Terms of Business

Introduction

These terms set out the basis on which SW4 Advisers Limited (“SW4 Partners”) provides services to its clients (the “Terms”). Unless otherwise specified, these Terms are incorporated by reference into each engagement letter that SW4 Partners executes with each of its clients (each an “Engagement Letter”). Where there is any conflict between the express terms of an Engagement Letter and the Terms, the terms of the Engagement Letter shall prevail. Capitalised terms used in these Terms and not otherwise defined shall have the same meaning as set forth in the respective Engagement Letter. For the purposes of these Terms, a ‘client’ shall refer to the ‘Company’, as defined in the respective Engagement Letter.

Access and Information

(a) The client shall furnish SW4 Partners with all current and historical materials and information regarding the business and financial condition of the client (or any of its relevant affiliates) relevant to the Transaction, and all other information and data, and access to the client’s officers, directors, employees and professional advisors, which SW4 Partners reasonably requests in connection with SW4 Partners’ activities hereunder. All such materials, information and data shall be complete and accurate in all material respects and not misleading.

(b) The client agrees to promptly advise SW4 Partners of all developments materially affecting the client, any proposed Transaction or the completeness or accuracy of the information previously furnished to SW4 Partners and agrees that no material initiatives relating to the proposed Transaction will be taken without SW4 Partners having been consulted in advance thereof.

(c) The client further acknowledges that SW4 Partners (i) will be relying on information and data provided to SW4 Partners (including, without limitation, information provided by or on behalf of the client or other parties to a Transaction) and available from generally recognized public sources, without having independently verified the accuracy or completeness thereof, (ii) does not assume responsibility for the accuracy or completeness of any such information and data, (iii) has not made, and will not make, any physical inspection or appraisal of the properties, assets or liabilities (contingent or otherwise) of the client or any other party to a Transaction and (iv) in relying on any financial forecasts that may be furnished to or discussed with SW4 Partners, will assume that such forecasts have been reasonably prepared on bases reflecting the best currently available estimates and good faith judgments of management as to the future financial performance of the client (and if such forecasts no longer reflect such estimates and judgments, then the client will promptly inform, and provide updated forecasts to, SW4 Partners).

(d) The client confirms that it has the right to supply such information and that the supply of such information by the client and its receipt and use by SW4 Partners for the purposes of the Appointment is permitted.

(e) The client agrees to comply at all times with all rules, regulations and laws in any applicable jurisdiction that may apply from time to time.

Scope of services

(a) SW4 Partners will not be responsible for any due diligence in connection with the Appointment, whether in terms of nature, extent, adequacy or performance unless such scope of work is expressly stated in Schedule 1 to the Engagement Letter. Regardless of the foregoing, SW4 Partners will not have any responsibility for due diligence which would normally be carried out by a specialist adviser (such as, for example, a legal, accountancy, valuation or tax adviser), notwithstanding any information or advice from these advisers which may be provided to SW4 Partners.

(b) SW4 Partners will not be responsible for providing advice in connection with any matters that are outside of the agreed scope of services. To the extent that the client has not done so already, the client may wish to consider appointing other specialist advisers relevant to the transaction which may include legal, regulatory, accounting or taxation advisors. SW4 Partners will not have any liability in respect of any services or advice provided to the client by persons other than SW4 Partners and it is the client’s responsibility to ensure that the advice from its other advisers in relation to the transaction is received and considered by the client and is adequate for the purposes of the transaction.

(c) The client agrees that any advice, including any valuations and other written reports or material SW4 Partners produces, is provided solely for the client’s use and benefit for the purpose of the Appointment and that it may not be used or relied on for any other purpose or disclosed to any other person (excluding the client’s professional advisers, who may place no reliance on such advice) without SW4 Partners’ prior written approval.

(d) SW4 Partners is not responsible for verifying any information provided or put forward in offer documents or other communications. SW4 Partners reserves the right (but is under no duty whatsoever) at its absolute discretion and for its own purposes to take whatever steps we may consider reasonably appropriate to satisfy itself as to the accuracy and completeness of any public documents issued in connection with a transaction and the client agrees to reasonably co-operate with SW4 Partners in taking such steps.

