<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 24, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TOWN PAGES HOLDINGS PLC
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
ENGLAND AND WALES 7361 NOT APPLICABLE
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
incorporation or organization) Classification Code Number)
</TABLE>
11 MARKET SQUARE
ALTON, HAMPSHIRE
ENGLAND
GU34 1HD
UNITED KINGDOM
TELEPHONE: 011-44-1420-543-468; FACSIMILE: 011-44-1420-541-322
(Address and telephone number
of Registrant's principal executive offices)
GREENBERG TRAURIG
200 PARK AVENUE, 15(TH) FLOOR
NEW YORK, NEW YORK 10166
REFERENCE: TOWN PAGES
TELEPHONE: (212) 801-9200; FACSIMILE: (212) 801-6400
(Name, address and telephone number of agent for service)
------------------------------
COPIES OF COMMUNICATIONS TO:
<TABLE>
<S> <C>
ANDREW J. COSENTINO, ESQ. LAWRENCE B. FISHER, ESQ.
GREENBERG TRAURIG ORRICK, HERRINGTON & SUTCLIFFE LLP
200 PARK AVENUE, 15(TH) FLOOR 30 ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10166 40(TH) FLOOR
TELEPHONE: (212) 801-9304 NEW YORK, NEW YORK 10112
FACSIMILE: (212) 801-6400 TELEPHONE: (212) 506-5000
FACSIMILE: (212) 506-3730
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Ordinary Shares (2).............................. 2,300,000 $10.00 $23,000,000 $6,394.00
</TABLE>
(1) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457 under the Securities Act.
(2) American depositary shares evidenced by American depositary receipts
issuable on deposit of the ordinary shares registered hereby are being
registered pursuant to a separate Registration Statement on Form F-6.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON THE DATE OR
DATES AS MAY BE NECESSARY TO DELAY OUR EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON THE DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT
TO SAID SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all costs and expenses payable by Town Pages
Holdings plc, the registrant, in connection with the sale and distribution of
the securities being registered, other than underwriting discounts and
commissions. All amounts shown are estimates except the Securities and Exchange
Commission registration fee and the NASD filing fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............................... $ 6,394
NASD filing fee................................................................... 2,800
American Stock Exchange listing fee............................................... 35,000
Accounting fees and expenses...................................................... 230,000
Legal fees and expenses........................................................... 250,000
Printing and engraving expenses................................................... 125,000
Transfer agent and registrar fees................................................. 10,000
Blue Sky fees and expenses........................................................ 15,000
Directors' and Officers' Insurance................................................ 35,000
Miscellaneous expenses............................................................ 35,200
---------
Total............................................................................. $ 750,000
</TABLE>
Item 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Except as hereinafter set forth, there is no provision of the Memorandum and
Articles of Association or any contract, arrangement or statute under which any
of our directors or officers is insured for or indemnified in any manner against
any liability that he may incur in his capacity as such.
Our Articles of Association provide that, subject to the provisions of the
U.K. Companies Act 1985, every director, secretary or other officer (which
expression excludes an auditor) of ours shall be indemnified by us out of our
own funds against and/or exempted by us from all costs, charges, losses,
expenses and liabilities incurred by him in the actual or purported execution
and/or discharge of his duties and/or the exercise or purported exercise of his
powers and/or otherwise in relation to or in connection with his duties, powers
of office, including (without prejudice to the generality of the foregoing) any
liability incurred by him in defending any proceedings, civil or criminal, which
relate to anything done or omitted or alleged to have been done or omitted by
him as an officer or employee of ours and in which judgement is given in his
favour (or the proceedings are otherwise disposed of without any finding or
admission of any material breach of duty on his part) or in which he is
acquitted or in connection with any application under any statute for relief
from liability in respect of any such act or omission in which relief is granted
to him by a court, unless incurred through their own wilful neglect or default.
In addition, the Board of Directors shall have power to purchase and maintain
insurance for or for the benefit of any person who is or was at any time a
director, officer or employee of any "Relevant Company" (as defined below) or
who is or was at any time a trustee of any pension fund or employees' share
scheme in which employees of any Relevant Company are interested, including
(without prejudice to the generality of the foregoing) insurance against any
liability incurred by such persons in respect of any act or omission in the
actual or purported execution and/or discharge of their duties and/or in the
exercise or purported exercise of his or her powers and/or otherwise in relation
to his or her duties, power or offices in relation to any Relevant Company, or
any such pension fund or employees' share scheme. For these purposes, "Relevant
Company" shall mean us, any holding company of ours or any other body, whether
or not incorporated, in which we or such holding company or any of our
predecessors or of such holding company has or had any interest whether direct
or indirect or which is in any way allied to or associated with us, or any
subsidiary undertaking of ours or of such other body.
II-1
<PAGE>
Section 310 of the U.K. Companies Act 1985 provides:
(1) This section applies to any provision, whether contained in a company's
articles or in any contract with us or otherwise, for exempting any officer
of ours or any person (whether an officer or not) employed by us as auditor
from, or indemnifying him against, any liability which by virtue of any rule
of law would otherwise attach to him in respect of any negligence, default,
breach of duty or breach of trust of which he may be guilty in relation to
us.
(2) Except as provided by the following sub-section, any such provision is void.
(3) This section does not prevent a company:
(a) from purchasing and maintaining for any such officer or auditor
insurance against any such liability; or
(b) from indemnifying any such officer or auditor against any liability
incurred by him:
(i) in defending any proceedings (whether civil or criminal) in which
judgement is given in his favor or he is acquitted; or
(ii) in connection with any application under section 144(3) or (4)
(acquisition of shares by innocent nominee) or section 727 (general
power to grant relief in case of honest and reasonable conduct) in
which relief is granted to him by the court.
Our directors and officers are insured against certain liabilities which
they may incur in their capacity as such under a liability insurance policy
carried by us.
Reference is made to Section of the Underwriting Agreement filed as
Exhibit 1.1 hereto for a description of the indemnification arrangements for
this offering.
Item 15. RECENT SALES OF UNREGISTERED SECURITIES.
All securities sold by the registrant during this period sold outside the
United States to foreign persons and were therefore not subject to Section 5 of
the Securities Act. There were no underwriters employed in connection with any
of those transactions.
Item 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement.
3.1 Articles of Association of Town Pages Holdings plc.
3.2 Memorandum of Association of Town Pages Holdings plc.
4.1 Form of American Depositary Receipts.
4.2 Specimen of Ordinary Share Certificate.
4.3 Form of Representative's Warrant Agreement between us and the Representative, including the form of
Representative's Warrant.
5.1* Opinion of Greenberg Traurig as to the legality of certain securities being issued.
5.2* Opinion of McFadden, Pilkington & Ward as to the legality of certain securities being issued.
8.1 Opinion of Greenberg Traurig as to certain United States federal income tax matters.
8.2 Opinion of McFadden, Pilkington & Ward as to certain United Kingdom income tax matters.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.1 1998 Executive Share Option Plan.
10.2 Employment Agreement between Town Pages Holdings plc and Andrew Neville Lyndon-Skeggs.
10.3 Employment Agreement between Town Pages Holdings plc and Richard J. Smith.
10.4 Employment Agreement between Town Pages Holdings plc and Barry B.J. Charles.
10.5 Form of Agreement between Town Pages Holdings plc and each non-executive member of the board of
directors.
10.6 Agreement between Town Pages Holdings plc and Viscount Lifford.
10.7 Services Agreement between Town Pages Limited and Travel the Net Ltd. dated September 30, 1998.
10.8 Services Agreement between Town Pages Limited and AllCars.com Ltd. dated September 30, 1998.
10.9 Services Agreement between Town Pages Limited and Medic Media Inc. dated October 19, 1998.
10.10 Services Agreement between Town Pages Limited and Location Developments Limited (eshoppingcentre.com)
dated November 10, 1998.
21.1 Subsidiaries of Town Pages Holdings plc.
23.1* Consent of Greenberg Traurig (included in the opinion filed as Exhibit 5.1).
23.2* Consent of McFadden, Pilkington & Ward (included in the opinion filed as Exhibit 5.2).
23.3+ Consent of Ernst & Young
24.1+ Powers of Attorney (set forth on signature page of the Registration Statement)
27.1+ Financial Data Schedule
</TABLE>
- ------------------------
* To be filed by amendment.
+ Previously filed as Exhibits on February 10, 1999.
(b) Financial Statement Schedules.
None.
Item 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
(a) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant under the provisions referenced in Item 14 of
this registration statement, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered
hereunder, the registrant will, unless in the opinion of our counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether
II-3
<PAGE>
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
(b) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in the form
of prospectus filed by the registrant under Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective; and
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and this offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Alton, England, the
United Kingdom, on the 22nd day of February 1999.
<TABLE>
<S> <C> <C>
TOWN PAGES HOLDINGS PLC
By /s/ ANDREW NEVILLE LYNDON-SKEGGS
-----------------------------------------
Andrew Neville Lyndon-Skeggs
Managing Director and Chief Executive
Officer
</TABLE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Andrew Neville Lyndon-Skeggs as his
attorney-in-fact, with full power of substitution for him in any and all
capacities, to sign any and all amendments to this Registration Statement,
including post-effective amendments and any and all new registration statements
filed pursuant to Rule 462 under the Securities Act of 1933 in connection with
or related to the offering contemplated by this Registration Statement, as
amended, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each said attorney-in-fact or his substitute
may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
/s/ ANDREW NEVILLE Managing Director and Chief
LYNDON-SKEGGS Executive Officer
- ------------------------------ (Principal Executive February 22, 1999
Andrew Neville Lyndon-Skeggs Officer)
/s/ VISCOUNT EDWARD JAMES Chairman of the Board
WINGFIELD LIFFORD
- ------------------------------ February 22, 1999
Viscount Edward James
Wingfield Lifford
/s/ BARRY B.J. CHARLES Director
- ------------------------------ February 22, 1999
Barry B.J. Charles
Director (Principal
/s/ RICHARD J. SMITH Financial Officer and
- ------------------------------ Principal Accounting February 22, 1999
Richard J. Smith Officer)
/s/ KEVIN R. LEECH Director
- ------------------------------ February 22, 1999
Kevin R. Leech
/s/ NIGEL E.C. Director
TALBOT-PONSONBY
- ------------------------------ February 22, 1999
Nigel E.C. Talbot-Ponsonby
Director
- ------------------------------ February , 1999
Howard Flight, M.P.
II-5
<PAGE>
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
/s/ SIMON WARD Director
- ------------------------------ February 22, 1999
Simon Ward
MSK Industries, Inc.
By: /s/ ANDREW TURNER, CFO Authorized United States
- ------------------------------ Representative
Andrew Turner, February 22, 1999
Chief Financial Officer
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-1 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Alton, England, the United Kingdom, on the 22nd day
of February 1999.
<TABLE>
<S> <C> <C>
TOWN PAGES HOLDINGS PLC
By /s/ ANDREW NEVILLE LYNDON-SKEGGS
-----------------------------------------
Andrew Neville Lyndon-Skeggs
Managing Director and Chief Executive
Officer
</TABLE>
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
- ------------- ---------------------------------------------------------------------------------------------- -----------
<C> <S> <C>
1.1 Form of Underwriting Agreement.
3.1 Articles of Association of Town Pages Holdings plc.
3.2 Memorandum of Association of Town Pages Holdings plc.
4.1 Form of American Depositary Receipts.
4.2 Specimen of Ordinary Share Certificate.
4.3 Form of Representative's Warrant Agreement between us and the Representative, including the
form of Representative's Warrant.
5.1* Opinion of Greenberg Traurig as to the legality of certain securities being issued.
5.2* Opinion of McFadden, Pilkington & Ward as to the legality of certain securities being issued.
8.1 Opinion of Greenberg Traurig as to certain United States federal income tax matters.
8.2 Opinion of McFadden, Pilkington & Ward as to certain United Kingdom income tax matters.
10.1 1998 Executive Share Option Plan.
10.2 Employment Agreement between Town Pages Holdings plc and Andrew Neville Lyndon-Skeggs.
10.3 Employment Agreement between Town Pages Holdings plc and Richard J. Smith.
10.4 Employment Agreement between Town Pages Holdings plc and Barry B.J. Charles.
10.5 Form of Agreement between Town Pages Holdings plc and each non-executive member of the board
of directors.
10.6 Agreement between Town Pages Holdings plc and Viscount Lifford.
10.7 Services Agreement between Town Pages Limited and Travel the Net Ltd. dated September 30,
1998.
10.8 Services Agreement between Town Pages Limited and AllCars.com Ltd. dated September 30, 1998.
10.9 Services Agreement between Town Pages Limited and Medic Media Inc. dated October 19, 1998.
10.10 Services Agreement between Town Pages Limited and Location Developments Limited
(eshoppingcentre.com) dated November 10, 1998.
21.1 Subsidiaries of Town Pages Holdings plc.
23.1* Consent of Greenberg Traurig (included in the opinion filed as Exhibit 5.1).
23.2* Consent of McFadden, Pilkington & Ward (included in the opinion filed as Exhibit 5.2).
23.3+ Consent of Ernst & Young
24.1+ Powers of Attorney (set forth on signature page of the Registration Statement)
27.1+ Financial Data Schedule
</TABLE>
- ------------------------
* To be filed by amendment.
+ Previously filed as Exhibits on February 10, 1999.
<PAGE>
Exhibit 1.1
[Form of Underwriting Agreement - Subject to Additional Review]
2,000,000 American Depositary Shares
(each representing one Ordinary Share)
TOWN PAGES HOLDINGS plc
UNDERWRITING AGREEMENT
New York, New York
, 1999
SECURITY CAPITAL TRADING, INC.
As Representative of the
several Underwriters named
in Schedule A to Exhibit A
annexed hereto
520 Madison Avenue
10th Floor
New York, New York 10022
Ladies and Gentlemen:
Town Pages Holdings plc, a company incorporated under the laws of the
United Kingdom (the "Company"), confirms its agreement with Security Capital
Trading, Inc. ("Security Capital") and each of the underwriters named in
Schedule A hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in SECTION 11), for
whom Security Capital is acting as Representative (in such capacity, Security
Capital shall hereinafter be referred to as "you" or the "Representative"), with
respect to the sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of 2,000,000 American Depositary Shares ("ADSs"),
each representing one (1) Ordinary Share, 1 p per Ordinary Share, of the
Company.
Upon your request, as provided in Section 2(b) of this Agreement, the
Company shall also issue and sell to the Underwriters, acting severally and not
jointly, up to an additional 300,000 ADSs for the purpose of covering
over-allotments, if any. Such 300,000 ADSs are hereinafter referred to as the
"Option ADSs." The Company also proposes to issue and sell to you warrants (the
"Representative's Warrants") pursuant to the Representative's Warrant Agreement
(the "Representative's Warrant Agreement") for the purchase of an additional
<PAGE>
200,000 ADSs. The ADSs issuable upon exercise of the Representative's Warrants
are hereinafter referred to as the "Representative's Securities." The ADSs, the
Option ADSs, the Representative's Warrants, and the Representative's Securities
are more fully described in the Registration Statements and the Prospectus
referred to below.
The ADSs will be evidenced by American Depositary Receipts ("ADRs")
issuable in accordance with the deposit agreement dated as of ______________,
1999 (the "Deposit Agreement") among the Company, Bankers Trust Company, as
depositary (the "Depositary"), and all holders from time to time of ADRs issued
thereunder. Each ADR will evidence one (1) or more ADS and each ADS will
represent one (1) Ordinary Share deposited under the Deposit Agreement with the
custodian, Lloyds Bank Registrars (the "Custodian"). Unless the context
otherwise requires, references herein to ADSs shall include the ADRs evidencing
the ADSs.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, each of the Underwriters as of the date
hereof, and as of the Closing Date (as hereinafter defined) and each Option
Closing Date (as hereinafter defined), if any, as follows:
(a) The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and an amendment or
amendments thereto, on Form F-1 (No. 333-_________), including any related
preliminary prospectus ("Preliminary Prospectus"), for the registration of the
ADSs and the Option ADSs (collectively, hereinafter referred to as the
"Securities") under the Securities Act of 1933, as amended (the "Act"), which
registration statement and amendment or amendments have been prepared by the
Company in conformity with the requirements of the Act, and the rules and
regulations (the "Regulations") of the Commission under the Act. The Company
will promptly file a further amendment to said registration statement in the
form heretofore delivered to the Underwriters and will not file any other
amendment thereto to which the Underwriters shall have objected in writing after
having been furnished with a copy thereof. Except as the context may otherwise
require, such registration statement, as amended, on file with the Commission at
the time the registration statement becomes effective (including the prospectus,
financial statements, schedules, exhibits and all other documents filed as a
part thereof or incorporated therein (including, but not limited to those
documents or information incorporated by reference therein) and all information
deemed to be a part thereof as of such time pursuant to paragraph (b) of Rule
430(A) of the Regulations), is hereinafter called the "F-1 Registration
Statement", and the form of prospectus in the form first filed with the
Commission pursuant to Rule 424(b) of the Regulations, is hereinafter called the
"Prospectus." The Company has also prepared and filed with the Commission, a
registration statement on Form F-6, as amended (No. _________) covering the
registration under the Act of the ADSs evidenced by ADRs. The F-1 Registration
Statement and the F-6 Registration Statement are hereinafter together referred
to as the "Registration Statements." For purposes hereof, "Rules and
Regulations" mean the rules and regulations adopted by the Commission under
either the Act or the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as applicable.
(b) Neither the Commission nor any state regulatory authority has issued
any order preventing or suspending the use of any Preliminary Prospectus, the
Registration Statements or Prospectus or any part of any thereof and no
proceedings for a stop order
2
<PAGE>
suspending the effectiveness of the Registration Statements or any of the
Company's securities have been instituted or are pending or threatened. Each of
the Preliminary Prospectus, the Registration Statements and Prospectus at the
time of filing thereof conformed with the requirements of the Act, the Rules and
Regulations, and the U.K Companies Act 1995, and none of the Preliminary
Prospectus, the Registration Statements or Prospectus at the time of filing
thereof contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that this representation and warranty does not apply to
statements made in reliance upon and in conformity with written information
furnished to the Company with respect to the Underwriters by or on behalf of the
Underwriters expressly for use in such Preliminary Prospectus, Registration
Statements or Prospectus or any amendment thereof or supplement thereto.
(c) When the Registration Statements become effective and at all times
subsequent thereto up to the Closing Date (as defined herein) and each Option
Closing Date (as defined herein), if any, and during such longer period as the
Prospectus may be required to be delivered in connection with sales by the
Underwriters or a dealer, the Registration Statements and the Prospectus will
contain all statements which are required to be stated therein in accordance
with the Act and the Rules and Regulations, and will conform to the requirements
of the Act, the Rules and Regulations, and U.K. Companies Act 1995; neither the
Registration Statements nor the Prospectus, nor any amendment or supplement
thereto, will contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, PROVIDED, HOWEVER, that this representation and warranty does
not apply to statements made or statements omitted in reliance upon and in
strict conformity with information furnished to the Company in writing by or on
behalf of any Underwriter expressly for use in the Preliminary Prospectus,
Registration Statements or Prospectus or any amendment thereof or supplement
thereto.
(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
organization. Except for its wholly-owned subsidiary, Town Pages Limited (the
"Subsidiary"), the Company does not own an interest in any corporation,
partnership, trust, joint venture or other business entity. The Company is duly
qualified and licensed and in good standing as a foreign corporation in each
jurisdiction in which its ownership or leasing of any properties or the
character of its operations requires such qualification or licensing. The
Company has all requisite power and authority (corporate and other), and has
obtained any and all necessary authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all governmental or regulatory
officials and bodies (including, without limitation, those having jurisdiction
over environmental or similar matters), to own or lease its properties and
conduct its business as described in the Prospectus; the Company is and has been
doing business in compliance with all such authorizations, approvals, orders,
licenses, certificates, franchises and permits and all applicable federal,
state, local and foreign laws, rules and regulations; and the Company has not
received any notice of proceedings relating to the revocation or modification of
any such authorization, approval, order, license, certificate, franchise, or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, position, prospects, value,
operation, properties, business
3
<PAGE>
or results of operations of the Company. The disclosures in the Registration
Statements concerning the effects of domestic and foreign laws, rules and
regulations on the Company's business as currently conducted and as contemplated
are correct in all material respects and do not omit to state a material fact
required to be stated therein or necessary to make the statements contained
therein not misleading in light of the circumstances under which they were made.
(e) The Company has a duly authorized, issued and outstanding
capitalization as set forth in the Prospectus under "Capitalization,"
"Description of Share Capital," and "Description of American Depositary
Receipts" and will have the adjusted capitalization set forth therein on the
Closing Date and each Option Closing Date, if any, based upon the assumptions
set forth therein, and the Company is not a party to or bound by any instrument,
agreement or other arrangement providing for it to issue any capital stock,
rights, warrants, options or other securities, except for this Agreement, the
Deposit Agreement, and the Representative's Warrant Agreement as described in
the Prospectus. The Securities and all other securities issued or issuable by
the Company conform or, when issued and paid for, will conform, in all respects
to all statements with respect thereto contained in the Registration Statements
and the Prospectus. All issued and outstanding securities of the Company have
been duly authorized and validly issued and are fully paid and non-assessable
and the holders thereof have no rights of rescission with respect thereto, and
are not subject to personal liability by reason of being such holders; and none
of such securities were issued in violation of the preemptive rights of any
holders of any security of the Company or similar contractual rights granted by
the Company. The Securities are not and will not be subject to any preemptive
or other similar rights of any stockholder, have been duly authorized and, when
issued, paid for and delivered in accordance with the terms hereof, will be
validly issued, fully paid and non-assessable and will conform to the
description thereof contained in the Prospectus; the holders thereof will not be
subject to any liability solely as such holders; all corporate action required
to be taken for the authorization, issue and sale of the Securities has been
duly and validly taken; and the certificates representing the Securities will be
in due and proper form. Upon the issuance and delivery pursuant to the terms of
this Agreement of the Securities to be sold by the Company hereunder, the
Underwriters or the Representative, as the case may be, will acquire good and
marketable title to such Securities free and clear of any lien, charge, claim,
encumbrance, pledge, security interest, defect or other restriction or equity of
any kind whatsoever. Upon issuance by the Depositary of the ADRs evidencing the
ADSs against the deposit of the Ordinary Shares in accordance with the terms of
the Deposit Agreement, the ADRs evidencing the ADSs will be duly and validly
issued and the holders thereof will be entitled to the rights specified therein
and in the Deposit Agreement.
