Exhibit 10.1
SHARE PURCHASE AGREEMENT
THIS DEED is made as of the 16th day of November 2000
BETWEEN:
(1) ▇▇▇▇▇▇▇▇▇.▇▇▇, INC., a company incorporated in Delaware of which
the registered office is at Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of New Castle, Delaware, USA
(the "PURCHASER");
(2) CHASE EQUITY ASSOCIATES L.P. AND OTHERS whose names and addresses
are set out in Schedule 1 (the "VENDORS"); and
(3) ▇▇▇▇▇▇▇▇▇.▇▇▇ (EUROPE) LIMITED, a company incorporated in England
and Wales (registered no. 3794657) of which the registered office
is at Cardinal Towers, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
"COMPANY").
RECITALS:
(A) The Company is a company registered in England and Wales and of
which the entire issued share capital is owned by the Purchaser
and the Vendors. Details of the existing authorised and issued
share capital of the Company are set out in Schedule 2.
(B) The Vendors are the registered holders of those numbers of the
Shares (as defined below) in the capital of the Company set
opposite their respective names in Schedule 1.
(C) The Vendors have agreed to sell and the Purchaser has agreed to
purchase the Shares on and subject to the terms of this Agreement.
(D) The parties hereto have each agreed to terminate the Investment
Agreement made between them on 11 September 1999 (the "INVESTMENT
AGREEMENT") and all related obligations on and subject to the
terms of this Agreement.
IT IS AGREED:
1. INTERPRETATION
1.1 In this Deed (including its Recitals and Schedules), the following
words and expressions have the meanings respectively set opposite
them unless the context requires otherwise:
"AGREEMENT" means this Deed;
"BUSINESS DAY" means any day (except any Saturday or Sunday) on
which banks in New York City and the City of London are open for
business;
"COMPANY" means ▇▇▇▇▇▇▇▇▇.▇▇▇ (Europe) Limited;
"COMPLETION" means completion of the sale and purchase of the
Shares pursuant to this Agreement in accordance with its terms;
"COMPLETION DATE" means the date of Completion;
"CONSIDERATION" has the meaning given in Clause 3;
"INVESTMENT AGREEMENT" has the meaning given in Recital (D);
"LOAN NOTES" means the US $10 million loan notes issued by the
Company to the Purchaser in accordance with the terms of the
Investment Agreement;
"PURCHASER SHARES" means the 1,250,000 shares of Common Stock (US
$0.01 par value each) of the Purchaser to be issued pursuant to
Clause 3;
"PURCHASER'S SOLICITORS" means Lovells of ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇;
"SHARES" means the shares in the capital of the Company described
in Schedule 1;
"VENDORS' SOLICITORS" means Ashurst ▇▇▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇; and
"WARRANTIES" means the warranties, representations and
undertakings set out in Schedule 3.
1.2 In this Agreement, unless the context otherwise requires:
(a) references to this Agreement or any other document
include this Agreement or such other document as varied,
modified or supplemented in writing from time to time;
(b) references to any party shall, where relevant, be deemed
to be references to or to include, as appropriate, their
respective permitted successors, assigns or transferees;
(c) references to Recitals, Clauses and Schedules and
sub-divisions of them are references to the Recitals and
Clauses of, and Schedules to, this Agreement and
sub-divisions of them respectively;
(d) references to any enactment include references to such
enactment as re-enacted, amended or extended on or before
the date of this Agreement and any subordinate
legislation made under it;
(e) references to a "person" include any individual, company,
corporation, firm, partnership, joint venture,
association, organisation, institution, trust or agency,
whether or not having a separate legal personality;
(f) references to the one gender include all genders, and
references to the singular include the plural and vice
versa; and
(g) headings are inserted for convenience only and shall be
ignored in construing this Agreement.
1.3 The Recitals and Schedules to this Agreement form part of it.
1.4 Any reference in this Agreement to a document being "in the agreed
terms" is to a document in the terms agreed between the parties
and, for identification purposes only, signed or initialled by
them or on their behalf on or before the date of this Agreement.
2. SALE AND PURCHASE OF SHARES
2.1 On and subject to the terms of this Agreement, each Vendor shall
sell with full title guarantee the Shares set opposite its
respective name in Schedule 1 and the Purchaser shall purchase all
the Shares on and with effect from Completion, in each case free
from all charges, liens, equities, encumbrances, claims or
restrictions whatsoever and together with all rights which are
now, or at any time hereafter may become, attached to them.
2.2 The Purchaser shall not be obliged to complete the purchase of any
of the Shares unless the sale to it of all the Shares is completed
simultaneously.
2.3 Each of the Vendors agrees that it hereby waives any rights which
may have been conferred on it (or on the Vendors collectively)
under the Articles of Association of the Company, the Investment
Agreement or otherwise or in any other way to have any of the
Shares offered to it or them for purchase at any time on or before
the transfer of the Shares pursuant to the provisions of this
Agreement.
3. CONSIDERATION
3.1 The total consideration (the "CONSIDERATION") payable by the
Purchaser to the Vendors for the Shares shall be the aggregate sum
of US$3,000,000 in cash and the issue of 1,250,000 shares of the
Common Stock (US$0.01 par value each) of the Purchaser, each form
of consideration to be divided pro rata between the Vendors as set
out in Schedule 1. The Consideration shall be satisfied:
(a) as to US$3,000,000, by the payment in cash on Completion
to the Vendors; and
(b) as to the 1,250,000 Purchaser Shares, by the issue by the
Purchaser of the Purchaser Shares in accordance with
Clause 4.
3.2 The Consideration shall be allocated as follows:
(a) $17,000 for the "A" Ordinary Shares being purchased; and
(b) $2,983,000 and 1,250,000 Purchaser Shares for the "A"
Preferred Shares being purchased.
The relevant allocation and payment to each Vendor shall be as set
out in Schedule 1.
4. COMPLETION
4.1 Completion shall occur in accordance with this Clause 4 on Monday
20 November 2000. It shall take place at a meeting at the
Purchaser's Solicitors at 2:30 p.m. on such day (the "COMPLETION
MEETING").
4.2 At the Completion Meeting, each Vendor shall cause to be delivered
to the Purchaser:
(a) duly executed transfers of the Shares held by such Vendor
as the registered holder thereof in favour of the
Purchaser together with the share certificates relating
to such Shares; and
(b) such other documents (including any power of attorney
under which any document required to be delivered under
this Clause 4 has been executed and any waivers or
consents) as the Purchaser may require to enable the
Purchaser to be registered as holder of the Shares;
(c) a Power of Attorney in the agreed terms under which each
Vendor appoints the Purchaser its attorney in relation to
the Shares held by it; and
(d) the resignation in the agreed terms of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ as a director of the Company, duly signed by
▇▇. ▇▇▇▇▇.
4.3 The parties agree to procure, so far as is within each party's
respective powers, and following compliance by the Vendors and the
Purchaser with the foregoing provisions, that at the Completion
Meeting a Board Meeting of the Company will be duly convened and
held at which the said transfers of the Shares shall be approved
for registration (subject only to the transfers being duly stamped
at the cost of the Purchaser).
