EXHIBIT 10.17
SUBSCRIPTION
AGREEMENT
between
CRICINFO LIMITED
-and-
▇▇▇▇▇▇ INFOWAY LIMITED
-and-
THE SENIOR MANAGEMENT
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Solicitors and Registered Foreign Lawyers
▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION.............................................. 1
2. CONDITIONS.................................................................. 10
3. INVESTOR'S RIGHT OF RESCISSION.............................................. 12
4. SUBSCRIPTION OF SUBSCRIPTION SHARES......................................... 12
5. NET ASSET VALUE............................................................. 12
6. CONSIDERATION............................................................... 13
7. INITIAL COMPLETION.......................................................... 13
8. FINAL COMPLETION............................................................ 13
9. SUBSCRIPTION FOR ADDITIONAL SHARES.......................................... 14
10. WARRANTIES.................................................................. 19
11. PROTECTION OF GOODWILL...................................................... 22
12. ANNOUNCEMENTS............................................................... 23
13. FURTHER ASSURANCE........................................................... 23
14. ASSIGNMENT.................................................................. 24
15. ENTIRE AGREEMENT: REMEDIES.................................................. 24
16. WAIVER, VARIATION AND RELEASE............................................... 24
17. COSTS AND EXPENSES.......................................................... 25
18. NOTICES..................................................................... 25
19. COUNTERPARTS................................................................ 26
20. LANGUAGE.................................................................... 27
21. INVALIDITY.................................................................. 27
22. AGREEMENT TO CONTINUE IN FULL FORCE AND EFFECT.............................. 27
23. CONFIDENTIALITY............................................................. 27
24. GOVERNING LAW AND JURISDICTION.............................................. 28
25. THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999............................ 28
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SCHEDULES
---------
SCHEDULE 1 Senior Management
SCHEDULE 2 Directors of the Company and the Subsidiaries
SCHEDULE 3 Part 1 Properties
Part 2 Leases
Part 3 Inferior Leases
SCHEDULE 4 Part 1 The Company
Part 2 The Subsidiaries
SCHEDULE 5 Part 1 General Warranties
Part 2 Taxation Warranties
SCHEDULE 6 Part 1 & 2 Completion
SCHEDULE 7 Investment Representations
SCHEDULE 8 Intellectual Property
Part 1 Registered Intellectual Property
Part 2 IP Licenses
SCHEDULE 9 Information Technology
Part 1 IT Systems
SCHEDULE 10 Matters Pending Completion
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THIS AGREEMENT is made on 26 May, 2000
BETWEEN:
(1) CRICINFO LIMITED, registered in England with number 3215055 whose
registered office is ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ (the "Company");
(2) ▇▇▇▇▇▇ INFOWAY LIMITED organised under the laws of the Republic of India
whose registered office is at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 600 018, India (the "Investor"); and
(3) THE SENIOR MANAGEMENT whose respective names and addresses are set out in
Schedule 1 (the "Senior Management", each a "Senior Manager").
WHEREAS:
(A) The Company has at the date of this Agreement an authorised share capital
of (Pounds)1000 divided into 1000 ordinary shares of (Pounds)1 each of
which 100 are issued and fully paid or credited as fully paid.
(B) Prior to Final Completion (as hereinafter defined) the Company intends to
subdivide each of its ordinary shares of (Pounds)1 each in the capital of
the Company into 1,000 shares of (Pounds)0.001p. Where numbers of shares
have been stated in this Agreement it has been assumed that such sub-
division has taken place.
(C) Under a separate share purchase agreement, dated 5 April 2000 (the "Indigo
Purchase Agreement"), Indigo Holdings Limited has agreed to sell and the
Investor has agreed to purchase 25 (25,000 Ordinary Shares of
(Pounds)0.001p each, post subdivision) Ordinary Shares of (Pounds)1 each in
the capital of the Company, conditional, among other things, upon the
Investor completing its subscription for Subscription Shares (as
hereinafter defined) pursuant to this Agreement.
(D) The Company has agreed to issue and allot the Subscription Shares to the
Investor and the Investor has agreed to subscribe for the Subscription
Shares subject to the terms and conditions of this Agreement.
THE PARTIES AGREE as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words. and expressions have the meanings
set opposite them:
"Accounts" the report of the Directors and Management Accounts
for the year ended 31 March 2000 prepared by the
Company's accountants, ▇▇▇▇▇▇▇, ▇▇▇▇ & Co. dated 15
May 2000 and comprising the balance sheet as at the
Balance Sheet Date and the profit and loss account
for the last accounting reference period ended on the
Balance Sheet Date of the Company, a copy of each of
which has been
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initialled by or on behalf of each of
the parties for the purpose of
identification;
"Accounting Standards" statements of standard accounting practice
(including financial reporting standards)
issued pursuant to section 256, CA 85 by the
Accounting Standards Board Limited;
"Additional 43,605 Ordinary Shares in the Company
Subscription Shares" subject to adjustment in accordance with the
Subscription Rights set out in Clause
9.2;
"Affiliate" in relation to any body corporate, any
Holding Company or subsidiary undertaking of
such body corporate or any subsidiary
undertaking of a Holding Company of such
body corporate;
"Agreement" this Agreement including the schedules;
"Articles" the new articles of association of the
Company in Agreed Form to be adopted by the
Company at Final Completion;
"Balance Sheet Date" 31 March 2000
"Business" collectively the businesses of the Company
and each of the Subsidiaries at the date
hereof;
"Business Day" a day (other than a Saturday or Sunday) when
banks are open for business in all of
England, India and New York;
"CA 85" Companies ▇▇▇ ▇▇▇▇;
"CAA" Capital Allowances ▇▇▇ ▇▇▇▇;
"Clarification and the clarification and termination agreement
Termination in the Agreed Form between, inter alia, the
Agreement" Company and Indigo;
"Companies Acts" CA 85 together with the Companies ▇▇▇ ▇▇▇▇;
"Company Shareholders" each of those persons registered as a
shareholder of the Company;
"Company's Solicitors" ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇;
"Competent Authority" means any person or legal entity (including
any Governmental Authority) having
regulatory authority in any court of law or
tribunal;
"Confidential all information received or obtained as a
result of entering
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Information" into or performing, or supplied by or on
behalf of a party in the negotiations
leading to, this Agreement and which relates
to:
(i) the Company, the Subsidiaries and
their respective Affiliates;
(ii) any aspect of the Business;
(iii) the provisions of this Agreement;
(iv) the negotiations relating to this
Agreement;
(v) the subject matter of this Agreement;
or
(vi) the Investor Group and any aspect of
the business of the Investor Group;
"Connected Person" a person connected with any of the
Warrantors or the Directors (or any former
director of the Company or any of the
Subsidiaries) within the meaning of section
839, ICTA 1988;
"Consideration" the consideration payable for the
Subscription Shares as specified in Clause
6.1 subject to adjustment in accordance with
Clause 5;
"Consideration ADRs" Investor ADRs evidencing American Depositary
Shares representing shares of unregistered
common stock in the Investor;
"Contract" any contract, agreement, obligation
commitment, understanding, arrangement or
liability (in each case being legally
binding);
"Copyright" copyright, design rights, topography rights
and database rights whether registered or
unregistered (including any applications for
registration of any such thing) and any
similar or analogous rights to any of the
foregoing whether arising or granted under
the law of England or of any other
jurisdiction and for the avoidance of doubt
this definition shall not include any rights
in software (including all source code and
object code and all modules, routines and
sub-routines thereof and other preparatory
material thereto);
"Cricket Boards" the National Cricket Boards of South Africa,
Pakistan, New Zealand and Zimbabwe;
"Directors" the directors of the Company and the
Subsidiaries named in Schedule 2;
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"Disclosed" fairly disclosed by the Disclosure Documents
and "Disclosure" shall be construed
accordingly;
"Disclosure Documents" the Disclosure Letter and the two identical
bundles of documents collated by or on
behalf of the Warrantors, the outside covers
of each of which have been signed for
identification by or on behalf of the
Warrantors and the Investor;
"Disclosure Letter" the letter described as such of even date
herewith addressed by the Warrantors to the
Investor;
"Encumbrance" any interest or equity of any person
(including any right to acquire, option or
right of pre-emption) or any mortgage,
charge, pledge, lien, assignment,
hypothecation, security interest, title
retention or any other security agreement or
arrangement;
"ERA" Employment Rights ▇▇▇ ▇▇▇▇;
"Exercise Date" the Business Day next following the date of
receipt by the Company of the Notice of
Subscription;
"Final Completion" final completion of this Agreement in the
terms set out in Clause 8;
"Financial Year" a financial year within the meaning ascribed
to such expression by section 223, CA 85;
"Governmental Authority" any government or any government agency,
bureau, board commission, court, department,
official, political subdivision, tribunal or
other instrumentality of any government,
whether federal, state municipal or local,
domestic or foreign;
"Group" together the Company and the Subsidiaries;
"Hardware" any and all computer, telecommunications and
network equipment owned and operated by the
Company;
"Holding Company" a holding company within the meaning
ascribed to such expression by sections 736
and 736A, CA85;
"ICTA 1988" Income and Corporation ▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
"India Agreement" confirmatory agreement between (inter alia)
the Company and Indigo in Agreed Form;
"Indigo" Indigo Holdings Limited, a company
incorporated in Guernsey whose registered
office is ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
"Initial Completion" initial completion of the Agreement in the
terms set out in Clause 7;
"Intellectual Property" Patent Rights, Know-How, Copyright, Trade
Marks and IP Materials;
"Investor's Accountants" KPMG, Chennai, India;
"Investor ADRs" American Depository Receipts, each ADR
evidencing an American Depository Share
representing one-fourth of one fully paid
Ordinary Share of the Investor;
"Investor's Group" the Investor and its Affiliates;
"Investor Letter of a letter of subscription for Subscription
Application" Shares by the Investor;
"Investor's Solicitors" ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ of ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇;
"IP Licences" all agreements, arrangements or undertakings
pursuant to which to any material extent (i)
the Company or any of the Subsidiaries uses
or has the right to use any Intellectual
Property, and (ii) any third party uses or
has the right to use any Relevant
Intellectual Property;
"IP Materials" all documents, records, tapes, discs,
diskettes and any other materials whatsoever
containing Copyright works, Know-How or
Software other than any third party software
(including all source code and object codes
and all modules, routines and sub-routines
thereof and other preparatory material
thereto);
"IT Services" any services relating to the IT Systems or
to any other aspect of the Company's or any
of the Subsidiaries' data processing or data
transfer requirements, including facilities
management, bureau services, hardware
maintenance, software development or
support, consultancy, source code deposit,
recovery and network services;
"IT Systems" Hardware and/or Software owned or used by
the Company or any of the Subsidiaries;
"Know-How" trade secrets and confidential business
information including details of supply
arrangements, customer lists and pricing
policy; sales targets, sales statistics,
market share statistics, marketing surveys
and reports; marketing
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research; unpatented technical and other
information including inventions,
discoveries, processes and procedures,
ideas, concepts, formulae, specifications,
procedures for experiments and tests and
results of experimentation and testing;
together with all common law or statutory
rights protecting the same including by any
action for breach of confidence and any
similar or analogous rights to any of the
foregoing whether arising or granted under
the law of England or any other
jurisdiction;
"Notice of Subscription" the notice by which Subscription Rights are
exercisable;
"Ordinary Shares" ordinary shares of (Pounds)0.001p each in
the Company;
"Patent Rights" patent applications or patents, author
certificates, inventor certificates, utility
certificates, improvement patents and models
and certificates of addition including any
divisions, renewals, continuations,
refilings, confirmations-in-part,
substitutions, registrations, confirmations,
additions, extensions or reissues thereof
and any similar or analogous rights to any
of the foregoing whether arising or granted
under the law of England or any other
jurisdiction;
"Pension Schemes" agreements or arrangements (whether legally
enforceable or not) for the payment of any
pensions, allowances, lump sums or other
like benefits on retirement or on death or
during periods of sickness or disablement
for the benefit of any present or former
director, officer or employee of the Company
or of any of the Subsidiaries or for the
benefit of the dependants of any such
persons;
"Proceedings" any proceeding, suit or action arising out
of or in connection with this Agreement;
"Properties" the properties of which short particulars
are set out in Schedule 3 and the expression
"Property" shall mean, where the context so
admits, any one or more of such properties
and any part or parts thereof;
"Record Date" in relation to any issue of Ordinary Shares,
securities, rights, options or warrants or
any dividend or capital distribution, the
date as of which holders of Ordinary Shares
must be registered in order to participate
therein;
"Registered Intellectual the Intellectual Property owned by the
Property" Company or any of the Subsidiaries which is
either registered or applied for and listed
in Part 1 of Schedule 8;
"Registration a registration statement in appropriate form
to be filed with
6
Statement" the SEC;
"Relevant Claim" a claim under this Agreement for breach of
the Warranties;
"Relevant IP" all Registered Intellectual Property and
Unregistered Intellectual Property other
than any Intellectual Property right in any
third party software (including all source
and object code and all mode routines and
sub-routines thereof and other preparatory
materials thereto);
"SEC" The Securities and Exchange Commission;
"Shareholders the shareholders agreement in Agreed Form to
Agreement" be entered into at Final Completion between
the Company, the Investor and the Senior
Management;
"Share Purchase the share purchase agreement, dated 15
Agreement" September, 1999 entered into between Mr.
