Clause
|
Page
|
|
1
|
DEFINITIONS AND INTERPRETATION
|
1
|
2
|
COVENANT TO PAY
|
3
|
3
|
SECURITY
|
3
|
4
|
OTHER OBLIGATIONS
|
3
|
5
|
ENFORCEMENT
|
5
|
6
|
APPOINTMENT AND RIGHTS OF RECEIVERS
|
6
|
7
|
DISTRIBUTION
|
8
|
8
|
CHARGEE'S RIGHTS
|
9
|
9
|
RESPONSIBILITIES OF CHARGEE, RECEIVERS AND DELEGATES
|
10
|
10
|
FURTHER ASSURANCE
|
10
|
11
|
POWER OF ATTORNEY
|
11
|
12
|
PROTECTION OF THIRD PARTIES
|
11
|
13
|
EXPENSES, STAMP DUTY AND INDEMNITIES
|
12
|
14
|
PAYMENTS
|
12
|
15
|
EFFECTIVENESS OF SECURITY
|
13
|
16
|
SET-OFF
|
15
|
17
|
COMMUNICATIONS
|
16
|
18
|
THIRD PARTIES
|
16
|
19
|
COUNTERPARTS
|
16
|
20
|
ASSIGNMENT
|
16
|
21
|
GOVERNING LAW AND SUBMISSION TO JURISDICTION
|
16
|
SCHEDULE 1 Details of the Investments
|
18
|
|
SCHEDULE 2 Proxy
|
19
|
(1)
|
THE FEMALE HEALTH COMPANY, a corporation organised and existing under the laws of the State of Wisconsin (the "Chargor"); and
|
(2)
|
HEARTLAND BANK, a United States federal savings bank (the "Chargee").
|
|
(a)
|
dividends and distributions of any kind and any other sum received or receivable in respect of that Share;
|
|
(b)
|
rights, shares, money or other assets accruing or offered by way of redemption, bonus, option or otherwise in respect of that Share;
|
|
(c)
|
allotments, offers and rights accruing or offered in respect of that Share; and
|
|
(d)
|
other rights and assets attaching to, deriving from or exercisable by virtue of the ownership of, that Share;
|
|
(a)
|
sixty-five per cent (65%) of all present and future shares in the Company issued and outstanding from time to time, and which as at the date of this Deed comprises the shares of the Company described in Schedule 1 (Shares); and
|
|
(b)
|
all rights relating to any of those shares which are deposited with or registered in the name of any security agent, depositary, custodian, nominee, fiduciary, investment manager or clearing system or other similar person or its nominee, in each case whether or not on a fungible basis (including rights against such person);
|
|
(a)
|
The provisions of Clauses 1.2 (Other Provisions) of the Loan Agreement shall apply to this Deed with all necessary modifications as if they were expressly set out in full in this Deed.
|
|
(b)
|
"rights" shall be construed as including rights, benefits, privileges, consents, authorities, discretions, remedies and powers and "right" shall be construed accordingly.
|
|
(c)
|
A reference to "Secured Liabilities" includes any liabilities which would be treated as such but for the liquidation or dissolution or similar event affecting the Chargor.
|
|
(d)
|
Any reference to the Chargee or the Chargor shall be construed so as to include its or their (and any subsequent) successors and any permitted transferees in accordance with their respective interests.
|
|
(e)
|
References in this Deed to any Clause or Schedule shall be to a clause or schedule of this Deed unless otherwise specified. References to a Section are to a Section of the Loan Agreement.
|
|
(a)
|
Each covenant of the Chargor contained in this Deed remains in force until the Release Date.
|
|
(b)
|
The representations and warranties set out in this Deed are made on the date of this Deed and are, unless otherwise stated herein, deemed to be repeated by the Chargor on each day from the date of this Deed until the Release Date with reference to the circumstances existing at the time of repetition.
