during the period up to and including the Lock-in Date \0002

6 3.2 Orderly Market Save as provided for in clause 3.3, the Covenantor covenants to the Broker and the Company not to effect a Disposal and to use all reasonable endeavours to procure that his Connected Persons do not effect a Disposal whether or not on a recognised stock exchange during the period from the day after the Lock-in Date up to and including the Orderly Market Date, other than (a) with the prior written consent of the Nominated Adviser and Broker and (b) through the Broker at the relevant time provided that if the Broker is unable to place such number of shares at such price as reasonably requested by the Covenantor and available to the Covenantor through any third party stockbroking firm (which has a physical operation within the City of London) within a period of 5 Business Days of formal written request to do so, the Covenantor shall be free to dispose of such shares within a further 10 Business Days through such third party broker but only at such higher price and on terms no less favourable than were offered by the Broker. 3.3 Exceptions to Lock-in and Orderly Market undertakings The restrictions in clauses 3.1 and 3.2 above shall not apply to a Disposal: (a) pursuant to an acceptance by the Covenantor of: (i) (ii) a general offer for the share capital of the Company (made in accordance with the City Code) where such offer relates to the entire issued share capital of the Company (other than any shares held by the offeror, or persons acting in concert with the offeror for the purposes of the City Code in relation to such offer); a partial offer, being an offer for part of the share capital of the Company (made in accordance with the City Code) where the offeror (together with persons acting in concert with the offeror for the purposes of the City Code in relation to such offer) may come to acquire, as a result of the offer, an interest in shares of the Company to which 30% or more of the voting rights relate, (any and all of such offers being collectively referred to as a "Code Compliant Offer"); (b) pursuant to the execution by the Covenantor of an irrevocable commitment, agreement or undertaking to accept a Code Compliant Offer; (c) to the personal representative(s) of the Covenantor who dies before the Orderly Market Date and by the personal representative(s) to any person provided that person shall first execute a Deed of Adherence in relation to such Interest agreeing to be bound by the restrictions contained in this Deed; (d) pursuant to an intervening court order; (e) pursuant to any compromise or arrangement or any takeover offer effected under section 895 of the Act providing for the acquisition by any person (or group of persons acting in concert) of 50 per cent or more of the equity share capital of the Company and which compromise or arrangement has been sanctioned by the Court; \0002

7 (f) (g) (h) pursuant to a scheme of arrangement under Section 110 of the Insolvency Act 1986; by way of a gift to a Family Member or to trustees for such individual and/or for his Family Members or any of them provided that such transferee shall first execute a Deed of Adherence in relation to such Interest agreeing to be bound by the restrictions contained in this Deed; by a trustee of a settlement to an individual who is a beneficiary or potential beneficiary of such settlement provided that prior to making any such Disposal: ( I) the Covenantor shall satisfy the Company and the Broker that the proposed transferee is a Family Member of the settlor of the settlement; and (ii) such transferee shall first execute a Deed of Adherence in relation to such Interest agreeing to be bound by the restrictions contained in this Deed; ( I) by a trustee for the purposes of effecting the appointment of a new trustee or for the purpose of retiring as a trustee provided that such new trustee shall first execute a Deed of Adherence in relation to such Interest agreeing to be bound by the restrictions contained in this Deed; (i) pursuant to a compromise or arrangement between the Company and its creditors or any class of them or between the Company and its members or any class or them which is agreed to by the creditors or members and sanctioned by the court of any applicable jurisdiction; (k) by a nominee to the beneficial owner of such an Interest or another nominee provided that such transferee shall first execute a Deed of Adherence in relation to such Interest agreeing to be bound by the restrictions contained in this Deed; or ( I ) pursuant to any offer by the Company to purchase its own shares which is made on identical terms to the holders of shares of the same class and otherwise complies with the Act. 3.4 Notification of an agreement Any Disposal contemplated by clause 3.1, 3.2 or 3.3 shall (where reasonably practicable) be notified in writing by the Covenantor to the Broker and the Company not less than 3 Business Days prior to such Disposal or the entry into of any agreement relating to the same. 3.5 Compliance with AIM Rules and the Company's code of dealings Notwithstanding any provision of this agreement permitting a Disposal, the Covenantor may not effect a Disposal in breach of any restrictions on dealings in securities of the Company pursuant to the AIM Rules or other applicable law or regulation or, where the Covenantor is bound by the Company's code of dealings in shares (adopted in relation to the requirements under Rule 21 of the AIM Rules), in breach of such code of dealings \0002

8 4 ANNOUNCEMENTS OR DISCLOSURES IN RELATION TO THIS UNDERTAKING 4.1 No announcement without consent Subject to clause 4.2, no reference in any announcement or circular as to the existence or subject matter of this Deed shall be made or issued by or on behalf of the Covenantor without the prior written consent of the Company and the Broker. 4.2 Exceptions The restriction in clause 4.1 shall not apply to any disclosure of the terms of this Deed which is required to be included in any Admission Document or circular published by or on behalf of the Company in connection with Admission or subsequently, or to any disclosure of such terms in an announcement or circular, where such disclosure is required by law, the AIM Rules or any other applicable regulation. 4.3 Admission Document The Covenantor acknowledges that the existence of this Deed and its contents are to be referred to in the Admission Document and that these are matters which can reasonably be expected to influence the decision of potential investors whether or not to subscribe for or purchase shares in the Company. The Covenantor consents to the inclusion in the Admission Document of references to this Deed and its contents. 5 NOTICES AND SERVICE DOCUMENTS 5.1 Any notice or other communication given under this Deed shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it by hand or sending it by pre-paid recorded delivery or registered post or by fax to the party due to receive it, at its address or fax number set out in this Deed or to such other address or fax number as are last notified in writing to the parties. Covenantor: Office Address: Unit 8, Block B 1 st Floor, Stoney Ridge Office Park, Cnr Witkoppen and Waterford Place, Kleve Hill Park, Paulshof, South Africa Fax number: None Broker: Address as above For the attention of: James Biddle Fax number: Company: Address as above For the attention of: Richard Wollenberg Fax number:

9 5.2 Subject to clause 5.1, in the absence of evidence of earlier receipt, any notice or other communication given pursuant to this clause shall be deemed to have been received: (a) (b) (c) if delivered by hand, at the time of actual delivery to the address referred to in clause 5.1; in the case of pre-paid recorded delivery or registered post, two Business Days after the date of posting; if sent by fax, at the time of completion of transmission. 5.3 If deemed receipt under clause 5.2 occurs before 9.00 am on a Business Day, the notice shall be deemed to have been received at 9.00 am on that day. If deemed receipt occurs after 5.00 pm on a Business Day or on any day which is not a Business Day, the notice shall be deemed to have been received at 9.00 am on the next Business Day. 5.4 For the avoidance of doubt, notice given under this agreement shall not be validly served if sent by The Covenantor shall at all times maintain an agent for the service of process in England. The Covenantor irrevocably agrees that any Service Document may be properly served on him in England by service on the Covenantor's Service Agent or such other agent, located in England, as may be notified to the parties by the Covenantor in writing from time to time and on reasonable notice. 5.6 If for any reason an agent for service appointed by the Covenantor pursuant to this clause 5 ceases to act as such, the Covenantor shall immediately appoint a new agent for service in England and shall immediately notify the parties in writing of such appointment and the name and address of the new agent. 5.7 For the purposes of this clause, "Service Document" means a claim form, summons, order, judgment or other document relating to any proceeding, suit or action arising out of or in connection with this Deed. 5.8 Nothing contained in this clause 5 shall affect the right to serve a Service Document in any other manner permitted by law. 6 GENERAL 6.1 Invalidity If any provision of this Deed shall be held to be illegal, invalid or unenforceable, in whole or in part, such provision or relevant part shall be deemed not to form part of this Deed but the legality, validity and enforceability of the remainder of this Deed shall not be affected. 6.2 Further assurance At any time after the date of this Deed, the Covenantor shall, and shall use all reasonable endeavours to procure that any necessary third party shall, execute such documents and do such acts and things as the Company or the Broker may reasonably require for the \0002

10 purpose of giving the Company or Broker the full benefit of all the provisions of this Deed in relation to the obligations of the Covenantor. 6.3 Contracts (Rights of Third Parties) Act 1999 No person who is not for the time being a party to this Deed shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Deed. 6.4 Counterparts This Deed may be executed in any number of counterparts (which may be facsimile copies) and by the parties on separate counterparts but shall not be effective until each of the parties has executed at least one counterpart. Each counterpart shall constitute an original of this Deed but all the counterparts shall together constitute but one and the same instrument. 7 GOVERNING LAW 7.1 Law This Deed is governed by and will be construed in accordance with English law. 7.2 Submission to jurisdiction The parties irrevocably agree that the English Courts shall have non-exclusive jurisdiction in relation to any legal action or proceedings arising out of or in connection with this Deed. This clause shall be without prejudice to the right of any party to bring proceedings in any other jurisdiction for the purpose of enforcement or execution of any judgment or other settlement in any other court. IN WITNESS of which this document has been executed and, on the date set out above, delivered as a deed \0002

11 SCHEDULE Deed of Adherence THIS DEED OF ADHERENCE is made on [IP ] 200[8] by (1) [. ] (the "New Covenantor") of [. ], ( 2) [. ] (the "Covenantor") of [. ], (3) BEAUMONT CORNISH LIMITED (registered in England and Wales under company number ), whose registered office is at Cedar House, Sandbrook Business Park, Sandbrook Way, Rochdale, Lancashire OL11 1LQ (the "Broker") and (4) GENERAL INDUSTRIES PLC (registered in England and Wales under company number ), whose registered office is at 56 Station Road, Egham, Surrey TVV20 9LF (the "Company") and is supplemental to the Lock-in agreement (the "Lock-in Agreement") dated [ made between the Covenantor, the Broker and the Company. INTRODUCTION The New Covenantor is a transferee from the Covenantor of [ ] [Ordinary] Shares of [. ] each in the capital of the Company and has agreed in respect of those shares (the "Transferred Shares") to be bound by the Lock-in Agreement. 1 Except as otherwise expressly stated in this Deed, words and expressions defined in the Lock-in Agreement shall have the same respective meanings in this Deed and the recitals to it. 2 The New Covenantor confirms to the Company and the Broker that it has been supplied with a copy of the Lock-in Agreement. The New Covenantor covenants to the Company and the Broker in relation to the Transferred Shares to observe, perform and be bound by all the terms of the Lock-in Agreement as if it was a party to it and named in it as the Covenantor. 4 The Company and the Broker irrevocably and unconditionally release the Covenantor in respect of all duties, obligations and liabilities of the Covenantor under the Lock-in Agreement in respect of the Transferred Shares and waives all and any current or future claims it may now or in the future have against the Covenantor under the Lock-in Agreement relating to the Transferred Shares. 5 This Deed is governed by and will be construed in accordance with English Law and the parties submit to the non-exclusive jurisdiction of the English Courts. IN WITNESS of which this document has been executed and, on the date set out above, delivered as a deed \0002

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