4.4 At the Completion Meeting, the Purchaser shall, following
compliance by the Vendors with the foregoing provisions and in
full satisfaction of the Consideration payable to the Vendors for
the Shares:
(a) pay the aggregate sum of US$3,000,000 by electronic
transfer to the client account of the Vendors'
Solicitors; and
(b) confirm the issue of the Purchaser Shares to each Vendor
in each case to be allocated as set out in Schedule 1,
and deliver to the Vendors' Solicitors the certificates
for the Purchaser Shares (made out for the amount of
shares and in the names set out in Schedule 1 and each
containing the legend set out in Clause 7.2).
Receipt of the monies and share certificates by the Vendors'
Solicitors shall constitute good receipt of the same on behalf of
each of the Vendors.
5. REGISTRATION RIGHTS AND INVESTMENT CONFIRMATIONS
5.1 The Purchaser hereby agrees to grant to the Vendors registration
rights in respect of the Purchaser Shares being issued pursuant to
this Agreement in the terms set out in Schedule 4.
5.2 Each Vendor, severally and not jointly, hereby confirms to the
Purchaser both at the date hereof and again as at Completion,
understanding and agreeing that the Purchaser is entering into
this Agreement in part in reliance on such confirmation, that:
(a) such Vendor is an "Accredited Investor" as that term is
defined in Rule 501(a) of Regulation D promulgated under
the US Securities Act of 1933, as amended (the "Act");
(b) such Vendor has been advised by the Purchaser that the
Purchaser Shares have not been registered under the Act,
that the Purchaser Shares will be issued on the basis of
the statutory exemption provided by Section 4(2) of the
Act or Regulation D promulgated thereunder, or both,
relating to transactions by an issuer not involving any
public offering and under similar exemptions under
certain state securities laws, that this transaction has
not been reviewed by, passed on or submitted to any
federal or state agency or self-regulatory organization
where an exemption is being relied upon, and that the
Purchaser's reliance thereon is based in part upon the
representations made by such Vendor in this Agreement.
Such Vendor acknowledges that it has been informed by the
Purchaser of, or is otherwise familiar with, the nature
of the limitations imposed by the Act and the rules and
regulations thereunder on the transfer of securities;
(c) such Vendor is purchasing the Purchaser Shares for
investment purposes, for its own account and not with a
view to, or for sale in connection with, any distribution
thereof in violation of federal or state securities laws;
(d) such Vendor has had an opportunity to discuss the
Purchaser's business, management and financial affairs
with the management of the Purchaser; and
(e) by reason of its business or financial experience, such
Vendor has the capacity to protect its own interest in
connection with the transactions contemplated hereunder.
6. TERMINATION OF THE INVESTMENT AGREEMENT AND RELATED OBLIGATIONS
6.1 In consideration of each other party entering into this Agreement
and of the mutual releases hereby given, each of the parties
hereby agrees and confirms (to the extent that it is a party to
the Investment Agreement) that, with effect from Completion
pursuant to Clause 4 of this Agreement, the Investment Agreement
and all of its provisions are hereby terminated and shall be of no
further effect whatsoever and each party thereto is hereby
released by each of the other parties hereto from:
(a) each and every obligation, duty and liability incurred by
such party thereunder, whether such obligation, duty or
liability is actual, accrued or contingent at the date
hereof, and no party shall have any further right, duty,
obligation or liability whatsoever thereunder; and
(b) any claim or cause of action whether made or instituted
on or before the date hereof or which could have been
made or instituted based upon any actual or alleged
breach of any term or provision of the Investment
Agreement and, if applicable, whether made or instituted
against any of them or any former or present employee of
the parties hereto.
6.2 In consideration of each other party entering into this Agreement
and of the mutual releases hereby given, each of the parties
hereby agrees and confirms that, with effect from Completion
pursuant to Clause 4 of this Agreement, each Vendor hereby
releases the Purchaser and the Company, and the Purchaser and the
Company each releases each Vendor, from every obligation, duty,
liability, claim or cause of action in respect of any other
obligations to each other in relation to their investment in the
Company (as if Clause 6.1 referred to such other obligations
mutatis mutandis).
7. COVENANTS OF THE VENDORS
7.1 Each Vendor covenants that, after Completion and pending
registration of transfer to the Purchaser of the Shares held by
that Vendor in the register of members of the Company, it will
vote those Shares in accordance with the instructions of the
Purchaser and will execute all such forms of proxy and other
documents as may reasonably be required by the Purchaser to ensure
that those Shares are voted at any general meeting of the Company
in accordance with the Purchaser's instructions.
7.2 Each Vendor agrees that it will not offer or sell any or all of
its Purchaser Shares except in accordance with the US Federal and
State securities laws. The certificates representing the Purchaser
Shares shall bear a legend evidencing such restriction on transfer
substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. SUCH SHARES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT OR AN OPINION OF
COUNSEL FOR THE HOLDER, REASONABLE SATISFACTORY TO
▇▇▇▇▇▇▇▇▇.▇▇▇, INC. (THE "COMPANY"), THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT. THIS
CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER HEREOF
TO CERTAIN RIGHTS AS SET FORTH IN THE RIGHTS AGREEMENT
BETWEEN PURCHASER AND THE RIGHTS AGENT THEREUNDER (THE
"RIGHTS AGREEMENT"), THE TERMS OF WHICH ARE HEREBY
INCORPORATED HEREIN BY REFERENCE AND A COPY OF WHICH IS
ON FILE AT THE PRINCIPAL OFFICES OF PURCHASER. UNDER
CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS
AGREEMENT, SUCH RIGHTS WILL BE EVIDENCED BY SEPARATE
CERTIFICATES AND WILL NO LONGER BE EVIDENCED BY THIS
CERTIFICATE. THE COMPANY WILL MAIL TO THE HOLDER OF THIS
CERTIFICATE A COPY OF THE RIGHTS AGREEMENT, AS IN EFFECT
ON THE DATE OF MAILING, WITHOUT CHARGE, PROMPTLY AFTER
RECEIPT OF A WRITTEN REQUEST THEREFOR. UNDER CERTAIN
CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS
ISSUED TO, OR HELD BY, ANY PERSON WHO IS, WAS OR BECOMES
AN ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE THEREOF
(AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT),
WHETHER CURRENTLY HELD BY OR ON BEHALF OF SUCH PERSON OR
BY ANY SUBSEQUENT HOLDER, MAY BECOME NULL AND VOID.".
8. WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
8.1 Each of the Vendors hereby represents and warrants to the
Purchaser (for itself and as trustee for its successors in title)
in the terms of those of the Warranties which are set out in Part
A of Schedule 3 as at the date hereof and repeats such
representations and warranties as at Completion.
8.2 The Purchaser hereby represents and warrants to each of the
Vendors in the terms of those of the Warranties which are set out
in Part B of Schedule 3 as at the date hereof and repeats
representations and warranties 1, 2 and 3 in Part B of Schedule 3
as at Completion.
8.3 Any claim available to any party hereto in respect of any breach
of any of such Warranties shall be without prejudice to any other
rights of such party to claim damages or seek any other remedy on
any other basis available to it.
8.4 The Purchaser and each of the Vendors has entered into this
Agreement on the basis of the Warranties given to it and in
reliance on them.