▇▇▇▇▇▇▇ ▇▇▇▇ (subsequently novated to Indigo
Holdings Limited), Cricinfo Limited,
Cricinfo India Pvt. Limited and Dr. ▇▇▇▇▇
▇▇▇▇ as varied and novated;
"Software" any and all computer programs in both source
and object code form, including all modules,
routines and sub-routines thereof and all
source and other preparatory materials
relating thereto, including user
requirements, functional specifications and
programming specifications, ideas,
principles, programming languages,
algorithms, flow charts, logic, logic
diagrams, orthographic representations, file
structures, coding sheets, coding and
including any manuals or other documentation
relating thereto and computer generated
works;
"SSAP" a statement of standard accounting practice
or financial reporting standard in force at
the date hereof as issued by the Institute
of Chartered Accountants in England and
Wales and adopted by the ASB as an
Accounting Standard;
"Stock Exchange" the relevant stock exchange on which shares
of the Company may be listed;
"Subscription Period" the period commencing on 18 October 2000 and
ending at close of business on the fifth
Business Day following pricing of the shares
of the Company or any Holding Company of the
Company for the purposes of an initial
public offering of those shares;
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"Subscription Price" an amount equal to $992 (being the price per
Subscription Share), subject to adjustment
pursuant to Clause 9, multiplied by the
relevant number of Additional Subscription
Shares subscribed for by the Investor;
"Subscription Rights" the right to subscribe for Additional Shares
pursuant to Clause 9;
"Subscription Shares" the 18,605 Ordinary Shares to be issued by
the Company credited as fully paid and
allotted to the Investor pursuant to this
Agreement at Final Completion;
"subsidiary" a subsidiary within the meaning ascribed to
such expression by sections 736 and 736A, CA
85;
"subsidiary a subsidiary undertaking within the meaning
undertaking" ascribed to such expression by section 258,
CA85;
"Subsidiaries" the subsidiaries of the Company named in
Part 2 of Schedule 4 plus Cric Info India
Private Limited;
"Taxation" or "Tax" (a) all forms of taxation imposed by a
Taxation Authority including any charge,
tax, duty, levy, impost. withholding or
liability wherever chargeable imposed for
support of national, state, federal,
municipal or local government or any other
person and whether of the UK or any other
jurisdiction; and (b) any penalty, fine,
surcharge, interest, charges or costs
payable in connection with any taxation
within (a) above;
"Taxation Authority" the Inland Revenue, Customs & Excise,
Department of Social Security and any other
governmental or other authority whatsoever
competent to impose any Taxation whether in
the United Kingdom or elsewhere;
"Taxation Statute" any directive, statute, enactment, law or
regulation, wheresoever enacted or issued,
coming into force or entered into providing
for or imposing any Taxation and shall
include orders, regulations, instruments,
bye-laws or other subordinate legislation
made under the relevant statute or statutory
provision and any directive, statute,
enactment, law, order, regulation or
provision which amends, extends,
consolidates or replaces the same or which
has been amended, extended, consolidated or
replaced by the same;
"Tax Warranties" the warranties set out in Part 2 of Schedule
5;
"TCGA" Taxation of Chargeable Gains ▇▇▇ ▇▇▇▇;
8
"TMA" Taxes Management ▇▇▇ ▇▇▇▇;
"Trade Marks" trade or service ▇▇▇▇ applications or registered
trade or service marks, registered protected
designations of origin, registered protected
geographic origins, refilings, renewals or
reissues thereof, unregistered trade or service
marks, get-up in each case with any and all
associated goodwill and all rights or forms of
protection of a similar or analogous nature
including rights which protect goodwill whether
arising or granted under the law of England or of
any other jurisdiction;
"Trade Union" as defined in section 1, TULRCA;
"TULRCA" Trade Union and Labour Relations (Consolidation)
▇▇▇ ▇▇▇▇;
"TUPE" Transfer of Undertakings (Protection of
Employment) Regulations 1981;
"Unregistered Intellectual Property owned, licensed, used or
Intellectual exploited by the Company or any of the
Property" Subsidiaries and which is material to the
Business other than Registered Intellectual
Property;
"User" any visitor to the Company's website from time to
time;
"VAT" value added tax;
"VATA" Value Added Tax ▇▇▇ ▇▇▇▇;
"Warranties" the warranties referred to in Clause 10 and set
out in Schedule 5;
"Warrantors" together the Company and the Senior Management,
each a "Warrantor"; and
"in Agreed Form" in the form agreed between the parties to this
Agreement and signed for the purposes of
identification by or on behalf of each party.
1.2 The table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
1.3 Unless the context otherwise requires words denoting the singular shall
include the plural and vice versa, references to any gender shall include
all other genders and references to persons shall include bodies corporate,
unincorporated associations and partnerships, in each case whether or not
having a separate legal personality.
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References to the word "include" or "including" are to be construed without
limitation.
1.4 References to recitals, schedules and clauses are to recitals and schedules
to and clauses of this Agreement unless otherwise specified and references
within a schedule to paragraphs are to paragraphs of that schedule unless
otherwise specified.
1.5 Any reference to "writing" or "written" includes faxes and any non-
transitory form of visible reproduction of words (excluding, for the
avoidance of doubt, e-mails unless reproduced in hard copy).
1.6 Any agreement, covenant, representation, warranty, undertaking or liability
arising under this Agreement on the part of two or more persons shall be
deemed to be made or given by such persons severally.
1.7 References to the Warrantors shall include each of them severally.
1.8 In Schedule 5, references to the Company shall be deemed to include a
corresponding reference to the Subsidiaries and each of them severally and
references to the Accounts are to those of the Company or the relevant
Subsidiary, as the case may be.
1.9 References to times of the day are to London time and references to a day
are to a period of 24 hours running from midnight.
1.10 References to "parties" means all the parties to this Agreement and
"party" means any one of them.
2. CONDITIONS
2.1 Conditions precedent
Subject to Clause 2.2, Final Completion of this Agreement is subject to and
conditional upon:
2.1.1 a resolution being passed by the requisite number of Company
Shareholders in extraordinary general meeting or by written
resolution waiving all rights of pre-emption or any other rights
over any of the Subscription Shares and the Additional
Subscription Shares to be subscribed for by Investor and the
Ordinary Shares to be transferred to the Investor by Indigo
pursuant to the Indigo Purchase Agreement;
2.1.2 a resolution being passed by the requisite number of Investor
shareholders permitting the allotment and issuance of, and
waiving rights of pre-emption over, Investor common stock in
connection with the creation of, inter alia, the Consideration
ADRs;
2.1.3 audited financial statements for the Financial Year ended 31
March, 2000 (reconciled to US GAAP accounting requirements and
accompanied by applicable auditors comfort letters and consents
to use in the Registration Statement) being delivered to
Investor;
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2.1.4 a certified true copy of the executed India Agreement being
delivered to Investor;
2.1.5 execution of the Clarification and Termination Agreement by the
parties thereto;
2.1.6 all conditions for completion set forth in Clause 2.3 of the
Indigo Purchase Agreement having been satisfied except for the
condition requiring the Investor to have subscribed for
Subscription Shares.
2.2 Waiver of conditions precedent
Notwithstanding Clause 2.1, the Investor shall be entitled by notice in
writing given to the Company to waive (to such extent as it may think fit)
compliance with the conditions stated in Clauses 2.1.4 and 2.1.5.
2.3 Termination
In the event that (i) all conditions set forth in Clause 2.1 have not been
satisfied or, in the case of the conditions stated in Clauses 2.1.4 and
2.1.5, waived prior to 31 July 2000 and/or (ii) either the Registration
Statement has not been declared effective by the SEC or the Consideration
has not been paid in cash, the obligations under this Agreement shall
terminate (except as regards Clauses 13, 18, 25 and 26 and this Clause 2.3)
and no party shall have any further obligation to the other except as
regards any breach arising prior to such date. Upon such termination
("Termination"), all entitlement of the Investor to the Subscription Shares
shall cease and all entitlement of the Company to any Investor ADRs shall
terminate. If Termination occurs after the Subscription Shares have been
allotted, upon Termination the Investor shall transfer the Subscription
Shares at the direction of the Company for nominal consideration
((Pounds)10), and the Company shall transfer the Consideration ADR's at the
direction of the Investor for nominal consideration ($10). Each shall
appoint the other their lawful attorney to execute and deliver all
documents in connection with the foregoing.
2.4 Matters Pending Final Completion
The Company hereby undertakes and (insofar as they are respectively able
through the exercise by them of all voting rights and other powers of
control respectively exercisable by them as Company Shareholders and
Directors) each of the Senior Managers hereby undertakes to procure that,
save as required or permitted by this Agreement, neither the Company nor
any of its Subsidiaries shall, without the previous written consent of the
Investor (such consent not to be unreasonably withheld), take any of the
actions set out in Schedule 10 during the period commencing the date of
this Agreement and ending immediately following Final Completion.
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3. INVESTOR'S RIGHT OF RESCISSION
3.1 In the event of:
3.1.1 an injunctive or other similar order that prohibits the Company
from performing the Business or any material part thereof being
made; or
3.1.2 the continuing performance by the Company of the Business
becoming illegal;
on or before Final Completion, the Investor shall be entitled by notice in
writing to the Company's Solicitors to rescind this Agreement but so that
any such rescission shall be without prejudice to Clauses 15, 16, 18, 20,
24 and 25.
4. SUBSCRIPTION OF SUBSCRIPTION SHARES
4.1 The Investor shall subscribe for the Subscription Shares on the terms of
this Agreement.
4.2 If any of the Consideration payable by the Investor under this Agreement is
satisfied by the issue to the Company or its nominees of Consideration ADRs
the Investor agrees to use all reasonable endeavours to:
(i) achieve an effective listing on the Nasdaq market for the
Consideration ADRs; and
(ii) ensure the Registration Statement is filed within 4 weeks
following Initial Completion (assuming availability of US GAAP
reconciled financial information and applicable auditors consents
to use in the Registration Statement).
4.3 Dividends and distributions
The Subscription Shares shall be issued and allotted credited as fully paid
and shall rank pari passu with all issued Ordinary Shares. The Subscription
Shares shall carry the right to all dividends or distributions declared,
made or paid thereon on and after the date of Final Completion.
4.4 Issue of Subscription Shares
The Investor shall not be obliged to complete the subscription of any of
the Subscription Shares unless the subscription of all of the Subscription
Shares is completed simultaneously.
5. NET ASSET VALUE
5.1 In the event that the Net Asset Value (as defined in Clause 5.2 below) of
the Company as at 31 March 2000 as stated in the Company's audited
financial statements for the Financial Year to 31 March 2000 ("Audited
Accounts") is less than (Pounds)1.4 million the Consideration shall be
reduced by the Dollar Equivalent of an amount equal to the difference
between the Net Asset Value as stated in the Audited Accounts and the Net
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Asset Value as stated in the Accounts (which, for the avoidance of doubt is
(Pounds)1,778,417).
5.2 For the purpose of this Clause 5:
5.2.1 the term "Net Asset Value" shall mean total assets less current
liabilities; and
5.2.2 the term "Dollar Equivalent" shall mean, in relation to a pounds
sterling sum on a particular day, the average of the price at
which that pounds sterling sum can be purchased for US Dollars
and the price at which such sum can be sold for US Dollars at the
close of business on such day in the City of London as quoted by
the issue of the Financial Times newspaper in relation to that
day.
6. CONSIDERATION
6.1 Consideration
6.1.1 The Subscription Shares shall be issued and allotted in
consideration for U.S. $16,000,300 (subject to the Consideration
adjustment mechanism in Clause 5) to be satisfied, at the
election of the Investor, in any combination of cash (US Dollars)
and/or by the issue to the Company or its nominees of
Consideration ADRs (the number of such Consideration ADRs to
which the Company is entitled being calculated by reference to
the average of bid and offer prices of Investor ADRs as at close
of trading on the Nasdaq market on the Business Day immediately
prior to Final Completion), it being acknowledged by the parties
that certificates representing the Consideration ADRs shall not
be delivered to the Company, and no legal or beneficial interest
in the Consideration ADRs may be transferred by the Company,
until the SEC has declared the registration statement in respect
of such Consideration ADRs to be effective.
7. INITIAL COMPLETION
7.1 Time and location
Initial Completion shall take place at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
immediately after signing of this Agreement, at which point the Warrantors
shall deliver to the Investor a certified copy of the minutes of the
directors of the Company authorising the execution by the Company of this
Agreement, the Shareholders Agreement, copies of the documents stated in
this Agreement to be in Agreed Form (initialled as such) and documents
ancillary thereto; and the Investor shall deliver to the Company a
certified copy of the minutes of the directors of the Investor authorising
the execution of this Agreement, the Shareholders Agreement, copies of the
documents stated in the Agreement to be in Agreed Form (initialled as such)
and documents ancillary thereto.