(f) The consolidated financial statements of the Company, together with
the related notes and schedules thereto, included in the Registration
Statements, each Preliminary Prospectus and the Prospectus fairly present the
financial position, income, changes in cash flow, changes in stockholders'
equity and the results of operations of the Company at the respective dates and
for the respective periods to which they apply and such financial statements
have been prepared in conformity with generally accepted accounting principles
in the U.K. and the U.S. and the Rules and Regulations, consistently applied
throughout the periods involved and such financial statements as are audited
have been examined by Ernst & Young LLP, who are independent certified public
accountants within the meaning of the Act and the Rules and Regulations, as
indicated in their respective reports filed therewith. There has been no
adverse
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change or development involving a prospective adverse change in the condition,
financial or otherwise, or in the earnings, position, prospects, value,
operation, properties, business, or results of operations of the Company or the
Subsidiary, whether or not arising in the ordinary course of business, since the
date of the financial statements included in the Registration Statements and the
Prospectus and the outstanding debt, the property, both tangible and intangible,
and the business of the Company and the Subsidiary, conform in all material
respects to the descriptions thereof contained in the Registration Statements
and the Prospectus. Financial information (including, without limitation, any
pro forma financial information) set forth in the Prospectus under the headings
"Summary Financial Data," "Selected Financial Data," "Capitalization," and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," fairly present, on the basis stated in the Prospectus, the
information set forth therein, and have been derived from or compiled on a basis
consistent with that of the audited financial statements included in the
Prospectus; and, in the case of pro forma financial information, if any, the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and
circumstances referred to therein. The amounts shown as accrued for current and
deferred income and other taxes in such financial statements are sufficient for
the payment of all accrued and unpaid domestic and foreign income taxes,
interest, penalties, assessments or deficiencies applicable to the Company or
the Subsidiary, whether disputed or not, for the applicable period then ended
and periods prior thereto; adequate allowance for doubtful accounts has been
provided for unindemnified losses due to the operations of the Company or the
Subsidiary; and the statements of income do not contain any items of special or
nonrecurring income not earned in the ordinary course of business, except as
specified in the notes thereto.
(g) The Company and the Subsidiary, respectively (i) has paid all domestic
and foreign taxes for which it is liable, and has furnished all information
returns it is required to furnish to any taxing authority to whose jurisdiction
it may be subject, (ii) has established adequate reserves for such taxes which
are not due and payable, and (iii) does not have any tax deficiency or claims
outstanding, proposed or assessed against it.
(h) No transfer tax, stamp duty or other similar tax is payable by or on
behalf of the Underwriters in connection with (i) the issuance by the Company of
the Securities, (ii) the purchase by the Underwriters of the Securities from the
Company and the purchase by the Representative of the Representative's Warrants
from the Company, (iii) the consummation by the Company of any of its
obligations under this Agreement, or (iv) resales of the Securities in
connection with the distribution contemplated hereby.
(i) The Company and the Subsidiary, respectively, maintains insurance
policies, including, but not limited to, general liability, and property
insurance, which insures each of the Company, the Subsidiary, and its respective
employees, against such losses and risks generally insured against by comparable
businesses. Each of the Company and the Subsidiary (A) has not failed to give
notice or present any insurance claim with respect to any matter, including but
not limited to the Company's or the Subsidiary's business, property or
employees, under any insurance policy or surety bond in a due and timely manner,
(B) does not have any disputes or claims against any underwriter of such
insurance policies or surety bonds or has failed to pay any premiums due and
payable thereunder, or (C) has not failed to comply with all conditions
contained in such insurance policies and surety bonds. There are no facts or
circumstances under
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any such insurance policy or surety bond which would relieve any insurer of its
obligation to satisfy in full any valid claim of the Company or the Subsidiary.
(j) There is no action, suit, proceeding, inquiry, arbitration,
investigation, litigation or governmental proceeding (including, without
limitation, those having jurisdiction over environmental or similar matters),
domestic or foreign, pending or threatened against (or circumstances that may
give rise to the same), or involving the properties or business of, the Company
or the Subsidiary which (i) questions the validity of the capital stock of the
Company or the Subsidiary, this Agreement, the Deposit Agreement, or the
Representative's Warrant Agreement, or of any action taken or to be taken by the
Company or the Subsidiary pursuant to or in connection with this Agreement, the
Deposit Agreement, or the Representative's Warrant Agreement, (ii) is required
to be disclosed in the Registration Statements which is not so disclosed (and
such proceedings as are summarized in the Registration Statements are
accurately summarized in all material respects), or (iii) might materially and
adversely affect the condition, financial or otherwise, or the earnings,
position, prospects, stockholders' equity, value, operation, properties,
business or results of operations of the Company.
(k) The Company has full legal right, power and authority to authorize,
issue, deliver and sell the Securities, enter into this Agreement, the Deposit
Agreement, and the Representative's Warrant Agreement and to consummate the
transactions provided for in this Agreement, the Deposit Agreement, and the
Representative's Warrant Agreement; and this Agreement, the Deposit Agreement,
and the Representative's Warrant Agreement have each been duly and properly
authorized, executed and delivered by the Company. Each of this Agreement, the
Deposit Agreement, and the Representative's Warrant Agreement constitutes a
legal, valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, and none of the Company's issue and sale
of the Securities, execution or delivery of this Agreement, the Deposit
Agreement, or the Representative's Warrant Agreement, its performance hereunder
and thereunder, its consummation of the transactions contemplated herein and
therein, or the conduct of its business as described in the Registration
Statements, the Prospectus, and any amendments or supplements thereto, conflicts
with or will conflict with or results or will result in any breach or violation
of any of the terms or provisions of, or constitutes or will constitute a
default under, or result in the creation or imposition of any lien, charge,
claim, encumbrance, pledge, security interest, defect or other restriction or
equity of any kind whatsoever upon, any property or assets (tangible or
intangible) of the Company pursuant to the terms of (i) the memorandum and
articles of association, charter or other organizational documents of the
Company, (ii) any license, contract, collective bargaining agreement, indenture,
mortgage, deed of trust, lease, voting trust agreement, stockholders agreement,
note, loan or credit agreement or any other agreement or instrument to which the
Company or the Subsidiary is a party or by which the Company or the Subsidiary
is or may be bound or to which its or assets (tangible or intangible) is or may
be subject, or any indebtedness, or (iii) any statute, judgment, decree, order,
rule or regulation applicable to the Company or the Subsidiary of any
arbitrator, court, regulatory body or administrative agency or other
governmental agency or body (including, without limitation, those having
jurisdiction over environmental or similar matters), domestic or foreign, having
jurisdiction over the Company or the Subsidiary or any of their respective
activities or properties.
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(l) No consent, approval, authorization or order of, and no filing with,
any court, regulatory body, government agency or other body, English, domestic
or foreign, is required for the issuance of the Securities pursuant to the
Prospectus and the Registration Statements, the issuance of the Representative's
Warrants, the performance of this Agreement, the Deposit Agreement, and the
Representative's Warrant Agreement and the transactions contemplated hereby and
thereby, including without limitation, any waiver of any preemptive, first
refusal or other rights that any entity or person may have for the issue and/or
sale of any of the Securities or the Representative's Warrants, except such as
have been or may be obtained under the Act or may be required under state
securities or Blue Sky laws in connection with the Underwriters' purchase and
distribution of the Securities and the Representative's Warrants to be sold by
the Company hereunder.
(m) All executed agreements, contracts or other documents or copies of
executed agreements, contracts or other documents filed as exhibits to the
Registration Statements to which the Company or the Subsidiary is a party or by
which it may be bound or to which its respective assets, properties or business
may be subject have been duly and validly authorized, executed and delivered by
the Company and constitute the legal, valid and binding agreements of the
Company enforceable against it in accordance with its terms. The descriptions
in the Registration Statements of agreements, contracts and other documents are
accurate and fairly present the information required to be shown with respect
thereto by Form F-1 and Form F-6, and there are no contracts or other documents
which are required by the Act to be described in the Registration Statements or
filed as exhibits to the Registration Statements which are not described or
filed as required, and the exhibits which have been filed are complete and
correct copies of the documents of which they purport to be copies.
(n) Subsequent to the respective dates as of which information is set
forth in the Registration Statements and Prospectus, and except as may otherwise
be indicated or contemplated herein or therein, neither the Company nor the
Subsidiary (i) issued any securities or incurred any liability or obligation,
direct or contingent, for borrowed money, (ii) entered into any transaction
other than in the ordinary course of business, or (iii) declared or paid any
dividend or made any other distribution on or in respect of its capital stock of
any class, and there has not been any change in the capital stock, or any change
in the debt (long or short term) or liabilities or material adverse change in or
affecting the general affairs, management, financial operations, stockholders'
equity or results of operations of the Company or the Subsidiary.
(o) No default exists in the due performance and observance of any term,
covenant or condition of any license, contract, collective bargaining agreement,
indenture, mortgage, installment sale agreement, lease, deed of trust, voting
trust agreement, stockholders agreement, partnership agreement, note, loan or
credit agreement, purchase order, or any other agreement or instrument
evidencing an obligation for borrowed money, or any other material agreement or
instrument to which the Company or the Subsidiary is a party or by which the
Company or the Subsidiary may be bound or to which the property or assets
(tangible or intangible) of the Company is subject or affected.
(p) The Company and the Subsidiary, respectively, has generally enjoyed a
satisfactory employer-employee relationship with its employees and is in
compliance with all domestic and foreign laws and regulations respecting
employment and employment practices,
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terms and conditions of employment and wages and hours. There are no pending
investigations involving the Company by any governmental agency responsible for
the enforcement of such domestic or foreign laws and regulations. There is no
unfair labor practice charge or complaint against the Company or any lockout,
strike, picketing, boycott, dispute, slowdown or stoppage pending or threatened
against or involving the Company or the Subsidiary, or any predecessor entity,
and none has ever occurred. No representation question exists respecting the
employees of the Company or the Subsidiary, and no collective bargaining
agreement or modification thereof is currently being negotiated by the Company
or the Subsidiary. No grievance or arbitration proceeding is pending under any
expired or existing collective bargaining agreements of the Company or the
Subsidiary. No labor dispute with the employees of the Company or the
Subsidiary exists, or, is imminent.
(q) Neither the Company, the Subsidiary, nor any of their respective
employees, directors, stockholders, partners, or affiliates (within the meaning
of the Rules and Regulations) of any of the foregoing has taken or will take,
directly or indirectly, any action designed to or which has constituted or which
might be expected to cause or result in, under the Exchange Act, or otherwise,
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities or otherwise.
(r) Except as otherwise disclosed in the Prospectus, each of the Company
and the Subsidiary (i) owns or has the right to use, free and clear of all
liens, charges, claims, encumbrances, pledges, security interests, defects or
other restrictions or equities of any kind whatsoever, all patents, trademarks,
service marks, trade names and copyrights, technology and licenses and rights
with respect to the foregoing, used in the conduct of its business as now
conducted or proposed to be conducted without infringing upon or otherwise
acting adversely to the right or claimed right of any person, corporation or
other entity under or with respect to any of the foregoing, (ii) is not
obligated or under any liability whatsoever to make any payment by way of
royalties, fees or otherwise to any owner or licensee of, or other claimant to,
any patent, trademark, service mark, trade name, copyright, know-how, technology
or other intangible asset, with respect to the use thereof or in connection with
the conduct of its business or otherwise, and (iii) has not received any notice
of infringement of or conflict with asserted rights or others with respect to
any of the foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, might have a material adverse effect on
the condition, financial or otherwise, or the business affairs, position,
prospects, properties, results of operations or net worth of the Company or the
Subsidiary.
(s) The Company and the Subsidiary, respectively, owns and has the
unrestricted right to use all trade secrets, know-how (including all other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), inventions, designs, processes, works of authorship, computer
programs and technical data and information (collectively herein "intellectual
property") that are material to the development, manufacture, operation and sale
of all products and services sold or proposed to be sold by the Company or the
Subsidiary, free and clear of and without violating any right, lien, or claim of
others, including without limitation, former employers of its employees;
PROVIDED, HOWEVER, that the possibility exists that other persons or entities,
completely independent of the Company, the Subsidiary, or their respective
employees or agents, could have developed trade secrets or items of technical
information similar or identical to those of the Company or the Subsidiary.
Each of the Company and the
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Subsidiary is not aware of any such development of similar or identical trade
secrets or technical information by others.
(t) Each of the Company and the Subsidiary has good and marketable title
to, or valid and enforceable leasehold estates in, all items of real and
personal property stated in the Prospectus to be owned or leased by it, free and
clear of all liens, charges, claims, encumbrances, pledges, security interests,
defects, or other restrictions or equities of any kind whatsoever, other than
those referred to in the Prospectus and liens for taxes not yet due and payable.
(u) Ernst & Young LLP, whose report is filed with the Commission as a part
of the F-1 Registration Statement, are independent certified public accountants
as required by the Act and the Rules and Regulations.
(v) The Company has caused to be duly executed legally binding and
enforceable agreements pursuant to which each of the Company's officers,
directors, stockholders and holders of securities exchangeable or exercisable
for or convertible into Ordinary Shares has agreed not to, directly or
indirectly, issue, offer, offer to sell, sell, grant any option for the sale or
purchase of, assign, transfer, pledge, hypothecate or otherwise encumber or
dispose of any shares of Common Stock or securities convertible into,
exercisable or exchangeable for or evidencing any right to purchase or subscribe
for any Ordinary Shares (either pursuant to Rule 144 of the Rules and
Regulations or otherwise) or dispose of any beneficial interest therein for a
period of not less than twelve (12) months following the effective date of the
Registration Statements (the "Lock-Up Period") without the prior written consent
of the Representative and the Company. During the 12 month period commencing on
the effective date of the Registration Statements, the Company shall not,
without the prior written consent of the Representative, sell, contract or offer
to sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of,
directly or indirectly, any Ordinary Shares or any options, rights or warrants
with respect to any Ordinary Shares. The Company will cause the Transfer Agent
(as hereinafter defined) to mark an appropriate legend on the face of stock
certificates representing all of such securities and to place "stop transfer"
orders on the Company's stock ledgers.
(w) There are no claims, payments, issuances, arrangements or
understandings, whether oral or written, for services in the nature of a
finder's or origination fee with respect to the sale of the Securities hereunder
or any other arrangements, agreements, understandings, payments or issuance with
respect to the Company, or any of its officers, directors, stockholders,
partners, employees or affiliates, that may affect the Underwriters'
compensation, as determined by the National Association of Securities Dealers,
Inc. ("NASD").
(x) The ADSs have been approved for listing on the American Stock Exchange
("Amex").
(y) Neither the Company, the Subsidiary, nor any of its respective
officers, employees, agents or any other person acting on behalf of the Company
or the Subsidiary has, directly or indirectly, given or agreed to give any
money, gift or similar benefit (other than legal price concessions to customers
in the ordinary course of business) to any customer, supplier, employee or agent
of a customer or supplier, or official or employee of any governmental agency
(domestic or foreign) or instrumentality of any government (domestic or foreign)
or any political
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party or candidate for office (domestic or foreign) or other person who was, is,
or may be in a position to help or hinder the business of the Company or the
Subsidiary (or assist the Company or the Subsidiary in connection with any
actual or proposed transaction) which (a) might subject the Company or the
Subsidiary or any other such person to any damage or penalty in any civil,
criminal or governmental litigation or proceeding (domestic or foreign), (b) if
not given in the past, might have had a material adverse effect on the assets,
business or operations of the Company or the Subsidiary, or (c) if not continued
in the future, might adversely affect the assets, business, condition, financial
or otherwise, earnings, position, properties, value, operations or prospects of
the Company or the Subsidiary. The Company's and the Subsidiary's internal
accounting controls are sufficient to cause the Company and the Subsidiary to
comply with the Foreign Corrupt Practices Act of 1977, as amended.
(z) Except as set forth in the Prospectus, no officer, director,
stockholder or partner of the Company, the Subsidiary, or any "affiliate" or
"associate" (as these terms are defined in Rule 405 promulgated under the Rules
and Regulations) of any of the foregoing persons or entities has or has had,
either directly or indirectly, (i) an interest in any person or entity which
(A) furnishes or sells services or products which are furnished or sold or are
proposed to be furnished or sold by the Company or the Subsidiary, or
(B) purchases from or sells or furnishes to the Company or the Subsidiary any
goods or services, or (ii) a beneficial interest in any contract or agreement to
which the Company or the Subsidiary is a party or by which it may be bound or
affected. Except as set forth in the Prospectus under "Certain Transactions,"
there are no existing agreements, arrangements, understandings or transactions,
or proposed agreements, arrangements, understandings or transactions, between or
among the Company or the Subsidiary and any officer, director, or 5% or greater
securityholder of the Company or the Subsidiary, or any partner, affiliate or
associate of any of the foregoing persons or entities.
(aa) Any certificate signed by any officer of the Company, and delivered to
the Underwriters or to Underwriters' Counsel (as defined herein) shall be deemed
a representation and warranty by the Company to the Underwriters as to the
matters covered thereby.
(bb) The minute books of the Company and the Subsidiary have been made
available to the Underwriters and contain a complete summary of all meetings and
actions of the directors (including committees thereof) and stockholders of the
Company and the Subsidiary, since the time of their respective incorporation,
and reflect all transactions referred to in such minutes accurately in all
material respects.
(cc) Except and to the extent described in the Prospectus, no holders of
any securities of the Company or the Subsidiary or of any options, warrants or
other convertible or exchangeable securities of the Company have the right to
include any securities issued by the Company or the Subsidiary in the F-1
Registration Statement or any registration statement to be filed by the Company
or the Subsidiary or to require the Company to file a registration statement
under the Act and no person or entity holds any anti-dilution rights with
respect to any securities of the Company.
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(dd) The Company has as of the effective date of the Registration
Statements entered into an employment agreement with Andrew Neville
Lyndon-Skeggs in the form filed as Exhibit 10.2 to the F-1 Registration
Statement.
(ee) Each of the Company and the Subsidiary confirms as of the date hereof
that it is in compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, AN ACT RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and
each of the Company and the Subsidiary further agrees that if it or any
affiliate commence engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the Registration Statements
become or have become effective with the Commission or with the Florida
Department of Banking and Finance (the "Department"), whichever date is later,
or if the information reported or incorporated by reference in the Prospectus,
if any, concerning the Company's, the Subsidiary's, or any affiliate's, business
with Cuba or with any person or affiliate located in Cuba changes in any
material way, the Company and the Subsidiary will provide the Department notice
of such business or change, as appropriate, in a form acceptable to the
Department.
(ff) The Company is not, and upon the issuance and sale of the Securities
as herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus under the caption "Use of Proceeds" will not be, an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
(gg) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparations of financial
statements in conformity with generally accepted accounting principles in the
U.K. and the U.S. and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorizations; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(hh) Each of the Company and the Subsidiary has reviewed its operations and
that of any third parties with which the Company or the Subsidiary has a
material relationship to evaluate the extent to which the business or operations
of the Company or the Subsidiary will be affected by the Year 2000 Problem. As
a result of such review, the disclosure in the Registration Statement under
Year 2000 is accurate and complies in all material respects with the rules and
regulations of the Act. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval, retransmission or
other utilization of data or in the operation of mechanical or electrical
systems of any kind will not, in the case of dates or time periods occurring
after December 31, 1999, function at least as effectively as in the case of
dates or time periods occurring prior to January 1, 2000.
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2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter,
severally and not jointly, agrees to purchase from the Company at a price of
$_______ per ADS, that number of ADSs set forth in Schedule A opposite the name
of such Underwriter, subject to such adjustment as the Representative in its
sole discretion shall make to eliminate any sales or purchases of fractional
ADSs, plus any additional number of ADSs which such Underwriter may become
obligated to purchase pursuant to the provisions of SECTION 11 hereof.
(b) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase all or any part of an
additional 300,000 ADSs at a price of $_________ per ADS. The option granted
hereby will expire thirty (30) days after (i) the date the F-1 Registration
Statement becomes effective, if the Company has elected not to rely on Rule 430A
under the Rules and Regulations, or (ii) the date of this Agreement if the
Company has elected to rely upon Rule 430A under the Rules and Regulations, and
may be exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the ADSs upon notice by the Representative to the Company
setting forth the number of Option ADSs as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for any
such Option ADSs. Any such time and date of delivery (an "Option Closing Date")
shall be determined by the Representative, but shall not be later than three (3)
full business days after the exercise of said option, nor in any event prior to
the Closing Date, as hereinafter defined, unless otherwise agreed upon by the
Representative and the Company. Nothing herein contained shall obligate the
Underwriters to make any over-allotments. No Option ADSs shall be delivered
unless the ADSs shall be simultaneously delivered or shall theretofore have been
delivered as herein provided.
(c) Payment of the purchase price for, and delivery of certificates
for, the ADSs shall be made at the offices of the Representative at 520 Madison
Avenue, 10th Floor, New York, New York 10022, or at such other place as shall be
agreed upon by the Representative and the Company. Such delivery and payment
shall be made at 10:00 a.m. (New York City time) on ________, 1999 or at such
other time and date as shall be agreed upon by the Representative and the
Company, but not less than three (3) nor more than five (5) full business days
after the effective date of the F-1 Registration Statement (such time and date
of payment and delivery being herein called the "Closing Date"). In addition,
in the event that any or all of the Option ADSs are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates
for, such Option ADSs shall be made at the above-mentioned office of the
Representative or at such other place as shall be agreed upon by the
Representative and the Company on each Option Closing Date as specified in the
notice from the Representative to the Company. Delivery of the certificates for
the ADSs and the Option ADSs, if any, shall be made to the Underwriters against
payment by the Underwriters, severally and not jointly, of the purchase price
for the ADSs and the Option ADSs, if any, to the order of the Company for the
ADSs and the Option ADSs, if any, by New York Clearing House funds. In the
event such option is exercised, each of the Underwriters, acting severally and
not jointly, shall purchase that
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proportion of the total number of Option ADSs then being purchased which the
number of ADSs set forth in Schedule A hereto opposite the name of such
Underwriter bears to the total number of ADSs, subject in each case to such
adjustments as the Representative in its discretion shall make to eliminate any
sales or purchases of fractional ADSs. Certificates for the ADSs and the Option
ADSs, if any, shall be in definitive, fully registered form, shall bear no
restrictive legends and shall be in such denominations and registered in such
names as the Underwriters may request in writing at least two (2) business days
prior to the Closing Date or the relevant Option Closing Date, as the case may
be. The certificates for the ADSs and the Option ADSs, if any, shall be made
available to the Representative at such office or such other place as the
Representative may designate for inspection, checking and packaging no later
than 9:30 a.m. on the last business day prior to the Closing Date or the
relevant Option Closing Date, as the case may be.
(d) On the Closing Date, the Company shall issue and sell to the
Representative Representative's Warrants at a purchase price of $.0001 per
warrant, which Representative's Warrants shall entitle the holders thereof to
purchase an aggregate of 200,000 ADSs. The Representative's Warrants shall be
exercisable for a period of four (4) years commencing at the beginning of the
second year after their issuance and sale at a price equaling one hundred twenty
percent (120%) of the respective initial public offering price of the ADSs. The
Representative's Warrant Agreement and form of Warrant Certificate shall be
substantially in the form filed as Exhibit 4.3 to the F-1 Registration
Statement. Payment for the Representative's Warrants shall be made on the
Closing Date.
3. PUBLIC OFFERING OF THE ADSS. As soon after the F-1 Registration
Statement becomes effective as the Representative deems advisable, the
Underwriters shall make a public offering of the ADSs (other than to residents
of or in any jurisdiction in which qualification of the Securities is required
and has not become effective) at the price and upon the other terms set forth in
the Prospectus. The Representative may from time to time increase or decrease
the public offering price after distribution of the ADSs has been completed to
such extent as the Representative, in its sole discretion deems advisable. The
Underwriters may enter into one of more agreements as the Underwriters, in each
of their sole discretion, deem advisable with one or more broker-dealers who
shall act as dealers in connection with such public offering.
4. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company covenants and
agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration
Statements and any amendments thereto to become effective as promptly as
practicable and will not at any time, whether before or after the effective date
of the Registration Statements, file any amendment to the Registration
Statements or supplement to the Prospectus or file any document under the Act or
Exchange Act before termination of the offering of the Shares by the
Underwriters of which the Representative shall not previously have been advised
and furnished with a copy, or to which the Representative shall have objected or
which is not in compliance with the Act, the Exchange Act, the U.K. Companies
Act 1995, or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof,
the Company will advise the Representative and confirm the notice in writing
(i) when the
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Registration Statements, as amended, becomes effective, if the provisions of
Rule 430A promulgated under the Act will be relied upon, when the Prospectus has
been filed in accordance with said Rule 430A and when any post-effective
amendment to the Registration Statements becomes effective; (ii) of the issuance
by the Commission of any stop order or of the initiation, or the threatening, of
any proceeding suspending the effectiveness of the Registration Statements or
any order preventing or suspending the use of the Preliminary Prospectus or the
Prospectus, or any amendment or supplement thereto, or the institution of
proceedings for that purpose; (iii) of the issuance by the Commission or by any
state securities commission of any proceedings for the suspension of the
qualification of any of the Securities for offering or sale in any jurisdiction
or of the initiation, or the threatening, of any proceeding for that purpose;
(iv) of the receipt of any comments from the Commission; and (v) of any request
by the Commission for any amendment to the Registration Statements or any
amendment or supplement to the Prospectus or for additional information. If the
Commission or any state securities commission shall enter a stop order or
suspend such qualification at any time, the Company will make every effort to
obtain promptly the lifting of such order or suspension.
(c) The Company shall file the Prospectus (in form and substance
satisfactory to the Representative) or transmit the Prospectus by a means
reasonably calculated to result in filing with the Commission pursuant to Rule
424(b)(1) (or, if applicable and if consented to by the Representative, pursuant
to Rule 424(b)(4)) not later than the Commission's close of business on the
earlier of (i) the second business day following the execution and delivery of
this Agreement and (ii) the fifth business day after the effective date of the
Registration Statements.
(d) The Company will give the Representative notice of its intention
to file or prepare any amendment to the Registration Statements (including any
post-effective amendment) or any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Securities which differs
from the corresponding prospectus on file at the Commission at the time the F-1
Registration Statement becomes effective, whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) of the Rules and Regulations),
and will furnish the Representative with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such prospectus to which the
Representative or Orrick, Herrington & Sutcliffe LLP ("Underwriters' Counsel")
shall object.
(e) The Company shall endeavor in good faith, in cooperation with the
Representative, at or prior to the time the Registration Statements become
effective, to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as the Representative may designate to permit the
continuance of sales and dealings therein for as long as may be necessary to
complete the distribution, and shall make such applications, file such documents
and furnish such information as may be required for such purpose; PROVIDED,
HOWEVER, the Company shall not be required to qualify as a foreign corporation
or file a general or limited consent to service of process in any such
jurisdiction. In each jurisdiction where such qualification shall be effected,
the Company will, unless the Representative agrees that such action is not at
the time necessary or advisable, use all reasonable efforts to file and make
such statements or reports at such times as are or may reasonably be required by
the laws of such jurisdiction to continue such qualification.
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(f) During the time when a prospectus is required to be delivered
under the Act, the Company shall use all reasonable efforts to comply with all
requirements imposed upon it by the Act and the Exchange Act, as now and
hereafter amended and by the Rules and Regulations, as from time to time in
force, so far as necessary to permit the continuance of sales of or dealings in
the Securities in accordance with the provisions hereof and the Prospectus, or
any amendments or supplements thereto. If at any time when a prospectus
relating to the Securities is required to be delivered under the Act, any event
shall have occurred as a result of which, in the opinion of counsel for the
Company or Underwriters' Counsel, the Prospectus, as then amended or
supplemented, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company will notify the Representative promptly and
prepare and file with the Commission an appropriate amendment or supplement in
accordance with Section 10 of the Act, each such amendment or supplement to be
satisfactory to Underwriters' Counsel, and the Company will furnish to the
Underwriters copies of such amendment or supplement as soon as available and in
such quantities as the Underwriters may request.
(g) As soon as practicable, but in any event not later than
forty-five (45) days after the end of the 12-month period beginning on the day
after the end of the fiscal quarter of the Company during which the effective
date of the Registration Statements occurs (ninety (90) days in the event that
the end of such fiscal quarter is the end of the Company's fiscal year), the
Company shall make generally available to its security holders, in the manner
specified in Rule 158(b) of the Rules and Regulations, and to the
Representative, an earnings statement which will be in the detail required by,
and will otherwise comply with, the provisions of Section 11(a) of the Act and
Rule 158(a) of the Rules and Regulations, which statement need not be audited
unless required by the Act, covering a period of at least twelve (12)
consecutive months after the effective date of the Registration Statements.
(h) During a period of five (5) years after the date hereof, the
Company will furnish to its stockholders, as soon as practicable, annual reports
(including financial statements audited by independent public accountants) and
unaudited quarterly reports of earnings, and will deliver to the Representative:
(i) concurrently with furnishing such quarterly reports to its
stockholders, statements of income of the Company for each quarter in the
form furnished to the Company's stockholders and certified by the Company's
principal financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its
stockholders, a balance sheet of the Company as at the end of the preceding
fiscal year, together with statements of operations, stockholders' equity,
and cash flows of the Company for such fiscal year, accompanied by a copy
of the certificate thereon of independent certified public accountants;
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(iii) as soon as they are available, copies of all reports
(financial or other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and
financial statements furnished to or filed with the Commission, the NASD or
any securities exchange;
(v) every press release and every material news item or article
of interest to the financial community in respect of the Company, or its
affairs, which was released or prepared by or on behalf of the Company; and
(vi) any additional information of a public nature concerning the
Company (and any future subsidiaries) or its businesses which the
Representative may request.
During such five-year period, if the Company has active subsidiaries, the
foregoing financial statements will be on a consolidated basis to the extent
that the accounts of the Company and its subsidiary(ies) are consolidated, and
will be accompanied by similar financial statements for any significant
subsidiary which is not so consolidated.
(i) The Company will maintain a transfer agent ("Transfer Agent")
and, if necessary under the jurisdiction of incorporation of the Company, a
Registrar (which may be the same entity as the Transfer Agent) for its ADSs.
(j) The Company will furnish to the Representative or on the
Representative's order, without charge, at such place as the Representative may
designate, copies of each Preliminary Prospectus, the Registration Statements
and any pre-effective or post-effective amendments thereto (two of which copies
will be signed and will include all financial statements and exhibits), the
Prospectus, and all amendments and supplements thereto, including any prospectus
prepared after the effective date of the Registration Statements, in each case
as soon as available and in such quantities as the Representative may request.
(k) On or before the effective date of the Registration Statements,
the Company shall provide the Representative with true original copies of duly
executed, legally binding and enforceable agreements pursuant to which, for a
period of twelve (12) months from the effective date of the Registration
Statements, each of the Company's securityholders and holders of securities
exchangeable or exercisable for or convertible into Ordinary Shares agrees that
it or he or she will not, directly or indirectly, issue, offer to sell, sell,
grant an option for the sale or purchase of, assign, transfer, pledge,
hypothecate or otherwise encumber or dispose of any Ordinary Shares or
securities convertible into, exercisable or exchangeable for or evidencing any
right to purchase or subscribe for any Ordinary Shares (either pursuant to
Rule 144 of the Rules and Regulations or otherwise) or dispose of any beneficial
interest therein without the prior consent of the Representatives (collectively,
the "Lock-up Agreements"). During the 12 month period commencing on the
effective date of the Registration Statements, the Company shall not, without
the prior written consent of the Representative, sell, contract or offer to
sell, issue, transfer, assign, pledge, distribute, or otherwise dispose of,
directly or indirectly, any shares of capital stock or any options, rights or
warrants with respect to any shares of capital stock of the
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Company. On or before the Closing Date, the Company shall deliver instructions
to the Transfer Agent authorizing it to place appropriate legends on the
certificates representing the securities subject to the Lock-up Agreements and
to place appropriate stop transfer orders on the Company's ledgers.
(l) Neither the Company, the Subsidiary, nor any of its respective
officers, directors, stockholders, nor any of their respective affiliates
(within the meaning of the Rules and Regulations) will take, directly or
indirectly, any action designed to, or which might in the future reasonably be
expected to cause or result in, stabilization or manipulation of the price of
any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the
Securities in the manner, and subject to the conditions, set forth under "Use of
Proceeds" in the Prospectus. No portion of the net proceeds will be used,
directly or indirectly, to acquire any securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other
documents as may be required from time to time, under the Act, the Exchange Act,
and the Rules and Regulations, and all such reports, forms and documents filed
will comply as to form and substance with the applicable requirements under the
Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Representative as early as
practicable prior to each of the date hereof, the Closing Date and each Option
Closing Date, if any, but no later than two (2) full business days prior
thereto, a copy of the latest available unaudited interim financial statements
of the Company (which in no event shall be as of a date more than thirty (30)
days prior to the date of the Registration Statements) which have been read by
the Company's independent public accountants, as stated in their letters to be
furnished pursuant to SECTIONS 6(j) hereof.
(p) The Company shall cause the ADSs to be quoted on Amex and, for a
period of five (5) years from the date hereof, use its best efforts to maintain
the Amex quotation of the and ADSs to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company
shall furnish to the Representative at the Company's sole expense, (i) daily
consolidated transfer sheets relating to the ADSs, (ii) the list of holders of
all of the Company's securities and (iii) a Blue Sky "Trading Survey" for
secondary sales of the Company's securities prepared by counsel to the Company.
(r) As soon as practicable, (i) but in no event more than five (5)
business days before the effective date of the Registration Statements, file a
Form 8-A with the Commission providing for the registration under the Exchange
Act of the Securities and (ii) but in no event more than thirty (30) days after
the effective date of the Registration Statements, take all necessary and
appropriate actions to be included in Standard and Poor's Corporation
Descriptions and Moody's OTC Manual and to continue such inclusion for a period
of not less than five (5) years.
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(s) The Company agrees that it will not for a period of thirty-six
(36) months from the effective date of the Registration Statements extend the
term of lower the exercise price of any existing warrant or option exercisable,
exchangeable or convertible in to any securities of the Company without the
prior written consent of the Representative.
(t) The Company hereby agrees that it will not, for a period of
twelve (12) months from the effective date of the Registration Statements,
adopt, propose to adopt or otherwise permit to exist any employee, officer,
director, consultant or compensation plan or similar arrangement permitting (i)
the grant, issue, sale or entry into any agreement to grant, issue or sell any
option, warrant or other contract right (x) at an exercise price that is less
than the greater of the public offering price of the Ordinary Shares set forth
herein and the fair market value on the date of grant or sale or (y) to any of
its executive officers or directors or to any holder of 5% or more of the
Ordinary Shares; (ii) the payment for such securities with any form of
consideration other than cash; or (iii) the existence of stock appreciation
rights, phantom options or similar arrangements.
(u) Until the completion of the distribution of the Securities, the
Company shall not, without the prior written consent of the Representative and
Underwriters' Counsel, issue, directly or indirectly, any press release or other
communication or hold any press conference with respect to the Company or its
activities or the offering contemplated hereby, other than trade releases issued
in the ordinary course of the Company's business consistent with past practices
with respect to the Company's operations.
(v) For a period equal to the lesser of (i) five (5) years from the
date hereof, and (ii) the sale to the public of the Representative's Securities,
the Company will not take any action or actions which may prevent or disqualify
the Company's use of Form F-1 (or other appropriate form) for the registration
under the Act of the Representative's Securities.
5. PAYMENT OF EXPENSES.
(a) The Company hereby agrees to pay on each of the Closing Date and
the Option Closing Date (to the extent not paid at the Closing Date) all
expenses and fees (other than fees of Underwriters' Counsel, except as provided
in (iv) below) incident to the performance of the obligations of the Company
under this Agreement, the Deposit Agreement, and the Representative's Warrant
Agreement, including, without limitation, (i) the fees and expenses of
accountants and counsel for the Company, (ii) all costs and expenses incurred in
connection with the preparation, duplication, printing (including mailing and
handling charges), filing, delivery and mailing (including the payment of
postage with respect thereto) of the Registration Statements and the Prospectus
and any amendments and supplements thereto and the printing, mailing (including
the payment of postage with respect thereto) and delivery of this Agreement, the
Deposit Agreement, and the Representative's Warrant Agreement, the Agreement
Among Underwriters, the Selected Dealer Agreements, and related documents,
including the cost of all copies thereof and of the Preliminary Prospectuses and
of the Prospectus and any amendments thereof or supplements thereto supplied to
the Underwriters and such dealers as the Underwriters may request, in quantities
as hereinabove stated, (iii) the printing, engraving, issuance and delivery of
the Securities including, but not limited to, (x) the purchase by the
Underwriters of the ADSs and the Option ADSs and the purchase by the
Representative of the Representative's
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Warrants from the Company, (y) the consummation by the Company of any of its
obligations under this Agreement, the Deposit Agreement, and the
Representative's Warrant Agreement, and (z) resale of the ADSs and the Option
ADSs by the Underwriters in connection with the distribution contemplated
hereby, (iv) the delivery of the Ordinary Shares to the Custodian (as defined in
the Deposit Agreement) and the Depositary for the benefit of the Underwriters,
including any stock transfer and stamp duty taxes payable upon the sale and
delivery of the Securities to the Underwriters; (v) the qualification of the
Securities under state or foreign securities or "Blue Sky" laws and
determination of the status of such securities under legal investment laws,
including the costs of printing and mailing the "Preliminary Blue Sky
Memorandum", the "Supplemental Blue Sky Memorandum" and "Legal Investments
Survey," if any, and disbursements and fees of counsel in connection therewith,
(vi) costs and expenses incurred by the Company in connection with the "road
show", (vii) fees and expenses of the Transfer Agent and registrar and all issue
and transfer taxes, if any, (vii) applications for assignment of a rating of the
Securities by qualified rating agencies, (viii) the fees payable to the
Commission and the NASD, (ix) the fees and expenses incurred in connection with
the quotation of the Securities on Amex and any other exchange, (x) to the
extent provided under the Deposit Agreement, all fees and expenses (including
fees, disbursements and expenses of counsel) of the Depositary, the Custodian
and any other custodian appointed under the Deposit Agreement incurred in
connection with the transactions contemplated by this Agreement, the Deposit
Agreement, and the Representative's Warrant Agreement, and (xii) any taxes or
fees payable to any English authorities, brokers, associations or stock
exchanges in connection with the transactions contemplated by this Agreement,
the Deposit Agreement, and the Representative's Warrant Agreement.
(b) If this Agreement is terminated by the Underwriters in accordance
with the provisions of SECTION 6 or SECTION 12, the Company shall reimburse and
indemnify the Underwriters for all of their actual out-of-pocket expenses,
including the fees and disbursements of Underwriters' Counsel, less any amounts
already paid pursuant to SECTION 5(c) hereof.
(c) The Company further agrees that, in addition to the expenses
payable pursuant to subsection (a) of this SECTION 5, it will pay to the
Representative on the Closing Date by certified or bank cashier's check or, at
the election of the Representative, by deduction from the proceeds of the
offering of the ADSs, a non-accountable expense allowance equal to 3% of the
gross proceeds received by the Company from the sale of the ADSs, $50,000 of
which has been paid to date.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder shall be subject to the continuing accuracy of the
representations and warranties of the Company herein as of the date hereof and
as of the Closing Date and each Option Closing Date, if any, as if they had been
made on and as of the Closing Date or each Option Closing Date, as the case may
be; the accuracy on and as of the Closing Date or Option Closing Date, if any,
of the statements of the officers of the Company made pursuant to the provisions
hereof; and the performance by the Company on and as of the Closing Date and
each Option Closing Date, if any, of its covenants and obligations hereunder and
to the following further conditions:
(a) The Registration Statements shall have become effective not later
than 12:00 P.M., New York time, on the date of this Agreement or such later date
and time as shall be
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consented to in writing by the Representative, and, at the Closing Date and each
Option Closing Date, if any, no stop order suspending the effectiveness of the
Registration Statements shall have been issued and no proceedings for that
purpose shall have been instituted or shall be pending or contemplated by the
Commission and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the
Rules and Regulations, the price of the ADSs and any price-related information
previously omitted from the effective F-1 Registration Statement pursuant to
such Rule 430A shall have been transmitted to the Commission for filing pursuant
to Rule 424(b) of the Rules and Regulations within the prescribed time period
and, prior to the Closing Date, the Company shall have provided evidence
satisfactory to the Representative of such timely filing, or a post-effective
amendment providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A of the Rules and
Regulations.
(b) The Representative shall not have advised the Company that the
Registration Statements, or any amendment thereto, contains an untrue statement
of fact which, in the Representative's opinion, is material, or omits to state a
fact which, in the Representative's opinion, is material and is required to be
stated therein or is necessary to make the statements therein not misleading, or
that the Prospectus, or any supplement thereto, contains an untrue statement of
fact which, in the Representative's opinion, is material, or omits to state a
fact which, in the Representative's opinion, is material and is required to be
stated therein or is necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) On or prior to each of the Closing Date and each Option Closing
Date, if any, the Representative shall have received from Underwriters' Counsel,
such opinion or opinions with respect to the organization of the Company, the
validity of the Securities, the Registration Statements, the Prospectus and
other related matters as the Representative may request and Underwriters'
Counsel shall have received such papers and information as they request to
enable them to pass upon such matters.
(d) At the Closing Date, the Underwriters shall have received the
favorable opinion of Greenberg Traurig, counsel to the Company, dated the
Closing Date, addressed to the Underwriters and in form and substance
satisfactory to Underwriters' Counsel, to the effect that:
(i) each of the Company and the Subsidiary (A) has been duly
organized and is validly existing as a corporation in good standing under
the laws of its jurisdiction, (B) is duly qualified and licensed and in
good standing as a foreign corporation in each jurisdiction in which its
ownership or leasing of any properties or the character of its operations
requires such qualification or licensing, and (C) has all requisite
corporate power and authority, and has obtained any and all necessary
authorizations, approvals, orders, licenses, certificates, franchises and
permits of and from all governmental or regulatory officials and bodies
(including, without limitation, those having jurisdiction over
environmental or similar matters), to own or lease its properties and
conduct its business as described in the Prospectus; each of the Company
and the Subsidiary is and has been doing business in compliance with all
such authorizations, approvals, orders, licenses, certificates, franchises
and permits and all
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domestic and foreign laws, rules and regulations; and, each of the Company
and the Subsidiary has not received any notice of proceedings relating to
the revocation or modification of any such authorization, approval, order,
license, certificate, franchise, or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially adversely affect the business, operations, condition,
financial or otherwise, or the earnings, business affairs, position,
prospects, value, operation, properties, business or results of operations
of the Company. The disclosures in the F-1 Registration Statement
concerning the effects of domestic and foreign laws, rules and regulations
on the Company's business as currently conducted and as contemplated are
correct in all material respects and do not omit to state a fact required
to be stated therein or necessary to make the statements contained therein
not misleading in light of the circumstances in which they were made.
(ii) except for the Subsidiary, the Company does not own an
interest in any other corporation, partnership, joint venture, trust or
other business entity;
(iii) the Company has a duly authorized, issued and
outstanding capitalization as set forth in the Prospectus, and any
amendment or supplement thereto, under "CAPITALIZATION", and neither the
Company nor the Subsidiary is a party to or bound by any instrument,
agreement or other arrangement providing for it to issue, sell, transfer,
purchase or redeem any capital stock, rights, warrants, options or other
securities, except for this Agreement, the Deposit Agreement, and the
Representative's Warrant Agreement and as described in the Prospectus. The
Securities and all other securities issued or issuable by the Company
conform in all material respects to all statements with respect thereto
contained in the Registration Statements and the Prospectus. All issued
and outstanding securities of the Company and the Subsidiary have been duly
authorized and validly issued and are fully paid and non-assessable; the
holders thereof have no rights of rescission with respect thereto, and are
not subject to personal liability by reason of being such holders; and none
of such securities were issued in violation of the preemptive rights of any
holders of any security of the Company or the Subsidiary or any similar
rights granted by the Company or the Subsidiary. The Securities to be sold
by the Company hereunder and under the Representative's Warrant Agreement
are not and will not be subject to any preemptive or other similar rights
of any stockholder, have been duly authorized and, when issued, paid for
and delivered in accordance with the terms hereof, will be validly issued,
fully paid and non-assessable and conform to the description thereof
contained in the Prospectus; the holders thereof will not be subject to any
liability solely as such holders; all corporate action required to be taken
for the authorization, issue and sale of the Securities has been duly and
validly taken; and the certificates representing the Securities are in due
and proper form. The Representative's Warrants constitute valid and
binding obligations of the Company to issue and sell, upon exercise thereof
and payment therefor, the number and type of securities of the Company
called for thereby. Upon the issuance and delivery pursuant to this
Agreement of the ADSs, the Option ADSs and the Representative's Warrants to
be sold by the Company, the Underwriters and the Representative,
respectively, will acquire good and marketable title to the ADSs, the
Option ADSs and the Representative's Warrants free and clear of any pledge,
lien, charge, claim, encumbrance, security interest, or other restriction
or equity of any kind whatsoever. No transfer tax is payable by or on
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behalf of the Underwriters in connection with (A) the issuance by the
Company of the Securities, (B) the purchase by the Underwriters of the ADSs
and the Option ADSs from the Company, and the purchase by the
Representative of the Representative's Warrants from the Company (C) the
consummation by the Company of any of its obligations under this Agreement,
the Deposit Agreement, or the Representative's Warrant Agreement, or (D)
resales of the ADSs and the Option ADSs in connection with the distribution
contemplated hereby.
(iv) The Registration Statements are effective under the Act,
and, if applicable, filing of all pricing information has been timely made
in the appropriate form under Rule 430A, and no stop order suspending the
use of the Preliminary Prospectus, the Registration Statements or
Prospectus or any part of any thereof or suspending the effectiveness of
the Registration Statements has been issued and no proceedings for that
purpose have been instituted or are pending or, to the best of such
counsel's knowledge, threatened or contemplated under the Act;
(v) each of the Preliminary Prospectus, the Registration
Statements, and the Prospectus and any amendments or supplements thereto
(other than the financial statements and other financial and statistical
data included therein, as to which no opinion need be rendered) comply as
to form in all material respects with the requirements of the Act and the
Rules and Regulations.
