Amended and Restated Shareholders' Loan Agreement among TLS Beta Pte. Ltd., Quintiles Asia Pacific Commercial Holdings, Inc., Pharmaco Investments Ltd, and Asia Pacific Pharmaceutical Holdings Pte. Ltd. dated January 23, 2006
This agreement, dated January 23, 2006, is between TLS Beta Pte. Ltd., Quintiles Asia Pacific Commercial Holdings, Inc., Pharmaco Investments Ltd, and Asia Pacific Pharmaceutical Holdings Pte. Ltd. It amends and restates prior loan agreements, setting out the terms under which the parties will provide up to $111,670,000 in shareholder loans to Asia Pacific Pharmaceutical Holdings Pte. Ltd. The agreement details the amounts, tranches, interest, repayment terms, and conditions for default. It also addresses related transactions and ensures that previous rights and obligations are preserved.
(formerly known as Transfarma Holdings Limited)
SHAREHOLDERS LOAN AGREEMENT

CLAUSE | PAGE | |||||
1. | DEFINITIONS AND INTERPRETATION | 2 | ||||
1A. | AMENDMENT AND RESTATEMENT | 2 | ||||
2. | THE FACILITIES | 2 | ||||
3. | AGREEMENT ON PHARMALINKS OPERATING PROFIT FOR FY2004 | 3 | ||||
4. | AGREEMENT ON QUINTILES OPERATING PROFIT FOR FY2004 | 3 | ||||
5. | SHORTFALL LOANS | 3 | ||||
6. | DRAW DOWN OF FACILITIES | 3 | ||||
7. | ADJUSTMENTS AND DRAW DOWNS MADE UNDER SHAREHOLDERS LOAN AGREEMENT | 4 | ||||
8. | INTEREST | 4 | ||||
9. | REPAYMENT | 4 | ||||
10. | TAXES | 5 | ||||
11. | REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS | 6 | ||||
12. | EVENTS OF DEFAULT | 7 | ||||
13. | PHARMACO EVENT OF DEFAULT | 9 | ||||
14. | QIV EVENT OF DEFAULT | 10 | ||||
15. | TLS EVENT OF DEFAULT | 11 | ||||
16. | REPAYMENT UPON EXERCISE OF QIV PUT OPTION OR TLS AND PHARMACO CALL OPTION | 12 | ||||
17. | EXPENSES AND STAMP DUTY | 12 | ||||
18. | ILLEGALITY | 12 | ||||
19. | WAIVERS, RIGHTS AND REMEDIES | 13 | ||||
20. | ASSIGNMENT | 13 | ||||
21. | TIME OF ESSENCE | 13 | ||||
22. | NOTICES | 13 | ||||
23. | COUNTERPARTS | 15 | ||||
24. | GOVERNING LAW AND ARBITRATION | 15 | ||||
25. | NO RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT (CAP. 53B) | 16 | ||||
26. | FURTHER ASSURANCE | 16 | ||||
THE SCHEDULE INTERPRETATION | 17 |
(1) | TLS BETA PTE. LTD. (Co. Reg. No. 200500368D), a company incorporated in Singapore and having its registered office at 60B Orchard Road, #06-18 Tower 2 The Atrium @ Orchard, Singapore 238891 (TLS); |
(2) | QUINTILES ASIA PACIFIC COMMERCIAL HOLDINGS, INC. (Co. Reg. No. 807996), a corporation incorporated in North Carolina, United States of America with its principal address at 4709 Creekstone Drive, Suite 200, Durham, NC 27703, United States of America (QIV); |
(3) | PHARMACO INVESTMENTS LTD (Co. Reg. No. LL04247) (formerly known as Transfarma Holdings Limited), a company incorporated in Labuan, Malaysia and having its registered office at Brumby House, 1st Floor, Jalan Bahasa, 87011 Labuan, F.T. Labuan, Malaysia (PharmaCo); and |
(4) | ASIA PACIFIC PHARMACEUTICAL HOLDINGS PTE. LTD. (Co. Reg. No. 200501108N), a company incorporated in Singapore and having its registered office at 150 Beach Road, #25-03/04 The Gateway West, Singapore 189720 (Holdco). |
Page 1
1. | Definitions And Interpretation |
1A. | Amendment And Restatement |
2. | The Facilities |
(a) | the first amounts of up to US$50,000,000 demanded by Holdco shall be extended by TLS (First Tranche TLS Loan); |
(b) | in accordance with clause 5, the second tranche demanded by Holdco shall be extended by PharmaCo and shall comprise the PharmaCo Shortfall Loan; |
Page 2
(d) | the fourth tranche of up to US$45,000,000 demanded by Holdco shall be extended by TLS, QIV and PharmaCo equally. |
(a) | to on-lend the same to Newco1 for the purpose of Newco1 acquiring patented and off-patent branded ethical research based pharmaceutical products or interest in companies which own patented and off-patent branded ethical research based pharmaceutical products, all acquisition related expenses (such as legal and due diligence fees), working capital requirements (such as the purchase of inventory) of Newco1 and transactional expenses of Newco1; and |
(b) | for transactional and operational expenses of Holdco. |
3. | Agreement on Pharmalinks Operating Profit For Fy2004 |
4. | Agreement on Quintiles Operating Profit For Fy2004 |
5. | Shortfall Loan |
PharmaCo Shortfall Loan = | 15.15 x | (US$3,135,000 PharmaLinks Operating Profit for FY2004) | ||||
6. | Draw down of Facilities |
(a) | no drawings shall be made on the QIV Cash Loan, PharmaCo Cash Loan and the PharmaCo Shortfall Loan unless and until the First Tranche TLS Loan has been fully drawn by Holdco; |
Page 3
(b) | the outstanding principal amount of the QIV Cash Loan to be provided by QIV shall not exceed US$31,670,000 at any time; |