8. FINAL COMPLETION
8.1 Final Completion shall take place following satisfaction or, as the case
may be, waiver of the conditions in Clause 2, at the offices of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ on the date two Business Days prior to effective listing of the
Consideration ADRs on the Nasdaq
13
market, or, if the Investor is paying the Consideration wholly in cash,
such earlier date as the Investor notifies the Company that Final
Completion is to occur.
8.2 At Final Completion:
8.2.1 The Company shall allot and issue the Subscription Shares to the
Investor and shall enter the Investor's name in the register of
members of the Company.
8.2.2 The Investor shall pay the Consideration to the Company.
8.2.3 The Company shall allot and issue to ▇▇▇▇▇ ▇▇▇▇ (as trustee for
certain persons referred to as the `Constructors' in a
declaration of trust executed by ▇▇▇▇▇ ▇▇▇▇ on 4 May 2000) 55,815
Ordinary Shares at par.
8.2.4 The Company shall deliver to the Investor each of the documents
listed in Part 1 of Schedule 6.
8.2.5 The Investor shall deliver to the Company each of the documents
listed in Part 2 of Schedule 6.
8.2.6 The Investor, the Company and Senior Management shall enter into
the Shareholder's Agreement.
8.2.7 The Company and Indigo shall enter into the Clarification and
Termination Agreement.
9. SUBSCRIPTION FOR ADDITIONAL SHARES
9.1 Subscription rights
9.1.1 Subject as provided in Clause 9.2, the Investor shall have the
right at any time during the Subscription Period to subscribe in
cash and/or exchange for Investor ADRs for all or any of the
Additional Subscription Shares not previously subscribed for at
the Subscription Price. The number of Additional Subscription
Shares the subject of the Subscription Rights and/or the
Subscription Price payable in respect thereof will be subject to
adjustment as provided in Clause 9.2 below.
9.1.2 To exercise the Subscription Rights in whole or in part, the
Investor must complete a Notice of Subscription (specifying the
number of shares being subscribed for and the relevant
Subscription Price in respect thereof). Once lodged, a Notice of
Subscription shall be irrevocable, save with the consent of the
board of directors of the Company. Compliance must also be made
with any statutory requirements for the time being applicable.
9.1.3 Completion of the subscription for all or any of the Additional
Subscription Shares shall take place on the date 3 Business Days
following the Exercise Date or such other date as the Investor
and the Company may agree. At completion the following business
shall be transacted:
14
(a) the Company shall deliver to the Investor: (i) a certified copy
of the minutes of a meeting of the Board of Directors of the
Company authorising the issue and allotment of the relevant
Additional Subscription Shares; (ii) an appropriate share
certificate duly executed by the Company in favour of the
Investor (or its nominee(s)); (iii) a certified copy of the
updated register of members of the Company; and (iv) if Investor
ADRs will be issued, a written statement that the Investment
Representations set forth in Schedule 7 are true and accurate as
of Completion of the subscription for the Additional Subscription
Shares; and
(b) the Investor shall confirm in writing that the representations
and warranties set forth in Clause 10.19(f), (g) and (h) are true
and accurate as of such date and shall pay the relevant
Subscription Price to Company either in cash (in which case
payment will be made by telegraphic transfer to an account
nominated by the Company) or by the issue of Investor ADRs (such
Investor ADRs to be calculated by reference to the average of the
bid and offer prices of Investor ADRs as at close of trading on
the Nasdaq Market on the Business Day immediately prior to
completion of the relevant Subscription Rights).
9.1.4 Additional Subscription Shares allotted pursuant to the exercise
of Subscription Rights shall rank pari passu in all respects with
the Ordinary Shares in issue on the Exercise Date.
9.1.5 Promptly following issuance of Investor ADRs as consideration for
Additional Subscription Shares, the Investor shall use all
reasonable endeavours to cause a Registration Statement on Form
F-3 to be filed with and declared effective by the Securities and
Exchange Commission for the resale of such Investor ADRs by the
Company.
9.2 Adjustment of Subscription Rights and Subscription Price.
9.2.1 The Subscription Price shall from time to time as required during
the Subscription Period be adjusted in accordance with the
provisions of this Clause 9.2.1 and Clause 9.2.2 below. For the
avoidance of doubt, if the event giving rise to such adjustment
shall be capable of falling within more than one of sub-
paragraphs (i)-(iii) of this sub-paragraph Clause 9.2.1, it shall
fall within the first of the applicable sub-paragraphs to the
exclusion of the remaining sub-paragraphs:
(i) If and whenever there shall be an alteration in the nominal
value of the Ordinary Shares as a result of a consolidation
or sub-division, the Subscription Price in force immediately
prior to such alteration shall be adjusted by multiplying it
by a fraction of which the numerator shall be the nominal
amount of one such Ordinary Share immediately after such
alteration and the denominator shall be the nominal amount
of one such Ordinary Share immediately before such
alteration, and such adjustment shall become effective
immediately after the alteration takes effects.
(ii) If and whenever the Company shall issue to holders of
Ordinary Shares any Ordinary Shares credited as fully paid
by way of capitalisation of
15
reserves or profits (other than Ordinary Shares paid up
out of distributable reserves and issued in lieu of a cash
dividend), the Subscription Price in force immediately
prior to such issue shall be adjusted by multiplying it by
a fraction of which the numerator shall be the aggregate
nominal amount of the issued Ordinary Shares immediately
before such issue and the denominator shall be the
aggregate nominal amount of the issued Ordinary Shares
immediately after such issue, and such adjustment shall
become effective as at the date of issue of such Ordinary
Shares.
(iii) If and whenever the Company shall offer or procure the
offer to holders of Ordinary Shares (in their capacity as
such holders) of new Ordinary Shares for subscription or
purchase by way of rights, or shall offer or grant to
holders of Ordinary Shares any options, rights (including,
without limitation, conversion rights attaching to
convertible securities) or warrants to subscribe for or
purchase new Ordinary Shares in each case at a price that
is less than the Subscription Price, the Subscription
Price shall be reduced to such price. Such adjustment
shall become effective immediately on the date of issue or
purchase of such Ordinary Shares or grant of such options,
rights or warrants (as the case may be). For the avoidance
of doubt this Clause 9.2.1 shall not apply to the
allotment and issue of Ordinary Shares in the Company to
▇▇▇▇▇ ▇▇▇▇ at Final Completion pursuant to Clause 8.2.3
above.
9.2.2
(i) If and whenever any of one or more events or circumstances
specified in Clause 9.2.1 above (or any other events or
circumstances which the Company in its absolute discretion
determines should result in an adjustment to the
Subscription Price) shall occur or exist, and if the
adjustment would result in a reduction of the Subscription
Price where such adjustment is made other than by reason
of the consolidation of Ordinary Shares, such adjustment
shall take effect as so determined from the relevant date
specified in whichever of Clauses 9.2.1(i) to (iii) above.
The Investor will be given notice in writing of all adjustments.
The Company at its expense will promptly compute such adjustment
or readjustment in accordance with the terms of this Clause 9 and
furnish to the Investor a certificate setting forth such
adjustment or readjustment and showing in reasonable detail the
facts upon which such adjustment or readjustment is based,
including a statement of the Subscription Price in effect
immediately prior to such adjustment and after giving effect to
such adjustment. No adjustment will be made to the Subscription
Price (other than by reason of a consolidation of Ordinary Shares
as referred to in sub-paragraph Clause 9.2.1 (i) above) if it
would result in an increase in the Subscription Price and in any
event no adjustment will be made if such adjustment would be less
than one percent of the Subscription Price then in force and on
any adjustment the adjusted Subscription Price will be rounded
down to the nearest one ▇▇▇▇▇.
16
Any adjustment not so made and any amount by which the
Subscription Price is rounded down will be carried forward and
taken into account in any subsequent adjustment.
(ii) Whenever the Subscription Price is adjusted as provided in
this paragraph (other than by reason of the consolidation
of Ordinary Shares as referred in sub-paragraph Clause
9.2.1 (i) above), the Company shall adjust the number of
Additional Subscription Shares available to the Investor
at the same time as such adjustment takes effect. The
number of Additional Subscription Shares to which the
Investor will be entitled shall be calculated by using the
following formula:
AxB
---
C
Where:
A is the number of Additional Subscription Shares issuable upon
exercise of the Subscription Rights immediately before the
adjustment;
B is the Subscription Price immediately before the adjustment;
and
C is the adjusted Subscription Price.
(iii) Whenever the Subscription Price is adjusted in accordance
with this Clause by reason of the consolidation of
Ordinary Shares as referred to in clause 9.2.1(i) above,
the number of Additional Shares for which the Investor is
entitled to subscribe will be reduced accordingly.
(iv) The Subscription Price may never be adjusted so that it
results in the Investor paying a price per share that is
less than the nominal value of the Company's Ordinary
Shares then in issue. Any adjustment which would, but for
this paragraph, result in a Subscription Price of less
than such nominal value shall be treated as an adjustment
of the Subscription Price to an amount equal to the
nominal amount then prevailing.
(v) If the Investor shall, for any reason whatsoever, disagree
with the Company's adjustment of the Subscription Price,
then the Company and the Investor shall negotiate in good
faith in an effort to reach an agreement upon the
Subscription Price for a period of ten (10) days beginning
at any time following notice by the Investor of such
disagreement. If the Company and the Investor are unable
to reach agreement as so provided, the Company shall, at
its own expense, within thirty (30 days) after the
expiration of the ten-day period referenced above, engage
an independent firm of auditors nominated by the Directors
of the Company (the "Appraiser") to make an independent
determination of the Subscription Price for the Additional
Shares (the "Appraiser's Determination"). The Appraiser's
17
Determination shall be final and binding on the Company
and the Investor.
9.2.3 The Investor shall not be entitled to exercise its Subscription
Rights for Additional Subscription Shares if such number of
Additional Shares would result in the Investor holding more than
25 per cent of the fully-diluted ordinary share capital of the
Company following exercise of the Subscription Rights .
9.2.4
(a) In the event that the Investor's aggregate holding of Ordinary
Shares in the Company falls to less than 20 per cent of the
issued share capital of the Company other than by reason of the
Investor transferring its Subscription Shares in the Company, the
Investor shall be entitled, at any time, to subscribe for such
number of further Ordinary Shares as are necessary (the "Anti-
Dilution Shares") to restore the Investor's holding of Ordinary
Shares to 20 per cent of the enlarged issued share capital of the
Company (taking into account all shares to be issued pursuant to
this clause 9).
(b) The Anti-Dilution Shares shall be subscribed for in the same
manner as the Additional Shares set out in Clause 9.1 save for
the Subscription Price which shall be calculated as set out
below.
(c) The subscription price for each of the Anti-Dilution Shares shall
be an amount equal to either:
(i) if the Ordinary Shares are listed on a Stock Exchange, the
average of the bid and offer prices of Ordinary Shares on
the Business Day immediately prior to dilution of the
Investor's holding; or
(ii) if the Ordinary Shares are not listed on a Stock Exchange, a
price equivalent to the value per Ordinary Share calculated
by reference to the most recent issuance of Ordinary Shares
resulting in dilution of the Investor's holding of Ordinary
Shares.
9.2.5 In case any event shall occur as to which the provisions of this
Clause 9 hereof are not strictly applicable but the failure to
make any adjustment would not, in the opinion of the Investor,
fairly protect the purchase rights represented by the
Subscription Rights in accordance with the essential intent and
principles of this Clause 9, then, in each such case, at the
reasonable request of the Investor, the Company shall appoint (at
the cost of the Investor, unless an adjustment in favour of the
Investor is deemed necessary, in which case, at the cost of the
Company) a firm of independent investment bankers of recognised
national standing (which shall be completely independent of the
Company and shall be reasonably satisfactory to the Investor)
which shall give their opinion on the adjustment, if any, on a
basis consistent with the essential intent and principles
established in this Clause 9, necessary to preserve, without
dilution the Subscription Rights of the Investor. Upon receipt,
the Company will promptly deliver a copy of the opinion to the
Investor.
18
10. WARRANTIES
10.1 The Warrantors severally warrant to the Investor as at the date hereof
that, save as Disclosed, each of the statements set out in Schedule 5 is
true and correct and not misleading.
10.2 The Warrantors undertake that (save only as may be necessary to give
effect to this Agreement) they shall not, and shall procure (as far as
they can) that the Company and the Subsidiaries shall take all reasonable
steps so as not, prior to Final Completion, to do any act or thing or
omit to do any act or thing the commission or omission of which would
constitute a breach of any of the Warranties if they were given at Final
Completion or which would make any of the Warranties untrue or inaccurate
or misleading if they were so given at Final Completion;
10.3 The Warrantors acknowledge to the Investor as at the date hereof that the
Warrantors have agreed to give the Warranties in consideration of the
payment by the Investor of the Consideration.
10.4 Where the expression "so far as the Warrantors are aware" or an
expression of similar meaning is used in Schedule 5 it shall mean to the
best of the knowledge information and belief of the Warrantors having
made all reasonable enquiry.
10.5 No liability shall attach to the Warrantors in respect of Relevant Claims
unless the aggregate cumulative amount payable by the Warrantors in
respect of all such claims exceeds (Pounds)10,000 whereupon the
Warrantors shall be liable for the whole of such claims and not merely
for the excess.