|
|
(a)
|
create or permit to subsist any Lien over the Charged Assets save as expressly permitted pursuant to the Loan Documents; or
|
|
(b)
|
sell, transfer, assign, or otherwise dispose of any of the Charged Assets or the equity of redemption therein or permit any person to do any such thing except as permitted pursuant to the terms of the Loan Documents.
|
|
(a)
|
Deposit of Documents
|
|
(i)
|
all certificates representing the Shares;
|
|
(ii)
|
all undated stock transfer forms and other documents which the Chargee may reasonably request in such form and executed in such manner as the Chargee may reasonably require with a view to perfecting or maintaining the Security over the Charged Assets or registering any of the Shares in the name of the Chargee or its nominees; and
|
|
(iii)
|
a signed but undated irrevocable proxy made in respect of the Shares in favour of the Chargee in respect of all general meetings of the Company in the form set out in Schedule 2
|
|
to be dated by the Chargee and to become effective after an Event of Default has occurred and for so long as it is continuing.
|
|
(b)
|
Voting Rights and Distributions
|
|
(i)
|
Until the Security has become enforceable, the Chargor shall be entitled to:
|
|
(A)
|
receive and retain all Dividends paid on or derived from the Shares; and
|
|
(B)
|
exercise or direct the exercise of the voting rights and other rights and powers attached to the Shares in any manner as it sees fit other than in a manner which:
|
|
(1)
|
is in breach of any Loan Document or which may adversely affect the validity or enforceability of the Security or the value of the Shares; or
|
|
(2)
|
would cause the Chargee or its nominee to incur any cost or expense or render itself subject to any liability for which it has not previously been indemnified to its satisfaction or would otherwise prejudice the Chargee.
|
|
(A)
|
the Chargee or the Receiver shall be entitled but not obliged to transfer the Shares on behalf of the Chargor to such nominee as the Chargee shall select;
|
|
(B)
|
the Chargee or the Receiver shall be entitled but not obliged to receive and retain all Dividends and apply the same in accordance with Clause 7.1 (Application); and
|
|
(C)
|
the Chargee or the Receiver shall be entitled but not obliged to exercise any voting rights and any other rights and powers attached to any Share in such manner as it considers fit as if it were the sole beneficial owner of the that Share (including all powers given to trustees under Part II of the Trustee Act 2000); and
|
|
(D)
|
the Chargor shall comply, or procure the compliance, with any directions of the Chargee or any Receiver in respect of the exercise of any rights and powers exercisable in relation to the Charged Assets.
|
|
The Chargor represents and warrants to the Chargee that:
|
|
(i)
|
it is the sole legal and beneficial owner of the Shares;
|
|
(ii)
|
such Shares are free from all Liens, options and other third party rights (except as created by this Deed);
|
|
(iii)
|
such Shares are fully paid;
|
|
(iv)
|
the Shares referred to in Schedule 1 constitute sixty-five per cent (65%) of all of the authorised and issued share capital of the Company as at the date of this Deed; and
|
|
(v)
|
the constitutional documents of the Company do not restrict or otherwise limit the Chargor’s right to transfer or charge the Charged Assets.
|
|
(a)
|
For the purposes of all powers implied by the LPA or any other applicable statute, the Secured Liabilities shall be deemed to have become due and payable upon the date of this Deed.
|
|
(b)
|
Save as provided in Clause 5.3 (Effect of Moratorium) below, the Security shall become immediately enforceable upon:
|
|
(i)
|
the occurrence of an Event of Default which is continuing; or
|
|
(ii)
|
a petition being presented or application made for the appointment of an administrator in respect of the Chargor; or
|
|
(iii)
|
notice being given by a person entitled to do so of the intention to appoint an administrator or such notice being filed with the court,
|
|
(a)
|
If:
|
|
(i)
|
an Event of Default occurs and is continuing;
|
|
(ii)
|
so requested by the Chargor; or
|
|
(iii)
|
a petition is presented or application made for the appointment of an administrator, a liquidator or a provisional liquidator in respect of the Chargor or notice is given by any person entitled to do so of the intention to appoint an administrator or such notice is filed with the court,
|
|
(A)
|
appoint one or more persons to be Receiver of any Charged Assets of the Chargor; or
|
|
(B)
|
(subject to any requirement for a court order under the Insolvency Act 1986 or any other applicable insolvency law) remove any Receiver so appointed and, at its option, appoint another person(s) to be an additional or replacement Receiver.