(vi) to the best of such counsel's knowledge, (A) there are no
agreements, contracts or other documents required by the Act to be
described in the Registration Statements and the Prospectus and filed as
exhibits to the Registration Statements other than those described in the
Registration Statements (or required to be filed under the Exchange Act if
upon such filing they would be incorporated, in whole or in part, by
reference therein) and the Prospectus and filed as exhibits thereto, and
the exhibits which have been filed are correct copies of the documents of
which they purport to be copies; (B) the descriptions in the Registration
Statements and the Prospectus and any supplement or amendment thereto of
contracts and other documents to which the Company or the Subsidiary is a
party or by which it is bound, including any document to which the Company
or the Subsidiary is a party or by which it is bound, incorporated by
reference into the Prospectus and any supplement or amendment thereto, are
accurate and fairly represent the information required to be shown by Form
F-1; (C) there is not pending or threatened against the Company or the
Subsidiary any action, arbitration, suit, proceeding, inquiry,
investigation, litigation, governmental or other proceeding (including,
without limitation, those having jurisdiction over environmental or similar
matters), domestic or foreign, pending or threatened against (or
circumstances that may give rise to the same), or involving the properties
or business of the Company or the Subsidiary which (x) is required to be
disclosed in the F-1 Registration Statement which is not so disclosed (and
such proceedings as are summarized in the F-1 Registration Statement are
accurately summarized in all respects), (y) questions the validity of the
capital stock of the Company or the Subsidiary or this Agreement, the
Deposit Agreement, or the Representative's Warrant Agreement, or of any
action taken or to be taken by the Company pursuant to or in connection
with any of the foregoing; (D) no statute or regulation or legal or
governmental proceeding required to be described in the
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Prospectus is not described as required; and (E) there is no action, suit
or proceeding pending, or threatened, against or affecting the Company or
the Subsidiary before any court or arbitrator or governmental body, agency
or official (or any basis thereof known to such counsel) in which there is
a reasonable possibility of a decision which may result in a material
adverse change in the condition, financial or otherwise, or the earnings,
position, prospects, stockholders' equity, value, operation, properties,
business or results of operations of the Company or the Subsidiary, which
could adversely affect the present or prospective ability of the Company to
perform its obligations under this Agreement, the Deposit Agreement, or the
Representative's Warrant Agreement or which in any manner draws into
question the validity or enforceability of this Agreement, the Deposit
Agreement, or the Representative's Warrant Agreement;
(vii) the Company has full legal right, power and authority
to enter into each of this Agreement, the Deposit Agreement, and the
Representative's Warrant Agreement, and to consummate the transactions
provided for therein; and each of this Agreement, the Deposit Agreement,
and the Representative's Warrant Agreement has been duly authorized,
executed and delivered by the Company. Each of this Agreement, the Deposit
Agreement, and the Representative's Warrant Agreement, assuming due
authorization, execution and delivery by each other party thereto
constitutes a legal, valid and binding agreement of the Company enforceable
against the Company in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to
or affecting enforcement of creditors' rights and the application of
equitable principles in any action, legal or equitable, and except as
rights to indemnity or contribution may be limited by applicable law), and
none of the Company's execution or delivery of this Agreement, the Deposit
Agreement, and the Representative's Warrant Agreement, its performance
hereunder or thereunder, its consummation of the transactions contemplated
herein or therein, or the conduct of its business as described in the
Registration Statements, the Prospectus, and any amendments or supplements
thereto, conflicts with or will conflict with or results or will result in
any breach or violation of any of the terms or provisions of, or
constitutes or will constitute a default under, or result in the creation
or imposition of any lien, charge, claim, encumbrance, pledge, security
interest, defect or other restriction or equity of any kind whatsoever
upon, any property or assets (tangible or intangible) of the Company or the
Subsidiary pursuant to the terms of, (A) the memorandum and articles of
association, charter or other organizational documents of the Company,
(B) any license, contract, collective bargaining agreement, indenture,
mortgage, deed of trust, lease, voting trust agreement, stockholders
agreement, note, loan or credit agreement or any other agreement or
instrument to which the Company or the Subsidiary is a party or by which it
is or may be bound or to which any of its respective properties or assets
(tangible or intangible) is or may be subject, or any indebtedness, or
(C) any statute, judgment, decree, order, rule or regulation applicable to
the Company or the Subsidiary of any arbitrator, court, regulatory body or
administrative agency or other governmental agency or body (including,
without limitation, those having jurisdiction over environmental or similar
matters), domestic or foreign, having jurisdiction over the Company or the
Subsidiary or any of its respective activities or properties.
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(viii) no consent, approval, authorization or order, and no
filing with, any court, regulatory body, government agency or other body
(other than such as may be required under Blue Sky laws, as to which no
opinion need be rendered) is required in connection with the issuance of
the ADSs and the Option ADSs pursuant to the Prospectus and the
Registration Statements, the issuance of the Representative's Warrants, the
performance of this Agreement, the Deposit Agreement, and the
Representative's Warrant Agreement, and the transactions contemplated
hereby and thereby;
(ix) the properties and business of the Company and the
Subsidiary conform in all material respects to the description thereof
contained in the Registration Statements and the Prospectus; and the
Company and the Subsidiary, respectively, has good and marketable title to,
or valid and enforceable leasehold estates in, all items of real and
personal property stated in the Prospectus to be owned or leased by it, in
each case free and clear of all liens, charges, claims, encumbrances,
pledges, security interests, defects or other restrictions or equities of
any kind whatsoever, other than those referred to in the Prospectus and
liens for taxes not yet due and payable;
(x) the Company and the Subsidiary, respectively, is not in
breach of, or in default under, any term or provision of any license,
contract, collective bargaining agreement, indenture, mortgage, installment
sale agreement, deed of trust, lease, voting trust agreement, stockholders'
agreement, partnership agreement, note, loan or credit agreement or any
other agreement or instrument evidencing an obligation for borrowed money,
or any other agreement or instrument to which the Company or the Subsidiary
is a party or by which the Company or the Subsidiary may be bound or to
which the properties or assets (tangible or intangible) of the Company or
the Subsidiary is subject or affected; and the Company and the Subsidiary,
respectively, is not in violation of any term or provision of its the
memorandum and articles of association, charter or other organizational
documents of the Company and the Subsidiary, respectively, or in violation
of any franchise, license, permit, judgment, decree, order, statute, rule
or regulation;
(xi) the statements in the Prospectus under "RISK FACTORS,"
"BUSINESS," "MANAGEMENT," "PRINCIPAL STOCKHOLDERS," "RELATED PARTY
TRANSACTIONS", "DESCRIPTION OF SHARE CAPITAL," "DESCRIPTION OF AMERICAN
DEPOSITARY RECEIPTS", and "SHARES ELIGIBLE FOR FUTURE SALE" have been
reviewed by such counsel, and insofar as they refer to statements of law,
descriptions of statutes, licenses, rules or regulations or legal
conclusions, are correct in all material respects;
(xii) the Securities have been accepted for quotation on
Amex;
(xiii) the persons listed under the caption "PRINCIPAL
STOCKHOLDERS" in the Prospectus are the respective "beneficial owners"
(as such phrase is defined in regulation 13d-3 under the Exchange Act)
of the securities set forth opposite their respective names thereunder
as and to the extent set forth therein;
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(xiv) neither the Company, the Subsidiary, nor any of its
respective officers, stockholders, employees or agents, nor any other
person acting on behalf of the Company has, directly or indirectly, given
or agreed to give any money, gift or similar benefit (other than legal
price concessions to customers in the ordinary course of business) to any
customer, supplier, employee or agent of a customer or supplier, or
official or employee of any governmental agency or instrumentality of any
government (domestic or foreign) or any political party or candidate for
office (domestic or foreign) or other person who is or may be in a position
to help or hinder the business of the Company or the Subsidiary (or assist
it in connection with any actual or proposed transaction) which (A) might
subject the Company or the Subsidiary to any damage or penalty in any
civil, criminal or governmental litigation or proceeding, (B) if not given
in the past, might have had an adverse effect on the assets, business or
operations of the Company or the Subsidiary, as reflected in any of the
financial statements contained in the F-1 Registration Statement, or (C) if
not continued in the future, might adversely affect the assets, business,
operations or prospects of the Company;
(xv) no person, corporation, trust, partnership, association
or other entity has the right to include and/or register any securities of
the Company or the Subsidiary in the Registration Statements, require the
Company or the Subsidiary to file any registration statement or, if filed,
to include any security in such registration statement;
(xvi) except as described in the Prospectus, there are no
claims, payments, issuances, arrangements or understandings for services in
the nature of a finder's or origination fee with respect to the sale of the
Securities hereunder or financial consulting arrangements or any other
arrangements, agreements, understandings, payments or issuances that may
affect the Underwriters' compensation, as determined by the NASD;
(xvii) assuming due execution by the parties thereto other
than the Company, the Lock-up Agreements are legal, valid and binding
obligations of the parties thereto, enforceable against the party and any
subsequent holder of the securities subject thereto in accordance with its
terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or affecting enforcement of creditors' rights and
the application of equitable principles in any action, legal or equitable,
and except as rights to indemnity or contribution may be limited by
applicable law);
(xviii) Except as described in the Prospectus, neither the
Company nor the Subsidiary maintains, sponsors or contributes to any
program or arrangement that is an "employee pension benefit plan," an
"employee welfare benefit plan," or a "multiemployer plan" as such terms
are defined in Sections 3(2), 3(1) and 3(37), respectively, of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") ("ERISA
Plans"). Each of he Company and the Subsidiary does not maintain or
contribute, now or at any time previously, to a defined benefit plan, as
defined in Section 3(35) of ERISA. No ERISA Plan (or any trust created
thereunder) has engaged in a "prohibited transaction" within the meaning of
Section 406 of ERISA or Section
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4975 of the Code, which could subject the Company or the Subsidiary to any
tax penalty on prohibited transactions and which has not adequately been
corrected. Each ERISA Plan is in compliance with all reporting, disclosure
and other requirements of the Code and ERISA as they relate to any such
ERISA Plan. Determination letters have been received from the Internal
Revenue Service with respect to each ERISA Plan which is intended to comply
with Code Section 401(a), stating that such ERISA Plan and the attendant
trust are qualified thereunder. Neither the Company nor the Subsidiary has
never completely or partially withdrawn from a "multiemployer plan."
(xix) the Company and the Subsidiary, respectively, is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, AN ACT RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA;
(xx) neither the Company, the Subsidiary, nor any of their
affiliates shall be subject to the requirements of or shall be deemed an
"Investment Company," pursuant to and as defined under, respectively, the
Investment Company Act.
Such counsel shall state that such counsel has participated in conferences
with officers and other representatives of the Company, the Subsidiary, and
representatives of the independent public accountants for the Company, at which
conferences such counsel made inquiries of such officers, representatives and
accountants and discussed the contents of the Preliminary Prospectus, the
Registration Statements, the Prospectus, and related matters and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Preliminary Prospectus, the Registration Statements and Prospectus, on the basis
of the foregoing, no facts have come to the attention of such counsel which lead
them to believe that either the Registration Statements or any amendment
thereto, at the time such Registration Statements or amendment became effective
or the Preliminary Prospectus or Prospectus or amendment or supplement thereto
as of the date of such opinion contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading (it being understood that such
counsel need express no opinion with respect to the financial statements and
schedules and other financial and statistical data included in the Preliminary
Prospectus, the Registration Statements or the Prospectus). Such counsel shall
further state that its opinions may be relied upon by Underwriters' Counsel in
rendering its opinion to the Underwriters.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance satisfactory to Underwriters' Counsel) of
other counsel acceptable to Underwriters' Counsel, familiar with the applicable
laws; (B) as to matters of fact, to the extent they deem proper, on certificates
and written statements of responsible officers of the Company and certificates
or other written statements of officers of departments of various jurisdictions
having custody of documents respecting the corporate existence or good standing
of the Company, provided that copies of any such statements or certificates
shall be delivered to Underwriters' Counsel if requested. The opinion of such
counsel for the Company shall state that the opinion of any such other counsel
is in form satisfactory to
26
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such counsel and that the Representative, Underwriters' Counsel and they are
each justified in relying thereon. Any opinion of counsel for the Company shall
not state that it is to be governed or qualified by, or that it is otherwise
subject to, any treatise, written policy or other document relating to legal
opinions, including, without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991) or any comparable state accord.
(e) At each Option Closing Date, if any, the Underwriters shall have
received the favorable opinions of Greenberg Traurig, counsel to the Company,
dated as of such Option Closing Date, addressed to the Underwriters and in form
and substance satisfactory to Underwriters' Counsel.
(f) On or prior to each of the Closing Date and each Option Closing
Date, if any, Underwriters' Counsel shall have been furnished such documents,
certificates and opinions as they may reasonably require for the purpose of
enabling them to review or pass upon the matters referred to in subsection (c)
of this SECTION 6, or in order to evidence the accuracy, completeness or
satisfaction of any of the representations, warranties or conditions of the
Company herein contained.
(g) Prior to each of the Closing Date and each Option Closing Date,
if any, (i) there shall have been no material adverse change nor development
involving a prospective change in the condition, financial or otherwise,
earnings, position, value, properties, results of operations, prospects,
stockholders' equity or the business activities of the Company and the
Subsidiary, whether or not in the ordinary course of business, from the latest
dates as of which such condition is set forth in the Registration Statements and
Prospectus; (ii) there shall have been no transaction, not in the ordinary
course of business, entered into by the Company or the Subsidiary, from the
latest date as of which the financial condition of the Company is set forth in
the or the Subsidiary F-1 Registration Statement and Prospectus which is adverse
to the Company or the Subsidiary; (iii) the Company or the Subsidiary shall not
be in default under any provision of any instrument relating to any outstanding
indebtedness; (iv) the Company or the Subsidiary, respectively, shall not have
issued any securities (other than the Securities) or declared or paid any
dividend or made any distribution in respect of its capital stock of any class
and there has not been any change in the capital stock or any material change in
the debt (long or short term) or liabilities or obligations of the Company or
the Subsidiary (contingent or otherwise); (v) no material amount of the assets
of the Company or the Subsidiary shall have been pledged or mortgaged, except as
set forth in the F-1 Registration Statement and Prospectus; (vi) no action, suit
or proceeding, at law or in equity, shall have been pending or threatened (or
circumstances giving rise to same) against the Company or the Subsidiary, or
affecting any of its or their respective properties or businesses before or by
any court or federal, state or foreign commission, board or other administrative
agency wherein an unfavorable decision, ruling or finding may adversely affect
the business, operations, earnings, position, value, properties, results of
operations, prospects or financial condition or income of the Company or the
Subsidiary; and (vii) no stop order shall have been issued under the Act and no
proceedings therefor shall have been initiated, threatened or contemplated by
the Commission.
(h) At each of the Closing Date and each Option Closing Date, if any,
the Underwriters shall have received a certificate of the Company signed by the
principal executive officer and by the chief financial or chief accounting
officer of the Company, dated the Closing
27
<PAGE>
Date or Option Closing Date, as the case may be, to the effect that each of such
persons has carefully examined the Registration Statements, the Prospectus and
this Agreement, and that:
(i) The representations and warranties of the Company in
this Agreement are true and correct, as if made on and as of the Closing
Date or the Option Closing Date, as the case may be, and the Company has
complied with all agreements and covenants and satisfied all conditions
contained in this Agreement on its part to be performed or satisfied at or
prior to such Closing Date or Option Closing Date, as the case may be;
(ii) No stop order suspending the effectiveness of the
Registration Statements or any part thereof has been issued, and no
proceedings for that purpose have been instituted or are pending or, to
the best of each of such person's knowledge, are contemplated or threatened
under the Act;
(iii) The Registration Statements and the Prospectus and, if
any, each amendment and each supplement thereto, contain all statements and
information required to be included therein, and none of the Registration
Statements, the Prospectus nor any amendment or supplement thereto includes
any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and neither the Preliminary Prospectus or any supplement
thereto included any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; and
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statements and the Prospectus, (a)
the Company and the Subsidiary, respectively, has not incurred up to and
including the Closing Date or the Option Closing Date, as the case may be,
other than in the ordinary course of its business, any material liabilities
or obligations, direct or contingent; (b) the Company and the Subsidiary,
respectively, has not paid or declared any dividends or other distributions
on its capital stock; (c) the Company and the Subsidiary, respectively, has
not entered into any transactions not in the ordinary course of business;
(d) there has not been any change in the capital stock or long-term debt or
any increase in the short-term borrowings (other than any increase in the
short-term borrowings in the ordinary course of business) of the Company
and the Subsidiary, respectively; (e) the Company and the Subsidiary,
respectively, has not sustained any loss or damage to its properties or
assets, whether or not insured; (f) there is no litigation which is pending
or threatened (or circumstances giving rise to same) against the Company,
the Subsidiary, or any affiliated party which is required to be set forth
in an amended or supplemented Prospectus which has not been set forth; and
(g) there has occurred no event required to be set forth in an amended or
supplemented Prospectus which has not been set forth.
References to the Registration Statements and the Prospectus in this subsection
(i) are to such documents as amended and supplemented at the date of such
certificate.
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(i) By the Closing Date, the Underwriters will have received
clearance from the NASD as to the amount of compensation allowable or payable to
the Underwriters, as described in the F-1 Registration Statement.
(j) At the time this Agreement is executed, the Underwriters shall
have received a letter, dated such date, addressed to the Underwriters in form
and substance satisfactory (including the non-material nature of the changes or
decreases, if any, referred to in clause (iii) below) in all respects to the
Underwriters and Underwriters' Counsel, from Ernst & Young LLP:
(i) confirming that they are independent certified public
accountants with respect to the Company within the meaning of the Act and
the applicable Rules and Regulations;
(ii) stating that it is their opinion that the financial
statements and supporting schedules of the Company included in the F-1
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the Rules and Regulations
thereunder and that the Representative may rely upon the opinion of Ernst &
Young LLP with respect to the financial statements and supporting schedules
included in the F-1 Registration Statement;
(iii) stating that, on the basis of a limited review which
included a reading of the latest available unaudited interim financial
statements of the Company, a reading of the latest available minutes of the
stockholders and board of directors and the various committees of the board
of directors of the Company, consultations with officers and other
employees of the Company responsible for financial and accounting matters
and other specified procedures and inquiries, nothing has come to their
attention which would lead them to believe that (A) the unaudited financial
statements and supporting schedules of the Company included in the F-1
Registration Statement do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the Rules and
Regulations or are not fairly presented in conformity with generally
accepted accounting principles of the U.K and the U.S. applied on a basis
substantially consistent with that of the audited financial statements of
the Company included in the F-1 Registration Statement, or (B) at a
specified date not more than five (5) days prior to the effective date of
the F-1 Registration Statement, there has been any change in the capital
stock or long-term debt of the Company, or any decrease in the
stockholders' equity or net current assets or net assets of the Company as
compared with amounts shown in the December 31, 1998 balance sheet included
in the F-1 Registration Statement, other than as set forth in or
contemplated by the F-1 Registration Statement, or, if there was any change
or decrease, setting forth the amount of such change or decrease, and (C)
during the period from December 31, 1998 to a specified date not more than
five (5) days prior to the effective date of the F-1 Registration
Statement, there was any decrease in net revenues, net earnings or increase
in net earnings per ordinary share of the Company, in each case as compared
with the corresponding period beginning December 31, 1997, other than as
set forth in or contemplated by the F-1 Registration Statement, or, if
there was any such decrease, setting forth the amount of such decrease;
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<PAGE>
(iv) setting forth, at a date not later than five (5) days
prior to the date of the F-1 Registration Statement, the amount of
liabilities of the Company taken as a whole (including a break-down of
commercial paper and notes payable to banks);
(v) stating that they have compared specific dollar
amounts, numbers of shares, percentages of revenues and earnings,
statements and other financial information pertaining to the Company set
forth in the Prospectus in each case to the extent that such amounts,
numbers, percentages, statements and information may be derived from the
general accounting records, including work sheets, of the Company and
excluding any questions requiring an interpretation by legal counsel, with
the results obtained from the application of specified readings, inquiries
and other appropriate procedures (which procedures do not constitute an
examination in accordance with generally accepted auditing standards) set
forth in the letter and found them to be in agreement;
(vi) statements as to such other matters incident to the
transaction contemplated hereby as the Representatives may request.
(k) At the Closing Date and each Option Closing Date, if any, the
Underwriters shall have received from Ernst & Young LLP a letter, dated as of
the Closing Date or the Option Closing Date, as the case may be, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
SUBSECTION (j) of this SECTION, except that the specified date referred to shall
be a date not more than five (5) days prior to the Closing Date or the Option
Closing Date, as the case may be, and, if the Company has elected to rely on
Rule 430A of the Rules and Regulations, to the further effect that they have
carried out procedures as specified in clause (v) of SUBSECTION (j) of this
Section with respect to certain amounts, percentages and financial information
as specified by the Representative and deemed to be a part of the F-1
Registration Statement pursuant to Rule 430A(b) and have found such amounts,
percentages and financial information to be in agreement with the records
specified in such clause (v).
(l) On each of the Closing Date and each Option Closing Date, if any,
there shall have been duly tendered to the Representative for the several
Underwriters' accounts the appropriate number of Securities.
(m) No order suspending the sale of the Securities in any
jurisdiction designated by the Representative pursuant to SUBSECTION (e) of
SECTION 4 hereof shall have been issued on either the Closing Date or the Option
Closing Date, if any, and no proceedings for that purpose shall have been
instituted or shall be contemplated.
(n) On or before the Closing Date, the Company shall have executed
and delivered to the Representative, (i) the Representative's Warrant Agreement
substantially in the form filed as Exhibit 4.3 to the F-1 Registration
Statement, in final form and substance satisfactory to the Representative, and
(ii) the Representative's Warrants in such denominations and to such designees
as shall have been provided to the Company.
(o) On or before the Closing Date, the ADSs shall have been duly
approved for quotation on Amex, subject to official notice of issuance.
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(p) On or before the Closing Date, there shall have been delivered to
the Representative all of the Lock-up Agreements, in form and substance
satisfactory to Underwriters' Counsel.
If any condition to the Underwriters' obligations hereunder to be fulfilled
prior to or at the Closing Date or the relevant Option Closing Date, as the case
may be, is not so fulfilled, the Representative may terminate this Agreement or,
if the Representative so elects, it may waive any such conditions which have not
been fulfilled or extend the time for their fulfillment.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters (for purposes of this SECTION 7 "Underwriter" shall include the
officers, directors, partners, employees, agents and counsel of the Underwriter,
including specifically each person who may be substituted for an Underwriter as
provided in SECTION 11 hereof), and each person, if any, who controls the
Underwriter ("controlling person") within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, from and against any and all losses,
claims, damages, expenses or liabilities, joint or several (and actions,
proceedings, investigations, inquiries, suits and litigation in respect
thereof), whatsoever (including but not limited to any and all expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any such claim, action, proceeding, investigation, inquiry, suit or litigation,
commenced or threatened, or any claim whatsoever), as such are incurred, to
which the Underwriter or such controlling person may become subject under the
Act, the Exchange Act or any other statute or at common law or otherwise or
under the laws of foreign countries, arising out of or based upon (A) any untrue
statement or alleged untrue statement of a material fact contained (i) in any
Preliminary Prospectus, the Registration Statements or the Prospectus (as from
time to time amended and supplemented); (ii) in any post-effective amendment or
amendments or any new registration statement and prospectus in which is included
securities of the Company issued or issuable upon exercise of the Securities; or
(iii) in any application or other document or written communication (in this
SECTION 7 collectively called "application") executed by the Company or based
upon written information furnished by the Company in any jurisdiction in order
to qualify the Securities under the securities laws thereof or filed with the
Commission, any state securities commission or agency, Amex or any other
securities exchange; (B) the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of the Prospectus, in the light of the
circumstances under which they were made), or (C) any breach of any
representation, warranty, covenant or agreement of the Company contained herein
or in any certificate by or on behalf of the Company or any of its officers
delivered pursuant hereto, unless, in the case of clause (A) or (B) above, such
statement or omission was made in reliance upon and in strict conformity with
written information furnished to the Company with respect to any Underwriter by
or on behalf of such Underwriter expressly for use in any Preliminary
Prospectus, the Registration Statements or Prospectus, or any amendment thereof
or supplement thereto, or in any application, as the case may be.
The indemnity agreement in this SUBSECTION (a) shall be in addition to any
liability which the Company may have at common law or otherwise.