10.6 The Company's aggregate liability under this Agreement in respect of all
Relevant Claims shall be limited to an amount equal to the Consideration.
10.7 The Management Shareholders' aggregate liability under this Agreement in
respect of all Relevant Claims shall be limited to (Pounds)600,000 and
shall be several and shall be borne by them in the same proportions as
their shareholding in the Company bear to one another as at the date of
this Agreement.
10.8 The limitations in this Clause 10 shall not apply to Relevant Claims
against a Warrantor which (or delay in discovery of which) are the
consequence of fraud, wilful default or wilful concealment by that
Warrantor.
10.9 The Warrantors shall have no liability in respect of any Relevant Claim
unless the Investor shall have given notice in writing to the Warrantors
of such Relevant Claim specifying (in reasonable detail) the matter which
gives rise to the Relevant Claim, the nature of the Relevant Claim and
the amount claimed in respect thereof (detailing the Investor's
calculation of the loss thereby alleged to have been suffered by it),
such notice to be given as soon as is practicable and in any event not
more than 4 months after the publication of the audited accounts for the
Financial Year ended 31 March, 2001.
10.10 The Investor shall not be entitled to recover damages or otherwise obtain
reimbursement or restitution more than once in respect of the same loss.
19
10.11 No representations or warranties express or implied, statutory or
otherwise, made by or on behalf of any of the Warrantors to any other of
the parties in connection with or arising out of the subscription of the
Subscription Shares and which are not contained in this Agreement shall
give rise to any liability on the part of the maker or makers of any such
representations or warranties and the Investor confirms that it has not
relied on any representations or warranty of any such person which is not
contained in this Agreement.
10.12 All and any liability of the Warrantors in respect of any Relevant Claim
under the Warranties notified to it in accordance with Clause 10.10 shall
(if such Relevant Claim has not previously been satisfied, settled or
withdrawn) be extinguished on the expiry of six months from the date of
such notification of the such Relevant Claim unless the Investors shall
within such period have issued and validly served on at least one of the
Warrantors proceedings in respect of such Relevant Claim.
10.13 The Warrantors shall not be liable in respect of any Relevant Claim in
respect of the Warranties to the extent that it arises or is increased as
a result of any change in law (or change in the interpretation of law) or
in administrative practice of any government, governmental department,
agency or regulatory body occurring after the date of Initial Completion
(whether or not the change purports to be effective retrospectively in
whole or in part).
10.14 If the Warrantors make any payment by way of damage for breach of the
Warranties or otherwise make payment in respect of any Relevant Claim
under the Warranties (a "Damages Payment") and the Investor receives any
sum (other than from the Warrantors) which payment would not have been
received but for the circumstance giving rise to the Relevant Claim in
respect of which the Damages Payment was made, the Investor shall, once
it has received such sum, forthwith repay (net of taxation or costs of
recovery, if any applicable thereto) to the Warrantors an amount equal to
the lesser of (a) the amount or value of such sum or (b) the Damages
Payment.
10.15 The Warrantors shall not be liable in respect of any Relevant Claim to
the extent that it relates to a liability which is contingent or not
capable of being quantified unless and until the liability ceases to be
contingent or becomes capable of being quantified, as the case may be
(provided that if one of the Warrantors has been notified of the Relevant
Claim, to the extent known by the Investor, within the period set out in
Clause 10.9, the period set out in Clause 10.12 shall be extended to six
months after the date that the liability ceases to be contingent or
becomes capable of being quantified as the case may be).
10.16 The Investor shall take and shall procure that all other relevant members
of the Investor's Group shall take all reasonable steps to mitigate any
loss or liability which is or might become the subject of a Relevant
Claim under this Agreement.
10.17 The provisions of this Clause 10 shall apply notwithstanding anything
else in this Agreement to the contrary.
20
10.18 In return for the Investor agreeing to issue the Consideration ADRs, the
Company warrants and represents as of the date hereof and as of Final
Completion in the terms set out in Schedule 7.
10.19 In return for the Company agreeing to issue the Subscription Shares the
Investor warrants and represents as follows as of the date hereof and as
of Final Completion:
(a) The Investor is a corporation duly organized, validly existing
and in good standing under the laws of India and has the
corporate power and authority to own or lease all of its
properties and assets and carry on its business as it is now
being conducted.
(b) Save for a resolution being passed by the requisite number of
Investor shareholders waiving rights of pre-emption over Investor
common stock in connection with the creation of, inter alia, the
Consideration ADRs, the Investor has the corporate power and
authority to execute and deliver this Agreement and all other
documents hereby contemplated, to consummate the transactions
hereby and thereby contemplated and to take all other actions
required to be taken by it pursuant to the provisions hereof and
thereof. The execution, delivery and performance of this
Agreement and all other documents hereby contemplated to be
executed by the Investor has been, and the consummation by the
Investor of the transactions hereby and thereby contemplated has
been, duly authorized by any and all necessary corporate action
of the Investor. This Agreement and all other documents hereby
contemplated to be executed by the Investor constitute the legal,
valid and binding obligations of the Investor, enforceable
against the Investor in accordance with their respective terms.
(c) No Violation of Other Instruments or Obligations. Neither the
execution and delivery of this Agreement or any other documents
hereby contemplated nor the consummation of the transactions
hereby and thereby contemplated shall (i) constitute any
violation or breach of the Certificate of Incorporation or By-
laws of the Investor, (ii) constitute a default under or a
violation or breach of, or result in acceleration of any
obligation under, any provision of any contract, lease, mortgage
or other instrument to which it is a party, or (iii) violate any
judgment, order, writ, injunction, decree, statute, rule or
regulation affecting the Investor or any of its assets.
(d) The Consideration ADRs to be issued pursuant to the provisions of
this Agreement will, upon such issuance, be duly authorised,
legally and validly issued and fully paid.
(e) Save for any such fees payable to DSP ▇▇▇▇▇▇▇ ▇▇▇▇▇ and to KPMG,
the Investor has not incurred any liability for finder's or
brokerage fees or agent's commissions in connection with this
Agreement or the transactions hereby contemplated.
(f) The offer and purchase of the Subscription Shares has at all
times been conducted as an "offshore transaction", as defined in
Regulation S of the Securities Act of 1933 ("Regulation S").
21
(g) Investor is not a "U.S. person" within the meaning of Regulation
S.
(h) Investor understands and acknowledges that no resale or
distribution of the Subscription Shares in the United States may
be made without compliance with applicable United States
securities laws.
11. PROTECTION OF GOODWILL
11.1 Each of the Senior Managers hereby covenants with the Investor that
during the period commencing the date of this Agreement and ending on the
Relevant Date (as defined in Clause 11.2 below) he will not either on his
own account or in conjunction with or on behalf of any person or persons
whether directly or indirectly:
11.1.1 whether as principal, agent, shareholder, consultant, partner,
employee, member, or in any other capacity whatsoever,
participate in, engage in, or be in any manner associated with
any internet based cricket business that competes with the
Company or its Subsidiaries or any other business which competes
with the Business;
11.1.2 solicit or entice away or endeavour to solicit or entice away
from the Company or its subsidiaries any officer, manager,
servant or other employee who was at Initial Completion engaged
in the Business whether or not such person would commit a breach
of his contract of employment by reason of leaving service.
11.2 For the purpose of Clause 11.1 above the term "Relevant Date" shall mean
the earlier of:
(a) the date 18 months following termination of the Shareholders
Agreement by all parties thereto;
(b) the date 18 months following the relevant Senior Manager ceasing
to be a member of the Company; and
(c) the date 18 months following the relevant Senior Manager ceasing
to be employed by the Company.
11.3 Notwithstanding the provisions of Clause 11.1, the Investor agrees and
acknowledges that each of the Senior Managers may continue to participate
in the activities of the companies, organizations, societies and
associations identified in the Disclosure Letter and that they may
participate in any other similar activities with the prior consent of the
Investor (not to be unreasonably withheld).
11.4 Each of the Senior Management acknowledges and agrees that because of the
world wide access of the internet and world wide web, that the provisions
of Clause 9.1 are reasonable with respect to the scope of restriction,
duration and the geographic scope and are reasonably necessary to protect
the value of the goodwill and assets of the Business.
11.5 Whilst the covenants in Clause 9.1 are considered by the parties to be
reasonable in all the circumstances, if any one or more should for any
reason be held to be invalid but would have been held to be valid if part
of the wording thereof was deleted or the
22
period thereof reduced or the range of activities or area covered thereby
reduced in scope, the said covenants shall apply with the minimum
modifications necessary to make them valid and effective.
12. ANNOUNCEMENTS
12.1 Restrictions on announcements
No press conference, announcement or other communication concerning
Confidential Information or the transactions referred to in this
Agreement, or in connection with the Group or otherwise relating to the
financial condition or trading or financial prospects of the Group, shall
be made or despatched by the Warrantors or the Investor or their
respective agents, employees or advisers to any third party without the
prior written consent of the party to which the Confidential Information
relates save as may be required by any:
12.1.1 law;
12.1.2 existing contractual arrangements; or
12.1.3 applicable Governmental Authority or regulatory authority to
which the Warrantors are subject where such requirement has the
force of law,
provided such communication shall be made only after consultation with
the Investor or Warrantors as appropriate.
12.2 Time limit
The restrictions contained in this Clause 12 shall continue to apply
after Final Completion without limit in time.
12.3 Legal and regulatory requirements
The Investor and each of the Warrantors undertake to provide all such
information known to him or it or which on reasonable enquiry ought to be
known to him or as may reasonably be required by the Warrantors or the
Investor in relation to the Group or any member of it for the purpose of
complying with the requirements of law or of any Governmental Authority
to which any of the parties is subject where such requirement has the
force of law.
13. FURTHER ASSURANCE
The parties shall, from time to time on being required to do so by the
other parties, now or at any time in the future, do or procure the doing
of all such acts and/or execute or procure the execution of all such
documents in a form satisfactory to the parties as they may reasonably
consider necessary for giving full effect to this Agreement and securing
to the parties the full benefit of the rights, powers and remedies
conferred upon the parties in this Agreement at the cost and expense of
the party required to perform the act in question.
23
14. ASSIGNMENT
14.1 Limited assignment
No party may assign the benefit of this Agreement whether absolutely or
by way of security except (in the case of the Investor only) by way of an
absolute assignment to an Affiliate of the Investor save that a party may
assign such benefit absolutely or by way of security to a person (other
than to an Affiliate of the Investor as aforesaid) with the prior consent
in writing of the other parties, such consent not to be unreasonably
withheld or delayed and any purported assignment in contravention of this
clause shall be ineffective.
14.2 Successors in title
Subject to Clause 14.1, this Agreement shall be binding upon and enure
for the benefit of the personal representatives and assigns and
successors in title of each of the parties and references to the parties
shall be construed accordingly.
15. ENTIRE AGREEMENT: REMEDIES
15.1 Entire agreement
This Agreement together with any documents referred to herein constitutes
the whole and only agreement between the parties relating to the subject
matter hereof and supersedes and extinguishes any prior drafts, previous
agreements, undertakings, representations, warranties and arrangements of
any nature whatsoever, whether or not in writing between the parties, in
connection with the subject matter hereof.
15.2 Remedies
The rights of the Investor and the Warrantors under this Agreement are
independent, cumulative and without prejudice to all other rights
available to them respectively whether as a matter of common law,
statute, custom or otherwise.
15.3 Non-exclusion of fraud
Nothing in this Agreement or in any other document referred to herein
shall be read or construed as excluding any liability or remedy as a
result of fraud.
16. WAIVER, VARIATION AND RELEASE
16.1 No waiver by omission, delay or partial exercise
No omission to exercise or delay in exercising on the part of any party
to this Agreement any right, power or remedy provided by law or under
this Agreement shall constitute a waiver of such right, power or remedy
or any other right, power or remedy or impair such right, power or
remedy. No single or partial exercise of any such right, power or remedy
shall preclude or impair any other or further exercise thereof or the
exercise of any other right, power or remedy provided by law or under
this Agreement.
24
16.2 Specific waivers to be in writing
Any waiver of any right, power or remedy under this Agreement must be in
writing and may be given subject to any conditions thought fit by the
grantor. Unless otherwise expressly stated, any waiver shall be effective
only in the instance and only for the purpose for which it is given.
16.3 Variations to be in writing
No variation to this Agreement shall be of any effect unless it is agreed
in writing and signed by or on behalf of each party to this Agreement.
17. COSTS AND EXPENSES
17.1 Payment of costs
Save as otherwise stated in this Agreement, each party shall pay its own
costs and expenses in relation to the negotiation, preparation, execution
and carrying into effect of this Agreement and other agreements forming
part of the transaction.
18. NOTICES
18.1 Form of notices
Any communication to be given by the Investor, the Company or the Senior
Management in connection with the matters contemplated by this Agreement
shall except where expressly provided otherwise be in writing and shall
either be delivered by hand, by courier or facsimile transmission.
Delivery by courier shall be regarded as delivery by hand.
18.2 Address and facsimile
Such communication shall be sent to the address of the relevant party
referred to in this Agreement or the facsimile number set out below or to
such other address or facsimile number as may previously have been
communicated to the other party in accordance with this clause. Each
communication shall be marked for the attention of the relevant person.