9. CONFIDENTIALITY AND ANNOUNCEMENTS
9.1 For the purpose of assuring the full benefit of the business and
goodwill of the Company and in consideration of the Purchaser
agreeing to buy the Shares on the terms of this Agreement, each of
the Vendors agrees with the Purchaser and its successors in title
as a separate and independent agreement (save as may be required
by law or any applicable regulatory requirement and then only to
the extent so required) not at any time hereafter to divulge
(other than in accordance with Clause 9.2) any information in
relation to the affairs or business of the Company and that each
such Vendor will not intentionally do anything to harm the
goodwill of the Company.
9.2 The parties hereto each agree to treat all information relating to
each other's affairs and businesses as confidential and not
(unless so required by law or by applicable regulatory
requirements, including US Federal securities laws, and then only
to the extent so required) to disclose any such information to any
third parties without the prior written consent of the other
parties hereto, PROVIDED that the parties hereto shall
nevertheless be entitled to disclose to their respective
shareholders, directors, executives, auditors and/or professional
advisers and to any regulatory or governmental agencies having
jurisdiction over them any of such information as is reasonably
required for reporting on the transactions contemplated hereunder
and/or enforcing their rights under this Agreement.
10. FURTHER ASSURANCE
10.1 The Vendors shall at the Purchaser's expense execute and deliver
all such instruments and other documents as the Purchaser may from
time to time reasonably require in order to give full effect to
the provisions of this Agreement.
11. CONTINUING OBLIGATIONS
11.1 Each of the obligations, warranties, representations and
undertakings accepted or given by the Vendors or the Purchaser or
any of them under this Agreement or any document referred to
herein shall continue in full force and effect notwithstanding
Completion taking place and shall be binding on the respective
successors, estates and personal representatives of the Vendors.
12. COSTS
12.1 Each party shall pay its own costs and expenses in relation to the
negotiation, preparation and implementation of this Agreement (and
the documents referred to herein), including the fees and
disbursements of their respective legal, accountancy and other
advisers. For the avoidance of doubt, the Purchaser hereby
confirms that it will pay any stamp duty due upon the transfer to
it of the Shares.
13. NOTICES
13.1 Any notice or other communication to be given under this Agreement
shall be in writing, shall be deemed to have been duly served on,
given to or made in relation to a party if it is left at the
authorised address of that party, posted by first class or
registered post addressed to that party at such address, or sent
by facsimile transmission to a machine situated at such address
and shall, if:
(a) personally delivered, be deemed to have been received at
the time of delivery;
(b) posted to an address in the same country, be deemed to
have been received on the second Business Day after the
date of posting and, if posted to a foreign address, be
deemed to have been received on the fifth Business Day
after the date of posting; or
(c) sent by facsimile transmission, be deemed to have been
received upon receipt by the sender of a facsimile
transmission report (or other appropriate evidence) that
the facsimile has been transmitted to the addressee,
PROVIDED that where, in the case of delivery by hand or facsimile
transmission, delivery or transmission occurs on a Business Day
after 6 pm (local time at the place of receipt) or on a day which
is not a Business Day, receipt shall be deemed to occur at 9 am
(local time at the place of receipt) on the next following
Business Day.
13.2 For the purposes of this Clause the authorised address of each
party shall be the address set out in Schedule 1 in the case of
the Vendors and the addresses given at the start of this Agreement
in the case of the Purchaser and the Company (respectively) or
such other address as any such party may notify to all the others
in writing from time to time in accordance with the requirements
of this Clause.
14. SEVERABILITY
14.1 If any provision of this Agreement (or of any document referred to
herein) is held to be illegal, invalid or unenforceable in whole
or in part in any relevant jurisdiction the legality, validity and
enforceability of the remaining provisions of the Agreement (or
such document) shall not in any way be affected or impaired
thereby.
15. ENTIRE AGREEMENT AND VARIATION
15.1 This Agreement (together with any documents referred to herein)
contains the entire agreement and understanding of the parties and
supersedes all prior agreements, understandings or arrangements
(both oral and written) relating to the subject matter of this
Agreement.
15.2 Each of the parties acknowledges and agrees that it does not enter
into this Agreement and the documents referred to herein on the
basis of and does not rely, and has not relied, upon any statement
or representation (whether negligent or innocent) or warranty or
other provision (in any case whether oral, written, express or
implied) made, given or agreed to by any person (whether a party
to this Agreement or not) except those expressly set out or
referred to in this Agreement and the documents referred to herein
and the only remedy or remedies available in respect of any
misrepresentation or untrue statement made to it shall be a claim
for breach of contract under this Agreement.
15.3 No variation, supplement, deletion or replacement of, to or from
this Agreement or any of its terms shall be effective unless made
in writing and signed by or on behalf of each party.
16. GENERAL PROVISIONS
16.1 Time shall be deemed to be of the essence in this Agreement.
16.2 Any party may release or compromise the liability of another party
hereunder or grant to another party time or other indulgence
without affecting the liability of any other party hereunder.
16.3 Any waiver of a breach of any of the terms of this Agreement or of
any default hereunder shall not be deemed to be a waiver of any
subsequent breach or default and shall in no way affect the other
terms of this Agreement.
16.4 No failure to exercise and no delay on the part of any party in
exercising any right, remedy, power or privilege of that party
under this Agreement and no course of dealing between the parties
shall be construed or operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The
rights and remedies provided by this Agreement are cumulative and
are not exclusive of any rights or remedies provided by law.
16.5 All warranties, representations, covenants, agreements and
obligations given or entered into in this Agreement by more than
one person are, save as otherwise expressly provided, given or
entered into severally.
17. GOVERNING LAW AND JURISDICTION
17.1 This Deed (together with all documents to be entered into pursuant
to it) shall be governed by, construed and take effect in
accordance with English law.
17.2 The courts of England shall have exclusive jurisdiction to settle
any claim, dispute or matter of difference which may arise out of
or in connection with this Agreement (including without limitation
claims for set-off or counterclaim) or the legal relationships
established by this Deed.
17.3 Each of the parties hereto agrees that, in the event of any action
between any of the parties hereto being commenced in respect of
this Deed or any matters arising under it, the process by which it
is commenced (where consistent with the applicable court rules)
may be served on them in accordance with Clause 13 or (in the case
of the Vendors) delivered to the Vendors' Solicitors (marked for
the attention of ▇▇▇▇▇ ▇▇▇▇▇▇) (who are irrevocably hereby
authorised by each Vendor to accept service of the same as its
agent on its behalf) and, in this respect, the Purchaser hereby
appoints the Purchaser's Solicitors (under reference NY/CDSP) as
its agent, irrevocably authorised hereby to accept service of the
same on its behalf.
18. COUNTERPARTS
18.1 This Deed may be executed in any number of counterparts each of
which when executed and delivered will be an original, but all the
counterparts together will constitute one and the same Deed.
IN WITNESS whereof this Deed has been executed by the parties the day and
year first above written.