(c) | the outstanding principal amount of the PharmaCo Cash Loan to be provided by PharmaCo shall not exceed US$15,000,000 at any time; and |
(d) | the outstanding principal amount of the Aggregate TLS Loan to be provided by TLS shall not exceed US$65,000,000 at any time. |
7. | adjustments and draw downs made under shareholders loan agreement |
(a) | such Old Drawings shall be deemed to be drawn on the loans in the amount and manner set out in clause 6; |
(b) | all interest accrued (if any) in respect of the Old Drawings shall be deemed to have accrued under the drawings set out in clause 6; and |
(c) | where the priority of Old Drawings does not accord with the priority of drawings set out in clause 6, TLS, QIV or PharmaCo (as the case may be) shall pay the relevant party such amount to give effect to the priority of drawings set out in clause 6. Any amount payable by TLS, QIV or PharmaCo (as the case may be) under this clause 7.2(c) to the relevant party shall be made in cash to a bank account designated by the relevant party within 10 Business Days from the date of this Agreement. |
8. | Interest |
9. | Repayment |
Page 4
(b) | upon the written demand of any of TLS, QIV or PharmaCo at any time after the expiry of 5 years after the date of this Agreement, irrespective of whether or not any of the Aggregate TLS Loan, QIV Cash Loan, PharmaCo Cash Loan and PharmaCo Shortfall Loan has been fully drawn down; or |
(c) | upon the written demand of any of TLS, QIV or PharmaCo at any time after the expiry of 2 years after an initial public offering of the shares in the capital of Holdco, Newco1 or any company within the Holdco group established or to be established for such purpose. |
10. | Taxes |
(a) | Holdco or any other person is required by law to make any deduction or withholding on account of any such tax or other amount from any sum paid or payable by Holdco to TLS, QIV or PharmaCo (as the case may be) under this Agreement; or |
(b) | TLS, QIV or PharmaCo (as the case may be) (or any person on its behalf) is required by law to make any deduction or withholding from, or (except on account of tax on the overall net income of TLS, QIV or PharmaCo (as the case may be)) any payment on or calculated by reference to the amount of, any sum received or receivable by TLS, QIV or PharmaCo (as the case may be) under this Agreement: |
(i) | Holdco shall notify TLS, QIV or PharmaCo (as the case may be) of any such requirement or any change in any such requirement as soon as it becomes aware of it; | ||
(ii) | Holdco shall pay any such tax or other amount before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on Holdco) for its own account or (if that liability is imposed on TLS, QIV or PharmaCo (as the case may be)) on behalf of and in the name of TLS, QIV or PharmaCo (as the case may be); and | ||
(iii) | the sum payable by Holdco in respect of which the relevant deduction, withholding or payment is required shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment, TLS, QIV or PharmaCo (as the case may be) receives on the due date and retains (free from any liability in respect of any such deduction, withholding or payment) a net sum equal to what it would have received and so retained had no such deduction, withholding or payment been required or made. |
Page 5
11. | Representations, Warranties And Undertakings |
(a) | all necessary corporate and other action has been taken to authorise it to enter into this Agreement and perform the transactions contemplated under this Agreement, to ensure that those obligations are legally binding and enforceable and to make this Agreement admissible in evidence in the courts of Singapore and any other relevant jurisdictions; |
(b) | no limit on the borrowing powers of Holdco or its directors will be exceeded as a result of any drawing made pursuant to this Agreement, and the provisions under this Agreement will constitute valid, binding and enforceable obligations on Holdcos part; |
(c) | each of Holdco and Newco1 is a company with limited liability duly incorporated and validly existing under the laws of Singapore and has the power and authority to own assets and to conduct the business which it conducts and/or purports to conduct; |
(d) | the execution, delivery and performance of this Agreement is or will when executed be within its corporate powers, and do not or will not contravene any law or any contractual restriction binding on it or any provision of its Memorandum and Articles of Association; |
