Exhibit 2.A
AMENDMENT NO. 2 TO BINDING LETTER OF INTENT
This Amendment dated as of October 21 2002 (this "SECOND AMENDMENT") amends the
Binding Letter of Intent dated as of September 26, 2002 (the "LOI") among ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("LTBM"), Rothschilds Trust Guernsey Limited (the "LTBM
TRUSTEES"), as trustees of the ▇▇▇ Trust (the "LTBM TRUST"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("JHM") and Codan Trust Company Limited (the "JHM TRUSTEES") as trustees of The
JACTMAC Media Trust (the "JHM TRUST"), as amended by the first Amendment thereto
dated as of 13 October 2002 (the "FIRST Amendment") among the same parties.
Although this Second Amendment contemplates the execution and delivery of a
definitive agreement, it is intended to be legally binding upon each of LTBM,
the LTBM Trust, JHM and the JHM Trust.
Terms used in this Second Amendment and not defined herein are used as defined
in the LOI or in the First Amendment, as the case may be.
1 The provisions of this Second Amendment are conditional on the LTBM
Trust having received a further advance against the Closing of
Euro2,000,000 promptly after the execution and delivery of this Second
Amendment by all parties hereto; such further advance to be extended by
Floscule (except as may be otherwise agreed between JHM and LTBM) and
which will therefore further reduce the amount of net proceeds that
would otherwise be released at the Closing to LTBM's Trust in
accordance with Section 4 of the LOI; it being understood that, if the
Closing shall not have occurred as contemplated by the LOI and the
parties shall not have signed a definitive transaction agreement by
October 31, 2002 in respect of the transactions contemplated by the
LOI, then LTBM's Trust shall be obligated to repay such advance (and
the advance of Euro2,000,000 made pursuant to Section 1(c) of the
First Amendment) to Floscule no later than December 2, 2002.
2 If the condition set out in Section 1(b) of the First Amendment has not
been fulfilled by the Closing Date, Closing will nevertheless proceed
on the Closing Date (and the Option Term shall be extended to May 16,
2005, subject to fulfilment of the condition set out in Section 1(d) of
the First Amendment), provided that either:
(a) the condition set out in Section 1(b) of the First Amendment is
fulfilled on or before November 29, 2002 and the net proceeds
of the sale of the Class A Shares referred to therein (the
"UNSOLD SHARES") shall have been released to LTBM's Trust
within 3 business days of the relevant sales; or
(b) if the condition set out in Section 2(a) above is not fulfilled
on or before November 29, 2002, the following shall have
occurred:
(i) on or before November 29, 2002, JHM or JHM's Trust
shall have caused there to be transferred to (or to the
order of) LTBM's Trust a total of 1,000,000 Class A
Shares (the "PRICE SHORTFALL PROTECTION SHARES");
(ii) LTBM's Trust may seek to sell the Unsold Shares
commencing March 10, 2003 (or such other date as is 2
business days after the announcement by the Company of
its audited results for the financial year ending
December 31, 2002), provided that the relevant date is
not a blackout day (in which case sales may commence on
the next business day which is not a blackout day);
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(iii) if the average gross price (before commissions)
received on the sale of the Unsold Shares is less than
Euro7.80 per share plus an amount per share equal to
the sum of 6.9% per annum calculated from November 30,
2002 to the date or dates of completion of such sales
(such shortfall being the "PRICE SHORTFALL"), LTBM's
Trust may, once all of the Unsold Shares have been
sold, cause to be sold, after the date on which sales
of the Unsold Shares are permitted to commence
pursuant to sub-paragraph (ii) above and prior to
June 30, 2003, such number of the Price Shortfall
Protection Shares as are necessary to achieve gross
proceeds (before commissions) equal to the Price
Shortfall, and the proceeds of sale of such number of
Price Shortfall Protection Shares shall be retained
by LTBM's Trust absolutely; and
(iv) any Price Protection Shortfall Shares which are not
required to be sold pursuant to sub-paragraph (iii)
above to fund the Price Shortfall shall be returned by
LTBM's Trust to JHM's Trust promptly after the sale of
sufficient Price Protection Shortfall Shares or
promptly after June 30, 2003, whichever shall be the
earlier.
3 JHM agrees that he shall pay the legal expenses of Linklaters in
connection with the First Amendment and the Second Amendment, up to a
maximum of (GBP)20,000.
4 All other provisions of the LOI (as amended by the First Amendment)
remain unaffected by this Second Amendment.
5 This Second Amendment will take effect (a) as to LTBM or JHM, when each
of them has signed this Second Amendment, (b) as to the LTBM Trust,
when the LTBM Trustees have signed this Amendment and (c) as to the JHM
Trust, when the JHM Trust has signed this Second Amendment. Each of
LTBM and JHM agrees to use commercially reasonable best efforts to have
their respective trustees sign this Second Amendment as promptly as
possible (i.e. within 24 hours of JHM's and LTBM's signing). This
Second Amendment may be signed in counterparts, all of which, taken
together, shall constitute one and the same agreement.
6 Each of the LTBM Trustees and the JHM Trustees (the "Trustees") has
entered into this Second Amendment solely in its capacity as trustee of
the respective trusts of which they are trustees and the obligations of
the Trustees hereunder are subject to the provisions of such trusts.
Notwithstanding any other provision of this Second Amendment, the LOI
or the First Amendment, any and all liabilities of the Trustees created
by this Second Amendment shall be limited to the extent such liability
can be met from and out of the funds or other property from time to
time subject to the trusts of the respective trusts and, accordingly:
(a) the obligations of, and rights against, the Trustees under this
Second Amendment and any and all liability of the Trustees that
may otherwise arise in connection with this Second Amendment
and the matters contained in this Second Amendment shall be
performed, satisfied and paid only out of, and enforced only
against and recourse under this Second Amendment shall be had
only against, the funds and or other property from time to time
subject to the trusts contained in the respective trust deeds;
and
(b) no obligation of the Trustees under this Second Amendment or
that otherwise may arise in connection with the matters
contained in this Second Amendment is binding upon, nor in
respect thereof shall any resort or recourse be had, judgment
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issued, or execution or other process levied against, any other
property of the Trustees held in its capacity as trustee under
other trust instruments or held in its personal capacity.
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▇▇▇▇▇▇ and Accepted as of the date first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ The ▇▇▇ Trust
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: Rothschilds Trust Guernsey Limited,
As trustees of the ▇▇▇ Trust
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ and accepted as of the date first above written
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ The JACTMAC Media Trust
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: Codan Trust Company Limited, Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
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