Exhibit 12
CONFORMED COPY
WARRANT AGREEMENT
Relating to
A Ordinary Shares in Ohsea Holdings Limited
DATED 14 APRIL 2003
OHSEA HOLDINGS LIMITED
And
CS SERVICES LIMITED
▇▇▇▇▇ & ▇▇▇▇▇
London
CONTENTS
Clause Page
1. Interpretation .................................. 1
2. Grant of the Option ............................ 2
3. The Option Price ............................... 2
4. Exercise of the Option ......................... 2
5. Notices ........................................ 3
6. Undertakings ................................... 3
7. General ......................................... 3
8. Governing Law and Jurisdiction .................. 4
Schedule
1. Form of Exercise Notice ........................ 5
2.
Signatories ....................................... 6
THIS AGREEMENT is made on 14 April, 2003 BETWEEN:
(1) OHSEA HOLDINGS LIMITED (registered in England and Wales under registered
number 4493380) whose registered office is at Marine Court, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (the Company); and
(2) CS SERVICES LIMITED (registered in Belize under company number 27398) whose
registered office is at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
(the Purchaser).
WHEREAS:
The Company, by resolution of its board of directors passed on the date of this
agreement has authorised the issue of an option to subscribe for shares in the
capital of the Company on the terms set out in this agreement.
IT IS AGREED as follows:
1. Interpretation
1.1 In this agreement:
Affiliate means, in relation to a person, any other person (other than the
Company and persons controlled, directly or indirectly, by the Company)
directly or indirectly, controlling or controlled by or under common
control with that person and for the purposes of this definition control
when used with respect to any means power to direct the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise;
A Shares means A Ordinary Shares of 0.1 ▇▇▇▇▇ each in the capital of the
Company;
Aggregate Share Limit means such number of Shares allotted and issued
pursuant to the exercise of the Option under this agreement so that the
aggregate subscription price for such Shares is equal to (pound)1,000,000
(or such higher amount as is required for rounding purposes only) less the
aggregate amount paid for Shares subscribed by the Purchaser or its
Affiliates pursuant to the Subscription Undertaking;
Business Day means a day (other than a Saturday or a Sunday) on which banks
are generally open in London for normal business;
Exercise Notice means an exercise notice substantially in the form of
Schedule 1;
I D Agreements has the meaning set out in the Subscription Undertaking;
Option means the option granted by the Company to the Purchaser under
Clause 2 to subscribe for Shares;
Option Price means the price per Share referred to in Clause 3;
Shares means A Shares;
Sterling Equivalent means the amount in sterling (as determined by
reference to the closing mid-point sterling spot rate quoted in the
Financial Times (London edition) on the relevant date) equivalent to the
relevant US dollar amount; and
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25/04/03
Subscription Undertaking means the undertaking entered into on or about the
date of this agreement in favour of the Company and GMAC Commercial Finance
Plc to subscribe further A Shares.
1.2 In this agreement:
(a) references to a person include a body corporate and an unincorporated
association of persons; (b) references to a natural person include his
estate and personal representatives; and
(c) subject to clause 7.3 below, references to a party to this agreement
include references to the successors or assigns (immediate or
otherwise) of that party.
1.3 Any reference, express or implied, to an enactment includes references to:
(a) that enactment as amended, extended or applied by or under any other
enactment (before or after the signature of this agreement);
(b) any enactment which that enactment re-enacts (with or without
modification); and
(c) any subordinate legislation made (before or after the signature of
this agreement) under that enactment, as amended, extended or applied
as described in paragraph (a) above, or under any enactment referred
to in paragraph (b) above.
1.4 Subclauses 1.1 to 1.3 above apply unless the contrary intention appears.
1.5 The headings in this agreement do not affect its interpretation.
2. Grant of the Option
In consideration of the payment by the Purchaser to the Company of the sum
of (pound)1, receipt of which is acknowledged, the Company hereby grants to
the Purchaser an option (the Option) to subscribe in cash for Shares from
time to time up to the Aggregate Share Limit at the Option Price on the
terms of this agreement.