|
|
(b)
|
If more than one person is appointed Receiver of any assets, each Receiver may act either jointly or severally unless the document appointing him states otherwise.
|
|
(c)
|
Section 109(1) of the LPA does not apply to this Deed.
|
|
(d)
|
The powers of appointment of a Receiver under this Deed shall be in addition to all other statutory and other powers of appointment of the Chargee under the LPA or otherwise.
|
|
(a)
|
all the powers conferred on an administrative receiver or receivers under the Insolvency Act 1986;
|
|
(b)
|
all the powers conferred by the LPA or any other applicable law on mortgagees, mortgagees in possession and on receivers; and
|
|
(c)
|
all the powers and rights of an absolute owner and power to do or omit to do anything which the Chargor itself could do or omit to do.
|
|
(a)
|
Take possession
|
|
(c)
|
Deal with Charged Assets
|
|
(i)
|
to form or procure the formation of any new corporation, trust or partnership (a "new vehicle");
|
|
(ii)
|
to subscribe for or acquire any investment in such new vehicle;
|
|
(iii)
|
to transfer or transfer any right in or grant any lease or licence in any Charged Assets to such new vehicle; and
|
|
(iv)
|
to sell, transfer, assign, exchange or otherwise dispose of any such investments or any rights attaching thereto;
|
|
(a)
|
in or toward the payment of or provision for all costs, losses, liabilities and expenses incurred by the Chargee or any Receiver or Delegate under or in connection with this Deed or their appointment and the Receiver's remuneration due in connection with this Deed;
|
|
(b)
|
in or toward discharge of the Secured Liabilities in accordance with the terms of the Loan Agreement; and
|
|
(c)
|
in payment of any surplus to the Chargor or other person entitled thereto.
|
|
(a)
|
In the event of any action, proceeding or step being taken to exercise any powers or remedies conferred by any prior ranking Lien or upon the exercise of any power of sale under this Deed by the Chargee or any Receiver, the Chargee may at any time redeem any Lien having priority to any Charges or procure the transfer of that Lien to itself and may settle the accounts of the prior encumbrancer and any accounts so settled shall, in the absence of manifest error, be conclusive and binding on the Chargor.
|
|
(b)
|
The Chargor shall, on demand of the Chargee, pay to the Chargee all the costs and expenses incurred by it in connection with any such redemption or transfer.
|
|
(c)
|
All the rights conferred by a prior charge upon the chargee or any receiver thereunder shall be exercisable by the Chargee or a Receiver in like manner as if the same were expressly included herein and the Chargee shall be entitled to exercise all the rights of a receiver appointed thereunder.
|
|
(a)
|
The Chargee or any Receiver may delegate in any manner to any person it may think fit any right, power or discretion exercisable by it under this Deed.
|
|
(b)
|
Any such delegation may be made upon such terms, consistent with the terms of the Loan Documents (including power to sub-delegate) as the Chargee or any Receiver may think fit.
|
|
(c)
|
The Chargee shall not be in any way liable to the Chargor or any other person for any losses, liabilities or expenses arising from any act, default, omission or misconduct on the part of any Delegate other than where caused by the gross negligence or wilful default of the Delegate.