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(b) Each of the Underwriters agrees severally, but not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the Registration Statements, and each other person, if
any, who controls the Company within the meaning of the Act, to the same extent
as the foregoing indemnity from the Company to the Underwriters but only with
respect to statements or omissions, if any, made in any Preliminary Prospectus,
the Registration Statements or Prospectus or any amendment thereof or supplement
thereto or in any application made in reliance upon, and in strict conformity
with, written information furnished to the Company with respect to any
Underwriter by such Underwriter expressly for use in such Preliminary
Prospectus, the Registration Statements or Prospectus or any amendment thereof
or supplement thereto or in any such application, provided that such written
information or omissions only pertain to disclosures in the Preliminary
Prospectus, the Registration Statements or Prospectus directly relating to the
transactions effected by the Underwriters in connection with this Offering. The
Company acknowledges that the statements with respect to the public offering of
the ADSs and the Option ADSs set forth under the heading "Underwriting" and the
stabilization legend in the Prospectus have been furnished by the Underwriters
expressly for use therein and constitute the only information furnished in
writing by or on behalf of the Underwriters for inclusion in the Prospectus.
(c) Promptly after receipt by an indemnified party under this SECTION
7 of notice of the commencement of any claim, action, suit, investigation,
inquiry, proceeding or litigation, such indemnified party shall, if a claim in
respect thereof is to be made against one or more indemnifying parties under
this SECTION 7, notify each party against whom indemnification is to be sought
in writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this SECTION 7 except to the extent that it has been prejudiced in any
material respect by such failure or from any liability which it may have
otherwise). In case any such claim, action, suit, investigation, inquiry,
proceeding or litigation is brought against any indemnified party, and it
notifies an indemnifying party or parties of the commencement thereof, the
indemnifying party or parties will be entitled to participate therein, and to
the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such case
but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by the indemnifying parties in connection with
the defense of thereof at the expense of the indemnifying party, (ii) the
indemnifying parties shall not have employed counsel reasonably satisfactory to
such indemnified party to have charge of the defense thereof within a reasonable
time after notice of commencement thereof, or (iii) such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to those available to one or
all of the indemnifying parties (in which case the indemnifying parties shall
not have the right to direct the defense thereof on behalf of the indemnified
party or parties), in any of which events such fees and expenses of one
additional counsel shall be borne by the indemnifying parties. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one claim, action, suit,
investigation, inquiry, proceeding or litigation or separate but similar or
related claims, actions, suits, investigations, inquiries, proceedings or
litigation in the same jurisdiction
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arising out of the same general allegations or circumstances. Anything in this
SECTION 7 to the contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim, action, suit, investigation, inquiry,
proceeding or litigation effected without its written consent; PROVIDED,
HOWEVER, that such consent was not unreasonably withheld. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle,
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit, investigation, inquiry, proceeding or
litigation in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim, action, suit, investigation, inquiry, proceeding or
litigation), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit, investigation, inquiry, proceeding or litigation
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) In order to provide for just and equitable contribution in any
case in which (i) an indemnified party makes claim for indemnification pursuant
to this SECTION 7, but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
the express provisions of this SECTION 7 provide for indemnification in such
case, or (ii) contribution under the Act may be required on the part of any
indemnified party, then each indemnifying party shall contribute to the amount
paid as a result of such losses, claims, damages, expenses or liabilities (or
actions in respect thereof) (A) in such proportion as is appropriate to reflect
the relative benefits received by each of the contributing parties, on the one
hand, and the party to be indemnified on the other hand, from the offering of
the ADSs and the Option ADSs or (B) if the allocation provided by clause (A)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of each of the contributing parties, on the one hand,
and the party to be indemnified on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages, expenses
or liabilities, as well as any other relevant equitable considerations. In any
case where the Company is the contributing party and the Underwriters are the
indemnified party, the relative benefits received by the Company on the one
hand, and the Underwriters, on the other, shall be deemed to be in the same
proportion as the total net proceeds from the offering of the ADSs and the
Option ADSs (before deducting expenses) bear to the total underwriting discounts
received by the Underwriters hereunder, in each case as set forth in the table
on the Cover Page of the Prospectus. 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 the Company, or by the Underwriters, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
expenses or liabilities (or actions in respect thereof) referred to above in
this SUBSECTION (d) 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. Notwithstanding the provisions of this
SUBSECTION (d), the Underwriters shall not be required to contribute any amount
in excess of the underwriting discount applicable to the ADSs and the Option
ADSs purchased by the Underwriters hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
33
<PAGE>
misrepresentation. For purposes of this SECTION 7, each person, if any, who
controls the Company or the Underwriter within the meaning of the Act, each
officer of the Company who has signed the Registration Statements, and each
director of the Company shall have the same rights to contribution as the
Company or the Underwriter, as the case may be, subject in each case to this
SUBSECTION (d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect to which a claim for contribution may be made against another party
or parties under this SUBSECTION (d), notify such party or parties from whom
contribution may be sought, but the omission so to notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have hereunder or otherwise than under this
SUBSECTION (d), or to the extent that such party or parties were not adversely
affected by such omission. The contribution agreement set forth above shall be
in addition to any liabilities which any indemnifying party may have at common
law or otherwise.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto,
shall be deemed to be representations, warranties and agreements at the Closing
Date and the Option Closing Date, as the case may be, and such representations,
warranties and agreements of the Company and the indemnity agreements contained
in SECTION 7 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter, the
Company, any controlling person of any Underwriter or the Company, and shall
survive termination of this Agreement or the issuance and delivery of the
Securities to the Underwriters and the Representative, as the case may be.
9. EFFECTIVE DATE. This Agreement shall become effective at 10:00 a.m.,
New York City time, on the next full business day following the date hereof, or
at such earlier time after the Registration Statements become effective as the
Representative, in its discretion, shall release the Securities for sale to the
public; PROVIDED, HOWEVER, that the provisions of SECTIONS 5, 7 and 10 of this
Agreement shall at all times be effective. For purposes of this SECTION 9, the
Securities to be purchased hereunder shall be deemed to have been so released
upon the earlier of dispatch by the Representative of telegrams to securities
dealers releasing such securities for offering or the release by the
Representative for publication of the first newspaper advertisement which is
subsequently published relating to the Securities.
10. TERMINATION.
(a) Subject to SUBSECTION (b) of this SECTION 10, the Representative
shall have the right to terminate this Agreement, (i) if any domestic or
international event or act or occurrence has materially adversely disrupted, or
in the Representative's opinion will in the immediate future materially
adversely disrupt, the financial markets; or (ii) if any material adverse change
in the financial markets shall have occurred; or (iii) if trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the NASD, the
Boston Stock Exchange, the Commission or any governmental authority having
jurisdiction over such matters; or (iv) if trading of any of the securities of
the Company shall have been suspended, or any of the securities of the Company
shall have been delisted, on any exchange or in any over-the-counter
34
<PAGE>
market; (v) if the United States shall have become involved in a war or major
hostilities, or if there shall have been an escalation in an existing war or
major hostilities or a national emergency shall have been declared in the United
States; or (vi) if a banking moratorium has been declared by a state or federal
authority; or (vii) if a moratorium in foreign exchange trading has been
declared; or (viii) if the Company shall have sustained a loss material or
substantial to the Company by fire, flood, accident, hurricane, earthquake,
theft, sabotage or other calamity or malicious act which, whether or not such
loss shall have been insured, will, in the Representative's opinion, make it
inadvisable to proceed with the offering, sale and/or delivery of the
Securities; or (ix) if there shall have been such a material adverse change in
the conditions or prospects of the Company or the Subsidiary, or such material
adverse change in the general market, political or economic conditions, in the
United States, United Kingdom or elsewhere, that, in each case, in the
Representative's judgment, would make it inadvisable to proceed with the
offering, sale and/or delivery of the Securities or (x) if Andrew Neville
Lyndon-Skeggs shall no longer serve the Company in his present capacities.
(b) If this Agreement is terminated by the Representative in
accordance with the provisions of SECTION 10(a) the Company shall promptly
reimburse and indemnify the Representative for all of its actual out-of-pocket
expenses, including the fees and disbursements of counsel for the Underwriters
(less amounts previously paid pursuant to SECTION 5(c) above). Notwithstanding
any contrary provision contained in this Agreement, if this Agreement shall not
be carried out within the time specified herein, or any extension thereof
granted to the Representative, by reason of any failure on the part of the
Company to perform any undertaking or satisfy any condition of this Agreement by
it to be performed or satisfied (including, without limitation, pursuant to
SECTION 6 or SECTION 12) then, the Company shall promptly reimburse and
indemnify the Representative for all of its actual out-of-pocket expenses,
including the fees and disbursements of counsel for the Underwriters (less
amounts previously paid pursuant to SECTION 5(c) above). In addition, the
Company shall remain liable for all Blue Sky counsel fees and disbursements,
expenses and filing fees. Notwithstanding any contrary provision contained in
this Agreement, any election hereunder or any termination of this Agreement
(including, without limitation, pursuant to SECTIONS 6, 10, 11 and 12 hereof),
and whether or not this Agreement is otherwise carried out, the provisions of
SECTION 5 and SECTION 7 shall not be in any way affected by such election or
termination or failure to carry out the terms of this Agreement or any part
hereof.
11. SUBSTITUTION OF THE UNDERWRITERS. If one or more of the Underwriters
shall fail (otherwise than for a reason sufficient to justify the termination of
this Agreement under the provisions of SECTION 6, SECTION 10 or SECTION 12
hereof) to purchase the Securities which it or they are obligated to purchase on
such date under this Agreement (the "Defaulted Securities"), the Representative
shall have the right, within 24 hours thereafter, to make arrangement for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the
Representative shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
total number of ADSs to be purchased on such date, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting
35
<PAGE>
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the total
number of ADSs, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriters (or, if such default shall occur
with respect to any Option ADSs to be purchased on an Option Closing Date,
the Underwriters may at the Representative's option, by notice from the
Representative to the Company, terminate the Underwriters' obligation to
purchase Option ADSs from the Company on such date).
No action taken pursuant to this SECTION 11 shall relieve any defaulting
Underwriter from liability in respect of any default by such Underwriter under
this Agreement.
In the event of any such default which does not result in a termination of
this Agreement, the Representative shall have the right to postpone the Closing
Date for a period not exceeding seven (7) days in order to effect any required
changes in the Registration Statements or Prospectus or in any other documents
or arrangements.
12. DEFAULT BY THE COMPANY. If the Company shall fail at the Closing Date
or at any Option Closing Date, as applicable, to sell and deliver the number of
Securities which it is obligated to sell hereunder on such date, then this
Agreement shall terminate (or, if such default shall occur with respect to any
Option ADSs to be purchased on an Option Closing Date, the Underwriters may at
the Representative's option, by notice from the Representative to the Company,
terminate the Underwriters' obligation to purchase Option ADSs from the Company
on such date) without any liability on the part of any non-defaulting party
other than pursuant to SECTION 5, SECTION 7 and SECTION 10 hereof. No action
taken pursuant to this SECTION 12 shall relieve the Company from liability, if
any, in respect of such default.
13. NOTICES. All notices and communications hereunder, except as herein
otherwise specifically provided, shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to the
Representative at Security Capital Trading, Inc., 520 Madison Avenue, 10th
Floor, New York, New York 10022, Attention: Ronald Heineman, with a copy to
Orrick, Herrington & Sutcliffe LLP, 30 Rockefeller Plaza, New York, New York
10112, Attention: Lawrence B. Fisher, Esq. Notices to the Company shall be
directed to the Company at Town Pages Holdings plc, 11 Market Square, Alton,
Hampshire, England, GU34 1HD, United Kingdom, Attention: Andrew Neville
Lydon-Skeggs, with a copy to Greenberg Traurig, 200 Park Avenue, New York, New
York, 10166, Attention: Andrew J. Cosentino, Esq.
14. PARTIES. This Agreement shall inure solely to the benefit of and
shall be binding upon, the Underwriters, the Company and the controlling
persons, directors and officers referred to in SECTION 7 hereof, and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provisions herein
contained. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
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<PAGE>
15. CONSTRUCTION. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York without giving
effect to the choice of law or conflict of laws principles.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
taken together shall be deemed to be one and the same instrument.
17. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the Representative's
Warrant Agreement constitute the entire agreement of the parties hereto and
supersede all prior written or oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may not be amended
except in a writing, signed by the Representative and the Company.
37
<PAGE>
If the foregoing correctly sets forth the understanding between the
Underwriters and the Company, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement among
us.
Very truly yours,
TOWN PAGES HOLDINGS PLC
By:
-----------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written.
SECURITY CAPITAL TRADING, INC.
For itself and as Representative of the
several Underwriters named in
Schedule A hereto.
By:
-----------------------------
Name:
Title:
38
<PAGE>
SCHEDULE A
Number of ADSs
Name of Underwriters to be Purchased
- -------------------- ---------------
Security Capital Trading, Inc..............................
Total......................................................
------------
2,000,000
============
<PAGE>
Exhibit 3.1
Company Number : 3608347
The Companies Acts 1985 to 1989
ARTICLES OF ASSOCIATION
- OF -
TOWN PAGES HOLDINGS PLC
(as adopted by Special Resolution passed on 15th December 1998)
INTERPRETATION
- --------------------------------------------------------------------------------
1.
(A) The regulations in Table A in the Companies (Table A to F) Regulations
1985 do not apply to the company.
(B) In these regulations:-
"THE ACT" means the Companies Act 1985 including any statutory
modification or re-enactment thereof and statutory instrument relevant
thereto or derived therefrom for the time being in force.
"THE ARTICLES" means the articles of the company.
"CLEAR DAYS" in relation to the period of notice means that period
excluding the day when the notice is given or deemed to be given and
the day for which it is given or on which it is to take effect.
"EXECUTED" includes any mode of execution whether under
seal or under hand.
"HOLDER" in relation to shares means the member whose name is entered
in the register of members as the holder of the shares.
<PAGE>
Unless the context otherwise requires, words or expressions contained
in these regulations bear the same meaning as in the Act but (as in
force when these regulations become binding on the company).
Words denoting the singular include the plural and vice versa. Words
denoting the masculine include the feminine and neuter. Words denoting
persons include corporations.
A special or extraordinary resolution shall be effective for any
purpose for which an ordinary resolution is expressed to be required
under any provision of the articles or the Act.
SHARE CAPITAL
2. (a) The authorised share capital of the company at the date of
adoption of this Article was (pound)5,200,000 divided into 20,000,000
Ordinary Shares of 1p each ("Ordinary Shares") and 5,000,000 Series A
Preferred Shares of (pound)1 each ("Preferred Shares").
(b) Subject to the provisions of the Act and without prejudice to
any rights attached to any existing shares, any share may be
issued with such rights or restrictions as the company may by
ordinary resolution determine.
(c) The directors are generally and unconditionally
empowered pursuant to section 95 of the Act to allot equity
securities (within the meaning of section 94 of the Act) for cash
or such other consideration as the directors in their absolute
discretion shall think fit as if sub-section (1) of section 89 of
the Act did not apply to any such allotment up to an aggregate
nominal value authorised but unissued share capital of the
company such authority to expire unless previously renewed on 31
December 2003, save that the directors may notwithstanding such
expiry allot relevant securities under this authority in
pursuance of an offer or agreement made by the company before the
expiry of this authority.
3. Subject to the provisions of the Act, shares may be issued which are
to be redeemed or are to be liable to be redeemed at the option of the
company or the holder on such terms and in such manner as may be
provided by the articles.
4. The company may exercise the powers of paying commissions conferred by
the Act. Subject to the provisions of the Act, any such commission may
be satisfied by the payment of cash or by the allotment of fully or
partly paid shares or partly in one way and partly in the other.
2
<PAGE>
5. Except as required by law, no person shall be recognised by the company
as holding any share upon any trust and (except as by the articles or
by law otherwise provided) the company shall not be bound by or
recognise any interest in any share except an absolute right to the
entirety thereof in the holder.
6. RIGHTS ATTAINING TO SHARES
The special rights and restrictions attached to and binding or
respectively the Preferred Shares and the Ordinary Shares are as
follows:
(a) Income: Preferred Shares
(i) The Preferred Shares shall confer on the holders
thereof the right, in priority to any other shares of
the company, to receive and the company shall pay out
of the distributable profits of the company a fixed
cumulative cash dividend (the "Preferred Dividend") of
9p (inclusive of any deduction required to be made for
tax) per share per annum in respect of each Preferred
Share.
(ii) The Preferred Dividend shall accrue from day to day and shall
be paid in arrears by two equal instalments on 30 April 1999
and 31 October of each year, the first payment being on 30
April 1999 in respect of the period from the date of allotment
of Preferred Shares to 30 April 1999.
(b) Income: Ordinary Shares
The balance of any profits resolved to be distributed
in any financial year or period shall be distributed
amongst the holders of the Ordinary Shares pari passu
(c) Capital: All classes of share
On a return of capital on liquidation or otherwise, the assets
of the company remaining after payment of its debts and
liabilities (other than those below mentioned) shall be
applied in the following manner and order or priority:-
(i) first, in paying to the holders of the
Preferred Shares all unpaid arrears and
accruals of the Preferred Dividend
calculated down to the date of the return on
the Preferred Shares and to be paid
irrespective of whether such dividend has
been declared or earned or not;
(ii) second, in paying to the holders of the
Preferred Shares the amount paid up or
credited as paid up thereon including any
3
<PAGE>
premium;
(iii) finally, in paying any balance to the
holders of the Ordinary Shares in proportion
to the amounts paid up or credited as paid
up thereon including any premium.
(d) Redemption: Preferred Shares
Subject to the provisions of the Act, the
company shall redeem the Preferred Shares
for the time being outstanding at any time
after the expiry of one year from the
effective date of the first registration
statement in Form F-1 filed by the company
with the Securities and Exchange Commission
of the USA under the Securities Act of 1933
of the USA, upon agreement in writing being
reached thereto between the company and the
holder.
(e) Conversion: The Preferred Shares shall be converted
into Ordinary Shares of 1p each on the
giving by any holder thereof notice (a
"Conversion Notice") specifying the
number of Preferred Shares which the
holder wishes to convert at any time
after the middle market price at which
the Ordinary Shares shall be traded
shall achieve a price equal to or
greater than 120% of the price at which
those shares were offered pursuant to
a first registration statement on Form
F-1 filed with the Securities and
Exchange Commission in the United
States of America pursuant to the
Securities Act of 1933 of the United
States of America (the "Offering
Price"). Forthwith upon receipt by the
company of a Conversion Notice together
with certificates in respect of at
least the nominal value Preferred
Shares to which reference is made in
the Conversion Notice, the company
shall forthwith procure the
conversion of the said number of
Preferred Shares into Ordinary
Shares on the following basis.
X
Y = Z
Where X = the number of Preferred
Shares specified in the
Conversion Notice
4
<PAGE>
Y = 120 % of the Offering Price
Z = number of
Ordinary Shares of
1p each
and the registration of the giver of
the Conversion Notice as the holder
of the appropriate number of
Ordinary Shares (and Preferred
Shares, if any) and a certificate
(or certificates) in respect
thereof.
(f) Voting: Preferred Shares
The holders of the Preferred Shares shall be entitled to
receive notice of and to attend either in person or by proxy
at any General Meetings of the company but shall not be
entitled to vote thereat (either personally or by proxy).
(g) Voting: Ordinary Shares
The holders of the Ordinary Shares shall have the right to
receive notice of and attend and vote at all general Meetings
of the company. Each holder or Ordinary Shares present in
person or by proxy or by representative shall be entitled on a
show of hands to one vote and on a poll to one vote for each
Ordinary Share held by him.
(h) Class Consents: Preferred Shares
Without prejudice to the restrictions contained in these
Articles as to the modification of the rights attached to
classes of shares, the consent or sanction of the holders of
the Preferred Shares (given in accordance with Article 7)
shall be required:-
(i) to the creation allotment or issue of any
shares or securities by the company or to
the grant of any option or other right to
require the allotment or issue of the same
or to the modification variation alteration
or abrogation of the rights attached to any
of the classes of share capital of the
company or the consolidation or sub-division
or other re-organisation of the company's
share capital or any part thereof; or
(ii) to the passing of any resolution amending
the Memorandum or Articles including this
Article; or
(iii) to the purchase or redemption of or to any
5
<PAGE>
distribution of capital profits or reserves
of the company in respect of any shares in
the capital of the company otherwise than in
accordance with the provisions of these
Articles;
(iv) to the passing of any resolution to wind up
the company otherwise than by reason of
insolvency;
(v) to the disposal of the whole or a
substantial part of the company or its
subsidiaries or any share capital of the
company or its subsidiaries;
VARIATION OF RIGHTS
7. Unless otherwise provided by the rights attached to any
shares, those rights shall be deemed to be varied by the
reduction of the capital paid up on the shares and by the
allotment of further shares ranking in priority for payment
of a dividend or in respect of capital or which confer on
the holders voting rights more favourable than those
conferred by such first mentioned shares, but shall not
otherwise be deemed to be varied by the creation or issue
of further shares.
SHARE CERTIFICATES
8. Every member, upon becoming the holder of any shares, shall be entitled
without payment to one certificate for all the shares of each class
held by him (and, upon transferring a part of his holding of shares of
any class, to a certificate for the balance of the holding) or several
certificates each for one or more of his shares upon payment for every
certificate after the first of such reasonable sum as the directors may
determine. Every certificate shall be executed by the company, and
shall specify the number, class and distinguishing numbers (if any) of
the shares to which it relates and the amount or respective amounts
paid up thereon. The company shall not be bound to issue more than one
certificate for shares held jointly by several persons and delivery of
a certificate to one joint holder shall be a sufficient delivery to all
of them.
9. (a) If a share certificate is defaced, worn-out, lost or
destroyed, it may be renewed on such terms (if any) as to
evidence and indemnity and payment of the expenses reasonably
incurred by the company in investigating evidence as the
directors may determine but otherwise free of charge, and (in the
case of defacement or wearing-out) on delivery up of the old
certificate.
(b) Notwithstanding the terms of articles 8 and 9(a)
6
<PAGE>
above, where, in accordance with the terms of Article 9(c)
hereof, any shares or other securities of the Company are issued,
transferred, registered or otherwise dealt with in uncertificated
form, any references in these articles requiring title to shares
or other securities to be evidenced by or transferred by
reference to share certificates or any other form of written
instrument shall not apply and the holding, transfer, recording
of title to and, registration of, uncertificated securities
issued by the Company will be governed by reference to the
provisions of Article 9(c) hereof.
(c) (i) Nothing in these articles shall preclude any
share or other security of the Company from being
issued, held, registered, converted, transferred or
otherwise dealt with in an uncertificated form in
accordance with the Uncertificated Securities
Regulations 1995 (or any alteration thereof having the
force of law in this article) (the "Regulations") and
any rules or requirements laid down from time to time by
the relevant system operated by Crest Co. Limited in the
terms of the Regulations ("CREST") or any other relevant
system operated pursuant to the Regulations.