3. The Option Price
The price payable by the Purchaser for Shares specified in an Exercise Note
shall be the Sterling Equivalent of US$2.10 per Share on the date of the
relevant Exercise Note.
4. Exercise of the Option
4.1 The Purchaser may exercise the Option by serving an Exercise Notice on the
Company at any time after either:
(a) notification from GMAC Commercial Finance Plc having been made under
paragraph (2) of the Subscription Undertaking; or
(b) the first drawing having been made under the I D Agreement and no
notification having been made under paragraph (2) of the Subscription
Undertaking.
The Purchaser may serve any number of Exercise Notices.
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4.2 The Option may be exercised any number of times in respect of any whole
number of Shares provided that the aggregate number of Shares in respect of
which the Option is exercised shall not be greater than the Aggregate Share
Limit.
4.3 The Shares shall be allotted and issued fully paid and shall rank ▇▇▇▇▇
passu in all respect with the fully paid A ordinary shares in the capital
of the Company then in issue.
4.4 No later than two Business Days after receipt of a duly completed Exercise
Notice:
(a) the Company shall allot and issue to the Purchaser the number of
Shares to which the Purchaser is entitled and enter the name of the
Purchaser in the register of members of the Company as the holder
thereof; and
(b) the Purchaser shall remit the aggregate subscription price to the
Company.
On receipt of the subscription price, the Company shall despatch to the
Purchaser (or as it may direct) a share certificate for the Shares allotted
to it.
5. Notices
5.1 Any notice or other document to be served under this agreement may be
delivered or sent by prepaid first class recorded delivery post to the
party to be served at its address appearing in this agreement or at such
other address as it may have notified to the other parties in accordance
with this clause.
5.2 Any notice or document shall be deemed to have been served:
(a) if delivered, at the time of delivery; or
(b) if posted, at 10.00 a.m. on the second Business Day after it was put
into the post.
5.3 In proving service of a notice or document it shall be sufficient to prove
that delivery was made or that the envelope containing the notice or
document was properly addressed and posted as a prepaid first class
recorded delivery letter.
6. Undertakings
The Company undertakes that whilst the Option remains capable of exercise
it will at all times keep available for issue sufficient authorised but
unissued share capital to satisfy exercise of the Option in full.
7. General
7.1 This agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same agreement and any party
may enter into this agreement by executing a counterpart.
7.2 None of the rights or obligations of the Company under this agreement may
be assigned or transferred without the written consent of the Purchaser.
7.3 The Purchaser may assign the benefit of this agreement and the Option to
any person who is the holder of A Shares without requiring the prior
consent of the Company.
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8. Governing Law and Jurisdiction
8.1 This agreement is governed by and shall be construed in accordance with
English law.
8.2 The parties submit to the exclusive jurisdiction of the English courts for
all purposes relating to this agreement.
AS WITNESS the hands of the duly authorised representatives of the parties on
the date which appears first on page 1.
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SCHEDULE 1
FORM OF EXERCISE NOTICE
To: Ohsea Holdings Limited
Dear Sirs,
We refer to the Option Agreement dated [ ] April, 2003 and made
between yourselves and ourselves and to the Option granted by you to us under
that agreement.
We hereby give notice under and pursuant to clause o of the Option Agreement
that we exercise the Option granted by you to us in respect of [ ] Shares. The
Sterling Equivalent price per share is (pound)[ ].
Yours faithfully,
For and on behalf of
[The Purchaser]
--------------------
Date
5
SIGNATORIES
SIGNED by ) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
for and on behalf of ) Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
OHSEA HOLDINGS LIMITED ) Title: Director
SIGNED by ) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
for and on behalf of ) Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
CS SERVICES LIMITED ) Title: Director
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