(e) | its entry into, exercise of its rights and/or performance of or compliance with its obligations under this Agreement do not and will not violate (i) any law to which it is subject or (ii) any of its constitutive documents (where applicable) or (iii) any agreement to which it is a party or which is binding on it or its assets, and do not and will not result in the existence of, or oblige it to create, any security over those assets; |
(f) | there is no provision of any existing mortgage, trust deed, contract, licence, franchise, concession or agreement binding on it which is being contravened or breached by the acceptance by Holdco of the facilities or the execution by it of this Agreement or by its performance or observance of any of its obligations hereunder; |
(g) | no legal proceeding, suit or action of any kind whatsoever is current or pending (i) to restrain the entry into, exercise of any of its rights under and/or performance or enforcement of or compliance with its obligations under this Agreement or (ii) which may materially and adversely affect its or Newco1s ability to perform its respective obligations under any agreements binding on it; |
(h) | no Event of Default has occurred or is continuing, and no event or circumstance which, if it had continued after the giving of any notice, the expiry of any grace period, and/or the making of any determination by TLS, QIV or PharmaCo provided for in clause 12.2 would become an Event of Default; |
(i) | neither it nor Newco1 is in default in the payment or performance of any of its respective obligations for borrowed moneys, or in respect of any other liabilities; and |
(j) | (i) there is no material adverse change in its or Newco1s business, management, assets, financial position or operating environment; and (ii) there are no other conditions which will materially and adversely affect its ability to perform its obligations under this Agreement, |
Page 6
12. | Events of Default |
(a) | Holdco shall default in the payment of any sum to TLS, QIV or PharmaCo (whether of principal or any other sums payable under this Agreement); |
(b) | Holdco does not use any or all of the Aggregate TLS Loan, QIV Cash Loan, PharmaCo Cash Loan and PharmaCo Shortfall Loan for the purposes stated under clause 2.5 or for such other purpose as may be agreed in writing between TLS, QIV and PharmaCo; |
(c) | any representation, warranty or statement by Holdco made to TLS, QIV and PharmaCo under this Agreement is incorrect, untrue or not complied with in any respect; |
(d) | Holdco does not perform or comply with any one or more of Holdcos covenants, conditions or obligations under this Agreement; |
(e) | any other indebtedness in respect of Holdcos or any indebtedness in respect of Newco1s borrowed money, (i) is not paid when due or within any applicable grace period in any agreement relating to that indebtedness or (ii) becomes (or becomes capable of being rendered) due and payable before its normal maturity by reason of any actual or potential event of default or the like (howsoever described) or any facility relating to such indebtedness is or is declared to be or is capable of being cancelled before its normal expiry date or any person otherwise entitled to use any such facility is not so entitled; |
(f) | it is or will become unlawful for Holdco to perform or comply with any one or more of its obligations under this Agreement; |
(g) | any step is taken by Holdco or Newco1 or any person, an application is made or a petition is presented or an order is made or a resolution is passed or analogous proceedings are commenced for the receivership, judicial management, dissolution, liquidation or winding up (whether voluntary or compulsory) of Holdco or Newco1 (as the case may be); |
(h) | Holdco or Newco1 becomes insolvent, is unable to pay its debts as they fall due, stops, suspends or threatens to stop or suspend payment of all or a material part of Holdcos or Newco1s (as the case may be) debts, begins negotiations or takes any proceeding or other step with a view to readjustment, rescheduling or deferral of all of Holdcos or Newco1s (as the case may be) indebtedness (or of any part of Holdcos or Newco1s (as the case may be) indebtedness which Holdco or Newco1 (as the case may be) will or might otherwise be unable to pay when due) or proposes or makes a general assignment or an arrangement or composition with or for the benefit of Holdcos or Newco1s (as the case may be) creditors or a moratorium is agreed or declared in respect of or affecting all or a material part of Holdcos or Newco1s (as the case may be) indebtedness; |
(i) | a distress, attachment, execution or other legal process is levied, enforced or issued on or against any part of Holdcos or Newco1s assets or property; |
Page 7