SCHEDULE 1
THE VENDORS, THEIR SHAREHOLDINGS AND CONSIDERATION RECEIVABLE
-------------------------------------------------------------------------------------------------------------------
NAME AND ADDRESS OF SHAREHOLDING IN THE CONSIDERATION RECEIVABLE
VENDOR COMPANY
-------------------------------------------------------------------------------------------------------------------
Chase Equity Associates L.P. 500,000 "A" US$882,352.80 and 367,647 Purchaser Shares
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇*
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
250,000 "A"
Preferred
-------------------------------------------------------------------------------------------------------------------
3i Group PLC 300,000 "A" US$529,411.50 and 220,588 Purchaser Shares
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
150,000 "A"
Preferred
-------------------------------------------------------------------------------------------------------------------
Barclays Industrial 277,500 "A" US$529,186.50 and 220,588 Purchaser Shares
Development Ltd. Ordinary
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ 150,000 "A"
Preferred
-------------------------------------------------------------------------------------------------------------------
Clink Street Nominees Limited 22,500 "A" US$225
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
-------------------------------------------------------------------------------------------------------------------
ETF Group 220,000 "A" US$388,235.10 and 161,765 Purchaser Shares
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ Manno 110,000 "A"
Switzerland Preferred
-------------------------------------------------------------------------------------------------------------------
Flatiron Fund 1998/99, LLC 135,000 "A" US$238,235.10 and 99,265 Purchaser Shares
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 67,500 "A"
USA Preferred
-------------------------------------------------------------------------------------------------------------------
Spinnaker Crossover 14,793 "A" US$26,103.31 and 10,877 Purchaser Shares
Institutional Fund L.P. Ordinary
▇▇▇▇▇▇ Capital Management
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇ 7,396 "A"
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Preferred
USA
-------------------------------------------------------------------------------------------------------------------
Spinnaker Crossover 207 "A" US$366.89 and 153 Purchaser Shares
Institutional Fund L.P. Ordinary
▇▇▇▇▇▇ Capital Management
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇ 104 "A"
San Mateo, CA 94402 Preferred
USA
-------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇-▇▇▇▇▇▇ Media Partners LP 15,000 "A" US$26,470.50 and 11,029 Purchaser Shares
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 7,500 "A"
USA Preferred
-------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇ 15,000 "A" US$26,472.40 and 11,029 Purchaser Shares
Softbank Ordinary
▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ #▇▇▇ 7,500 "A"
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Preferred
USA
-------------------------------------------------------------------------------------------------------------------
Intel Atlantic, Inc. 200,000 "A" US$352,941.00 and 147,059 Purchaser Shares
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 100,000 "A"
USA Preferred
-------------------------------------------------------------------------------------------------------------------
*NOTE:
-----
Chase Equity Associates L.P.'s holding of 500,000 "A" Ordinary
Shares includes 230,540 Non-Voting "A" Ordinary Shares.
SCHEDULE 2
THE COMPANY'S SHARE CAPITAL
As at the date of this Agreement, the Company's share capital is as
follows:
-----------------------------------------------------------------------------
CLASS NO. AUTHORISED NO. ISSUED
-----------------------------------------------------------------------------
Ordinary Shares of 1p each 9,450,000 2,890,000
-----------------------------------------------------------------------------
"A" Ordinary Shares of 1p each 1,700,000 1,700,000*
-----------------------------------------------------------------------------
"A" Preferred Shares of 1p each 850,000 850,000
-----------------------------------------------------------------------------
Non-Voting "A" Ordinary Shares of 1p 230,540 230,540*
each
-----------------------------------------------------------------------------
Deferred Shares of 1p each 850,000 -
----------------------------------------- ----------------- -----------------
NOTES
1. The number (1,700,000) of "A" Ordinary Shares in issue includes the
230,540 Non-Voting "A" Ordinary Shares in issue.
2. The Purchaser owned 2,890,000 Ordinary Shares of the Company and the
Loan Notes immediately prior to the signing of this Agreement.
SCHEDULE 3
WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
PART A (BY EACH VENDOR)
Each Vendor, severally and not jointly, hereby represents and warrants to
Purchaser, understanding and agreeing that Purchaser is entering into this
Agreement in part in reliance on such representations and warranties, as
follows:
1. Each Vendor has full legal ownership of the Shares listed against
its name in Schedule 1, owns such Shares free of any liens,
charges, mortgages or other encumbrances of any kind whatsoever,
sells such Shares to the Purchaser with full title guarantee and
has full and unencumbered power and authority to sell legal and
beneficial ownership of such Shares in accordance with the terms
of this Agreement.
2. Each Vendor is duly authorized to execute this Agreement and,
assuming due execution and delivery by the Purchaser of this
Agreement, this Agreement constitutes legal, valid and binding
obligations of such Vendor, enforceable against such Vendor in
accordance with its terms.
PART B (BY THE PURCHASER)
1. When issued in accordance with the terms of this Agreement, the
Purchaser Shares will be duly authorised and validly issued and
fully paid and non-assessable, with no personal liability
attaching to the ownership thereof.
2. Each of the Purchaser and the Company is duly authorized to
execute this Agreement and, assuming due execution and delivery by
each Vendor of this Agreement, this Agreement constitutes legal,
valid and binding obligations of the Purchaser and the Company,
enforceable against the Purchaser and the Company in accordance
with its terms.
3. There are no "lock-up" agreements as are referred to in
subparagraph (i) of Section 4.1(a) of Schedule 4 involving the
Purchaser.
4. To the best of the knowledge of the Chief Executive Officer of the
Purchaser, the Purchaser is not entitled as of the date of this
Agreement to require a Blackout Period pursuant to Section 4.2(b)
of Schedule 4.
SCHEDULE 4
REGISTRATION RIGHTS
"REGISTRABLE SECURITIES" means any of (i) Purchaser Shares and (ii) any
other securities issued or issuable with respect to the Purchaser Shares by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise. Any Registrable Security will cease to be a Registrable Security
when (i) a registration statement covering such Registrable Security has
been declared effective under the US Securities Act of 1933, as amended
(the "Securities Act") by the Securities and Exchange Commission (the
"SEC") and such Registrable Security has been disposed of pursuant to such
effective registration statement, (ii) such Registrable Security together
with all other Registrable Securities held by the applicable holder may be
resold, without any limitation as to volume, pursuant to Rule 144 under the
Securities Act (or a comparable successor rule or regulation), or otherwise
may be publicly resold without registration under the Securities Act and
without any limitation as to volume or other material restriction, or (iii)
such Registrable Security is no longer held by the Vendor to which it was
issued pursuant to this Agreement, except where the new holder of such
Registrable Security is a purchaser which has complied with Section 4.2(h)
of this Schedule 4. The terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or
ordering of the effectiveness of such registration statement.
Section 4.1. Demand Rights.