Expenses and fees

(a) All costs, fees and expenses payable to SW4 Partners shall be paid by the client on presentation of an invoice by SW4 Partners. In the event that full payment of any invoice is not duly received, SW4 Partners reserves the right to take whatever action it thinks fit to effect payment, to include commencing proceedings without further notice. Interest at the rate of 8 per cent above the base rate from time to time of Barclays Bank plc shall be payable on amounts outstanding after 14 days. If and to the extent that the client is a private company with no external credit rating, SW4 Partners may hold the directors personally liable for any fees and / or expenses that the client fails to pay in accordance with the Engagement Letter.

(b) In addition to any fees that may be paid to SW4 Partners under the Engagement Letter, whether or not any Transaction occurs, the client will reimburse SW4 Partners, promptly upon receipt of an invoice therefore for all reasonable and reasonably documented out-of-pocket expenses (including reasonable and reasonably documented fees and expenses of its counsel, and the reasonable and reasonably documented fees and expenses of any other independent experts retained by SW4 Partners; the retention of counsel and experts and all such fees of counsel and experts to be subject to the prior written approval of the client; provided that it is expressly understood and agreed that in the event the client does not provide approval for any such expenses that SW4 Partners in its reasonable discretion, deems appropriate for the Transaction, SW4 Partners and any counsel and experts shall immediately stop all work until such time as such expenses are approved (and the client expressly agrees that any such work stoppage shall not constitute gross negligence or wilful misconduct)) incurred by SW4 Partners in connection with the Engagement Letter. If and to the extent that SW4 Partners anticipates engaging external counsel or any other expert, then SW4 Partners shall inform the client and may require the client to enter into an agreement with such third party in order to secure direct payments of all and any such fees (and disbursements) by the client to such third-party adviser to SW4 Partners.

(c) The client agrees to pay a 5% administration charge on all overseas travel expenses (including accommodation). In addition, the client agrees to pay a 3% administration charge to be charged by SW4 Partners on all invoices to cover out of pocket sundry expenses (including but not limited to document production, photocopying, telephone and local taxis).

Announcements

(a) No information or advice provided (other than any information or advice relating to the tax treatment and tax structure of any transaction) or materials prepared by SW4 Partners may be disclosed, in whole or in part, or summarized, excerpted from or otherwise referred to without SW4 Partners’ prior written consent (such consent not to be unreasonably withheld or delayed). The client shall not disseminate any materials bearing SW4 Partners’ name or logo outside of the client without SW4 Partners’ knowledge and consent (acting reasonably). In addition, the client agrees that any reference to SW4 Partners in any release, communication or other material is subject to SW4 Partners’ prior written approval, which may be given or withheld in its reasonable discretion, for each such reference.

(b) The client acknowledges that SW4 Partners may, at its option and expense, place an announcement or advertisement in such newspapers and periodicals as SW4 Partners may choose following the completion of the applicable Transaction stating that it is has advised on the Transaction on behalf of the client.

Confidentiality

(a) SW4 Partners shall, for a period of two years from the termination or expiry of the Engagement Letter, keep confidential within SW4 Partners and its Related Companies in the manner set out in this clause 6 any information relating to the client and its business affairs that the client may have disclosed to SW4 Partners in circumstances giving rise to a reasonable inference that it is of a confidential nature (“Confidential Information”).

(b) Notwithstanding the above, Confidential Information shall not include any information that:

(i) at the time of disclosure to SW4 Partners is already in the public domain;

(ii) at any time after such disclosure falls into the public domain (otherwise than as a result of a breach by SW4 Partners of its obligations under this clause 5);

(iii) was lawfully in the possession of SW4 Partners prior to such disclosure; or

(iv) was or is received by SW4 Partners from any third party who at the time, so far as is known to SW4 Partners, was or is not bound by any restrictions on disclosure by such party.