(j) | any guarantee of any obligation given by Holdco or Newco1 is not honoured when due and called upon; |
(l) | any action, condition or thing (including the obtaining of any necessary consent) at any time required to be taken, fulfilled or done for any of the purposes stated in clause 11.1(a) is not taken, fulfilled or done or any such consent ceases to be in full force and effect or any condition in or relating to any such consent is not complied with; |
(m) | any legal proceedings, suit or action of any kind whatsoever (whether criminal or civil) be instituted against Holdco or Newco1 which in the opinion of TLS, QIV or PharmaCo (as the case may be) materially and adversely affect the ability of Holdco or Newco1 (as the case may be) to perform its obligations under any agreements binding on it; |
(n) | Holdco or Newco1 is declared by the Minister to be a declared company under the provisions of Part IX of the Companies Act, Cap. 50; |
(o) | a notice or proposal for compulsory acquisition of any of the assets or properties of Holdco or Newco1 shall be issued or made under or by virtue of an Act of Parliament or other statutory provision, or if any step is taken by any person or agency with a view to the confiscation, seizure, compulsory acquisition, expropriation or nationalism of any part of the assets or property of Holdco or Newco1 (as the case may be); |
(p) | this Agreement ceases for any reason or is claimed by Holdco not to be the legal and valid obligations of Holdco binding upon it in accordance with its terms or this Agreement for any reason ceases to apply or is claimed by Holdco not to apply to the obligations and the liabilities therein secured; |
(q) | there shall occur (i) a material adverse change in the business, management, assets, financial position or operating environment of Holdco or Newco1 or (ii) other conditions, which in the opinion of TLS, QIV or PharmaCo (as the case may be) materially and adversely affect the ability of Holdco or Newco1 to perform its obligations under any agreements binding on it; |
(r) | Holdco or Newco1 shall commit any material breach or default of its obligations under any agreements binding on it; |
(s) | a deadlock has arisen under clause 28 of the Amended and Restated Shareholders Agreement and is not resolved after the negotiation period of 21 days following the appointment of the mediators as referred to in clause 28.3 of the Amended and Restated Shareholders Agreement; |
(t) | any event occurs or circumstances arise which, in the opinion of TLS, QIV or PharmaCo (as the case may be) (i) gives reasonable grounds for believing that Holdco may not (or may be unable to) perform or comply with any one or more of Holdcos obligations under this Agreement or (ii) has or could have any other material adverse effect on Holdco or Newco1; or |
(u) | any event occurs which, under the laws of any applicable jurisdiction, has an analogous or equivalent effect to any of the events referred to in this clause 12.1. |
Page 8
(a) | any and all amounts outstanding to the declaring Lender(s) under the Loans shall become immediately due and payable to the declaring Lender(s) without any demand or notice which is hereby expressly waived; |
(b) | the declaring Lender(s) shall be entitled to exercise forthwith all or any of its(their) respective rights, powers or remedies under this Agreement; and |
(c) | any and all of the obligations of the declaring Lender(s) under this Agreement shall be automatically cancelled (including the commitment of the declaring Lender(s) to extend the facilities under clause 2.1). |
(a) | if there is only one declaring Lender, all payments to be made by Holdco under clause 12.2 shall be made to the declaring Lender; and |
(b) | if there are two or three declaring Lenders, all payments to be made by Holdco under clause 12.2 shall be made to the declaring Lenders pro-rata to the amount of Loans owing by Holdco to the declaring Lenders. |
13. | PharmaCo Event of Default |
Page 9
(a) | any and all amounts outstanding to the declaring Lender(s) under the Loans shall become immediately due and payable to the declaring Lender(s) without any demand or notice which is hereby expressly waived; |
(b) | the declaring Lender(s) shall be entitled to exercise forthwith all or any of its or their rights, powers or remedies under this Agreement; and |
(c) | any and all of the obligations of the declaring Lender(s) under this Agreement shall be automatically cancelled (including the commitment to extend the facilities under clause 2.1). |
(a) | if only one of TLS or QIV is a declaring Lender, all payments to be made by Holdco under clause 13.2 shall be made to the declaring Lender; and |