-------------
(a) The holders of a majority of the Registrable
Securities shall have the right at any time from and after Completion, upon
written notice (which notice shall specify the method of distribution of
the Registrable Securities, which may include a distribution via a shelf
registration statement, and the number of Purchaser Shares desired to be so
registered) and subject to the provisions of this Schedule 4, to require
the Purchaser to prepare and file as soon as practicable after receipt of
such notice and use its reasonable best efforts to cause to become
effective as soon as practicable thereafter a registration statement (a
"Registration Statement") under the Securities Act with respect to the
resale of all Registrable Securities requested by the Requesting Holders
(as defined below) to be so registered (a "Demand Registration"); provided,
however, that the Purchaser shall not be required to violate (i) the terms
of any "lock-up" provisions relating to any securities offering by it by
which it may be bound (such lock-up period not to exceed 180 days with
respect to any specific offering) or (ii) the provisions of the Securities
Purchase Agreement dated August 7, 2000 between the Purchaser, Go2Net, Inc.
and Vulcan Ventures Inc. (the "Go2Net Agreement"), the Amended and Restated
Registration Rights Agreement dated as of December 21, 1998 among the
Purchaser and certain securityholders, as amended by the Go2Net Agreement
(the "Registration Rights Agreement") and the Agreement dated December 22,
1999 between the Purchaser and the shareholders of ▇▇▇▇▇▇▇.▇▇▇, Inc. (the
"ipoPros Agreement") (the Go2Net Agreement, the Registration Rights
Agreement and the ipoPros Agreement being referred to collectively as the
"Registration Agreements"). If the holders of a majority of the Registrable
Securities make such a demand of the Purchaser, the Purchaser will
forthwith notify all other holders of the Registrable Securities. Any such
holder who informs the Purchaser within 10 Business Days of it making such
a notification that it wishes to participate in the registration will be so
entitled. The term "Requesting Holders" shall mean both the holders of the
majority of the Registrable Securities making the initial request and any
other such holder who elects to participate in accordance with the
preceding sentence.
(b) Notwithstanding anything to the contrary contained
herein, the Purchaser shall have no obligation to prepare, file and cause
to become effective the Registration Statement (i) unless the Registrable
Securities to be registered pursuant to the Registration Statement
constitute at least 25% of the Registrable Securities beneficially owned by
the Requesting Holders as of the date of the notice requesting such
registration or (ii) if the Purchaser delivers to the Requesting Holders an
opinion of counsel to the effect that all such Registrable Securities for
which registration was requested may be sold in a single transaction
without registration pursuant to Rule 144 or any successor thereto under
the Securities Act. Furthermore, the Purchaser shall not be obligated to
prepare, file and cause to become effective a Registration Statement for
more than two such registrations pursuant to this Section 4.1.
(c) If the Requesting Holders so elect, they may cause
the public offering or distribution of the Registrable Securities pursuant
to a Demand Registration to be pursuant to a firm commitment underwriting,
the managing underwriter of which shall be a nationally recognized
investment banking firm selected by a majority of the Requesting Holders
and approved by the Purchaser (which approval shall not be unreasonably
withheld). The Purchaser shall enter into the same underwriting agreement
as shall the Requesting Holders, containing representations, warranties,
indemnities, and agreements reasonably acceptable to the Purchaser and not
substantially different from those customarily made by an issuer in
underwriting agreements with respect to secondary distributions. If (i) a
Demand Registration is for a firm commitment underwritten public offering
and the managing underwriter thereof determines in good faith that the
aggregate number of Registrable Securities to be offered thereby exceeds
the total number of Registrable Securities that may be successfully offered
at an estimated initial price per share to the public that is at least
equal to the minimum initial price per Share (which shall not be higher
than the market price at the time of designation) to the public that has
been designated in writing at the time of the notice referred to in Section
4.1(a) by the Requesting Holders, and/or (ii) a Demand Registration is
delayed more than 30 days pursuant to Section 4.2(b) prior to being
declared effective, and in either case no Registrable Securities are sold
pursuant to such Demand Registration, then the Requesting Holders shall
have the right to reduce or withdraw their request for such registration by
giving written notice to the Company to such effect, in which event, in the
case of a withdrawal, such registration shall not be deemed to have
occurred for purposes of the last sentence of Section 4.1(b).
(d) The Requesting Holders may elect to withdraw their
Registrable Securities from inclusion in a Demand Registration; provided
that, except for a withdrawal pursuant to the last sentence of Section
4.1(c), notwithstanding such withdrawal, such registration shall be deemed
to have occurred for the purposes of the last sentence of Section 4.1(b),
unless the Requesting Holders pay (pro rata, in proportion to the number of
Registrable Securities requested by them to be included in such
registration) within 30 days after any such withdrawal, all of the
out-of-pocket expenses of the Purchaser incurred in connection with such
registration; provided however that the Requesting Holders shall not be
required to pay such expenses if the cancellation is as a result of the
occurrence of a material adverse change in the business or financial
condition or results of operations of the Purchaser from the date of the
request to Purchaser to file the applicable registration statement to the
date of such withdrawal and the Requesting Holders certify that the
principal reason for such withdrawal is such material adverse change.
Neither the Purchaser nor any person that is not a Vendor shall participate
in any Demand Registration except as required under the provisions of the
Registration Agreements or unless the Requesting Holders otherwise agree.
(e) A Demand Registration shall not be deemed to have
been effected (i) until such registration has been effective (and not
subject to any stop order, injunction or other order or requirement of the
SEC or other Governmental Entity for any reason) for a period of 180 days
following the date on which such registration was declared effective, or,
if earlier, the date on which all Registrable Securities requested to be
registered thereunder have been sold and (ii) in the event that the holders
of Registrable Securities are unable to sell under the Demand Registration
at least 70% of the Registrable Securities requested to be included in such
Demand Registration solely because of the provisions of Section 4.1(a)(ii)
of this Schedule 4.
(f) The Purchaser shall not grant to any other person the
right to include any other securities in any Registration Statement filed
pursuant to this Section 4.1 except pursuant to the provisions of the
Agreements referred to in Section 4.1(d) of this Schedule 4 above.
(g) Piggy-Back Rights
(i) From Completion until the third anniversary
thereof, each time that Purchaser intends to proceed with the actual preparation
and filing of a registration statement under the Securities Act for its own
account in connection with the proposed offer and sale for money of shares of
common stock of Purchaser (other than a registration statement on Form S-4 or
Form S-8 or any successor to either such form), Purchaser will give at least 10
days' written notice of its election to the holders of Registrable
Securities. Upon the written request of a majority of the holders of
Registrable Securities to Purchaser given within 10 days after receipt of
any such notice from Purchaser, Purchaser will, except as herein provided,
and subject to the provisions of the Registration Agreements use its
reasonable best efforts to cause all Registrable Securities for which the
Requesting Holders have requested registration to be included in such
registration statement, all to the extent requisite to permit the sale or
other disposition by the Requesting Holders of the Registrable Securities
to be so registered, with the Requesting Holders paying any direct
incremental expenses attributable to the registration of such Shares;
provided, however, that (i) nothing herein shall prevent Purchaser from, at
any time, abandoning or delaying any such registration initiated by it;
(ii) if Purchaser determines not to proceed with a registration after the
registration statement has been filed with the SEC, Purchaser shall
complete the registration for the benefit of the Requesting Holders if the
Requesting Holders wish to proceed with a public offering of such Shares
and agree to bear their pro rata share of expenses reasonably incurred by
Purchaser as the result of such registration of such Shares after Purchaser
has decided not to proceed; (iii) for purposes of this sentence, the use by
Purchaser of reasonable best efforts shall not require Purchaser to
materially reduce the amount or sale price of the securities it proposes to
distribute for its own account; and (iv) Purchaser shall not be required to
violate the terms of any "lock-up" provisions relating to any securities
offering by which it may be bound. If any registration pursuant to this
Section 4.1(g) shall be underwritten in whole or in part, Purchaser may
require that the Registrable Securities requested for inclusion pursuant to
this Section 4.1(g) be included in the underwriting on the same terms and
conditions as the shares of common stock of the Purchaser otherwise being
sold through the underwriters. No registration effected under this Section
4.1(g) shall relieve Purchaser of its obligation to effect Demand
Registrations in accordance with Section 4.1(a).