(ii) In relation to any share or other security which is in
uncertificated form, the articles of association shall
have effect subject tot the provisions of the
Regulations and (so far as consistent with them) to the
following
provisions:
(a) the Company shall not be obliged to issue a
certificate evidencing title to shares and
all references to a certificate in respect
of any shares or securities held in
uncertificated form in these articles shall
be deemed inapplicable to such shares or
securities which are in uncertified form and
furthermore shall be interpreted as a
reference to such form of evidence of title
to uncertificated share or securities as the
Regulations prescribe or permit;
(b) the registration of title to and transfer of
any shares or securities in an
uncertificated form shall be effected in
accordance with the Regulations and there
shall be no requirement for a written
instrument of transfer;
(c) a properly authenticated dematerialised
instruction given in accordance with the
Regulations shall be given effect in
accordance with the Regulations;
7
<PAGE>
(d) any communication required or permitted by
these articles to be given by a person to
the company may be given in accordance with
an in any manner (whether or not in writing)
prescribed or permitted by the
Uncertificated Securities Regulations;
(e) if a situation arises where any provision of
these articles is inconsistent in any
respect with the terms of the Regulations in
relation to shares or securities of the
company which are in an uncertificated form
then:-
(i) the Regulations will be given effect
thereto in accordance with their
terms; and
(ii) the directors shall have power to
implement any procedures they may
think fit and as may accord with the
Regulations for the recording and
transferring of title to shares and
securities in uncertificated form
and for the regulation of those
proceedings and the persons
responsible for or involved in their
operation;
(iii) the directors shall have the specific powers
to elect, without further consultation with
the holders of any shares or securities of
the company (except where such shares or
securities are constituted by virtue of some
other deed, document or other source), that
any single or all classes of shares and
securities of the company become capable of
being traded in uncertificated form in
accordance with the Regulations on CREST or
any other Operator of a relevant system.
LIEN
10. The company shall have a first and paramount lien on every
share (not being a fully paid share) for all moneys
(whether presently payable or not) payable at a fixed time
or called in respect of that share. The directors may at
any time declare any share to be wholly or in part exempt
from the provisions of this regulation. The company's lien
on a share shall extend to all moneys payable in respect of
it.
8
<PAGE>
11. The company may sell in such manner as the directors
determine any shares on which the company has a lien if a
sum in respect of which the lien exists is presently
payable and is not paid within fourteen clear days after
notice has been given to the holder of the share or to the
person entitled to it in consequence of the death or
bankruptcy of the holder, demanding payment and stating
that if the notice is not complied with the shares may be
sold.
12. To give effect to a sale the directors may authorise some person to
execute an instrument of transfer of the shares sold to, or in
accordance with the directions of, the purchaser. The title of the
transferee to the shares shall not be affected by any irregularity in
the proceedings in reference to the sale.
13. The net proceeds of the sale, after payment of the costs, shall be
applied in payment of so much of the sum for which the lien exists as
is presently payable, and any residue shall (upon surrender to the
company for cancellation of the certificate for the shares sold and
subject to a like lien for any moneys not presently payable as existed
upon the shares before the sale) be paid to the person entitled to
the shares at the date of the sale.
CALLS ON SHARES AND FORFEITURE
14. Subject to the terms of allotment, the directors may make
calls upon the members in respect of any moneys unpaid on
their shares (whether in respect of nominal value or
premium) and each member shall (subject to receiving at
least fourteen clear days' notice specifying when and where
payment is to be made) pay to the company as required by
the notice the amount called on his shares. A call may be
required to be paid by instalments. A call may, before
receipt by the company of a sum due thereunder, be revoked
in whole or part and payment of a call may be postponed in
whole or part. A person upon whom a call is made shall
remain liable for calls made upon him notwithstanding the
subsequent transfer of the shares in respect whereof the
call was made.
15. A call shall be deemed to have been made at the time when the
resolution of the directors authorising the call was passed.
16. The joint holders of a share shall be jointly and severally liable to
pay all calls in respect thereof.
17. If a call remains unpaid after it has become due and
payable the person from whom the sum is due shall pay
interest on the unpaid sum from the day it became due until
it is paid at the rate fixed by the terms of allotment of
the share or in the notice of the call or, if no rate is
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fixed, at the appropriate rate (as defined by the Act) but
the directors may waive payment of the interest wholly or
in part.
18. A sum payable in respect of a share on allotment or at any fixed date,
whether in respect of nominal value or premium or as an instalment of a
call, shall be deemed to be a call and if it is not paid the provisions
of the articles shall apply as if that sum had become due and payable
by virtue of a call.
19. Subject to the terms of allotment, the directors may make arrangements
on the issue of shares for a difference between the holders in the
amounts and times of payment of calls on their shares.
20. If a call remains unpaid after it has become due and payable the
directors may give to the person from whom it is due not less than
fourteen clear days' notice requiring payment of the amount unpaid
together with any interest which may have accrued. The notice shall
name the place where payment is to be made and shall state that if
the notice is not complied with the shares in respect of which the
call was made will be liable to be forfeited.
21. If the notice is not complied with any share in respect of which it was
given may, before the payment required by the notice has been made, be
forfeited by a resolution of the directors and the forfeiture shall
include all dividends or other moneys payable in respect of the
forfeited shares and not paid before the forfeiture.
22. Subject to the provisions of the Act, a forfeited share may
be sold, re-allotted or otherwise disposed of on such terms
and in such manner as the directors determine either to the
person who was before the forfeiture the holder or to any
other person, and at any time before sale, re-allotment or
other disposition, the forfeiture may be cancelled on such
terms as the directors think fit. Where for the purposes of
its disposal a forfeited share is to be transferred to any
person the directors may authorise some person to execute
an instrument of transfer of the share to that person.
23. A person any of whose shares have been forfeited shall
cease to be a member in respect of them and shall surrender
to the company for cancellation the certificate for the
shares forfeited but shall remain liable to the company for
all moneys which at the date of forfeiture were presently
payable by him to the company in respect of those shares
with interest at the rate at which interest was payable on
those moneys before the forfeiture or, if no interest was
so payable, at the appropriate rate (as defined in the Act)
from the date of forfeiture until payment but the directors
may waive payment wholly or in part or enforce payment
without any allowance for the value of the shares at the
time of forfeiture or for any consideration received on
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their disposal.
24. A statutory declaration by a director or the secretary that
a share has been forfeited on a specified date shall be
conclusive evidence of the facts stated in it as against
all persons claiming to be entitled to the share and the
declaration shall (subject to the execution of an
instrument of transfer if necessary) constitute a good
title to the share and the person to whom the share is
disposed of shall not be bound to see to the application of
the consideration, if any, nor shall his title to the share
be affected by any irregularity in or invalidity of the
proceedings in reference to the forfeiture or disposal of
the share.
TRANSFER OF SHARES
25. The instrument of transfer of a share may be in any usual form or in
any other form which the directors may approve and shall be executed by
or on behalf of the transferor and, unless the share is fully paid, by
or on behalf of the transferee. The transferor shall remain the holder
of the shares concerned until the name of the transferee is entered in
the register of members in respect thereof.
26. The directors may, in their absolute discretion and without giving any
reason, refuse to register the transfer of a share which is not fully
paid or on which the company has a lien but, if they do so, they shall
within two months after the date on which the transfer was lodged with
the company send to the transferee notice of the refusal.
27. The directors may also decline to recognise an instrument of transfer
unless:-
(a) it is lodged duly stamped at the office or at such other place
as the directors may appoint and is accompanied by the
certificate for the shares to which it relates and such other
evidence as the directors may reasonably require to show the
right of the transferor to make the transfer;
(b) it is in respect of only one class of shares; and
(c) it is in favour of not more than four transferees;
OR, if the transferee is a person known to be a minor,
bankrupt or a person who is mentally disordered as a patient
for the purpose of any statute relating to mental health.
If the directors refuse to register a transfer of a share, they shall
within two months after the date on which the transfer was lodged with
the company send to the transferee
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notice of the refusal.
The directors shall not refuse to register a transfer if to
do
so would prevent dealings in the shares on an open and
proper basis.
28. The registration of transfers of shares or of transfers of any class of
shares may be suspended at such times and for such periods (not
exceeding thirty days in any year) as the directors may determine.
29. No fee shall be charged for the registration of any
instrument of transfer or other document relating to or
affecting the title to any share.
30. The company shall be entitled to retain any instrument of transfer
which is registered, but any instrument of transfer which the directors
refuse to register shall be returned to the person lodging it when
notice of the refusal is given.
TRANSMISSION OF SHARES
31. If a member dies the survivor, or survivors where he was a joint
holder, and his personal representatives where he was a sole holder or
the only survivor of joint holders, shall be the only persons
recognised by the company as having any title to his interest; but
nothing herein contained shall release the estate of a deceased member
from any liability in respect of any share which has been jointly held
by him.
32. A person becoming entitled to a share in consequence of the
death or bankruptcy of a member may, upon such evidence
being produced as the directors may properly require, elect
either to become the holder of the share or to have some
person nominated by him registered as the transferee. If he
elects to become the holder he shall give notice to the
company to that effect. If he elects to have another person
registered he shall execute an instrument of transfer of
the share to the person. All the articles relating to the
transfer of shares shall apply to the notice or instrument
of transfer as if it were an instrument of transfer
executed by the member and the death or bankruptcy of the
member had not occurred.
33. A person becoming entitled to a share in consequence of the
death or bankruptcy of a member shall have the rights to
which he would be entitled if he were the holder of the
share, except that he shall not, before being registered as
the holder of the share, be entitled in respect of it to
attend or vote at any meeting of the company or at any
separate meeting of the holders of any class of shares in
the company.
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ALTERATION OF CAPITAL
34. The company may from time to time by ordinary resolution:-
(a) increase the share capital by new shares of such
amount as the resolution prescribes;
(b) consolidate and divide all or any of the share capital into
shares of larger amount than its existing shares;
(c) cancel any shares which, at the date of the passing of the
resolution, have not been taken or agreed to be taken by any
person, and diminish the amount of its share capital by the
amount of the shares so cancelled, and
(d) subdivide its shares, or any of them, into shares of
smaller amount than is fixed by the Articles (provided
that the proportion between the amount paid and the
amount, if any, unpaid on each reduced share must be
the same as on the share from which the reduced share
is derived), and so that the resolution whereby any
share is subdivided may determine that, as between the
holders of the shares resulting from such subdivision,
one or more of the shares may, as compared with the
others, have any such preferred, deferred, or other
special rights or be subject to any such restrictions,
as the company has power to attach to unissued or new
shares.
35. Whenever as a result of a consolidation of shares any
members would become entitled to fractions of a share, the
directors may, on behalf of those members, sell the shares
representing the fractions for the best price reasonably
obtainable to any person (including, subject to the
provisions of the Act, the company) and distribute the net
proceeds of sale in due proportion among those members, and
the directors may authorise some person to execute an
instrument of transfer of the shares to, or in accordance
with the directions of, the purchaser. The transferee shall
not be bound to see to the application of the purchase
money nor shall his title to the shares be affected by any
irregularity in or invalidity of the proceedings in
reference to the sale.
36. Subject to the provisions of the Act, the company may by special
resolution reduce its share capital, any capital redemption reserve,
and any share premium account in any way.
If there shall be in issue any shares convertible into equity share
capital of the company of the class proposed to be purchased, then the
company shall not purchase or enter into a contract under which it will
or may purchase
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such equity shares unless either the terms of issue of
such convertible shares include provisions permitting the company to
purchase its own equity shares or the purchase, or contract, has first
been approved by an extraordinary resolution passed at a separate
meeting of the holders of such convertible shares.
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PURCHASE OF OWN SHARES
37. Subject to the provisions of the Act, the company may purchase its own
shares (including any redeemable shares) and make a payment in respect
of the redemption or purchase of its own shares out of (or otherwise
than out of) distributable profits of the company or the proceeds of a
fresh issue of shares made for the purpose.
GENERAL MEETINGS
38. All general meetings other than annual general meetings shall be called
extraordinary general meetings.
39. The directors may call general meetings and, on the
requisition of members pursuant to the provisions of the
Act, shall forthwith proceed to convene an extraordinary
general meeting for a date not later than eight weeks after
receipt of the requisition. If there are not within the
United Kingdom sufficient directors to call a general
meeting, any director or any member of the company may call
a general meeting.
NOTICE OF GENERAL MEETINGS
40. An annual general meeting and an extraordinary general meeting called
for the passing of a special resolution shall be called by at least
twenty-one clear days' notice, and all other extraordinary general
meetings shall be called by at least fourteen clear days' notice; but a
general meeting may be called by shorter notice if it is so agreed:-
(a) in the case of an annual general meeting, by all the
members entitled to attend and vote thereat; and
(b) in the case of a general meeting for the passing of a special
resolution by a majority in number of the members having a
right to attend and vote at the meeting being a majority
holding:-
(i) such percentage (being not less than ninety-five
per cent) in nominal value of the shares giving
that right as may be specified in or for the time
being determined by the company for the purposes
of any elective resolution of the company for the
time being in force passed in accordance with the
Act for the purposes of either or both of
sections 369(4) and 378(3) of the Act; or
(ii) if no election as is referred to in the
immediately preceding sub-regulation subsists, not
less than ninety-five per cent in nominal value of
the shares giving that right; and
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(c) in the case of any other meeting by a majority in number of
the members having a right to attend and vote at the meeting
being a majority holding:-
(i) such percentage (being not less than ninety-five
per cent) in nominal value of the shares giving
that right as may be specified in or for the time
being determined by the company for the purposes
of any elective resolution of the company for the
time being in force passed in accordance with the
Act for the purposes of section 369(4) of the
Act; or
(ii) if no election as is referred to in the immediately
preceding sub-regulation subsists, not less than
ninety-five per cent in nominal value of the shares
giving that right not less than ninety-five per cent
in nominal value of the shares giving that right.
The notice shall specify the time and place of the meeting and the
general nature of the business to be transacted and, in the case of an
annual general meeting, shall specify the meeting as such.
Subject to the provisions of the articles and to any restrictions
imposed on any shares, the notice shall be given to all the members, to
all persons entitled to a share in consequence of the death or
bankruptcy of a member and to the directors and auditors.
41. The accidental omission to give notice of a meeting to, or the
non-receipt of notice of a meeting by, any person entitled to receive
notice shall not invalidate the proceedings at that meeting.
PROCEEDINGS AT GENERAL MEETINGS
42. No business shall be transacted at any meeting unless a quorum is
present. Two persons entitled to vote upon the business to be
transacted, each being a member or a proxy for a member or a duly
authorised representative of a corporation, shall be a quorum.
43. If such a quorum is not present within half an hour from the time
appointed for the meeting, or if during a meeting a quorum ceases to be
present, the meeting shall stand adjourned to the same day in the
next week at the same time and place, or to such time and place as
the directors may determine. If at the adjourned meeting a quorum is
not present within fifteen minutes from the time appointed for the
meeting, one person entitled to be counted in a quorum present at
the meeting shall be a quorum.
44. The chairman, if any, of the board of directors or in his
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absence some other director nominated by the directors
shall preside as chairman of the meeting, but if neither
the chairman nor such other director (if any) be present
within fifteen minutes after the time appointed for holding
the meeting and willing to act, the directors present shall
elect one of their number to be chairman and, if there is
only one director present and willing to act, he shall be
chairman.
45. If no director is willing to act as chairman, or if no director is
present within fifteen minutes after the time appointed for holding the
meeting, the members present and entitled to vote shall choose one of
their number to be chairman.
46. A director shall, notwithstanding that he is not a member, be entitled
to attend and speak at any general meeting and at any separate meeting
of the holders of any class of shares in the company.
47. The chairman may, with the consent of a meeting at which a
quorum is present (and shall if so directed by the
meeting), adjourn the meeting from time to time and from
place to place, but no business shall be transacted at an
adjourned meeting other than business which might properly
have been transacted at the meeting had the adjournment not
taken place. When a meeting is adjourned for fourteen days
or more, at least seven clear days' notice shall be given
specifying the time and place of the adjourned meeting and
the general nature of the business to be transacted.
Otherwise it shall not be necessary to give any such notice
of an adjournment.
48. A resolution put to the vote of a meeting shall be decided on a show of
hands unless before, or on the declaration of the result of, the show
of hands a poll is duly demanded.
Subject to the provisions of the Act, a poll may be
demanded:-
(a) by the chairman; or
(b) by at least two members having the right to vote at
the meeting; or
(c) by a member representing not less than one-tenth of the total
voting rights of all the members having the right to vote at
the meeting; or
(d) by a member holding shares conferring a right to vote at the
meeting being shares on which an aggregate sum has been paid
up equal to not less than one-tenth of the total sum paid up
on all the shares conferring that right;
and a demand by a person as proxy for a member shall be the
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same as a demand by the member.
49. Unless a poll is duly demanded a declaration by the
chairman that a resolution has been carried or carried
unanimously, or by a particular majority, or lost, or not
carried by a particular majority and an entry to that
effect in the minutes of the meeting shall be conclusive
evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against
the resolution.
50. The demand for a poll may, before the poll is taken, be withdrawn with
the consent of the chairman and a demand so withdrawn shall not be
taken to have invalidated the result of a show of hands declared before
the demand was made.
51. A poll shall be taken as the chairman directs and he may appoint
scrutineers (who need not be members) and fix a time and place for
declaring the result of the poll. The result of the poll shall be
deemed to be the resolution of the meeting at which the poll was
demanded.
52. In the case of an equality of votes, whether on a show of hands or on a
poll, the chairman shall be entitled to a casting vote in addition to
any other vote he may have.
53. A poll demanded on the election of a chairman or on a
question of adjournment shall be taken forthwith. A poll
demanded on any other question shall be taken either
forthwith or at such time and place as the chairman directs
not being more than thirty days after the poll is demanded.
The demand for a poll shall not prevent the continuance of
a meeting for the transaction of any business other than
the question on which the poll was demanded. If a poll is
demanded before the declaration of the result of a show of
hands and the demand is duly withdrawn, the meeting shall
continue as if the demand had not been made.
54. No notice need be given of a poll not taken forthwith if the time and
place at which it is to be taken are announced at the meeting at
which it is demanded. In any other case at least seven clear days'
notice shall be given specifying the time and place at which the
poll is to be taken.
55. A resolution in writing signed by or on behalf of each
member who would have been entitled to vote upon it if it
had been proposed at a general meeting at which he was
present shall be as effectual as if it had been passed at
a general meeting duly convened and held and may consist of
one or more documents in like form each signed by or on
behalf of one or more members. In the case of a corporation
a resolution in writing may be signed on its behalf by a
director or the secretary thereof or by its duly appointed
attorney or duly authorised representative. If the
resolution in writing is described as a special resolution
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it shall have effect accordingly.
VOTES OF MEMBERS
56. Subject to any rights or restrictions attached to any
shares, on a show of hands every member who (being an
individual) is present in person or (being a corporation)
is present by a duly authorised representative or proxy,
not being himself a member entitled to vote, shall have one
vote, and on a poll every member shall have one vote for
every 1p in nominal value of the ordinary shares of which
he is the holder.
57. In the case of joint holders the vote of the senior who tenders a vote,
whether in person or by proxy, shall be accepted to the exclusion of
the votes of the other joint holders; and seniority shall be determined
by the order in which the names of the holders stand in the register of
members.
58. A member in respect of whom an order has been made by any
court having jurisdiction (whether in the United Kingdom or
elsewhere) in matters concerning mental disorder may vote,
whether on a show of hands or on a poll, by his receiver,
curator bonis or other person authorised in that behalf
appointed by that court, and any such receiver, curator
bonis or other person may, on a poll, vote by proxy.
Evidence to the satisfaction of the directors of the
authority of the person claiming to exercise the right to
vote shall be deposited at the office, or at such other
place as is specified in accordance with the articles for
the deposit of instruments of proxy, not less than 48 hours
before the time appointed for holding the meeting or
adjourned meeting at which the right to vote is to be
exercised and in default the right to vote shall not be
exercisable.
59. Unless the directors otherwise determine, no member shall vote at any
general meeting, either in person or by proxy, in respect of any share
held by him unless all moneys presently payable by him in respect of
that share have been paid.
60. No objection shall be raised to the qualification of any voter except
at the meeting or adjourned meeting at which the vote objected to is
tendered, and every vote not disallowed at the meeting shall be valid.
Any objection made in due time shall be referred to the chairman whose
decision shall be final and conclusive.
61. On a poll votes may be given either personally or by proxy. A member
entitled to more than one vote need not, if he votes, use all his votes
or cast all the votes he uses the same way.
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62. The instrument appointing a proxy shall be in writing in any usual form
or in any other form which the directors may approve and shall be
executed by or on behalf of the appointor. A member may appoint more
than one proxy to attend on the same occasion. Deposit of an instrument
of proxy shall not preclude a member from attending and voting at the
meeting or at any adjournment thereof.
63. The instrument appointing a proxy and any authority under which it is
executed or a copy of such authority certified notarially or in some
other way approved by the directors may:-
(a) be deposited at the office or at such other place within the
United Kingdom as is specified in the notice convening the
meeting or in any instrument of proxy sent out by the company
in relation to the meeting not less than 48 hours before the
time for holding the meeting or adjourned meeting at which the
person named in the instrument proposes to vote; or
(b) in the case of a poll taken more than 48 hours after it is
demanded, be deposited as aforesaid after the poll has been
demanded, and not less than 24 hours before the time appointed
for the taking of the poll; or
(c) where the poll is not taken forthwith but is taken not more
than 48 hours after it was demanded, be delivered at the
meeting at which the poll was demanded to the chairman or to
the secretary or to any director.
64. A vote given or poll demanded by proxy or by the duly authorised
representative of a corporation shall be valid notwithstanding the
previous determination of the authority of the person voting or
demanding a poll unless notice of the determination was received by
the company at the office, or at such other place at which the
instrument of proxy was duly deposited, before the commencement of
the meeting or adjourned meeting at which the vote is given or the
poll demanded or (in the case of a poll taken otherwise than on the
same day as the meeting or adjourned meeting) the time appointed for
taking the poll.
65. Any corporation which is a member of the company may by
resolution of its directors or other governing body
authorise such person as it thinks fit to act as its
representative at any meeting of the company or of any
class of members of the company but so that without
prejudice to the generality of the foregoing or of section
375 of the Act any director or the secretary of any member
of the company which is a corporation shall be deemed to be
a duly authorised representative of that member. The person
so authorised shall be entitled to exercise the same powers
on behalf of such corporation as the corporation could
exercise if it were an individual member of the company and
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such corporation shall for the purposes of the articles be
deemed to be present in person at any such meeting if a
person so authorised is present thereat.
NUMBER OF DIRECTORS
66. Unless otherwise determined by ordinary resolution, the number of
directors (other than alternate directors) shall not be subject to any
maximum but shall be not be less than two nor more than ten.
ALTERNATE DIRECTORS
67. Any director (other than an alternate director) may by writing under
his hand and deposited at the office or delivered at a meeting of the
directors appoint any other director, or any other person approved by
resolution of the directors and willing to act, to be an alternate
director and may in like manner remove from office an alternate
director so appointed by him.
68. An alternate director shall be entitled to receive notice
of all meetings of directors and of all meetings of
committees of directors of which his appointor is a member,
to attend and vote at any such meeting at which the
director appointing him is not personally present, and,
save as otherwise provided in the articles, generally to
perform all the functions of his appointor as a director in
his absence but shall not be entitled to receive any
remuneration from the company for his services as an
alternate director. But it shall not be necessary to give notice of
such a meeting to an alternate director who is absent from the United
Kingdom.
69. An alternate director shall cease to be an alternate
director if his appointor ceases to be a director; but, if
a director retires by rotation or otherwise but is
reappointed or deemed to have been reappointed at the
meeting at which he retires, any appointment of an
alternate director made by him which was in force
immediately prior to his retirement shall continue after
his reappointment.