(b) | if both TLS and QIV are declaring Lenders, all payments to be made by Holdco under clause 13.2 shall be made to TLS and QIV pro-rata to the amount of Loans owing by Holdco to TLS and QIV. |
14. | QIV Event Of Default |
(a) | any and all amounts outstanding to the declaring Lender(s) under the Loans shall become immediately due and payable to the declaring Lender(s) without any demand or notice which is hereby expressly waived; |
(b) | the declaring Lender(s) shall be entitled to exercise forthwith all or any of its or their rights, powers or remedies under this Agreement; and |
Page 10
(c) | any and all of the obligations of the declaring Lender(s) under this Agreement shall be automatically cancelled (including the commitment to extend the facilities under clause 2.1). |
(a) | if only one of TLS or PharmaCo is a declaring Lender, all payments to be made by Holdco under clause 14.2 shall be made to the declaring Lender; and |
(b) | if both TLS and PharmaCo are declaring Lenders, all payments to be made by Holdco under clause 14.2 shall be made to TLS and PharmaCo pro-rata to the amount of Loans owing by Holdco to TLS and PharmaCo. |
15. | TLS Event of Default |
(a) | any and all amounts outstanding to the declaring Lender(s) under the Loans shall become immediately due and payable to the declaring Lender(s) without any demand or notice which is hereby expressly waived; |
(b) | the declaring Lender(s) shall be entitled to exercise forthwith all or any of its or their rights, powers or remedies under this Agreement; and |
(c) | any and all of the obligations of the declaring Lender(s) under this Agreement shall be automatically cancelled (including the commitment to extend the facilities under clause 2.1). |
(a) | if only one of PharmaCo or QIV is a declaring Lender, all payments to be made by Holdco under clause 15.2 shall be made to such declaring Lender; and |
Page 11
(b) | if both PharmaCo and QIV are declaring Lenders, all payments to be made by Holdco under clause 15.2 shall be made to PharmaCo and QIV pro-rata to the amount of Loans owing by Holdco to PharmaCo and QIV. |
16. | Repayment Upon Exercise of QIV Put Option or TLS and PharmaCo Call Option |
(a) | any and all amounts outstanding to QIV under the Loans shall become immediately due and payable to QIV without any demand or notice which is hereby expressly waived; |
(b) | QIV shall be entitled to exercise forthwith all or any of its rights, powers or remedies under this Agreement; and |
(c) | any and all of the obligations of QIV under this Agreement shall be automatically cancelled (including the commitment to extend the facilities under clause 2.1). |
17. | Expenses And Stamp Duty |
(a) | on demand, all costs and expenses (including legal costs on an indemnity basis) incurred by TLS, QIV and/or PharmaCo (as the case may be) in protecting or enforcing any of its rights under this Agreement and/or any such amendment or waiver; and |
(b) | promptly, and in any event before any interest or penalty becomes payable, any stamp, documentary, registration or similar tax payable in connection with the entry into, registration, performance, enforcement or admissibility in evidence of this Agreement and/or any such amendment or waiver, and shall indemnify TLS, QIV or PharmaCo (as the case may be) against any liability with respect to or resulting from any delay in paying or omission to pay any such tax. |
18. | Illegality |
Page 12
19. | Waivers, Rights and Remedies |
20. | Assignment |
(i) | any of TLS, QIV and PharmaCo may at its own cost and expense by giving the other parties and Holdco 7 Business Days written notice assign all or any part of its rights (but not its obligations) under this Agreement, Provided however that if such assignment is made to a party or parties other than affiliates of TLS, QIV or PharmaCo (as the case may be), the assigning party shall first obtain the written consent of the other parties of this Agreement to the assignment; and | ||
(ii) | any of TLS, QIV and PharmaCo may, without the consent of Holdco but with the written consent of the other parties, transfer all or any part of its obligations under this Agreement. |
21. | Time Of Essence |
22. | Notices |
Page 13
(a) | in the case of delivery by hand, when delivered; | |
(b) | in the case of fax, at the time of transmission; and | |
(c) | in the case of post, on the second Business Day after the date of posting (if sent by local mail) and on the seventh Business Day after the date of posting (if sent by air mail), |
(a) | TLS | |||
Address: | 60B Orchard Road | |||
#06-18 Tower 2 The Atrium @ Orchard | ||||
Singapore 238891 | ||||
Fax: | +65 6828 6137 | |||