Senior Management - facsimile number 01249 700725
For the attention of: ▇▇▇▇▇ ▇▇▇▇
Company - facsimile number 01249 700725
For the attention of: ▇▇▇▇▇ ▇▇▇▇
Investor - facsimile number ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
For the attention of: T R Santhanankrishnan
25
18.3 Deemed time of service
A communication shall be deemed to have been served:
18.3.1 if delivered by hand at the address referred to in Clause 18.2,
at the time of delivery; and
18.3.2 if sent by facsimile to the number referred to in Clause 18.2, at
the time of completion of transmission by the sender.
If a communication would otherwise be deemed to have been delivered
outside normal business hours (being 9:30 a.m. to 5:30 p.m. on a Business
Day) in the time zone of the territory of the recipient under the
preceding provisions of this clause, it shall be deemed to have been
delivered at the next opening of such business hours in the territory of
the recipient.
18.4 Proof of service
In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the facsimile was despatched and a
successful confirmatory transmission report received.
18.5 Change of details
A party may notify the other parties to this Agreement of a change to its
name, relevant person, address or facsimile number for the purposes of
Clause 18.1 provided that such notification shall only be effective on:
18.5.1 the date specified in the notification as the date on which the
change is to take place; or
18.5.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is deemed to
have been served, the date falling five clear Business Days after
notice of any such change is deemed to have been given.
18.6 Non-applicability to Proceedings
For the avoidance of doubt, the parties agree that the provisions of this
Clause 18 shall not apply in relation to the service of any writ,
summons, order, judgment or other document relating to or in connection
with any Proceedings.
19. COUNTERPARTS
19.1 Execution in counterparts
This Agreement may be executed in any number of counterparts and by the
parties on different counterparts, but shall not be effective until each
party has executed at least one counterpart.
26
19.2 One agreement
The counterparts shall together constitute one agreement.
20. LANGUAGE
20.1 English language to prevail
This Agreement is drawn up in the English language. If this Agreement is
translated into any language other than English, the English language
text shall prevail.
20.2 All notices in English
Each notice, instrument, certificate or other communication to be given
by one party to another hereunder or in connection with this Agreement
shall be in the English language (being the language of negotiation of
this Agreement) and in the event that such notice, instrument,
certificate or other communication or this Agreement is translated into
any other language, the English language text shall prevail.
21. INVALIDITY
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, the legality, validity or
enforceability in that jurisdiction of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.
22. AGREEMENT TO CONTINUE IN FULL FORCE AND EFFECT
This Agreement together with the Shareholders Agreement shall, to the
extent that it remains to be performed, continue in full force and effect
notwithstanding Completion.
23. CONFIDENTIALITY
23.1 Prohibition on disclosure
Each of the parties to this Agreement hereby undertakes that it shall
both during and after the term of this Agreement preserve the
confidentiality of, and not directly or indirectly reveal, report,
publish, disclose or transfer or use for its own or any other purposes
Confidential Information except:
23.1.1 to the extent otherwise expressly permitted by this Agreement;
23.1.2 with the prior consent in writing of the party to whose affairs
such Confidential Information relates; or
23.1.3 in the circumstances set out in 23.2 ("Permitted Disclosures").
23.2 Permitted Disclosures
23.2.1 Each party may disclose Confidential Information which would
otherwise be subject to Clause 23.1, where
27
(a) the Confidential Information, before it is furnished to any other
party, is in the public domain;
(b) the Confidential Information, after it is furnished to any other
party, enters the public domain otherwise than as a result of (i)
a breach by any of the parties of its obligations in this Clause
23 or (ii) a breach by the person who disclosed that Confidential
Information of a confidentiality obligation and any of the
parties is aware of such breach;
(c) where such disclosure of the Confidential Information is made:
(d) in compliance with any requirement of law;
(e) in response to a requirement of any applicable Governmental
Authority or regulatory authority to which the Warrantors are
subject where such requirement has the force of law; or
Provided that any such information disclosable pursuant to paragraphs (a)
or (b) of Clause 23.2.3 shall be disclosed only to the extent required by
law and only after consultation with the party to whom the Confidential
Information relates.
23.3 No time limit
The restrictions contained in this clause shall continue to apply after
Final Completion without limit in time.
24. GOVERNING LAW AND JURISDICTION
24.1 English law
This Agreement shall be governed by and construed in accordance with
English law.
24.2 Courts of England and Wales
Each of the parties submits to the exclusive jurisdiction of the courts
of England to settle any dispute which may arise out of or in connection
with this Agreement and that accordingly Proceedings may be brought in
such courts.
25. THE CONTRACTS (RIGHTS OF THIRD PARTIES) ▇▇▇ ▇▇▇▇
25.1 No person who is not a party to this Agreement shall have any right under
the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Agreement.
AS WITNESS the hands of the parties or their duly authorised representatives on
the date first appearing at the head of this Agreement.
28
SCHEDULE 1
Management Shareholders
Name Address Shareholdings
(expressed as a % of the
Company's Issued Ordinary
Share Capital immediately
prior to Final Completion)
Dr. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.▇▇▇▇▇%
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ C5 Krishna Terrace 8.98204%
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇.▇▇▇▇▇%
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bluebell House 5.50000%
▇-▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
29
SCHEDULE 2
Directors of the Company and the Subsidiaries
Name of Director Directorships held
---------------- ------------------
Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Cricinfo Limited
Dr. ▇▇▇▇▇ ▇▇▇▇▇▇ King Cricinfo Limited
Cricinfo New Zealand Limited
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Cricinfo Limited
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (1) Cricinfo Limited
(2) PGR Computing Limited
(3) Limlow Books Limited
(4) Cricinfo New Zealand Limited
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Cricinfo Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Cricinfo New Zealand Limited
30
SCHEDULE 3
Part 1
Leases
(1) (2) (3) (4) (5)
Property Date Term Parties Current yearly rent
New Zealand
Suite on Level 5 1 May 2000 5 years Junior Grand Limited NZ$21,697.20 plus
(North-East) of The If all renewal rights (the "Landlord") and Goods and Services Tax
National Bank Building, are accepted, the Cricinfo New Zealand 2.71% of outgoings
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, term will be for an Limited (the "Tenant") Two yearly rent
Christchurch, additional 11 years. reviews from 1 May
New Zealand. 2000
India
Ganesan Office Complex 1 November 1999 3 years with an ▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (the Rs 596,400 after the
The Northern Side option for another 3 "Lessor") and deduction of taxes at
5/th/ floor, years with 25% Cricinfo Ltd (the the appropriate rate
25, ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ increase in rent "Lessee") prescribed by the
Salai, Income-tax Act
Mylore,
Chennai 600 004, India.
Ganesan Office Complex 1 November 1999 3 years with an ▇▇ ▇. ▇▇▇▇▇▇▇ (the Rs 596,400 after the
The Southern Side option for another 3 "Lessor") and deduction of taxes at
5/th/ floor, years with 25% Cricinfo Ltd (the the appropriate rate
25, ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ increase in rent "Lessee") prescribed by the
Salai, Income-tax Act
Mylore,
Chennai 600 004, India.
31
Part 2
Licences
(1) (2) (3) (4) (5)
Property Date Term Parties Current yearly rent
United Kingdom
The ▇▇▇▇▇ - South 27 March 2000 1 year and further Hartham Park Plc (the (Pounds)25,200 plus
Hartham Park Plc automatic extensions "Operator") and VAT.
Hartham Park, of 3 months if no CricInfo (the "User")
Corsham, termination is
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, received by the
United Kingdom. Operator.
Sri Lanka
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ 9 months Ruwan Wasantha Rs 360,000 for 9
▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (the months
▇▇▇▇▇▇▇ ▇▇, "▇▇▇▇▇▇") ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the
"Lessee")
32
SCHEDULE 4
Part 1
The Company
Name and Date of Share capital Held by Beneficially
number of incorporation owned by
Company Authorised Issued
No:03215055 21 June 1996 1000 100 75 - Dr See Schedule 2
▇▇▇▇▇ ▇▇▇▇ attached to the
Cricinfo declaration of
Limited trust
Indigo Holdings
25 - Indigo Limited
Holdings
Limited
Part 2
The Subsidiaries
Name and Date of Share capital Held by Beneficially
number of incorporation owned by
subsidiary Authorised Issued
No: 02 March 2000 1 1 Cricinfo Cricinfo
AK/1015619 Limited Limited
Cricinfo New
Zealand Limited
Cric Info India
Private Limited
No: 22 December 1998 20 10 - K.
18-41623 ▇▇▇▇▇▇▇▇▇▇▇▇
10 - ▇▇▇▇▇
▇▇▇▇▇▇▇▇
33
SCHEDULE 5
The Warranties
(Note that under Clause 1.10 references herein to the Company shall be deemed to
include a corresponding reference to the Subsidiaries and each of them
severally, as the case may be.)
Part 1
General warranties
1. PRELIMINARY
1.1 Information
1.1.1 So far as the Warrantors are aware all written information (with the
exception of the information described in 1.1.2 below) which has
been given to the Investor or its representatives or professional
advisers by the Warrantors or by any Director, officer or other
official of the Company or by their respective professional advisers
or other agents in the course of the negotiations leading to this
Agreement was when given and is now true and accurate in all
material respects and not misleading.
1.1.2 The Investor agrees and acknowledges that Warranty 1.1.1 shall not
apply to the Information Memorandum prepared by Bank of America
dated February 2000.
1.1.3 So far as the Warrantors are aware there is no fact or matter which
has not been disclosed which renders any of the information
disclosed untrue, inaccurate or misleading or the disclosure of
which might reasonably affect the willingness of a willing purchaser
to purchase the Subscription Shares on the terms of this Agreement.
1.2 Power to contract
Each Warrantor has full power to enter into and perform this Agreement and
the Shareholders Agreement respectively and this Agreement constitutes, and
the Shareholders Agreement when executed will constitute, binding
obligations on each Warrantor in accordance with their terms.
2. THE COMPANY
2.1 The particulars of the Company set out in the recitals, Schedule 2 and
Schedule 4 are true and complete.
2.2 Memorandum and articles of association
34
The copy of the memorandum and articles of association of the Company which
is comprised in the Disclosure Documents is true and complete in all
respects and the Company has at all times carried on its business and
affairs in all material respects in accordance with its memorandum and
articles of association.
2.3 Statutory returns
The Company has complied in all material respects with the provisions of
the Companies Acts and all returns, particulars, resolutions and other
documents required to be filed with or delivered to the Registrar of
Companies or to any other authority whatsoever by the Company have been
correctly and properly prepared in all material respects and so filed or
delivered.
2.4 Share capital
2.4.1 There is no Encumbrance or any form of agreement (including
conversion rights and rights of pre-emption) on, over or affecting
the Subscription Shares or any unissued shares, debentures or other
securities of the Company and there is no agreement or commitment to
give or create any of the foregoing. So far as the Warrantors are
aware no claim has been made by any person to be entitled to any of
the foregoing. No person has the right (exercisable now or in the
future and whether contingent or not) to call for the issue of any
share or loan capital of the Company under any of the foregoing.
2.4.2 The Company has not at any time provided any financial assistance
for the purpose of the acquisition of shares in the Company or any
holding company of the Company or for the purpose of reducing or
discharging any liability incurred in such an acquisition whether
pursuant to sections 155 and 156, CA 85 or otherwise.
2.5 Solvency
The Company has not stopped payment and is not insolvent nor unable to pay
its debts according to section 123, Insolvency ▇▇▇ ▇▇▇▇. No order has ever
been made or petition presented or resolution passed for the winding up of
the Company and so far as the Warrantors are aware no distress, execution
or other process has ever been levied on any of its assets. No
administrative or other receiver has been appointed by any person over the
business or assets of the Company or any part thereof, nor has any order
been made or petition presented for the appointment of an administrator in
respect of the Company.
3. CONNECTED BUSINESS
3.1 Subsidiaries
The particulars of the Subsidiaries set out in Schedule 4 are true and
complete and the shares in the Subsidiaries are held by the Company free
from all Encumbrances and with all rights now or hereafter attaching
thereto.
35
3.2 Connected transactions
The Company:
3.2.1 is not and has not agreed to become the holder or other owner of any
class of any shares, debentures or other securities of any other
body corporate (whether incorporated in the United Kingdom or
elsewhere) other than the Subsidiaries;
3.2.2 has not agreed to become a subsidiary of any other body corporate or
under the control of any group of bodies corporate or consortium;
3.2.3 is not and has not agreed to become a member of any partnership,
joint venture, consortium or other unincorporated association other
than a recognised trade association or agreement or arrangement for
sharing commissions or other income;
3.2.4 has no branch, place of business or substantial assets outside
England and Wales or any permanent establishment (as that expression
is defined in any relevant Order in Council made pursuant to section
788, ICTA 1988) in any country outside the United Kingdom; and
3.2.5 save as otherwise disclosed pursuant to paragraphs 3.2.1 to 3.2.4,
does not have any interest, legal or beneficial, in any shares or
other capital or securities or otherwise howsoever in any other
firm, company, association, venture or legal person or entity.