|
|
(a)
|
be liable to account to the Chargor or any other person for anything except the Chargee's own actual receipts which have not been distributed or paid to the Chargor or the persons entitled (or at the time of payment believed by the Chargee to be entitled) thereto; or
|
|
(b)
|
be liable to the Chargor or any other person for any costs, losses, liabilities or expenses related to any realisation of any Charged Assets or from any act, default, omission or misconduct of the Chargee, any Receiver, any Delegate or their respective officers, employees or agents in relation to the Charged Assets or in connection with the Loan Documents unless caused by its own gross negligence or wilful misconduct.
|
|
(a)
|
creating, registering, perfecting, maintaining or protecting the Security or any of the Charged Assets; or
|
|
(b)
|
facilitating the realisation of any Security after it has become enforceable or the exercise of any right, power or discretion in relation to any Charged Asset or Security vested in the Chargee, any Receiver or any Delegate,
|
|
(a)
|
to do all acts and things which the Chargor is obliged to do under this Deed but has failed to do, including, without limitation, to fill in the name of the transferee and to date and complete any instrument of transfer in respect of any Charged Assets which has been executed in blank by the Chargor and, in the case of registered Charged Assets, to procure the registration of the transferee as the holder of the relevant Charged Assets in circumstances in which the Charged Assets are to be transferred under the terms of this Deed;
|
|
(b)
|
to transfer any interest in any Charged Assets in the circumstances in which such transfer may be required under this Deed, including on an enforcement of the Security over such Charged Assets;
|
|
(c)
|
in its name and on its behalf to exercise any right conferred on the Chargee, any Receiver or any Delegate in relation to the Charged Assets under this Deed or any other Loan Document or by law after such right has become exercisable; and
|
|
(d)
|
to register or renew registration of the existence of the Charges or the restrictions on dealing with the Charged Assets in any register in which the Chargor is obliged (but has failed) to effect or maintain registration under the terms of this Deed.
|
|
(a)
|
whether any right which the Chargee or any Receiver or Delegate is purporting to exercise or any of its powers has arisen or become exercisable;
|
|
(b)
|
whether the Secured Liabilities have become payable or any amount remains outstanding under the Loan Agreement;
|
|
(c)
|
as to the application of any money borrowed or raised or paid to the Chargee or any Receiver or Delegate; or
|
|
(d)
|
as to the propriety or regularity of such dealings.
|
|
(a)
|
If any sum (a "Sum") owing by the Chargor under this Deed, or any judgment, award or order given in relation to this Deed, has to be converted from the currency in which that Sum is payable into another currency for the purpose of:
|
|
(i)
|
making or filing a claim or proof against the Chargor;
|
|
(ii)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings; or
|
|
(iii)
|
applying the Sum in satisfaction of any Secured Liabilities,
|
|
(b)
|
The Chargor waives any right it may have in any jurisdiction to pay any amount under this Deed in a currency or currency unit other than that in which it is expressed to be payable unless required to do so by any applicable law.
|
|
(a)
|
any time, waiver or consent given to, or any composition with, any person;
|
|
(b)
|
the release of the Chargor or any other person under the terms of any composition or arrangement with any creditor of the Chargor or any other person (other than any express release of the Charges given in accordance with this Deed);
|
|
(c)
|
any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatever nature) or replacement of any Loan Document or any other security or document;
|
|
(d)
|
the taking, perfection, enforcement, variation, compromise, exchange, renewal, release of, or the refusal or neglect to take, perfect or enforce, any rights against, or Lien over, assets of, or any guarantee or undertaking given by, any person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any Lien;
|
|
(e)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or constitution or status of the Chargee, Chargor or any other person;
|
|
(f)
|
the illegality, invalidity or unenforceability of any obligation of any person under, or expressed to arise under, any Loan Document or other document; and
|
|
(g)
|
any insolvency or similar proceedings under the laws of any jurisdiction or the making of any arrangement or composition with or for the benefit of creditors by the Chargee or any other person.