(i) to any adviser instructed by the client or by SW4 Partners in connection with the Transaction;

(ii) with the permission of the client in respect of the Transaction (for example, materials prepared for intended counterparties);

(iii) where required by law or by any court or tribunal of competent jurisdiction or where required by the rules of or in accordance with the request of any regulatory authority the jurisdiction of which SW4 Partners is subject;

(iv) in connection with legal proceedings to which SW4 Partners is party; or

(v) the fact of SW4 Partners’ role in the Transaction but only if the existence of the Transaction is in the public domain.

(d) SW4 Partners will not have any duty to disclose to the client any information which comes to its notice in the course of carrying on any other business or as a result of or in connection with the provision of services to other persons. The client accepts that, in certain circumstances, SW4 Partners may be prohibited from disclosing, or it may be inappropriate for SW4 Partners to disclose, information to the client even if it relates to the client or the Transaction.

Anti-money laundering and bribery

(a) SW4 Partners, along with all other professional firms, is required to verify the identity of all clients and, in certain circumstances, other persons such as directors or beneficial owners and to keep that information updated. SW4 Partners may need the client to provide SW4 Partners with documents to establish and verify their identity. If SW4 Partners is not given satisfactory evidence promptly, or if there is non-compliance with SW4 Partners’ identification procedures, then there will be a delay in SW4 Partners being able to start work pursuant to the Engagement Letter (without any liability).

(b) Where SW4 Partners instructs external advisers, or others on the client’s behalf, SW4 Partners may provide copies of this information to them for their anti-money laundering procedures.

(c) SW4 Partners has a zero tolerance approach to bribery and corruption. By agreeing to SW4 Partners’ terms of business, the client is agreeing to abide by SW4 Partners’ zero tolerance approach to bribery and corruption and to report any such activity which comes to the client’s attention during the course of its instructing SW4 Partners.

Conflicts of interest

SW4 Partners is involved in the provision of corporate finance advisory services. In connection with its ordinary activities, SW4 Partners and/or persons employed by, managing or associated with SW4 Partners (together the ” SW4 Partners Connected Parties“) may have a financial interest in transactions involving or relating to the client or its affiliates, or other material interest, relationship or arrangement which may involve a potential conflict with SW4 Partners’ duty to the client. SW4 Partners will take reasonable steps to identify and manage any such conflict to ensure fair treatment of the client, and act at all times in accordance with the FCA Rules.

Data Privacy

The Company acknowledges that: in the course of providing their services to the Company and otherwise in connection with the Agreement, SW4 Partners and its affiliates may receive, use, store and otherwise process information about the Company’s employees, individual agents and representatives and other individuals (“Data Subjects“), including without limitation, names, contact details, bank account details and tax identification numbers, which may constitute “personal data” under the EU General Data Protection Regulation 2016 (the “GDPR“); and for the purposes of applicable data protection and data privacy laws, including the GDPR (and any related laws or regulations), SW4 Partners and its affiliates are “controllers” in relation to this personal data, which has consequences for how they may use, store or otherwise process the personal data.

SW4 Partners and its affiliates may process this personal data for the following purposes:

(a) administering SW4 Partners relationship with the Company, providing its services to the Company and otherwise performing the Agreement;

(b) marketing products and services to the Company;

(d) complying with the requirements of applicable laws and regulations;

(e) preventing fraud and money laundering;

(f) enforcing SW4 Partners’ rights under the Agreement and these Terms (including, debt recovery); and

(g) responding to government, regulatory or law enforcement enquiries, (together, the “Permitted Purposes“).

SW4 Partners and its affiliates rely on the following legal bases for processing of this personal data:

(a) the processing is necessary for compliance with their legal obligations; and/or

(b) the processing is necessary for their legitimate interests in pursuing the Permitted Purposes.

SW4 Partners and its affiliates may, for any Permitted Purpose, disclose personal data (i) to any affiliate of SW4 Partners, (ii) to any service provider or other person acting on their behalf, (iii) to any person to whom SW4 Partners is permitted to delegate any of its functions under the Agreement or these Terms, and (iv) to any regulators and law enforcement and governmental agencies, where they are required to do by applicable laws or regulations or there is a public duty or legitimate interest for them to make such disclosure, in each case anywhere in the world.