4. ACCOUNTS
4.1 General
The Accounts have been disclosed. The Accounts have been prepared in
accordance with good accounting practice for the preparation of management
accounts and the Warrantors do not consider them to be misleading. To the
best of the Warrantors knowledge no material liability or contingent
liability has been omitted.
4.2 BOOKS OF ACCOUNT
All accounts, books, ledgers and financial records of the Company
(including all invoices and other records required for VAT purposes):
4.2.1 have been fully and properly maintained, are in the possession of
the Company and contain true and accurate records of all matters
including those required to be entered in them by the Companies Acts
and no notice or allegation that any of the same is incorrect or
should be rectified has been received;
4.2.2 do not, so far as the Warrantors are aware, contain or reflect any
material inaccuracies or discrepancies;
4.2.3 give and reflect, so far as the Warrantors are aware, a true and
fair view of the matters which ought to appear in them and in
particular of the financial,
36
contractual and trading position of the Company and of its fixed and
current assets and liabilities (actual and contingent) and debtors
and creditors.
5. POST-BALANCE SHEET DATE EVENTS
5.1 Since the Balance Sheet Date, the Company:
5.1.1 has carried on its business in the ordinary and usual course and
without entering into any transaction, assuming any liability or
making any payment not provided for in the Accounts which is not in
the ordinary course of business and without any material
interruption or material alteration in the nature, scope or manner
of its business and so far as the Warrantors are aware nothing has
been done which would be likely to prejudice the interests of the
Investor as a prospective purchaser of the Subscription Shares;
5.1.2 has not experienced any material deterioration in its financial
position, turnover or, so far as the Warrantors are aware, its
prospects.
6. TRANSACTIONS WITH DIRECTORS OR SHAREHOLDERS OR CONNECTED PERSONS
6.1 Arrangements with Connected Persons and Shareholders
6.1.1 So far as the Warrantors are aware, there is not outstanding, and
there has not at any time during the last three years been
outstanding, any legally enforceable agreement, arrangement or
understanding to which the Company is a party and in which a
Director or former director of the Company or any Connected Person
is or has been a party.
6.1.2 No sum is owed by the Company to Indigo whether or not now due and
payable.
6.1.3 No sum is owed by Indigo to the Company whether or not now due and
payable.
6.2 Competitive interests
6.2.1 So far as the Warrantors are aware no Director, former director of
the Company nor any Connected Person, either individually,
collectively or with any other person or persons, has any estate,
right or interest in any business other than that now carried on by
the Company which is or is likely to be or become competitive with
any aspect of the Business of the Company save as registered holder
or other owner of any class of securities of any company if such
class of securities is listed on any recognised investment exchange
(as defined in the Financial Services Act 1986) and if such person
(together with Connected Persons and Affiliates) holds or is
otherwise interested in less than 5 % of such class of securities.
37
7. FINANCE
7.1 Borrowings
7.1.1 Particulars of all money borrowed by the Company have been
Disclosed. The total amount borrowed by the Company from each of its
bankers does not exceed the overdraft facility agreed with such
banker. The Company has no outstanding loan capital.
7.2 Debts owed to the Company
7.2.1 So far as the Warrantors are aware, all debts owed to the Company
are collectable in the ordinary course of business.
7.3 Grants
7.3.1 No grant has ever been made to the Company.
7.4 Options and guarantees
7.4.1 The Company is not responsible for the indebtedness of any other
person nor party to any option or pre-emption right or any
guarantee, suretyship or any other obligation (whatever called) to
pay, purchase or provide funds (whether by the advance of money, the
purchase of or subscription for Subscription Shares or other
securities or the purchase of assets or services or otherwise) for
the payment of, or as an indemnity against the consequence of
default in the payment of, any indebtedness of any other person.
7.4.2 So far as the Warrantors are aware no person other than the Company
or a Subsidiary has given any guarantee of or security for any
overdraft, loan or loan facility granted to the Company or any
Subsidiary.
8. THE PROPERTIES
8.1 The Properties comprise all the land and premises owned, controlled, used
or occupied by the Company and all the rights or interests vested in the
Company relating to any land and premises at the date hereof and the
particulars set out in Schedule 3 are true and accurate and not misleading.
8.2 Those of the Properties which are occupied or otherwise used by the Company
in connection with their business have been disclosed are occupied or used
by right of ownership or under lease or licence, the terms of which permit
such occupation of use.
8.3 The Company has not:
(a) surrendered any lease, licence or tenancy to the landlord without
first satisfying itself that the landlord has good title to accept
such surrender and without receiving from the landlord and absolute
release from all liability arising under such lease, licence or
tenancy;
38
(b) assigned, or otherwise disposed of, any lease, licence or tenancy
without receiving a full and effective indemnity from the assignee
or transferee in respect of its liability under such lease, licence
or tenancy;
(c) been a guarantor of a tenant's liability under any lease, licence or
tenancy; or
(d) assigned or otherwise disposed of any leasehold property in such a
way that it retains any other residual liability in respect thereof.
9. INSURANCE
9.1 Insurance arrangements
Particulars of all policies of insurance of the Company now in force have
been Disclosed and such particulars are true and correct and all premiums
due on such policies have been duly paid and, so far as the Warrantors are
aware, all such policies are valid and in force.
10. LITIGATION
10.1 Litigation and arbitration proceedings
10.1.1 The Company is not now engaged in any litigation, arbitration or
criminal proceedings and so far as the Warrantors are aware there
are no lawsuits or arbitration or criminal proceedings pending or
threatened by or against the Company or any person for whose acts
or defaults the Company may be vicariously liable.
10.1.2 The Company has not, in the last 3 years preceding the date of this
Agreement, been involved in any litigation, arbitration, criminal
proceedings or material dispute with which materially adversely
affects/alters the Business and/or its ability to carry on its
Business in the same manner and to the same extent as it has
previously been carried on.
10.1.3 So far as the Warrantors are aware, there is no matter or fact in
existence which might give rise to any legal proceedings or
arbitration involving the Company including any which might form
the basis of any criminal prosecution against the Company.
10.2 Injunctions, etc.
No injunction or order for specific performance has been granted against
the Company.
10.3 Orders and judgments
The Company is not subject to any order or judgment given by any court or
governmental agency which is still in force and has not given any
undertaking to any court or to any third party arising out of any legal
proceedings.
39
11. LICENCES
11.1 General
So far as the Warrantors are aware, the Company has all necessary licences
(including statutory licences), permits, consents and authorities (public
and private) for the proper and effective carrying on of the Business and
in the manner in which the Business is now carried on and all such
licences, permits, consents and authorities are valid and subsisting.
12. TRADING
12.1 Consequence of acquisition of Subscription Shares by Investor
The acquisition of the Subscription Shares by the Investor or compliance
with the terms of this Agreement will not, so far as the Warrantors are
aware:
12.1.1 cause the Company to lose the benefit of any right or privilege it
presently enjoys or cause any person who normally does business
with the Company not to continue to do so on the same basis as
previously;
12.1.2 relieve any person of any contractual obligation to the Company or
legally entitle any person to determine any such obligation or any
legal right or benefit enjoyed by the Company or to exercise any
right whether under an agreement with or otherwise in respect of
the Company;
12.1.3 result in the breach of or constitute a default under any of the
terms, conditions or provisions of any agreement or instrument to
which the Company is now a party or any loan to or mortgage created
by the Company or of its memorandum or articles of association;
12.1.4 result in any present or future indebtedness of the Company
becoming due and payable or capable of being declared due and
payable prior to its stated maturity;
12.1.5 cause any director or officer of the Company to leave employment;
or
12.1.6 conflict with, violate or result in a breach of any law,
regulation, order, decree or writ applicable to the Company, or
entitle any person to receive from the Company any finder's fee,
brokerage or other commission.
12.2 Restrictions on trading
The Company is not and has not been a party to any agreement, arrangement,
understanding or practice restricting the freedom of the Company to provide
and take goods and services by such means and from and to such persons and
into or from such place as it may from time to time think fit.
12.3 Possession of records
40
12.3.1 So far as the Warrantors are aware, all title deeds and agreements
to which the Company is a party and all other documents owned by,
or which ought to be in the possession or control of or held
unconditionally to the order of, the Company are in the possession
of the Company.
12.3.2 the Company does not have any of its records, systems, controls,
data or information (save for that/those which is published or
otherwise made available to third parties or placed under the
control of third parties in the ordinary course of the Company's
business) recorded, stored, maintained, operated or otherwise
wholly or partly dependent on or held by any means (including any
electronic, mechanical or photographic process whether computerised
or not) which (including all means of access thereto and therefrom)
are not under the exclusive ownership and direct control of the
Company.
12.4 Business names
The Company does not use on its letterhead, books or vehicles or otherwise
carry on the Business under any name other than its corporate name.
12.5 Sensitive payments
So far as the Warrantors are aware, no officer or employee of the Company
has made or received any Sensitive Payment in connection with any contract
or otherwise. For the purposes of this clause the expression "Sensitive
Payments" (whether or not illegal) shall include (i) commercial bribes,
bribes or kickbacks paid to any person, firm or company including central
or local government officials or employees or (ii) amounts received with an
understanding that rebates or refunds will be made in contravention of the
laws of any jurisdiction either directly or through a third party or (iii)
political contributions or (iv) payments or commitments (whether made in
the form of commissions, payments or fees for goods received or otherwise)
made with the understanding or under circumstances that would indicate that
all or part thereof is to be paid by the recipient to central or local
government officials or as a commercial bribe influence payment or
kickback.
13. CONTRACTS
13.1 Material contracts
All material Contracts to which the Company is a party and in respect of
which any obligation remains to be performed or which may result in any
liability to the Company have been Disclosed.
13.2 Contracts not in writing
The Disclosure Letter contains a summary of the principal terms (including
details of the parties, the revenue or cost implications) of all material
Contracts to which the Company is a party and which are not wholly in
writing.
13.3 Performance of Contracts
41
13.3.1 The terms of all material and subsisting Contracts of the Company
have been complied with by the Company and by the other parties to
such Contracts in all material respects and, so far as the
Warrantors are aware, there are no circumstances likely to give
rise to a default by the Company or by the other parties under any
such material Contract.
13.3.2 There are no outstanding claims, separately or in the aggregate, of
material amounts, against the Company on the part of customers or
other parties in respect of defects in quality or delays in
delivery or completion of contracts or deficiencies of design or
performance or otherwise relating to liability for goods or
services sold or supplied by the Company and notice has not been
received by the Company that such claims are threatened and so far
as the Warrantors are aware there is no matter or fact in existence
in relation to goods or services currently sold or supplied by the
Company which might give rise to the same.
13.3.3 The Warrantors have no knowledge of the invalidity of or grounds
for rescission, avoidance or repudiation of any agreement or other
transaction to which the Company is a party and has received no
notice of any intention to terminate, repudiate or disclaim any
such agreement or other transaction.
13.4 Agency and distribution agreements
Other than as Disclosed, the Company is not a party to any subsisting
agency or distributorship agreement.
13.5 Cricket Contracts
The Disclosure Documents include true and accurate copies of all Contracts
which the Company has with the Cricket Boards.
14. EMPLOYEES
14.1 Service contracts
There is no contract of service in force between the Company and any of its
Directors, officers or employees which is not terminable by the Company
without compensation (other than any compensation payable under Parts X and
Xl, ERA) on three month's notice given at any time or otherwise in
accordance with section 86, ERA. There are no consultancy agreements in
existence between the Company and any other person, firm or company, and
there are no agreements or other arrangements (binding or otherwise)
between the Company or any employers' or trade association of which the
Company is a member and any Trade Union. There are no outstanding pay
negotiations with any employees or Trade Unions.
14.2 Benefits
So far as the Warrantors are aware, there are no amounts owing to present
or former directors, officers or employees of the Company other than not
more than one month's arrears of remuneration accrued or due or for
reimbursement of business expenses
42
incurred within a period of three months preceding the date of this
Agreement and no moneys or benefits other than in respect of remuneration
or emoluments of employment are payable to or for the benefit of any
present or former director, officer or employee of the Company, nor any
dependant of any present or former director, officer or employee of the
Company.
14.3 Relevant legislation
14.3.1 So far as the Warrantors are aware the Company has in relation to
each of its employees (and so far as relevant to each of its former
employees) complied with:
(a) all obligations imposed on it by all relevant statutes, regulations
and codes of conduct and practice affecting its employment of any
persons and all relevant orders and awards made thereunder and has
maintained current, adequate and suitable records regarding the
service, terms and conditions of employment of each of its
employees; and
(b) all collective agreements, recognition agreements and customs and
practices for the time being affecting its employees or their
conditions of service.
14.4 Termination of employment
No present director, officer or senior or technical manager is currently
serving out notice terminating his employment, whether given or received by
the Company and Completion of this Agreement will not entitle any employee
to terminate his employment or trigger any entitlement to a severance
payment or liquidated damages.
14.5 Share and other schemes
The Company does not have in existence nor is it proposing to introduce,
and none of its directors, officers or employees participate in any
employee share trust, share incentive scheme, share option scheme or profit
sharing scheme for the benefit of all or any of its present or former
directors, officers or employees or the dependants of any of such persons
or any scheme whereunder any present or former director, officer or
employee of the Company is entitled to a commission or remuneration of any
other sort calculated by reference to the whole or part of the turnover,
profits or sales of the Company or any other person, firm or company
including any profit-related pay scheme established under Chapter Ill, Part
V, ICTA 1988.