70. Any appointment or removal of an alternate director shall be by notice
signed by the director making or revoking the appointment or in any
other manner approved by the directors.
71. Save as otherwise provided in the articles, an alternate director shall
be deemed for all purposes to be a director and shall alone be
responsible for his own acts and defaults and he shall not be deemed to
be the agent of the director appointing him.
POWERS OF DIRECTORS
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72. Subject to the provisions of the Act and Article 73, the
memorandum of association of the company and the articles
and to any elective resolution for the time being in force
made in accordance with section 379A of the Act and to any
directions given by special resolution, the business of the
company shall be managed by the directors who may exercise
all the powers of the company. No alteration of the
memorandum of association or articles and no such direction
shall invalidate any prior act of the directors which would
have been valid if that alteration had not been made and
that direction had not been given. The powers given by this
regulation shall not be limited by any special power given
to the directors by the articles and a meeting of directors
at which a quorum is present may exercise all powers
exercisable by the directors.
BORROWING POWERS
73. Subject to the limitations noted below, the directors may
exercise all the powers of the Company to borrow money, and
to mortgage or charge its undertaking, property and
uncalled capital or any part or parts thereof, and to issue
debentures and other securities, whether outright or as
collateral security for any debt, liability or obligation
of the company or of any third party. The directors shall
restrict the borrowings of the company and exercise all
voting and other rights, powers or control or rights of influence
exercisable by the company and any of its subsidiaries or in relation
to its subsidiaries so that the aggregate amount for the time being
outstanding of all money borrowed by the company and for the time being
owing to persons outside the company and its subsidiaries shall not at
any time without the previous sanction of an ordinary resolution of the
shareholders of the company exceed the sum of two times the net assets
of the company as set out in the last audited balance sheet.
DELEGATION OF DIRECTORS' POWERS
74. The directors may delegate any of their powers:-
(a) to any managing director or any director holding any
other executive office; and/or
(b) to any committee consisting of one or more directors.
The delegation may be made subject to any conditions the directors may
impose, and either collaterally with or to the exclusion of their own
powers and may be revoked or altered. Subject to any such conditions,
the proceedings of a committee with two or more members shall be
governed by the articles regulating the proceedings of directors so far
as they are capable of applying.
75. The directors may, by power of attorney or otherwise,
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appoint any person to be the agent of the company for such purposes
and on such conditions as they determine, including authority for
the agent to delegate all or any of his powers.
APPOINTMENT AND RETIREMENT OF DIRECTORS
76. (a) At the first annual general meeting all the directors
shall retire from office, and at every subsequent
annual general meeting one-third of the directors who
are subject to retirement by rotation or, if their
number is not three or a multiple of three, the number
nearest one-third shall retire from office; but, if
there is only one director who is subject to
retirement by rotation, he shall retire.
(b) Subject to the provisions of the Act, the directors to retire
by rotation shall be those who have been longest in office
since their last appointment or reappointment, but as between
persons who became or were last reappointed directors on the
same day those to retire shall (unless they otherwise agree
among themselves) be determined by lot.
(c) If the company, at the meeting at which a director retires by
rotation, does not fill the vacancy the retiring director
shall, if willing to act, be deemed to have been reappointed
unless at the meeting it is resolved not to fill the vacancy
or unless a resolution for the reappointment or the director
is put to the meeting and lost.
(d) No person other than a director retiring by rotation shall be
appointed or reappointed a director at any general meeting
unless-
(i) he is recommended by the directors; or
(ii) not less than fourteen nor more than thirty-five
clear days before the date appointed for the
meeting, notice executed by a member qualified to
vote at the meeting has been given to the company
of the intention to propose that person for
appointment or reappointment stating the
particulars which would, if he were so appointed
or reappointed, be required to be included on the
company's register of directors together with
notice executed by that person of his willingness
to be appointed or reappointed.
(e) Not less than seven nor more than twenty-eight clear
days before the date appointed for holding a general
meeting notice shall be given to all who are entitled
to receive notice of the meeting of any person (other
than a director retiring by rotation at the meeting)
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who is recommended by the directors for appointment or
reappointment as a director at the meeting or in
respect of whom notice has been duly given to the
company of the intention to propose him at the meeting
for appointment or reappointment as a director. The
notice shall give the particulars of that person which
would, if he were so appointed or reappointed, be
required to be included in the company's register of
directors.
77. The company may by ordinary resolution appoint any person
to be a director either to fill a vacancy or as an
additional director. Without prejudice thereto the
directors may appoint a person to be a director, either to
fill a vacancy or as an additional director, provided that
the appointment does not cause the number of directors to
exceed any number fixed by or in accordance with the
articles as the maximum number of directors. A director so
appointed shall hold office only until the next following
annual general meeting and, if not then reappointed, shall
vacate office. Such a director shall not be taken into
account in determining the number of directors.
DISQUALIFICATION AND REMOVAL OF DIRECTORS
78. (a) The office of a director shall be vacated if:-
(i) he ceases to be a director by virtue of any
provision of the Act or the articles or he
becomes prohibited by law from being a director;
or
(ii) he becomes bankrupt, has a receiving order made
against him or makes any arrangement or composition
with his creditors generally; or
(iii)he is, or may be, suffering from mental disorder
and either:-
(a) he is admitted to hospital in pursuance of
an application for admission for treatment
under the Mental Health Act 1983 or in
Scotland in an application for admission
under the Mental Health (Scotland) Act 1960;
or
(b) an order is made by a court having
jurisdiction (whether in the United Kingdom
or elsewhere) in matters concerning mental
disorder for his detention or for the
appointment of a receiver, curator bonis or
other person to exercise powers with respect
to his property or affairs; or
(iv) he resigns his office by notice to the company;
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or
(v) he shall for more than six consecutive months have
been absent without permission of the directors from
meetings of directors held during that period and the
directors resolve that his office be vacated; or
(vi) he is removed from office by notice in writing served
upon him signed by all his co-directors at a time
when the number of directors holding office is not
less than three.
(b) Without prejudice to any other provisions of the articles
governing the appointment and removal of directors any member
or members holding alone or together a majority in nominal
value of such of the issued share capital for the time
being of the company as carries the right to attend and
vote at all general meetings of the company may by
memorandum in writing signed by or on behalf of him or
them and delivered to the office or tendered at a
meeting of the directors, at any time and from time to
time:
(i) appoint any person to be a director either to fill a
casual vacancy or as an addition to the existing
directors provided that such appointment does not
cause the number of directors to exceed any number
fixed in accordance with the articles as the maximum
number of directors; and
(ii) remove any director from office howsoever appointed.
(c) The removal from office pursuant to regulation 78(a)(vi) or
78(b) of any director who holds an executive office which
thereby automatically determines shall be deemed an act of the
company and shall have effect accordingly.
REMUNERATION OF DIRECTORS
79. The ordinary remuneration of the directors will be
determined by the directors but shall not in the aggregate
exceed(pound)250,000 per annum (disregarding any compensatioN
payable to executive directors in their capacity as
executives) or such higher amount as may from time to time
be determined by an ordinary resolution of the company.
Such remuneration shall (unless such resolution otherwise
provides) be divisible among the directors as they may
agree or, failing agreement, equally except that any
director who shall hold office for only part of the period
with respect to which such remuneration is payable shall be
entitled only to rank in such division for a proportion of
remuneration related to the period during which he has held
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office. Any director who holds any executive office
(including for this purpose the office of Chairman or
Deputy Chairman of the board of directors whether or not
such office is held in an executive capacity) or who serves
on any committee of the directors, or who otherwise
performs services which in the opinion of the directors are
outside the scope of the ordinary duties of a director, may
be paid such extra remuneration by way of salary,
commission or otherwise or may receive such other benefits
as the directors may determine. The directors may repay to
any director all reasonable expenses as he may incur in
attending and returning from meetings of the directors or
of any committee of the directors or shareholders' meetings
or otherwise in connection with the business of the
company.
DIRECTORS' EXPENSES
80. The directors may be paid all travelling, hotel, and other expenses
properly incurred by them in connection with their attendance at
meetings of directors or committees of directors or general meetings or
separate meetings of the holders of any class of shares or of
debentures of the company or otherwise in connection with the discharge
of their duties.
DIRECTORS' APPOINTMENTS AND INTERESTS
81. Subject to the provisions of the Act, the directors may
appoint one or more of their number to the office of
managing director or to any other executive office under
the company and may enter into an agreement or arrangement
with any director for his employment by the company or for
the provision by him of any services outside the scope of
the ordinary duties of a director. Any such appointment,
agreement or arrangement may be made upon such terms as the
directors determine and they may remunerate any such
director for his services as they think fit. Any
appointment of a director to an executive office shall
terminate if he ceases for any reason whatsoever to be a
director but without prejudice to any claim to damages for
breach of any contract of service between the director and
the company.
82. Subject to the provisions of the Act, a director may notwithstanding
his office and provided that he has disclosed to the directors the
nature and extent of any interest:-
(a) be a party to, or otherwise interested in, any
contract, transaction or arrangement with the company
or in which the company is otherwise interested; and
(b) be a director or other officer of, or employed by, or a party
to any contract, transaction or arrangement
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with, or otherwise interested in, any body corporate
promoted by the company or in which the company is
otherwise interested;
(c) (or any firm of which he is a partner, employee or member) act
in a professional capacity for the company (other than as
auditor) and be remunerated therefor and shall not (save as
otherwise agreed by him) be accountable to the company for any
benefit which he derives from any such contract, transaction
or arrangement or from any such office or employment or
from any interest in any such body corporate or for such
remuneration. No such contract, transaction or arrangement
shall be liable to be avoided on the grounds of any such
interest or benefit.
83. Provided that, where it is necessary, he declares the
nature of his interest at a meeting of directors as
required by the Act, a director shall not by reason of his
office be accountable to the company for any benefit which
he derives from any office or employment to which the
articles allow him to be appointed or from any transaction
or arrangement or from any interest in any body corporate
in which the articles allow him to be interested and no
such transaction or arrangement shall be liable to be
avoided on the ground of any such interest or benefit.
84. For the purposes of the immediately preceding regulation:-
(A) a general notice given to the directors that a
director is to be regarded as having an interest of
the nature and extent specified in the notice in any
transaction or arrangement in which a specified person
or class of persons is interested shall be deemed to
be a disclosure that the director has an interest in
any such transaction of the nature and extent so
specified; and
(B) an interest of which a director has no knowledge and of which
it is unreasonable to expect him to have knowledge shall not
be treated as an interest of his.
DIRECTORS' GRATUITIES AND PENSIONS
85. The company may provide benefits, whether by the payment of gratuities
or pensions or other retirement, superannuation, death or disability
benefits to (or to any person in respect of) any director or
ex-director of the company or any subsidiary and for the purpose of
providing any such gratuities, pensions, or other benefits to
contribute to such scheme or to pay premiums.
PROCEEDINGS OF DIRECTORS
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86. (a) Subject to the provisions of the articles, the directors
may regulate their proceedings as they think fit. A director
may, and the secretary at the request of a director shall,
call a meeting of the directors. Notice of any meeting of the
directors (or any committee of the directors) may be given by
telephone, facsimile electronic mail transmission or by telex.
Any director may waive notice of any meeting and any such
waiver may be retroactive. Questions arising at a meeting
shall be decided by a majority of votes. In the case of an
equality of votes, the chairman shall have a second or casting
vote. A director who is also an alternate director shall be
entitled in the absence of his appointor to a separate vote on
behalf of his appointor in addition to his own vote.
(b) The contemporaneous linking together by telephone or
similar communicating equipment of the company
secretary and directors or members of a committee of
the directors being in number not less than the quorum
required for the transaction of the business of the
directors or such committee, whether in the United
Kingdom or elsewhere in the world, shall be deemed to
constitute a meeting of the directors (or as the case
may be a meeting of such committee), so long as the
following conditions are met:-
(i) all the directors or members of the committee of the
directors for the time being entitled to receive
notice of any meeting of the directors or of such
committee (including any alternate director) shall be
entitled to notice of any such meeting and to be
linked by telephone for the purpose of such meeting;
(ii) subject as provided in sub-regulation (D) each of the
directors or members of such committee taking part
and the company secretary must be able to hear each
of such other persons taking part throughout the
meeting;
(iii) at the commencement of the meeting each participant
must acknowledge his presence to all the other
persons taking part in such meeting;
(iv) unless he has previously obtained the consent of
the chairman of the meeting a person may not
leave the meeting by disconnecting his telephone
and shall conclusively be presumed to have been
present and to have formed part of the quorum
throughout the meeting. The meeting shall be
deemed to have been validly conducted
notwithstanding that a participant's telephone is
accidentally disconnected during the meeting, and
28
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the proceedings thereof shall be deemed to be as
valid as if the telephone had not been
disconnected;
(v) a minute of the proceedings shall be sufficient
evidence thereof and of the observance of all
necessary formalities if signed by the chairman of
such meeting.
87. The quorum for the transaction of the business of the
directors may be fixed by the directors and unless so fixed
at any other number shall be two. A director or a member of
a committee of the directors shall be treated as present at
a meeting of the directors or any such committee
notwithstanding that he is not physically present if he is
in communication with the meeting by telephone or similar
communicating equipment. A director or a member of a
committee of the directors who is in communication as
aforesaid shall be counted as part of the quorum for such
meeting. A person who holds office only as an alternate
director shall, if his appointor is not present, be counted
in the quorum.
88. The continuing directors or a sole continuing director may act
notwithstanding any vacancies in their number, but, if the number of
directors is less than the number fixed as the quorum, the continuing
directors or director may act only for the purpose of filling vacancies
or of calling a general meeting.
89. The directors may appoint one of their number to be the
chairman of the board of directors and may at any time
remove him from that office. The director so appointed
shall preside at every meeting of directors at which he is
present but if there is no director holding that office, or
if the director holding it is unwilling to preside or is
not present within five minutes after the time appointed
for the meeting, the directors present may appoint one of
their number to be chairman of the meeting.
90. All acts done by a meeting of directors, or of a committee
of directors, or by a person acting as a director shall,
notwithstanding that it be afterwards discovered that there
was a defect in the appointment of any director or that any
of them were disqualified from holding office, or had
vacated office, or were not entitled to vote, be as valid
as if every such person had been duly appointed and was
qualified and had continued to be a director and had been
entitled to vote.
91. A resolution in writing signed by all the directors entitled to receive
notice of a meeting of directors or of a committee of directors shall
be as valid and effectual as if it had been passed at a meeting of
directors or (as the
29
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case may be) a committee of directors duly convened and held and may
consist of several documents in the like form each signed by one or
more directors but a resolution signed by an alternate director need
not also be signed by his appointor and, if it is signed by a director
who has appointed an alternate director, it need not be signed by the
alternate director in that capacity.
92. Except as otherwise provided below, a director shall not
vote in respect of any contract or arrangement or any other
proposal whatsoever in which he has any material interest
otherwise than by virtue of interests in shares or
debentures or other securities of, or otherwise in or
through, the company. A director shall not be counted in
the quorum of a meeting in relation to any resolution on
which he is not entitled to vote. Provided that a director
has disclosed the nature and extent of his interests, a
director shall (in the absence of some other material
interest than is indicated below) be entitled to vote (and
be counted in the quorum) in respect of any resolution
concerning any of the following matters:
(a) the giving of any security, guarantee, or indemnity
with respect to (a) money lent or obligations incurred
by him or by any other person at the request of or for
the benefit of the company or any of its subsidiaries,
or (b) a debt or other obligation of the company or
any of its subsidiaries for which he himself has
assumed responsibility in whole or in part under a
guarantee or indemnity or by the giving of security;
(b) any proposal concerning an offer of shares or debentures or
other securities of or by the company or any of its
subsidiaries in which offer he is or may be entitled to
participate as a holder of securities or in the underwriting
or sub-underwriting of which he is to participate;
(c) any proposal concerning any other body corporate in
which he is interested, directly or indirectly, and
whether as an officer or shareholder or otherwise,
provided that he (together with persons connected with
him within the meaning of Section 346 of the Act) does
not have any interest (as that term is used in
Sections 198 to 211 of the Act) in 1% or more of the
issued equity share capital of any class of such body
corporate (or of any third company through which his
interest is derived) or of the voting rights available
to members of the relevant body corporate (any such
interest being deemed for the purpose of the Articles
to be a material interest in all circumstances);
(d) any proposal relating to an arrangement for the benefit of the
employees of the company or any of its
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subsidiaries which does not award him any privilege or
benefit not generally awarded to the employees to whom
such arrangement relates; and
(e) any proposal concerning insurance which the company proposes
to maintain or purchase for the benefit of directors or for
the benefit of persons who include directors.
93. A director shall not be counted in the quorum present at a meeting in
relation to a resolution on which he is not entitled to vote.
94. The company may by ordinary resolution suspend or relax to any extent,
either generally or in respect of any particular matter, any provision
of the articles prohibiting a director from voting at a meeting of
directors or of a committee of directors.
95. Where proposals are under consideration concerning the
appointment of two or more directors to offices or
employments with the company or any body corporate in which
the company is interested the proposals may be divided and
considered in relation to each director separately and
(provided he is not for another reason precluded from
voting) each of the directors concerned shall be entitled
to vote and be counted in the quorum in respect of each
resolution except that concerning his own appointment.
96. If a question arises at a meeting of directors or of a committee of
directors as to the right of a director to vote, the question may,
before the conclusion of the meeting, be referred to the chairman of
the meeting and his ruling in relation to any director other than
himself shall be final and conclusive.
SECRETARY
97. Subject to the provisions of the Act, the secretary shall be appointed
by the directors for such term, at such remuneration and upon such
conditions as they may think fit; and any secretary so appointed may be
removed by them.
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MINUTES
98. The directors shall cause minutes to be made in books kept for the
purpose:-
(a) of all appointments of officers made by the directors;
and
(b) of all proceedings at meetings of the company, of the holders
of any class of shares in the company, and of the directors,
and of committees of directors, including the names of the
directors present at each such meeting.
THE SEAL
99. (a) No instrument shall be executed by the company otherwise
than by the authority of the directors or of a committee of
directors authorised by the directors. The directors may
determine who shall sign any instrument to which the seal is
affixed and except as otherwise so determined it shall be
signed by a director and by the secretary or by a second
director.
(b) Any instrument signed by a director and by the secretary or by
a second director and expressed (in whatever form of words) to
be executed by the company shall have the same effect as if
executed under the seal.
DIVIDENDS
100. Subject to the provisions of the Act, the company may by ordinary
resolution declare dividends in accordance with the respective rights
of the members, but no dividend shall exceed the amount recommended by
the directors.
101. Subject to the provisions of the Act, the directors may pay
interim dividends if it appears to them that they are
justified by the profits of the company available for
distribution. If the share capital is divided into
different classes, the directors may pay interim dividends
on shares which confer deferred or non-preferred rights
with regard to dividend as well as on shares which confer
preferential rights with regard to dividend, but no interim
dividend shall be paid on shares carrying deferred or non-
preferred rights if, at the time of payment, any
preferential dividend is in arrear. The directors may also
pay at intervals settled by them any dividend payable at a
fixed rate if it appears to them that the profits available
for distribution justify the payment. Provided the directors act in
good faith they shall not incur any liability to the holders of shares
conferring preferred
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rights for any loss they may suffer by the lawful payment of an
interim dividend on any shares having deferred or non-preferred
rights.
102. Except as otherwise provided by the rights attached to
shares, all dividends shall be declared and paid according
to the amounts paid up on the shares on which the dividend
is paid. Subject as aforesaid, all dividends shall be
apportioned and paid proportionately to the amounts paid up
on the shares during any portion or portions of the period
in respect of which the dividend is paid, but if any share
is issued on terms providing that it shall rank for
dividend as from a particular date, that share shall rank
for dividend accordingly.
103. The directors may deduct from any dividend or other moneys payable to
any member in respect of a share any moneys presently payable by him to
the company in respect of that share.
104. A general meeting declaring a dividend may, upon the
recommendation of the directors, direct that it shall be
satisfied wholly or partly by the distribution of assets
and, where any difficulty arises in regard to the
distribution, the directors may settle the same and in
particular may issue fractional certificates and fix the
value for distribution of any assets and may determine that
cash shall be paid to any member upon the footing of the
value so fixed in order to adjust the rights of members and
may vest any assets in trustees.
105. Any dividend or other moneys payable in respect of a share
may be paid by cheque sent by post to the registered
address of the person entitled or, if two or more persons
are the holders of the share or are jointly entitled to it
by reason of the death or bankruptcy of the holder, to the
registered address of that one of those persons who is
first named in the register of members or to such person
and to such address as the person or persons entitled may
in writing direct. Every cheque shall be made payable to
the order of the person or persons entitled or to such
other person as the person or persons entitled may in
writing direct and payment of the cheque shall be a good
discharge to the company. Any joint holder or other person
jointly entitled to a share as aforesaid may give receipts
for any dividend or other moneys payable in respect of the
share.
106. No dividend or other moneys payable in respect of a share shall bear
interest against the company unless otherwise provided by the rights
attached to the share.
107. Any dividend which has remained unclaimed for twelve years from the
date when it became due for payment shall, if the
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directors so resolve, be forfeited and cease to remain owing by the
company.
ACCOUNTS
108. No member shall (as such) have any right of inspecting any accounting
records or other book or document of the company except as conferred by
statute or authorised by the directors or by ordinary resolution of the
company.
CAPITALISATION OF PROFITS
109. The directors may with the authority of an ordinary
resolution of the company:-
(a) subject as hereinafter provided, resolve to capitalise any
undivided profits of the company not required for paying any
preferential dividend (whether or not they are available for
distribution) or any sum standing to the credit of the
company's share premium account or capital redemption reserve;
(b) appropriate the sum resolved to be capitalised to the
members who would have been entitled to it if it were
distributed by way of dividend and in the same
proportions and apply such sum on their behalf either
in or towards paying up the amounts, if any, for the
time being unpaid on any shares held by them
respectively, or in paying up in full unissued shares
or debentures of the company of a nominal amount equal
to that sum, and allot the shares or debentures
credited as fully paid to those members, or as they
may direct, in those proportions, or partly in one way
and partly in the other; but the share premium
account, the capital redemption reserve, and any
profits which are not available for distribution may,
for the purposes of this regulation, only be applied
in paying up unissued shares to be allotted to members
credited as fully paid;
(c) resolve that any shares so allotted to any member in respect
of a holding by him of any partly paid shares shall rank for
dividend only to the extent that the latter shares rank for
dividend;
(d) make such provision by the issue of fractional certificates or
by payment in cash or otherwise as they determine in the case
of shares or debentures becoming distributable under this
regulation in fractions; and
(e) authorise any person to enter on behalf of all the members
concerned into an agreement with the company
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providing for the allotment to them respectively,
credited as fully paid, of any shares or debentures to
which they are entitled upon such capitalisation, any
agreement made under such authority being binding on all
such members.
NOTICES
110. Any notice to be given to or by any person pursuant to the
articles shall be in writing except that a notice calling
a meeting of the directors need not be in writing. The
company may give any notice to a member either personally
or by sending it by post in a prepaid envelope addressed to
the member at his registered address or by leaving it at
that address. In the case of joint holders of a share, all
notices shall be given to the joint holder whose name
stands first in the register of members in respect of the
joint holding and notice so given shall be sufficient
notice to all the joint holders. A member whose registered
address is not within the United Kingdom and who gives to
the company an address within the United Kingdom at which
notices may be given to him shall be entitled to have
notices given to him at that address, but otherwise no such
member shall be entitled to receive any notice from the
company.