(ii) In connection with a registration under this Section
4.1(g), Purchaser may enter into an underwriting agreement in such
customary form as shall have been negotiated and agreed to by Purchaser
with the underwriter or underwriters selected for such underwriting by
Purchaser. Notwithstanding any other provision of this Section 4.1(g), if
in the opinion of the managing underwriter the inclusion of Registrable
Securities owned by the Requesting Holders in a registration statement
would materially reduce the amount or sale price of the other securities to
be included in such registration, Purchaser may reduce, to as low as zero,
the number of Shares to be included by the Requesting Holders in the
registration and underwriting under this Section 4.1(g), to the extent
necessary to cause inclusion of such Registrable Securities not to be
materially detrimental to the registration filed pursuant to this Section
4.1(g) (any such reduction to be pro rata with any other of the Purchaser's
securityholders unless such persons have priority as to such reductions).
Section 4.2. General Provisions.
------------------
(a) If and whenever the Purchaser is required by the
provisions of this Schedule 4 to effect the registration of Registrable
Securities owned by the Vendors under the Securities Act, the Purchaser
will:
(i) subject to the terms and conditions of this
Schedule 4, as expeditiously as possible, prepare and file with
the SEC a registration statement with respect to such Registrable
Securities, and use its reasonable best efforts to cause such
registration statement to become and remain effective for such
period as may be reasonably necessary to effect the sale of such
Registrable Securities, but in no event longer than 180 days;
(ii) prepare and file with the SEC such
amendments to such registration statement and supplements to the
prospectus contained therein as may be necessary to keep such
registration statement effective for such period as may be
reasonably necessary to effect the sale of such Registrable
Securities, but in no event longer than 180 days;
(iii) furnish to Requesting Holders such
reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus and such other documents
as Requesting Holders may reasonably request in order to
facilitate the public offering of such Registrable Securities;
(iv) prepare and promptly file with the SEC and
promptly notify Requesting Holders of the filing of such amendment
or supplement to such registration statement or prospectus as may
be necessary to correct any statements or omission if, at the time
when a prospectus relating to such Registrable Securities is
required to be delivered under the Securities Act, any event shall
have occurred as the result of which any such prospectus or any
other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading and promptly
provide to Requesting Holders sufficient copies of such amended or
supplemented prospectus so that it can be delivered to the
Purchasers of the Registrable Securities as required by the
Securities Act and the regulations thereunder;
(v) advise Requesting Holders, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance
of any stop order by the SEC suspending the effectiveness of such
registration statement or the initiation or threatening of any
proceeding for that purpose, promptly use its reasonable best
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued and promptly notify
Requesting Holders of the forbearance, lifting or withdrawal of
such stop order or proceeding;
(vi) notify Requesting Holders, (A) when a
registration statement becomes effective, (B) when the filing of a
post-effective amendment to a registration statement or supplement
to a prospectus is required, when the same is filed, and in the
case of a post-effective amendment, when the same becomes
effective, and (C) of any request by the SEC for any amendment of
or supplement to a Registration Statement or any prospectus
relating thereto or for additional information;
(vii) register or qualify the Registrable
Securities covered by a Registration Statement under the
securities or blue sky laws of such jurisdictions in the United
States as the Requesting Holders shall reasonably request, and do
any and all other acts and things which may be necessary to enable
each Vendor whose Registrable Securities are covered by such
Registration Statement to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however,
that the Purchaser shall in no event be required to qualify to do
business as a foreign corporation or a dealer in any jurisdiction
where it is not so qualified, to conform its capitalization or the
composition of its assets at the time to the securities or blue
sky laws of such jurisdiction, to execute or file any general
consent to service of process under the laws of any jurisdiction,
to take any action that would subject it to service of process in
suits (other than in jurisdictions where Purchaser is already
subject to service of process) other than those arising out of the
offer and sale of the Registrable Securities covered by such
Registration Statement, or to subject itself to taxation in any
jurisdiction where it has not theretofore done so;
(viii) cause the Registrable Securities covered
by a Registration Statement to be listed on the principal exchange
or exchanges or qualified for trading on the principal over the
counter market on which the common stock of the Purchaser is then
listed or traded upon the sale of such Registrable Securities
pursuant to such Registration Statement;
(ix) at least three Business Days prior to
filing a registration statement or any amendment or supplement
thereto, furnish to Requesting Holders and each underwriter, if
any, of the Registrable Securities covered by such registration
statement copies of such registration statement, amendment or
supplement as proposed to be filed (excluding documents to be
incorporated by reference therein) which registration statement,
amendment or supplement will be subject to reasonable review and
comments by Requesting Holders and such underwriter insofar as
such documents relate to Requesting Holders or their affiliates or
such underwriter (and their respective attorneys) during such
three-Business Day period, and the Purchaser will not file any
registration statement, any prospectus or any amendment or
supplement thereto containing any statements with respect to
Requesting Holders or their affiliates to which Requesting Holders
shall reasonably object in writing;
(x) furnish to Requesting Holders and the
underwriter, if any, such number of copies of such registration
statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by
reference therein), the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as Requesting Holders or such underwriter may reasonably
request in order to facilitate the disposition of the Registrable
Securities;
(xi) make available for inspection by Requesting
Holders, any underwriter participating in any disposition pursuant
to such registration statement and any attorney, accountant or
other professional retained by Requesting Holders or such
underwriter (collectively, the "Inspectors"), all financial and
other records, pertinent corporate documents and properties of the
Purchaser (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, so long as such Inspectors execute a
confidentiality agreement with respect thereto in form and
substance reasonably satisfactory to the Purchaser, and cause the
Purchaser's officers, directors and employees to supply all
information reasonably requested by any Inspectors in connection
with such registration statement;
(xii) furnish to Requesting Holders and to each
underwriter, if any, a signed counterpart of (i) an opinion or
opinions of counsel to the Purchaser (which may be an inside
counsel) addressed to Requesting Holders and such underwriter on
which opinion both Requesting Holders and such underwriter are
entitled to rely and (ii) a comfort letter or comfort letters from
the Purchaser's independent public accountants, each in customary
form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as Requesting
Holders or the managing underwriter therefor reasonably requests;
and
(xiii) make available to its security holders,
as soon as reasonably practicable, an earnings statement covering
a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
Requesting Holders, upon receipt of any notice from the Purchaser of the
happening of any event of the kind described in paragraph (iv) or (v)
above, will forthwith discontinue, and cause their affiliates to
discontinue, disposition of the Registrable Securities until Requesting
Holders' receipt of the copies of the supplemented or amended prospectus
contemplated by paragraph (iv) above or until they are advised in writing
by the Purchaser that the use of the prospectus may be resumed and have
received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus. If so directed by the
Purchaser, Requesting Holders will deliver to the Purchaser or destroy all
copies, other than permanent file copies then in the possession of
Requesting Holders or their affiliates, of the prospectus required to be
supplemented or amended.