The disclosures referred to above may include transfers of personal data outside the European Union, including to countries which may not have the benefit of equivalent data protection legislation (and have not been determined by the European Commission to provide adequate protection for personal data). SW4 Partners and its affiliates will only transfer personal data to such countries lawfully, and in particular they will only transfer personal data to affiliates and service providers in these countries subject to appropriate safeguards, copies of which may be requested by e-mailing: (enquiries@sw4partners.com).

Any Data Subject in respect of whom SW4 Partners or any of its affiliates holds personal data can:

(a) request a copy of their personal data, usually free of charge, by writing to the Data Protection Officer at SW4 Partners’ registered office or requesting by e-mail at (enquiries@sw4partners.com). In some circumstances the Data Subject can require SW4 Partners or its affiliate to provide this information in a machine-readable format or transfer this data directly to another controller.

(b) raise complaints in relation to the processing of their personal data with the Information Commissioner’s Office (ico.org.uk);

(d) request the erasure of their personal data in the following circumstances

(i) the personal data is no longer required for the Permitted Purposes for which they were collected or processed;

(ii) the personal data should be erased to comply with SW4 Partners’ or its affiliate’s legislative obligations to do so;

(iii) the personal data has been otherwise unlawfully processed; or

(iv) the Data Subject has objected to the processing of their personal data in accordance with these Terms and SW4 Partners or its affiliate is unable to demonstrate that it has compelling legitimate grounds to continue such processing;

(v) request that they rectify inaccuracies in the personal data; or

(vi) request that they restrict any processing of their personal data only to holding of the data while any disputes with SW4 Partners or its affiliate about the data accuracy or legitimacy of processing have been resolved, or for assistance with establishing, exercising or defending legal claims (where SW4 Partners or its affiliate would otherwise no longer need to retain such data for the Permitted Purposes described above).

SW4 Partners and its affiliates will not keep the Company’s personal data for longer than is necessary for the Permitted Purposes.

Before providing any personal data to SW4 Partners or any of its affiliates in connection with the Agreement or these Terms, the Company will inform the Data Subjects of the disclosure, the categories of data to be disclosed and the information set out in above. The Company will only provide SW4 Partners and its affiliates with personal data in accordance with all applicable data protection and data privacy laws.

The provisions of this paragraph shall continue to bind the parties after termination of the Agreement.

Force majeure

In the event of any failure, interruption or delay in the performance of SW4 Partners’ obligations under the Engagement Letter resulting from acts, events or circumstances not reasonably in SW4 Partners, control (including but not limited to interruption, suspension or failure of any communications system, computer system or other facility of SW4 Partners or other persons), SW4 Partners shall not be liable or have any responsibility of any kind for any loss or damage incurred or suffered by the client as a result thereof.

Payments

(a) All sums quoted are exclusive of any VAT (or any equivalent turnover tax in any other jurisdiction) and the client shall pay to SW4 Partners any additional VAT (or any equivalent turnover tax in any other jurisdiction) chargeable in respect of payments made to SW4 Partners or otherwise chargeable in respect of the fees or expenses under the Engagement Letter.

(b) The client acknowledges that SW4 Partners is not authorised by the FCA and/or to hold client monies and agrees that monies of the client held or received by SW4 Partners will not be subject to the protections conferred by the FCA’s client money rules. As a consequence, these monies will not be segregated from the monies of SW4 Partners; may be used by SW4 Partners in the course of its business, and the client will rank only as a general creditor of SW4 Partners.

Process Agent

If the client is located outside of England, within 14 days of execution of the Engagement Letter it shall give notice to SW4 Partners of the person or entity that it appoints as its agent to accept service of process in England in any legal action or proceedings arising in connection with the Engagement Letter, service upon whom shall be deemed completed whether or not forwarded to or received by the client. If such process agent ceases to be able to act as such or to have an address in England, the client irrevocably agrees to appoint a new process agent in England acceptable to SW4 Partners and to deliver to SW4 Partners within 14 days a copy of a written acceptance of appointment of the process agent. Nothing in this clause 13 shall affect the right to serve process in any other manner permitted by law.