|
|
(a)
|
the remaining provisions or the effectiveness of any of the remaining Security in that jurisdiction; or
|
|
(b)
|
that or any other provision or the effectiveness of such Security in any other jurisdiction.
|
|
(a)
|
the liability of the Chargor will continue or be reinstated as if the release, arrangement, discharge, settlement, avoidance or reduction had not occurred;
|
|
(b)
|
the Chargee shall be entitled to recover the value or amount of that release, arrangement, discharge, security or settlement from each Chargor, as if the payment, discharge, settlement, avoidance or reduction had not occurred together with any other cost, loss, expense or liability incurred by the Chargee as a result of such avoidance or discharge; and
|
|
(c)
|
the Chargor shall on demand indemnify the Chargee against any funding or other cost, loss, liability or expense incurred by the Chargee as a result of the Chargee being required for any reason to refund all or part of any amount received by it in respect of any of the Secured Liabilities.
|
|
(a)
|
The Chargee shall at the cost of the Chargor on the date on which it is satisfied (acting reasonably) that all the Secured Liabilities have been irrevocably and unconditionally paid and discharged in full and no further Secured Liabilities are capable of becoming outstanding (the "Release Date") take all reasonable steps to release the Charged Assets from the Security but without recourse to or any representation or warranty by the Chargee or any of its nominees.
|
|
(b)
|
All documents which are necessary in connection with the redemption of the Security or the transfer of the Charged Assets back to the Chargor shall be in such form as the Chargee shall reasonably require.
|
|
(a)
|
Until all Secured Liabilities have been irrevocably and unconditionally paid and discharged in full and all facilities which might give rise to Secured Liabilities have been terminated, the Chargee (or any trustee or agent on its behalf) may:
|
|
(i)
|
refrain from applying or enforcing any other moneys, security or rights held or received by it (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Chargor shall not be entitled to the benefit of the same; and
|
|
(ii)
|
hold in an interest-bearing suspense account any moneys received from the Chargor or on account of the Chargor's liability under this Deed.
|
|
(a)
|
Subject to paragraph (c) below, the courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed or any non-contractual obligation arising out of or in connection with this Deed) or the consequences of its nullity (a "Dispute").
|
|
(b)
|
The parties agree that the courts of England are the most appropriate and convenient courts to settle any Disputes and accordingly no party will argue to the contrary.
|
|
(c)
|
This Clause is for the benefit of the Chargee only. As a result, the Chargee shall not be prevented from taking:
|
|
(i)
|
proceedings relating to a Dispute in any other courts with jurisdiction; and
|
|
(ii)
|
to the extent allowed by law, concurrent proceedings in any number of jurisdictions.
|
EXECUTED AS A DEED by
|
)
|
|
THE FEMALE HEALTH COMPANY, a company organized and existing under the laws of the State of Wisconsin and signed and delivered as a deed on its behalf by O. B. Parrish being a person who, in accordance with the laws of that jurisdiction, is/are acting under the authority of that company in the presence of:
|
)
)
)
)
)
)
)
|
/s/ O. B. Parrish
|
Witness signature: /s/ Donna Felch
|
||
NAME: Donna Felch
|
||
ADDRESS: 515 N State Street, Suite 2225
Chicago, IL 60654
|
||
OCCUPATION: V.P. and CFO
|
EXECUTED by
|
)
|
|
Colin McNulty, AVP on behalf of HEARTLAND BANK:
|
)
)
)
)
|
/s/ Colin McNulty
|
Witness signature: /s/ Varsha Myers
|
||
NAME: Varsha Myers
|
||
ADDRESS: 212 S Central Avenue,
St. Louis, MO 63105
|
||
OCCUPATION: Analyst
|
Chargor
|
Company
|
Number of Shares (as at the date of this Deed)
|
Proportion of entire issued share capital of the Company
|
The Female Health Company
|
The Female Health Company Limited
|
3,900,130 ordinary shares of £1 each
|
65%
|