(b) Notwithstanding anything to the contrary in this
Agreement, if at any time after the filing of a registration statement (i)
in the case of any registration statement for a firm commitment
underwritten offering of Registrable Securities, before it is declared
effective by the SEC, or (ii) in the case of any other registration
statement, before or after it is declared effective by the SEC, the Board
of Directors of the Purchaser determines, in its reasonable good faith
business judgment, that such registration and the offering of Registrable
Securities covered by such registration would interfere with or otherwise
adversely affect any financing, acquisition, corporate reorganization or
other material transaction or material development involving the Purchaser
or any of its affiliates or require the Purchaser to disclose material
matters regarding itself or such affiliates that otherwise would not be
required to be disclosed at such time, then the Purchaser may require the
suspension of the distribution of any Registrable Securities (a "Blackout
Period") by giving notice to Requesting Holders. Any such notice need not
specify the reasons for such suspension if the Purchaser determines, in its
reasonable good faith business judgment, that doing so would interfere with
or adversely affect such transaction or development or would result in the
disclosure of material nonpublic information provided that such notice
shall be accompanied by a certificate of an officer of the Purchaser
confirming that the Board of Directors of the Purchaser has made a
determination pursuant to this Section 4.2(b). In the event that such
notice is given, then until the Purchaser has determined, in its reasonable
good faith business judgment, that such registration and distribution would
no longer materially interfere with the matters described in the preceding
sentence and has given notice thereof to Requesting Holders, the
Purchaser's obligations under this Schedule 4 will be suspended, provided
that such suspension shall not exceed the first to occur of (x) the filing
of the Purchaser's next SEC filing and (y) 75 days. The Purchaser shall
extend the period of time the Purchaser is required to maintain effective
any registration statement required pursuant to clauses (i) and (ii) of
paragraph (a) hereof by a length of time equal to the aggregate length of
the Blackout Periods. In the event of any suspension of a registration
pursuant to this Section 4.2(b), the Requesting Holders shall be entitled
to withdraw from such registration upon written notice to the Purchaser.
(c) The Purchaser's obligations to the Requesting Holders
under this Schedule 4 will be conditioned on compliance with the following:
(i) Requesting Holders and their affiliates will
cooperate with the Purchaser in connection with the preparation of
the applicable registration statement, and for so long as the
Purchaser is obligated to keep such registration statement
effective, Requesting Holders and their affiliates will provide to
the Purchaser, in writing in a timely manner, for use in such
registration statement (and expressly identified in writing as
such), all information regarding Requesting Holders and their
affiliates and such other information as may be required by
applicable law to enable the Purchaser to prepare such
registration statement and the related prospectus covering the
applicable Registrable Securities owned by the Requesting Holders
and to maintain the currency and effectiveness thereof, so long as
the Purchaser executes a confidentiality agreement in form and
substance reasonably satisfactory to Requesting Holders in the
event any confidential information is requested by the Purchaser;
(ii) Requesting Holders and its affiliates will
permit the Purchaser and its representatives and agents to examine
such documents and records and will supply in a timely manner any
information as they may reasonably request in connection with the
offering or other distribution of Registrable Securities by the
Vendors;
(iii) Requesting Holders and their affiliates
will enter into such agreements with the Purchaser and any
broker-dealer or similar securities industry professional
containing representations, warranties, indemnities and agreements
as are customarily entered into and made by a seller of securities
and such seller's controlling shareholders with respect to
secondary distributions under similar circumstances;
(iv) during such time as Requesting Holders and
their affiliates may be engaged in a distribution of the
Registrable Securities, Requesting Holders and their affiliates
will comply with all applicable laws, including Regulation M
promulgated under the US Securities Exchange Act of 1934, as
amended, and, to the extent required by such laws, will, among
other things: (A) not engage in any stabilization activity in
connection with the securities of the Purchaser in contravention
of such rules; (B) distribute the Registrable Securities acquired
by them solely in the manner described in the applicable
registration statement; (C) if required by applicable law, rules
or regulations, cause to be furnished to each agent or
broker-dealer to or through whom such Registrable Securities may
be offered, or to the offeree if an offer is made directly by
Requesting Holders and their affiliates, such copies of the
applicable prospectus (as amended and supplemented to such date)
and documents incorporated by reference therein as may be required
by such agent, broker-dealer or offeree, provided that the
Purchaser shall provide Requesting Holders with an adequate number
of copies thereof; and (D) not bid for or purchase any securities
of the Purchaser; and
(v) on notice from the Purchaser of the
happening of any of the events specified in Section 4.2(a)(iv) or
(v), or that, as set forth in Section 4.2(b), requires the
suspension by Requesting Holders and their affiliates of the
distribution of any of the Registrable Securities owned by the
Vendors, then Requesting Holders and their affiliates will cease
offering or distributing the Registrable Securities owned by the
Vendors until the offering and distribution of the Registrable
Securities owned by the Requesting Holders may recommence in
accordance with the terms hereof and applicable law.
(d) Except as otherwise provided herein with respect to
registrations terminated by the Requesting Holders, the Purchaser shall
bear the following fees, costs and expenses in connection with its
obligations under this Schedule 4: all registration, filing fees, printing
expenses, all internal Purchaser expenses, the premiums and other costs of
policies of insurance against liability arising out of the public offering,
and all legal fees and disbursements and other expenses of complying with
state securities or blue sky laws of any jurisdiction in which Registrable
Securities to be offered are to be registered or qualified. Fees and
disbursements of counsel and accountants for Requesting Holders and their
affiliates, underwriting discounts and commissions and transfer taxes for
Requesting Holders and their affiliates and other direct selling expenses
incurred by Requesting Holders and their affiliates shall be borne by
Requesting Holders and their affiliates.
(e) The Purchaser shall indemnify and hold harmless the
Requesting Holders, and each person, if any, who controls the Requesting
Holders within the meaning of the Securities Act, from and against any and
all claims, losses, damages, liabilities, costs and expenses to which the
Requesting Holders or any such controlling person may become subject under
the Securities Act or otherwise, insofar as such claims, losses, damages,
liabilities, costs or expenses arise out of or are based on any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement filed by the Purchaser pursuant to this Schedule 4
which relates to Registrable Securities owned by the Requesting Holders,
any prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were
made, not misleading, except insofar as any such claim, loss, damage,
liability, costs or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by Requesting Holders or
their affiliates or such controlling person specifically for inclusion in
such registration statement; provided, however, that the foregoing
indemnity is subject to the condition that, insofar as it relates to any
untrue statement or alleged untrue statement, omission or alleged omission
made in a preliminary prospectus but eliminated or remedied in a
prospectus, such indemnity agreement shall not inure to the benefit of the
Requesting Holders or any person who controls the Requesting Holders if (A)
the Purchaser complied with all of its notification and delivery
obligations as provided herein, (B) such claim, loss, damage, liability,
cost or expense relates to the matter so eliminated or remedied in the
final prospectus and (C) the Requesting Holder or its affiliates failed to
deliver a copy of the prospectus at or prior to the time such action is
required by the Securities Act; provided, further, that the foregoing
indemnity is also subject to the condition that, insofar as it relates to
any untrue statement or alleged untrue statement, omission or alleged
omission made in a prospectus attributable solely to facts or events which
occur after the effective date of the registration statement, which untrue
statement or alleged untrue statement, omission or alleged omission is
eliminated or completely remedied in an amendment or supplement to the
prospectus, such indemnity agreement shall not inure to the benefit of the
Requesting Holders or any person who control the Requesting Holders or any
of its affiliates, if, having previously been furnished by or on behalf of
the Purchaser with copies of the prospectus as so amended or supplemented,
in lieu thereof the Requesting Holders or its Affiliates delivered the
prospectus without such amendment or supplement.