For the attention of: | Tan Suan Swee/Derek Lau/Dawn Chan | |||
(b) | QIV | |||
Address: | c/o Quintiles Transnational Corp. | |||
4709 Creekstone Drive | ||||
Durham, NC 27560, United States of America | ||||
Fax: | + ###-###-#### | |||
For the attention of: | John Russell, Esq., General Counsel | |||
(c) | PharmaCo | |||
Address: | c/o Interpharma Asia Pacific Ltd | |||
6-8 Harbour Road | ||||
13th Floor Shui On Center | ||||
Wanchai, Hong Kong | ||||
Fax: | + ###-###-#### 5647 | |||
For the attention of: | Chief Financial Officer | |||
(d) | Holdco | |||
Address: | 150 Beach Road#25-03/04 | |||
The Gateway West | ||||
Singapore 189720 | ||||
Fax: | +65 6396 5710 | |||
For the attention of: | Chief Financial Officer | |||
With a copies to: | ||||
(i) | TLS | |||
Address: | 60B Orchard Road | |||
#06-18 Tower 2 The Atrium @ Orchard | ||||
Singapore 238891 | ||||
Fax: | +65 6828 6137 | |||
For the attention of: | Tan Suan Swee/Derek Lau/Dawn Chan |
Page 14
(ii) | QIV | |||
Address: | c/o Quintiles Transnational Corp. | |||
4709 Creekstone Drive | ||||
Durham, NC 27560, United States of America | ||||
Fax: | + ###-###-#### | |||
For the attention of: | John Russell, Esq., General Counsel | |||
(iii) | PharmaCo | |||
Address: | c/o Interpharma Asia Pacific Ltd | |||
6-8 Harbour Road | ||||
13th Floor Shui On Center | ||||
Wanchai, Hong Kong | ||||
Fax: | + ###-###-#### 5647 | |||
For the attention of: | Chief Financial Officer; and |
(a) | the date specified in the notice as the date on which the change is to take place; or | |
(b) | if no date is specified or the date specified is less than 5 Business Days after the date on which notice is given, the date following 5 Business Days after notice of any change has been given. |
23. | Counterparts |
24. | Governing Law and Arbitration |
Page 15
25. | No Rights Under Contracts (Rights of Third Parties) Act (Cap. 53B) |
26. | Further Assurance |
Page 16
(i) | the following words shall have the following meanings: | |
Business Day means a day (excluding Saturdays, Sundays and public holidays) on which banks generally are open in Singapore, Hong Kong and the United States for the transaction of normal banking business; | ||
drawings has the meaning given to it by clause 6; | ||
FY2004 means financial year ended 31 December 2004; | ||
Loans means the Aggregate TLS Loan, Aggregate QIV Loan and Aggregate PharmaCo Loan advanced or to be advanced by the relevant party to this Agreement or, as the case may be, the outstanding principal amount of such loans, and a Loan shall be construed accordingly; | ||
Newco2 means PharmaLink Asia Pacific Pte. Ltd. (Co. Reg. No. 200500937C), a private limited company incorporated in Singapore with its registered office at 150 Beach Road, #25-03/04 The Gateway West, Singapore 189720; | ||
Newco2 Consideration Shares shall have the meaning ascribed to Consideration Shares in the Newco2 Put & Call Option Agreement; | ||
Newco2 Distribution Agreement shall have the meaning ascribed to Distribution Agreement in the Newco2 Put & Call Option Agreement; | ||
Newco2 Master Business Transfer Agreement shall have the meaning ascribed to Master Business Transfer Agreement in the Newco2 Put & Call Option Agreement; | ||
Newco2 Services Agreement shall have the meaning ascribed to Services Agreement in the Newco2 Put & Call Option Agreement; | ||
Newco2 Term Loan Facility Agreements shall have the meaning ascribed to Term Loan Facility Agreements in the Newco2 Put & Call Option Agreement; | ||
Newco3 means Innovex Asia Holdings Pte. Ltd. (Co. Reg. No.: 200515117Z), a private limited company incorporated in Singapore with its registered office at 9 Raffles Place, #32-00 Republic Plaza, Singapore 048619; | ||
Newco3 Completion Date means the date on which Newco3 Completion occurs; | ||
Newco3 Consideration Shares shall have the meaning ascribed to Consideration Shares in the Newco3 Put & Call Option Agreement; | ||
Newco3 Master Business Transfer Agreement shall have the meaning ascribed to Master Business Transfer Agreement in the Newco3 Put & Call Option Agreement; | ||
Newco3 Master Services Agreements shall have the meaning ascribed to Master Services Agreements in the Newco3 Put & Call Option Agreement; | ||
Newco3 Term Loan Facility Agreements shall have the meaning ascribed to Term Loan Facility Agreements in the Newco3 Put & Call Option Agreement; |
Page 17