14.6 Transfer of undertakings
The Company has not been a party to any relevant transfer as defined in
TUPE nor has the Company failed to comply with any duty to inform and
consult any Trade Union under the said regulations within the period of one
year preceding the date of this Agreement.
14.7 Agreements with Trade Unions
43
The Company is not a party to any agreement or arrangement with or
commitment to any trade unions or staff association nor are any of the
employees members of any trades union or staff association.
15. PENSION SCHEMES
The Company does not operate, and has never operated, any Pension Schemes
and is under any no legal or moral liability or obligation to pay bonuses,
gratuities, superannuation, allowances or the like to any of the employees
or their dependants or persons formerly employed or engaged by the Company
or their dependants nor is it a party to any arrangements or promise to
make or in the habit of making ex gratia or voluntary payments by way of
bonus, gratuity, superannuation, allowance or the like to any such persons
and there are no schemes or arrangements (whether legally enforceable or
not) for payment of retirement, pension, disability, life assurance, death
benefit or sickness or accident benefit or similar schemes or arrangements
in operation or contemplated in respect of any of the employees or their
dependants or persons formerly employed or engaged by the Company or their
dependants.
16. INTELLECTUAL PROPERTY
16.1 Details of all the Registered Intellectual Property are set out in Schedule
8 which is complete and accurate in all material respects. All Registered
Intellectual Property is used, enjoyed and exploited exclusively in
connection with the Business.
16.2 The Company is the sole legal and beneficial owner of all Registered
Intellectual Property and save as provided in the IP Licences, and all
material Unregistered Intellectual Property free from all claims, liens,
charges, equities, encumbrances, licences and adverse rights of any
description.
16.3 Save as provided in the IP Licences, all internet domain names used in
connection with the Business have been Disclosed and are registered in the
name of the Company.
16.4 So far as the Warrantors are aware, none of the Relevant IP is subject to
any challenge or attack by a third party or Competent Authority. All
renewal and registration fees relating to the Registered Intellectual
Property, all internet domain names which are registered in the name of the
Company and so far as the Warrantors are aware, all other internet domain
names used in connection with the Business which have fallen due prior to
the date of this Agreement have been paid.
16.5 Accurate particulars in all material respects are set out in Part 3 of
Schedule 8 of all written IP Licences insofar as the Warrantors are aware
of such IP Licences are valid and enforceable.
16.6 Accurate summaries of the principal terms of all material IP Licences which
are not (all or in part) in writing are set out in Part 3 of Schedule 8 and
so far as the Warrantors are aware, all such IP Licences are valid and
enforceable.
16.7 Neither the Company nor so far as the Warrantors are aware has any other
party received notice that it is in breach of any Licences and so far as
the Warrantors are
44
aware all such agreements are in full force and effect and will not
terminate or be capable of termination by reason of the execution and
performance of this Agreement.
16.8 So far as the Warrantors are aware none of the activities involved in the
conduct of the Company materially infringe or have infringed any
Intellectual Property belonging to any third party or constitute or have
constituted material breach of confidence, passing off or actionable
unfair competition in any jurisdiction. No such activities give or have
given rise to any obligation to pay any royalty, fee, compensation or any
other sum whatsoever which is or was material to the Business.
16.9 The Company is not, and has not within the six years preceding the date
of this Agreement, been party to or had notice of any legal proceedings
relating to any Intellectual Property and the Warrantors are not aware of
any material infringement of the Relevant IP or any material breach of
confidence, passing off or actionable unfair competition in any
jurisdiction in relation to the Company.
16.10 So far as the Warrantors are aware and save as provided in the IP
licences none of the Know-How is known or accessible to any person except
the Company and the subsidiaries, other than persons who have given the
Company written confidentiality undertakings in respect thereof.
16.11 There are no outstanding or threatened claims against the Company (of
which the Company has notice) under any contract or under section 40 of
the Patents ▇▇▇ ▇▇▇▇ for employee compensation in respect of any Relevant
IP.
17. INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS
17.1 Identification and ownership
17.1.1 Schedule 9 contains brief particulars of all material IT Systems
which support the provision of service by the Company to Users.
17.1.2 Save as set out in Schedule 9, all material IT Systems and data
are owned by the Company or the Company has the right to use such
material IT Systems and data, and are not wholly or partly
dependent on any facilities or services not under the exclusive
ownership and control of the Company.
17.2 Computer Operation and Maintenance
17.2.1 The webserving machines currently owned or operated by the
Company are sufficient to cope with 12,000,000 page views per day
and, subject to matters beyond the reasonable control of the
Company, are sufficient to cope with current User demands and
expected User demands in the period ending four months from the
date hereof.
17.2.2 The Company has formulated strategic plans to upgrade its IT
Systems which is intended to ensure that the reasonably
foreseeable future demands of Users are met.
45
17.2.3 So far as the Warrantors are aware, all material IT Systems are
in good working order, function in accordance with all applicable
specifications, and have been and are being properly and
regularly maintained and replaced.
17.2.4 The Company has full and unrestricted access to and use of its
material IT Systems, and no third party agreements or consents
are required to enable the Company to continue such access and
use following Completion.
17.2.5 The Company has taken reasonable measures to prevent infection of
the IT Systems owned and controlled by the Company by any virus
or other extraneously-induced malfunction.
17.2.6 The Company has completed the installation of a central backup
facility which ensures that all data processed using the IT
Systems is regularly archived in tape form.
17.2.7 The Company has taken all reasonable steps necessary to ensure
that its business can continue to operate in the event of a
failure of the IT Systems (whether due to natural disaster, power
failure or otherwise).
17.2.8 The Cric Info website had 591 million page views in 1999. Since
the end of 1999 there has not been a material reduction in the
number of page views for the Cricinfo website.
18. LEGISLATION
The Company has not received notice of and is not aware of any allegation
of breach of the requirements of any legislation which is applicable to
it.
46
Part 2
Taxation warranties
19. TAXATION
19.1 General
19.1.1 Notices and returns
All notices, returns, computations and registrations of the Company for
the purposes of Taxation have been made punctually on a proper basis and
are correct in all material respects and none of them is the subject of
any dispute with any Taxation Authority.
19.1.2 All information supplied by the Company for the purposes of
Taxation was when supplied and remains complete and accurate in
all material respects.
19.1.3 Payment of Tax due
All Taxation which the Company is liable to pay prior to Completion has
been or will be so paid prior to Completion.
19.1.4 Penalties or interest on Tax
The Company has not within the period of six years ending on the date of
this Agreement paid or become liable to pay any penalty, fine, surcharge
or interest charged by virtue of the provisions of the TMA or any other
Taxation Statute.
19.1.5 Compliance with PAYE, national insurance contribution and Tax
collection obligations
(a) in all material respects all income tax deductible and payable
under the PAYE system and/or any other Taxation Statute has, so
far as is required to be deducted, been deducted from all
payments made or treated as made by the Company and all amounts
due to be paid to the Inland Revenue prior to the date of this
Agreement have been so paid, including all Tax chargeable on
benefits provided for directors, employees or former employees of
the Company or any persons required to be treated as such.
(b) All deductions and payments required to be made under any
Taxation Statute in respect of national insurance and social
security contributions (including employer's contributions) have
been so made in all material respects.
(c) All payments by the Company to any person which ought to have
been made under deduction of Tax have been so made and the
Company (if required by law to do so) has accounted to the Inland
Revenue for the Tax so deducted.
(d) Proper records have been maintained in respect of all such
deductions and payments and all applicable regulations have been
complied with.
47
(e) The Disclosure Documents contain details so far as they affect
the Company of all current dispensations agreed with the Inland
Revenue in relation to PAYE and all notifications given by the
Inland Revenue under section 166, ICTA 1988.
19.1.6 Investigations
The Company has not been subject to any visit, audit, investigation,
discovery or access order by any Taxation Authority and there are no
circumstances existing which make it likely that a visit, audit,
investigation, discovery or access order will be made.
19.1.7 Residence
The Company is and always has been resident for Taxation purposes only in
the jurisdiction in which it is incorporated.
19.1.8 Tax provision
Full provision or reserve has been made in the Accounts for all Taxation
assessed or liable to be assessed on the Company or for which it is
accountable in respect of income, profits or gains earned, accrued or
received or deemed to be earned, accrued or received on or before the
Balance Sheet Date, including distributions made down to such date or
provided for in the Accounts and proper provision has been made in the
Accounts for deferred Taxation in accordance with generally accepted
accounting principles.
19.1.9 Concessions and arrangements
The amount of Taxation chargeable on the Company during any accounting
period ending on or within the six years before the Balance Sheet Date has
not depended on any concessions, agreements or other formal or informal
arrangements with any Taxation Authority.
19.1.10 Anti-avoidance provisions
The Company has not entered into or been a party to any scheme or
arrangement of which the main purpose, or one of the main purposes, was
the avoidance of or the reduction in or the deferral of a liability to
Taxation.
19.2 VAT
19.2.1 Returns and payments
(a) The Company is a taxable person duly registered for the purposes
of VAT.
(b) The Company has complied with all statutory provisions, rules,
regulations, orders and directions in respect of VAT, has
promptly submitted accurate returns in all material respects ,
and the Company maintains full and accurate VAT records in all
material respects, has never been subject to any interest,
forfeiture, surcharge or penalty nor been given any notice under
sections 59 or 64, VATA nor been given a warning within section
76(2), VATA nor has the
48
Company been required to give security under paragraph 4 of
Schedule 11, VATA.
(c) VAT has been duly paid or provision has been made in the Accounts
for all amounts of VAT for which the Company is liable.
19.3 Stamp duty
19.3.1 Stamp duty
All stampable documents subject to UK stamp duty wheresoever executed
(other than those which have ceased to have any legal effect) to which the
Company is a party have been duly stamped or stamped with a particular
stamp denoting that no stamp duty is chargeable. Since the Balance Sheet
Date there have been and are no circumstances or transactions to which the
Company is or has been a party such that a liability to stamp duty or any
penalty in respect of such duty will arise on the Company.
19.3.2 Stamp duty reserve tax
Since the Balance Sheet Date the Company has not incurred any liability to
or been accountable for any stamp duty reserve tax and there has been no
agreement within section 87(1), FA 1986 which could lead to the Company
incurring such a liability or becoming so accountable.
49
SCHEDULE 6
Final Completion
Part 1
On Final Completion, the Company shall deliver to the Investor:
1. A certified copy (appropriate for filing at the Companies Registry) of a
members' resolution adopting new Articles together with a copy (appropriate for
filing) of such Articles;
2. A certified copy of resolutions of the Board of Directors of the Company
authorising the issue and allotment of the Subscription Shares and the
Additional Subscription Shares together with an appropriate Share Certificate
duly executed by the Company in favour of the Investor (or its nominee(s);
3. A certified copy of the updated register of members of the Company; and
4. A certified copy of the resolution of the Board of Directors of the Company
appointing such person as the Investor shall nominate as the first Investor
Director.
Part 2
Subject to Clause 6.1.1, on Final Completion, the Investor shall deliver to the
Company (or the Company's representative on behalf of the Company):
1. the Consideration ADRs representing the Consideration Stock.
50
SCHEDULE 7
INVESTMENT REPRESENTATIONS
The Company hereby represents and warrants as follows, in each case as at the
date hereof and as of Final Completion:
1. The Company is not a US Person (as defined in Regulation S under the US
Securities Act of 1933, as amended (the "Securities Act")).
2. The Company acknowledges that the Investor ADRs representing Investor's
stock have not been registered under the Securities Act or the laws of any
foreign jurisdiction.
3. The Company agrees to offer, sell or deliver the Investor ADRs representing
Investor's stock only in accordance with the provisions of Regulation S
under the Securities Act or pursuant to an effective registration of the
Investor ADRs representing Investor's stock under the Securities Act or
pursuant to an available exemption from the registration requirements of
the Securities Act.
4. The purchase of the Investor ADRs representing Investor's stock is not part
of a plan or scheme on the part of the Company to evade the registration
provisions of the Securities Act.
5. The Company will not offer, sell or deliver the Investor ADRs representing
Investor's stock to or for the account of a US Person or for the benefit of
any person whom the Company knows or reasonably believes to be a US Person
prior to forty days after the date hereof (and it will send to any dealer
to whom it sells Investor ADRs representing Investor's stock during such
period a confirmation or other notice setting forth the foregoing
restrictions on offers and sales of the Investor ADRs representing
Investor's stock) otherwise than pursuant to an effective registration of
the Investor ADRs representing Investor's stock under the Securities Act or
pursuant to an available exemption from the registration requirements of
the Securities Act.
6. The Company is acquiring the Investor ADRs representing Investor's stock
for the Company's own account. It is not acquiring the Investor ADRs
representing Investor's stock with a view to, or for resale in connection
with, the distribution or other disposition thereof in violation of any
federal or state securities laws.
7. The Company understands that appropriate restrictive legends may be placed
on the certificates representing the Investor ADRs representing Investor's
stock acquired by the Company hereunder but that these will be removed upon
the Company representing to the Investor and the Depository of the Investor
ADRs that the relevant Investor ADRs have been sold pursuant to an
effective registration statement under the Securities Act.