(f) Each Requesting Holder shall indemnify and hold
harmless the Purchaser and any underwriter (as defined in the Securities
Act) for the Purchaser, and each person, if any, who controls the Purchaser
or such underwriter within the meaning of the Securities Act from and
against any claims, losses, damages, liabilities, costs or expenses to
which the Purchaser or any such underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such
claims, losses, damages, liabilities, costs or expenses are caused by any
untrue or alleged untrue statement of any material fact contained in any
registration statement filed by the Purchaser pursuant to this Schedule 4
which relates to Registrable Securities owned by any such Requesting Holder
or any of its affiliates, any prospectus contained therein or any amendment
or supplement thereto, and arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was so made in reliance
upon and in strict conformity with written information furnished by
Requesting Holders or their affiliates specifically for inclusion in such
registration statement, prospectus or amendment or supplement thereto).
(g) Except to the extent otherwise provided in this
Section 4.2(g), a party obligated to provide indemnification under Section
4.2(e) or (f) shall reimburse each party entitled to such indemnification
the costs of investigating and defending any claim, loss, damage,
liability, cost or expense giving rise to such indemnification obligation.
Promptly after receipt by an indemnified party pursuant to the provisions
of paragraph (e) and (f) of this Section 4.2 of notice of commencement of
any action involving the subject matter of the foregoing indemnity
provisions, such indemnified party will, if a claim thereof is to be made
against the indemnifying party pursuant to the provisions of said paragraph
(e) and (f) promptly notify the indemnifying party of the commencement
thereof, but the omission to so notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party,
except to the extent that the indemnifying party is materially prejudiced
by the failure to give such prompt notice. If such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall have the right to
participate therein, and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof
so long as it agrees to accept full responsibility to indemnify and hold
harmless the indemnified party in accordance herewith in respect of such
action. After notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party pursuant to the provisions of
said paragraph (e) and (f) for any legal or other expense subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation, unless (i) the indemnified
party shall have been advised by its counsel that use of the same counsel
to represent both the indemnifying party and the indemnified party would
present a conflict of interest (which shall be deemed to include any case
where there may be a legal defense or claim available to the indemnified
party which is different from or additional to those available to the
indemnifying party) or (ii) the indemnifying party shall fail vigorously to
defend or prosecute such claim or demand within a reasonable time, in which
case the fees of counsel for the indemnified party shall be for the account
of the indemnifying party and the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified
party. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent, or if there be a final judgment for the plaintiff, the
indemnifying party shall indemnify and hold harmless such indemnified
parties from and against any loss or liability (to the extent stated above)
by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability arising out of such proceeding.
(h) The registration rights granted to the Vendors
pursuant to this Schedule 4 are assignable to any purchaser who purchases
all the Registrable Securities then held by such Vendor provided that any
such purchaser agrees in writing (in form and substance reasonably
acceptable to the Purchaser) to be bound by the terms of this Schedule 4.
Any assignment in breach hereof shall be null and void ab initio.
(i) If the indemnification provided for under Sections
4.2(e) or (f), as applicable, is unavailable to or insufficient to hold the
indemnified party harmless under such Section in respect of any claim,
loss, damage, liability, cost or expense referred to therein (a
"Liability") for any reason other than as specified therein, then the
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such claims, losses, damages, liabilities,
costs or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand and
such indemnified party on the other from the subject offering or
distribution or (ii) if the allocation provided by clause (i) of this
sentence is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) of this sentence but also the relative fault of the indemnifying party
on the one hand and such indemnified party on the other in connection with
the statements or omissions which resulted in such Liability as well as any
other relevant equitable considerations. The relative benefits received by
the indemnifying party on the one hand and the indemnified party on the
other hand shall be deemed to be in the same proportion as the net proceeds
of the offering or other distribution (after deducting expenses) received
by the indemnifying party bears to the net proceeds of the offering or
other distribution (after deducting expenses) received by the indemnified
party. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by (or omitted to be supplied by) the Purchaser or the
Requesting Holders, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission, the relative benefits received by each party from the sale of the
Registrable Securities and any other equitable considerations appropriate
under the circumstances. The amount paid or payable by an indemnified party
as a result of the Liability referred to above in this Section 4.2(i) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(j) Notwithstanding anything herein to the contrary, the
parties agree that the obligations and liability of the Requesting Holders
with respect to any registration in which any Requesting Holder
participates pursuant to Section 4.1 or 4.2 whether from indemnification
pursuant to Section 4.2(f), contribution pursuant to Section 4.2(i), or
otherwise shall not in any event exceed, in the aggregate, the amount of
net proceeds received by such Requesting Holders from the sale of the
Registrable Securities sold by such Requesting Holder in such registration.
(k) For so long as the Purchaser has any securities
registered under the Securities Exchange Act of 1934, as amended, and is
required to make filings thereunder, the Purchaser will use its reasonable
efforts to make such required filings. This provision will remain in effect
for so long as there are Registrable Securities.
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This Deed provides for the purchase by ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. of all the
shares in ▇▇▇▇▇▇▇▇▇.▇▇▇ (Europe) Limited not currently owned by it.
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DATED AS OF 16 NOVEMBER 2000
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
- and -
CHASE EQUITY ASSOCIATES L.P. AND OTHERS
- and -
▇▇▇▇▇▇▇▇▇.▇▇▇ (EUROPE) LIMITED
SHARE PURCHASE AGREEMENT
- relating to -
▇▇▇▇▇▇▇▇▇.▇▇▇ (EUROPE) LIMITED
TABLE OF CONTENTS
1. INTERPRETATION 2
2. SALE AND PURCHASE OF SHARES 3
3. CONSIDERATION 4
4. COMPLETION 4
5. REGISTRATION RIGHTS AND INVESTMENT CONFIRMATIONS 5
6. TERMINATION OF THE INVESTMENT AGREEMENT AND RELATED OBLIGATIONS 6
7. COVENANTS OF THE VENDORS 7
8. WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS 8
9. CONFIDENTIALITY AND ANNOUNCEMENTS 8
10. FURTHER ASSURANCE 9
11. CONTINUING OBLIGATIONS 9
12. COSTS 9
13. NOTICES 9
14. SEVERABILITY 10
15. ENTIRE AGREEMENT AND VARIATION 10
16. GENERAL PROVISIONS 10
17. GOVERNING LAW AND JURISDICTION 11
18. COUNTERPARTS 11
SCHEDULE 1 13
THE VENDORS, THEIR SHAREHOLDINGS AND CONSIDERATION RECEIVABLE 13
SCHEDULE 2 15
THE COMPANY'S SHARE CAPITAL 15
SCHEDULE 3 16
WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS 16
SCHEDULE 4 17
REGISTRATION RIGHTS 17