PharmaLink Business means the business of providing (a) marketing services for patented and off-patent branded ethical research based pharmaceutical and healthcare products through agency or contract sales organisation (CSO) arrangements and (b) regulatory services including advisory services on regulatory environment, activities pertaining to the registration of patented and off-patent branded ethical research based pharmaceutical and healthcare products with the relevant regulatory bodies and product licence holding, market research services and sales and development programmes under the name and style of PharmaLink as an unincorporated business division of ZPH and its subsidiaries; | ||
PharmaLinks Operating Profit means the earnings before interest and tax of the PharmaLink Business. It shall be calculated after deducting (a) management fees paid to ZPH and its subsidiaries engaged in the PharmaLink Business of up to 2% of revenue (with revenue defined as invoiced sales exclusive of value added tax, goods and services and other consumption tax); and (b) distribution charges paid to ZPH and its subsidiaries in connection with the PharmaLink Business. It shall exclude (i) non-recurring extraordinary or exceptional operating profit including any gains made or losses incurred on disposals of fixed assets; and (ii) amounts written back for doubtful debts, provisions for obsolescence or other payables created in periods prior to 1 January 2004; | ||
PharmaLinks Proforma Financial Statements 2004 means the proforma financial statements for the PharmaLink Business for FY2004, prepared on a basis consistent with the normal basis of preparation of management accounts, using the same accounting principles, policies and practices, and, so far as consistent with the foregoing, International Financial Reporting Standards (or GAAP under which ZPH reports). The proforma financial statements should reflect all costs of running the business on a stand alone basis; | ||
QIV Put Option shall have the meaning ascribed to Vendor Put Option in the Newco3 Put & Call Option Agreement; | ||
QTC means Quintiles Transnational Corp. (Co. Reg. No. 0274393), a corporation incorporated in North Carolina, United States of America with its principal address at 4709 Creekstone Drive, Suite 200, Durham, NC 27703, United States of America; | ||
Quintiles Business means the business providing sales and marketing services in India, Korea, Australia and New Zealand for ethical research based pharmaceutical products through contract sales organisation arrangements under the name and style of Innovex; | ||
Quintiles Operating Profit means the earnings before interest and tax of Quintiles Business. It shall be calculated after (a) including or excluding (as the case may be) a share of common overhead expenses for shared services in the respective countries in which Quintiles Business is carried on and (b) including information technology support expenses paid to QTC. It shall exclude (i) non-recurring extraordinary or exceptional operating profit including any gains made or losses incurred on disposals of fixed assets; and (ii) amounts written back for doubtful debts, provisions for obsolescence or other payables created in the periods prior to 1 January 2004; | ||
Quintiles Proforma Financial Statements 2004 means the proforma financial statements for Quintiles Business for FY2004, prepared on a basis consistent with the normal basis of preparation of management accounts, using the same accounting principles, policies and practices, and, so far as consistent with the foregoing, International Financial Reporting Standards (or GAAP under which QTC reports). The proforma financial statements should reflect all costs of running the business on a stand alone basis; | ||
TLS and PharmaCo Call Option shall have the meaning ascribed to TLS and PharmaCo Call Option in the Newco3 Put & Call Option Agreement; |
Page 18
Transaction Documents means: |
(a) | (i) this Agreement, (ii) the Amended and Restated Shareholders Agreement, (iii) the Newco2 Put & Call Option Agreement as supplemented by the Supplemental Agreements and (iv) the Newco3 Put & Call Option Agreement; | ||
(b) | the Newco2 Master Business Transfer Agreement, Newco2 Term Loan Facility Agreements, Newco2 Services Agreement and Newco2 Distribution Agreement; and | ||
(c) | the Newco3 Master Business Transfer Agreement, Newco3 Term Loan Facility Agreements and Newco3 Master Services Agreements, |
and includes any such agreement as amended from time to time; and | ||
ZPH means Zuellig Pharma Holdings Limited (Co. Reg. No. LL01201), a company incorporated in Labuan, Malaysia and having its registered office at Brumby House, 1st Floor, Jalan Bahasa, 87011 Labuan, F.T. Labuan, Malaysia; | ||
(ii) | references in this Agreement to any party include, where appropriate, that partys personal representatives and successors in title; | |
(iii) | references to persons shall include individuals, bodies corporate (wherever incorporated), unincorporated associations and partnerships; | |