8. The Company understands that a notation shall be made prior to Final
Completion indicating that such Investor ADRs representing Investor's stock
is subject to restrictions on transfer and appropriate stop-transfer
instruction will be issued to the securities transfer agent with respect to
the Investor ADRs representing Investor's
51
stock but that these will be removed upon the Company representing to the
Investor and the Depository of the Investor ADRs that the relevant Investor ADRs
have been sold pursuant to an effective registration statement under the
Securities Act.
52
SCHEDULE 8
Intellectual Property
Part 1
Registered Intellectual Property
TRADE ▇▇▇▇ LIST - CRICINFO
Trade ▇▇▇▇ Country Class Status Filing Date Filing Nr
--------------------------------------------------------------------------------
CRICINFO Australia 16, 25, 28, 38, Pending 11 Nov 1999 813323
41
-------------------------------------------------------------------------------
CRICINFO Australia 9 Pending 02 Feb 2000 821975
-------------------------------------------------------------------------------
CRICINFO Bangladesh 9 Pending 01 Feb 2000 63463
-------------------------------------------------------------------------------
CRICINFO Bangladesh 28 Pending 01 Feb 2000 63461
-------------------------------------------------------------------------------
CRICINFO Bangladesh 25 Pending 01 Feb 2000 63460
-------------------------------------------------------------------------------
CRICINFO Bangladesh 16 Pending 01 Feb 2000 63462
-------------------------------------------------------------------------------
CRICINFO India 9 Pending 20 Aug 1999 872511
-------------------------------------------------------------------------------
CRICINFO India 16 Pending 20 Aug 1999 872508
-------------------------------------------------------------------------------
CRICINFO India 25 Pending 20 Aug 1999 872510
-------------------------------------------------------------------------------
CRICINFO India 28 Pending 20 Aug 1999 872512
-------------------------------------------------------------------------------
CRICINFO New Zealand 16 Published 02 Nov 1999 602246
-------------------------------------------------------------------------------
CRICINFO New Zealand 41 Published 02 Nov 1999 602250
-------------------------------------------------------------------------------
CRICINFO New Zealand 38 Published 02 Nov 1999 602249
-------------------------------------------------------------------------------
CRICINFO New Zealand 28 Published 02 Nov 1999 602248
-------------------------------------------------------------------------------
CRICINFO New Zealand 25 Published 02 Nov 1999 602247
-------------------------------------------------------------------------------
CRICINFO New Zealand 9 Published 02 Nov 1999 607481
-------------------------------------------------------------------------------
CRICINFO Pakistan 9 Pending 02 Feb 2000 160642
-------------------------------------------------------------------------------
CRICINFO Pakistan 16 Pending 02 Feb 2000 160643
-------------------------------------------------------------------------------
CRICINFO Pakistan 25 Pending 02 Feb 2000 160644
-------------------------------------------------------------------------------
CRICINFO Pakistan 28 Pending 02 Feb 2000 160639
-------------------------------------------------------------------------------
CRICINFO South Africa 16 Pending 20 Oct 1999 99/19338
-------------------------------------------------------------------------------
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 25 Pending 20 Oct 1999 99/19339
--------------------------------------------------------------------------------
CRICINFO South Africa 28 Pending 20 Oct 1999 99/19340
--------------------------------------------------------------------------------
CRICINFO South Africa 38 Pending 20 Oct 1999 99/19341
--------------------------------------------------------------------------------
CRICINFO South Africa 41 Pending 20 Oct 1999 99/19342
--------------------------------------------------------------------------------
CRICINFO South Africa 9 Pending 02 Feb 2000 2000/1631
--------------------------------------------------------------------------------
CRICINFO Sri Lanka 9 Pending
--------------------------------------------------------------------------------
CRICINFO Sri Lanka 41 Pending
--------------------------------------------------------------------------------
CRICINFO Sri Lanka 38 Pending
--------------------------------------------------------------------------------
CRICINFO Sri Lanka 28 Pending
--------------------------------------------------------------------------------
CRICINFO Sri Lanka 25 Pending
--------------------------------------------------------------------------------
CRICINFO Sri Lanka 16 Pending
--------------------------------------------------------------------------------
CRICINFO United Kingdom 16,25,28,38,41 Published 23 July 1999 2203842
--------------------------------------------------------------------------------
CRICINFO United Kingdom 9 Registered 28 Jan 2000 2221867
--------------------------------------------------------------------------------
CRICSHOP United Kingdom 9, 14, 16, 21, Published 28 Jan 2000 2220677
25, 28, 41
--------------------------------------------------------------------------------
CRICINFO USA 16, 25, 28, 35, Pending 10 Sept 1999 75/796
38, 41 867
--------------------------------------------------------------------------------
CRICINFO USA 9 Pending 07 Mar 2000
--------------------------------------------------------------------------------
Part 2
IP Licences
Key:-
CI - CricInfo Limited
NZC - New Zealand Cricket
ZCU - Zimbabwe Cricket Union
UCB - United Cricket Board of South Africa
IDI - ICC Development (International) Ltd
BCB - Bangladesh Cricket Board
AFP - Agence France-Presse
54
DNP - Network Publishing
--------------------------------------------------------------------------------
Doc. No. Description Parties
-------------------------------------------------------------------------------
4.1.1 Website hosting agreement NZC, CI
-------------------------------------------------------------------------------
4.1.2 Website hosting agreement ZCU, CI
-------------------------------------------------------------------------------
4.1.3(a) Website hosting agreement UCB, CI
-------------------------------------------------------------------------------
4.1.3(b) Website hosting agreement UCB, Mweb and CI joint
venture
-------------------------------------------------------------------------------
4.1.3(c) Joint website hosting agreement Mweb, CI
-------------------------------------------------------------------------------
4.1.4/DDI 24 Joint website hosting agreement Nine MSN, CI
-------------------------------------------------------------------------------
4.1.5 Website hosting agreement IDI, CI, shareholders of
CI
-------------------------------------------------------------------------------
4.1.6 Website hosting agreement BCB, CI
-------------------------------------------------------------------------------
4.1.7 Joint website hosting agreement Channel 4, CI (expired)
-------------------------------------------------------------------------------
4.2.1/DDI 25 Content Supply Agreement Yahoo! UK Limited, CI
-------------------------------------------------------------------------------
4.2.2/DDI 21 Content Supply Agreement ▇▇▇▇▇▇▇▇.▇▇▇, CI
-------------------------------------------------------------------------------
4.2.3/DDI 22 Content Supply Agreement Home India Online
Services, CI
-------------------------------------------------------------------------------
4.2.4 Content Supply Agreement Goyogi, Inc., CI
-------------------------------------------------------------------------------
4.3.1 Content Supply Agreement, with AFP, CI
letter dated 6 March 2000
-------------------------------------------------------------------------------
4.3.2 Content Supply Agreement Allsport, CI
-------------------------------------------------------------------------------
4.3.3 Content Supply Agreement PA News Limited, CI
-------------------------------------------------------------------------------
4.4.1 Co-marketing Agreement DNP, CI
-------------------------------------------------------------------------------
4.4.2 [Deleted - Expired contract]
-------------------------------------------------------------------------------
4.4.3 Co-marketing Agreement ▇▇▇▇ Cell, Inc., CI
-------------------------------------------------------------------------------
4.4.4 Co-marketing Agreement ▇▇▇-▇.▇▇▇, CI
-------------------------------------------------------------------------------
4.4.5 Co-marketing Agreement Praja, Inc., CI
-------------------------------------------------------------------------------
4.4.6 Co-marketing Agreement Ntl, CI
-------------------------------------------------------------------------------
4.5.1 Mirror Site Hosting Agreement Mweb, CI
-------------------------------------------------------------------------------
4.5.3 Mirror Site Hosting Agreement Net Space, CI
-------------------------------------------------------------------------------
55
-------------------------------------------------------------------------------
4.5.5 Mirror Site Hosting Agreement Dishnet, CI
-------------------------------------------------------------------------------
4.5.7 Hardware Supply and Service Level 3, CI
Agreements
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
4.5.10 Mirror Site Hosting Agreement Mantra Online, CI
-------------------------------------------------------------------------------
5.1.1 Marketing Agreement NMMS (now Adlink), CI
-------------------------------------------------------------------------------
5.1.2 Marketing Agreement Ninemsn, CI
-------------------------------------------------------------------------------
5.1.4 Marketing Agreement Oracle, CI
-------------------------------------------------------------------------------
5.1.5 Marketing Agreement Intercept Consulting, CI
-------------------------------------------------------------------------------
5.2.1 Sponsorship Agreement NZC, Inc., CI
-------------------------------------------------------------------------------
5.2.2 Sponsorship Agreement WCAI, CI
-------------------------------------------------------------------------------
5.2.3 Sponsorship Agreement WCAI, CI
-------------------------------------------------------------------------------
5.3.1 Trade ▇▇▇▇ Licensing Agreement Codemasters Software
Company Limited, CI
-------------------------------------------------------------------------------
Not numbered/DD27 Messenger Agreement Yahoo! UK Limited, CI
-------------------------------------------------------------------------------
56
SCHEDULE 9
Information Technology
Part 1
IT Systems
Equipment wholly owned and controlled by the Company
"Login" AMD 450 256Meg RAM - responsible for handling interactive logins and
mail.
"Dougie" AMD 450 256Meg RAM - live scoring machine.
"Master" DUAL PIII 450 1GB RAM - holds master copy of the database.
"Adlib" DUAL PIII 450 1GB RAM - advertisement serving and logging machine.
"Mirror" PIII 450 512Meg RAM
"Loghost" DUAL PII 450 1GB RAM 120GB RAID array
"Nameserver" AMD300 256MB
"Firewall" AMD300 256MB
"Office Server" PIII 9Gig IDE 17 Gig SCSI 256 MB RAM, HP Tapestore, 20Gig
Panasonic DVD writer, internal Zip drive.
"Backup" PIII 450 256MB RAM 2x240 Gigbyte RAID arrays, SCSI tape library.
"IRC2 UK" Single Pentium 400 256 Meg RAM IRC server
"Redirect" IRC#1 server and virtual host redirection PIII 450 512MB RAM
"Spare server" 1GB twin PIII 500
In addition, there are a number of development machines used by the Company's
technical teams.
Equipment owned / hosted by third parties
Australia - 2 x Dual PIII 512Meg - owned and hosted by Netscape (Melbourne).
Australia - 3 x PIII 512Meg RAM - owned and hosted by Hostworx (Adelaide)
South Africa - 3 x Dual PIII 450 512MB RAM - Compaq machines owned and hosted by
M-Web
Pakistan - 1 x Dual PIII 450 1GB Ram - owned and hosted by WOL
India - 5 servers one of which is Dual PIII 450 1GB Ram (owned by the Company)
57
SCHEDULE 10
Matters Pending Completion
The Company shall not, except with the prior written consent of the Investor:
1. increase the amount of its authorised or issued Share capital, issue and
allot Shares (save for the issue of Shares to a further strategic partner
of the Company approved by the Board as a non SIL Shareholder except at a
valuation lower than SIL's current subscription price), grant any option
(save for options granted pursuant to any employee share option scheme
adopted by the Company) or other interest (in the form of convertible
securities or in any other form) over or in its share capital, redeem or
purchase any of its own Shares or effect any other reorganisation of its
share capital;
2. issue any loan capital of a value in excess of (Pounds)1 million or enter
into any commitment with any person with respect to the issue of any such
loan capital;
3. make any borrowing, secured or unsecured, other than from its bankers in
the ordinary and usual course of business and ensure that its banking
facilities do not enable it to have more than (Pounds)3 million in
aggregate borrowed at any one time;
4. pass any resolution for its winding up (unless it shall have become
insolvent);
5. engage in any business, directly or through a subsidiary other than in
connection with cricket-related businesses or defray any monies other than
bona fide for the purposes of or in connection with the carrying on of the
business of the Company worldwide;
6. close down or substantially divest any ongoing business operation directly
or through a subsidiary;
7. amalgamate or merge with any other company or business undertaking;
8. vary in any respect its memorandum or articles of association or the rights
attaching to any of its Shares;
9. alter its name;
10. sell or transfer the domain names ▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇.▇▇▇;
11. enter into any arrangement, contract or transaction outside the normal
course of its business or otherwise than on arm's length terms;
12. adopt or amend its annual Business Plan;
13. change either:
13.1 its auditors; or
58
13.2 alter its accounting reference date;
14. declare or pay any dividend or make any other distribution (by way of
capitalisation, repayment or in any other manner) out of its distributable
profits or any of its reserves;
15. dismiss any owner-director in circumstances in which it incurs or agrees to
bear redundancy or other costs in excess of (Pounds)100,000 in total;
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SIGNED by Dr. ▇▇▇▇▇ ▇▇▇▇ )
for and on behalf of )
CRICINFO LIMITED )
SIGNED by ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ )
for and on behalf of )
▇▇▇▇▇▇ INFOWAY LIMITED )
SIGNED by DR. ▇▇▇▇▇ ▇▇▇▇ )
SIGNED by ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
SIGNED by ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ )
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