(iv) | words importing the singular shall, unless the context otherwise requires, include the plural and vice versa; and words importing a specific gender shall include the other genders (i.e. male, female and neuter); | |
(v) | the headings are inserted for convenience only and shall not affect the construction of this Agreement; | |
(vi) | references to a statutory provision shall include such provision and any regulations made in pursuance thereof as may from time to time be modified or re-enacted whether before or after the date of this Agreement so far as such modification or re-enactment applies or is capable of applying to any transactions entered into prior to completion and (so far as liability thereunder may exist or can arise) shall include also any past statutory provisions or regulations (as from time to time modified or re-enacted) which such provisions or regulations have directly or indirectly replaced; | |
(vii) | references to any legal term used in any applicable jurisdiction (other than Singapore) for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any other legal concept shall be deemed to include the legal concept which most nearly approximates in Singapore to that legal term; | |
(viii) | references to any transactions effected on or before completion include the combined result of two or more transactions, the first of which shall have taken place (or be deemed to have taken place) or the commencement of which shall have occurred (or be deemed to have occurred) on or before completion; | |
(ix) | references to clauses, Recitals and Schedule are to the clauses of, recitals of, and schedule to, this Agreement; | |
(x) | references to borrowed money includes any indebtedness (1) for or in respect of money borrowed or raised (whether or not for cash), by whatever means (including acceptances, deposits, discounting, factoring, finance leases, hire purchase, sale-and-lease back, sale-and-repurchase and any form of off-balance sheet financing) or (2) for the deferred |
Page 19
purchase price of assets or services (other than goods or services obtained on normal commercial terms in the ordinary course of trading); | ||
(xi) | a guarantee also includes an indemnity, and any other obligation (howsoever described) of any person to pay, purchase, provide funds for the payment of, indemnify against the consequences of default in the payment of, or otherwise be responsible for, any indebtedness of any other person (and guaranteed shall be construed accordingly); | |
(xii) | references to indebtedness includes any obligation (whether present or future, actual or contingent, secured or unsecured, as principal, surety or otherwise) for the payment or repayment of money; | |
(xiii) | something having a material adverse effect on a person is to it having a material adverse effect (1) on its financial condition or business/operations or on the consolidated financial condition or business/operations of it and its subsidiaries or (2) on its ability to perform and comply with its obligations under this Agreement; | |
(xiv) | the word affiliate means, with respect to any person, any other person controlling, controlled by, or under common control with, such person; and | |
(xv) | the word control (including its correlative meanings, controlled by, controlling and under common control with) shall mean, with respect to a corporation, the right to exercise, directly or indirectly, more than 50% of the voting rights attributable to the shares of the controlled corporation or control of the composition of the board of directors of the controlled corporation and, with respect to any person other than a corporation, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person. |
Page 20
SIGNED By Derek Lau | ) | /s/ Derek Lau | ||
) | ||||
for and on behalf of | ) | |||
TLS BETA PTE. LTD. | ) | |||
in the presence of: Dawn Chan | ) | /s/ Dawn Chan | ||
SIGNED By Ron Wooten, President | ) | /s/ Ron Wooten | ||
) | ||||
for and on behalf of | ) | |||
QUINTILES ASIA PACIFIC | ) | |||
COMMERCIAL HOLDINGS, INC. | ) | |||
in the presence of: Eric Green, Assistant Secretary | ) | /s/ Eric Green | ||
SIGNED By Fritz Horlacher | ) | /s/ Fritz Horlacher | ||
) | ||||
for and on behalf of | ) | |||
PHARMACO INVESTMENTS LTD | ) | |||
(formerly known as Transfarma Holdings Limited) | ) | |||
) | ||||
in the presence of: Elaine J. Cheung | ) | /s/ Elaine J. Cheung | ||
SIGNED By Derek Lau | ) | /s/ Derek Lau | ||
) | ||||
for and on behalf of | ) | |||
ASIA PACIFIC PHARMACEUTICAL | ) | |||
HOLDINGS PTE. LTD. | ) | |||
in the presence of: Dawn Chan | ) | /s/ Dawn Chan |
Page 21