111. A member present, either in person or by proxy, at any meeting of the
company or of the holders of any class of shares in the company shall
be deemed to have received notice of the meeting and, where requisite,
of the purposes for which it was called.
112. Every person who becomes entitled to a share shall be bound by any
notice in respect of that share which, before his name is entered in
the register of members, has been duly given to a person from whom he
derives his title.
113. Proof that the envelope containing a notice was properly addressed,
prepaid and posted shall be conclusive evidence that the notice was
given. A notice shall be deemed to be given at the expiration of 48
hours after the envelope containing it was posted.
114. A notice may be given by the company to the persons entitled to a
share in consequence of the death or bankruptcy of a member by
sending or delivering it, in any manner authorised by the articles
for the giving of notice to a member, addressed to them or by the
title of representatives of the deceased, or trustee of the bankrupt
or by any like description at the address, if any, within the United
Kingdom supplied by them for that purpose by the persons claiming to
be so entitled. Until such an address has been supplied, a notice
may be given in any manner in
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which it might have been given if the death or bankruptcy
had not occurred.
WINDING UP
115. If the company is wound up, the liquidator may, with the
sanction of an extraordinary resolution of the company and
any other sanction required by the Act, divide among the
members in specie the whole or any part of the assets of
the company and may, for that purpose, value any assets and
determine how the division shall be carried out as between
the members or different classes of members. The liquidator
may, with the like sanction, vest the whole or any part of
the assets in trustees upon such trusts for the benefit of
the members as he with the like sanction determines, but no
member shall be compelled to accept any assets upon which
there is liability.
INDEMNITY AND INSURANCE
116. Subject to the provisions of the Act, every director,
secretary, or other officer of the company (excluding
auditors) shall be indemnified by the company out of its
own funds against and/or exempted by the company from all
costs, charges, losses, expenses and liabilities incurred
by him in the actual or purported execution and/or
discharge of his duties and/or the exercise or purported
exercise of his powers and/or otherwise in relation to or
in connection with his duties, powers or office, including
(without prejudice to the generality of the foregoing) any
liability incurred by him in investigating, preparing for,
and defending any inquiries or investigation, claim or
proceedings, civil or criminal, which relate to anything
done or omitted or alleged to have been done or omitted by
him as an officer, director, or employee of the company and
in which judgment is given in his favour (or the
proceedings are otherwise disposed of without any finding
or admission of any material breach of duty on his part) or
in which he is acquitted or in connection with any
application under any statute for relief from liability in
respect of any such act or omission in which relief is granted to him
by a court. In that regard, the company shall have the power to advance
funds to any such officer, director or employee in payment of all
costs, charges, losses, expenses, and liabilities incurred by him in
investigating, preparing for, or defending any such inquiries,
investigations, claims or proceedings whatsoever. In addition, the
board of directors shall have power to purchase and maintain insurance
for or for the benefit of any person who is or was at any time a
director or officer of any "Relevant Company" (as defined below) or who
is or was at any time a trustee of any pension fund or employees' share
scheme in which employees of any Relevant
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Company are interested including (without prejudice to the
generality of the foregoing) insurance against any liability
incurred by such person in respect of any act or omission in the
actual or purported execution and/or discharge of his or her duties
and/or in the exercise or purported exercise of his or her powers
and/or otherwise in relation to his or her duties, power, or offices
in relation to any Relevant Company, or any such pension fund or
employees' share scheme. For these purposes, "Relevant Company"
shall mean the company, any holding company of the company or any
other body, whether or not incorporated in which the company or such
holding company or any of the predecessors of the company or of such
holding company has or had any interest whether direct or indirect
or which is in any way allied to or associated with the company, or
any subsidiary of the company, or of such other body.
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Exhibit 3.2
THE COMPANIES ACTS 1986 TO 1989
PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION OF
Town Pages Holdings plc
1. The Company's name is "Town Pages Holdings plc".
2. The Company is to be a public company.
3. The Company's registered office is to be situated in England and Wales.
4. The Company's objects are
4.1.1 To carry on all or any of the businesses of general merchants and
traders, cash and credit traders, manufacturers' agents and representatives,
insurance brokers and consultants, estate and advertising agents, mortgage
brokers, financial agents, advisers, managers and administrators, hire
purchase and general financiers, brokers and agents, commission agents,
importers and exporters, manufacturers, retailers, wholesalers, buyers,
sellers, distributors and shippers of, and dealers in all products, goods,
wares, merchandise and produce of every description to participate in,
undertake, perform and carry on all kinds of commercial, industrial, trading
and financial operations and enterprises; to carry on all or any of the
businesses of marketing and business consultants, advertising agents and
contractors, general storekeepers, warehousemen, discount traders, mail order
specialists, railway, shipping and forwarding agents, shippers, traders,
capitalists and financiers either on the Company's own account or otherwise,
printers and publishers; haulage and transport contractors, garage
proprietors, operators, hires and letters on hire of, and dealers in motor
and other vehicles, craft, plant, machinery, tools and equipment of all
kinds; and to purchase or otherwise acquire and take over any businesses or
undertakings which may be deemed expedient, or to become interested in, and
to carry on or dispose of, remove or put an end to the same or otherwise deal
with any such businesses or undertakings as may be thought desirable.
4.1.2 To carry on the business of an investment company in all its branches,
and to acquire by purchase, lease, concession, grant, licence or otherwise
such businesses, options, rights, privileges, lands, buildings, leases,
underleases, stocks, shares, debentures, debenture stock, bonds, obligations,
securities, reversionary interests, annuities, policies of assurance and
other property and
<PAGE>
rights and interests in property as the Company shall deem fit and generally
to hold, manage, develop, lease, sell or dispose of the same and to vary any
of the investments of the Company, to act as trustees of any deeds
constituting or securing any debentures, debenture stock or other securities or
obligations.
4.1.3 To carry on any other trade or business whatever which can in the
opinion of the board of directors by advantageously carried on in connection
with or ancillary to any of the businesses of the Company.
4.2 To purchase or by any other means acquire and take options over any
property whatever, and any rights or privileges of any kind over or in
respect of any property.
4.3 To apply for, register, purchase, or by other means acquire and
protect, prolong and renew, whether in the United Kingdom or elsewhere, any
trade marks, patents, copyrights, trade secrets, or other intellectual
property rights, licences, secret processes, designs, protections and
concessions and to disclaim, alter, modify, use and turn to account and to
manufacture under or grant licences or privileges in respect of the same, and
to expend money in experimenting upon, testing and improving any patents,
inventions or rights which the Company may acquire or propose to acquire.
4.4 To acquire or undertake the whole or any part of the business,
goodwill, and assets of any person, firm, or company carrying on or proposing
to carry on any of the businesses which the Company is authorised to carry on
and as part of the consideration for such acquisition to undertake all or any
of the liabilities of such person, firm or company, or to acquire an interest
in, amalgamate with, or enter into partnership or into any arrangement for
sharing profits, or for co-operation, or for mutual assistance with any such
person, firm or company, or for subsidising or otherwise assisting any such
person, firm or company, and to give or accept, by way of consideration for
any of the acts or things aforesaid or property acquired, any shares,
debentures, debenture stock or securities that may be agreed upon, and to
hold and retain, or sell, mortgages and deal with any shares, debentures,
debenture stock or securities so received.
4.5 To improve, manage, construct, repair, develop, exchange, let on lease
or otherwise, mortgage, charge, sell, dispose of, turn to account, grant
licences, options, rights and privileges in respect of, or otherwise deal
with all or any part of the property and rights of the Company.
4.6 To invest and deal with the moneys of the Company not immediately
required to such manner as may from time to time be determined and to hold or
otherwise deal with any investments made.
4.7 To lend and advance money or give credit on any terms and with or
without security to any person, firm or company (including without prejudice
to the generality of the foregoing any holding company, subsidiary or fellow
subsidiary of, or any other company associated in any way with, the Company),
to enter into guarantees, contracts of indemnity and suretyships of all
kinds, to receive money on deposit or loan upon any terms, and to secure or
guarantee in any manner and upon any terms the payment of any sum of money or
the
<PAGE>
performance of any obligation by any person, firm or company (including
without prejudice to the generality of the foregoing any such holding
company, subsidiary, fellow subsidiary or associated company as aforesaid).
4.8 To borrow and raise money in any manner and to secure the repayment of
any money borrowed, raised or owing by mortgage, charge, standard security,
lien or other security upon the whole or any part of the Company's property
or assets (whether present or future), including its uncalled capital, and
also by a similar mortgage, charge, standard security, lien or security to
secure and guarantee the performance by the Company of any obligation or
liability it may undertake or which may become binding on it.
4.9 To draw, make, accept, endorse, discount, negotiate, execute and issue
cheques, bills of exchange, promissory notes, bills of lading, warrants,
debentures, and other negotiable or transferable instruments.
4.10 To apply for, promote, and obtain any Act of Parliament, order or
licence of the Department of Trade or other authority for enabling the
Company to carry any of its objects into effect, or for effecting any
modification of the Company's constitution, or for any other purpose which
may seem calculated directly or indirectly to promote the Company's
interests, and to oppose any proceedings or applications which may seem
calculated directly or indirectly to prejudice the Company's interests.
4.11 To enter into any arrangements with any government or authority
(supreme, municipal, local, or otherwise) that may seem conducive to the
attainment of the Company's objects or any of them, and to obtain from any
such government or authority any charters, decrees, rights, privileges or
concessions which the Company may think desirable and to carry out, exercise,
and comply with any such charters, decrees, rights, privileges, and
concessions.
4.12 To subscribe for, take, purchase, or otherwise acquire, hold, sell,
deal with and dispose of, place and underwrite shares, stocks, debentures,
debenture stocks, bonds, obligations or securities issued or guaranteed by
any other company constituted or carrying on business in any part of the
world, and debentures, debenture stocks, bonds, obligations or securities
issued or guaranteed by any government or authority, municipal, local or
otherwise, in any part of the world.
4.1.3 To control, manage, finance, subsidise, co-ordinate or otherwise
assist any company or companies in which the Company has a direct or indirect
financial interest, to provide secretarial, administrative, technical,
commercial and other services and facilities of all kinds for any such
company or companies and to make payments by way of subvention or otherwise
and any other arrangements which may seem desirable with respect to any
business or operations of or generally with respect to any such company or
companies.
4.14 To promote any other company for the purpose of acquiring the whole or
any part of the business or property or undertaking or any of the liabilities
of the Company, or of undertaking any business or operations which may appear
likely to assist or benefit the Company or to enhance the value of any
property or
<PAGE>
business of the Company, and to place or guarantee the placing of,
underwrite, subscribe for, or otherwise acquire all or any part of the shares
or securities of any such company as aforesaid.
4.15 To sell or otherwise dispose of the whole or any part of the business
or property of the Company, either together or in portions, for such
consideration as the Company may think fit, and in particular for shares,
debentures, or securities of any company purchasing the same.
4.16 To act as agents or brokers and as trustees for any person, firm or
company, and to undertake and perform sub-contracts.
4.17 To remunerate any person, firm or company rendering services to the
Company either by cash payment or by the allotment of shares or other
securities of the Company credited as paid up in full or in part or otherwise
as may be thought expedient.
4.18 To distribute among the members of the Company in kind any property of
the Company of whatever nature.
4.19 To pay all or any expenses incurred in connection with the promotion,
formation and incorporation of the Company, or to contract with any person,
firm or company to pay the same, and to pay commissions to brokers and others
for underwriting, placing, selling, or guaranteeing the subscription of any
shares or other securities of the Company.
4.20 To support and subscribe to any charitable or public object and to
support and subscribe to any institution, society, or club which may be for
the benefit of the Company or its directors or employees, or may be connected
with any town or place where the Company carries on business; to give or
award pensions, annuities, gratuities, and superannuation or other allowances
or benefits or charitable aid and generally to provide advantages, facilities
and services for any persons who are or have been directors of or who are or
have been employed by, or who are serving or have served the Company, or any
company which is a subsidiary of the Company or the holding company of the
Company or a fellow subsidiary of the Company or the predecessors in business
of the Company or of any such subsidiary, holding or fellow subsidiary
company and to the wives, widows, children and other relatives and dependants
of such persons; to make payments towards insurance including insurance for
any director, officer or auditor against any liability in respect of any
negligence, default, breach of duty or breach of trust (so far as permitted
by law); and to set up, establish, support and maintain superannuation and
other funds or schemes (whether contributory or non-contributory) for the
benefit of any such persons and of their wives, widows, children and other
relatives and dependants; and to set up, establish, support and maintain
profit sharing or share purchase schemes for the benefit of any of the
employees of the Company or of any such subsidiary, holding or fellow
subsidiary company and to lend money to any such employees or to trustees on
their behalf to enable any such schemes to be established or maintained.
4.21 Subject to and in accordance with the provisions of the Act (if and so
far as such provisions shall be applicable) to give, directly or indirectly,
financial
<PAGE>
assistance for the acquisition of shares or other securities of the Company
or of any other company or for the reduction or discharge of any liability
incurred in respect of such acquisition.
4.22 To procure the Company to be registered or recognised in any part of
the world.
4.23 To do all or any of the things or matters aforesaid in any part of the
world and either as principals, agents, contractors or otherwise, and by or
through agents, brokers, sub-contractors or otherwise and either alone or in
conjunction with others.
4.24 To do all such other things as may be deemed incidental or conducive
to the attainment of the Company's objects or any of them.
4.25 AND so that;
4.25.1 None of the objects set forth in any sub-clause of this clause shall
be restrictively construed but the widest interpretation shall be given to
each such object, and none of such objects shall, except where the context
expressly so requires, be in any way limited or restricted by reference to or
inference from any other object or objects set forth in such sub-clause, or
by reference to or inference from the terms of any other sub-clause of this
clause, or by reference to or inference from the name of the Company.
4.25.2 None of the sub-clauses of this clause and none of the objects therein
specified shall be deemed subsidiary or ancillary to any of the objects
specified in any other such sub-clause, and the Company shall have as full a
power to exercise each and every one of the objects specified in each
sub-clause of this clause as though each such sub-clause contained the
objects of a separate Company.
4.25.3 The word "company" in this clause, except where used in reference to
the Company, shall be deemed to include any partnership or other body of
persons, whether incorporated and whether domiciled in the United Kingdom or
elsewhere.
4.25.4 In this clause the expression "the Act" means the Companies Act 1986,
but so that any reference in this clause to any provision of the Act shall be
deemed to include a reference to any statutory modification or re-enactment
of that provision for the time being in force.
5. The liability of the members is limited.
6. The Company's share capital is (pound)100,000 shares of (pound)1 each.
<PAGE>
WE, the subscribers to this Memorandum of Association, wish to be formed into
a Company pursuant to this Memorandum; and we agree to take the number of
shares shown opposite our respective names.
<TABLE>
- -----------------------------------------------------------------------------
<S> <C>
Name and addresses of Subscribers Number of shares taken
by each Subscriber.
- -----------------------------------------------------------------------------
1. For and on behalf of One
Instant Companies Limited
1 Mitchell Lane
Bristol BS1 6BU
2. For and on behalf of One
Swift Incorporations Limited
1 Mitchell Lane
Bristol BS1 6BU
----------------------
Total shares taken Two
- -----------------------------------------------------------------------------
</TABLE>
Dated the 27th day of July, 1998
Witness to the above Signatures: Mark Anderson
1 Mitchell Lane
Bristol BS1 6BU
<PAGE>
Exhibit 4.1
FORM OF AMERICAN DEPOSITARY RECEIPT
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share represents one deposited Share)
BANKERS TRUST COMPANY
AMERICAN DEPOSITARY RECEIPT
REPRESENTING ORDINARY SHARES, NOMINAL VALUE 1p,
PER SHARE, OF
TOWN PAGES HOLDINGS PLC
(INCORPORATED UNDER THE LAWS OF England and Wales)
Bankers Trust Company as depositary (hereinafter called the "Depositary"),
hereby certifies that ___________________, or registered assigns IS THE HOLDER
OF _______________________
AMERICAN DEPOSITARY SHARES
representing Ordinary Shares, nominal value 1p per share (herein called
"Share(s)") of TOWN PAGES HOLDINGS PLC, a corporation incorporated under the
laws of England and Wales (herein called the "Company"). At the date hereof,
each American Depositary Share represents one (1) Share deposited or subject to
deposit under the Deposit Agreement.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS LOCATED AT
4 ALBANY STREET, NEW YORK, N.Y. 10006
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein
called "Receipts"), all issued and to be issued upon the terms and conditions
set forth in the Deposit Agreement, dated as of ________ _, 1999 (such Deposit
Agreement as amended from time to time, the "Deposit Agreement"), by and among
the Company, the Depositary, and all Holders and Beneficial Owners from time to
time of Receipts representing American Depositary Share(s) (herein called
"ADS(s)") issued thereunder, each of whom by accepting a Receipt agrees to
become a party thereto and become bound by all the terms and conditions thereof.
The Deposit Agreement sets forth the rights of Holders and Beneficial Owners of
the Receipts and the rights and duties of the Depositary in respect of the
Shares deposited thereunder and any and all other securities, property and cash
from time to time received in respect of such Shares and held thereunder (such
Shares, securities, property, and cash are herein called "Deposited
Securities"). Copies of the Deposit Agreement are on file at the Depositary's
Corporate Trust Office in New York City and at the office of the Custodian as
hereinafter defined.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified
by and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms defined in the Deposit Agreement and
not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary
of this Receipt, and upon payment of the fee of the Depositary provided in this
Receipt and payment of all taxes
1
<PAGE>
and governmental charges payable in connection with such surrender and
withdrawal of the Deposited Securities, and subject to the terms and conditions
of the Deposit Agreement and the Memorandum of Association and the Articles of
Association of the Company, and upon payment of related fees and charges of the
Depositary as described in Paragraph 7, the Holder hereof is entitled to
delivery, to him or upon his order, at the principal office of the Custodian of
the amount of Deposited Securities at the time represented by the American
Depositary Shares evidenced by this Receipt. Delivery of such Deposited
Securities may be made by (a)(i) the delivery of certificates in the name of
such Holder or as ordered by him or certificates properly endorsed or
accompanied by proper instruments of transfer to such Holder or as ordered by
him or (ii) book-entry transfer (if available) of Shares represented by the
American Depositary Shares evidenced by such Receipt to an account in the name
of such Holder or as ordered by him, and (b) delivery of any other securities,
property and cash to which such Holder is then entitled in respect of such
Receipts to such Holder or as ordered by him. Such delivery shall be made, as
hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by properly executed
instruments of transfer in blank, and if the Depositary so requires, the Holder
thereof shall execute and deliver to the Depositary a written order directing
the Depositary to cause the Deposited Securities being withdrawn to be delivered
to or upon the written order of a person or persons designated in such order.
Thereupon the Depositary shall direct the Custodian to deliver at the principal
office of such Custodian, subject to the terms of the Deposit Agreement, to or
upon the written order of the person or persons designated in the order
delivered to the Depositary as above provided, the amount of Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, except that the Depositary may make delivery to such person or persons
at the Corporate Trust Office of the Depositary of any dividends or other cash
distributions with respect to the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, or of any proceeds of sale
of any dividends, distributions or rights, which may at the time be held by the
Depositary.
The Depositary shall not accept for surrender a Receipt
evidencing American Depositary Shares representing less than one Share. In the
case of surrender of a Receipt evidencing a number of American Depositary Shares
representing other than a whole number of Shares, the Depositary shall cause
ownership of the appropriate whole number of Shares to be delivered in
accordance with the terms hereof, and shall issue and deliver to the person
surrendering such Receipt a new Receipt evidencing American Depositary Shares
representing any remaining fractional Share.
At the request, risk and expense of any Holder so surrendering
a Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
No surrender of Receipts for the purpose of withdrawal of
Deposited Securities shall be accepted unless accompanied by evidence
satisfactory to the Depositary that all
2
<PAGE>
necessary filings have been made and approvals have been obtained (or in each
case, have been properly waived) under the laws of England and Wales.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
Subject to the terms and conditions of the Deposit Agreement,
the transfer of this Receipt is registrable on the books of the Depositary at
its Corporate Trust Office by the Holder hereof in person or by a duly
authorized attorney, upon surrender of this Receipt duly stamped (as may be
required by law), properly endorsed for transfer or accompanied by proper
instruments of transfer and funds sufficient to pay any applicable taxes or
other governmental charges, and the fees and expenses of the Depositary
related to such registration of transfer as set forth in Paragraph 7 hereof
and duly stamped as may be required by applicable law, and upon compliance
with such regulations, if any, as the Depositary may establish for such
purpose. Upon satisfaction of the conditions described above, the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon the
order of the person entitled thereto. This Receipt may, upon the terms and
conditions of the Deposit Agreement, be split into other Receipts, or may be
combined with other Receipts into one Receipt, evidencing the same aggregate
number of American Depositary Shares as the Receipt or Receipts surrendered.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination, or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, the Custodian, or Registrar may
require payment from the depositor of the Shares or the presenter of the
Receipt a sum sufficient to reimburse it for any tax (including, without
limitation, amounts in respect of any applicable transfer taxes) or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees as provided
in this Receipt, may require the production of proof satisfactory to it as to
the identity and genuineness of any signature and may also require proof of
compliance with any applicable notice, consent or other requirements relating
to the acquisition of securities of companies incorporated in England and
Wales and may also require compliance with any regulations the Depositary may
establish consistent with the provisions of the Deposit Agreement or this
Receipt, including, without limitation, this Paragraph 3.
The delivery of Receipts against the deposit of Shares
generally or against the deposit of particular Shares may be suspended, or
the transfer of Receipts in particular instances may be refused, or the
registration of transfer of outstanding Receipts or the combination or
split-ups of Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company in their reasonable
discretion at any time or from time to time because of any requirement of law
or of any government or quasi-governmental body or commission or any
securities exchange or automated quotation system on which the American
Depositary Shares may be listed, or under any provision of the Deposit
Agreement or this Receipt, or for any other reason, subject to the provisions
of the following sentence. Notwithstanding anything to the contrary in the
Deposit Agreement or this Receipt, the surrender of outstanding Receipts and
withdrawal of Deposited Securities may be suspended, only as permitted in
General Instruction I.A. (1) to Form F-6 (as such instruction may be amended
from time to time) in connection with (i) temporary delays caused by closing
the transfer books of the Depositary or the Company or the deposit of Shares
in connection with voting at a shareholders' meeting, or the payment of
3
<PAGE>
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act, unless a registration statement is in
effect as to such Shares.
4. LIABILITY OF HOLDER OR BENEFICIAL OWNER FOR TAXES.
If any tax (including, without limitation, any transfer taxes)
or other governmental charge shall become payable with respect to this Receipt
or any Deposited Securities represented hereby, such tax or other governmental
charge shall be payable by the Holder or Beneficial Owner hereof to the
Depositary. The Depositary may refuse to effect any transfer (or any combination
or split-up) of this Receipt or, subject to Paragraph 23 hereof, any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Holder and Beneficial Owner
hereof any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Holder or Beneficial Owner hereof shall remain
liable for any deficiency.
The Holder and Beneficial Owner (if any) hereof agrees to
indemnify the Depositary, the Company, the Custodian, and any of their agents,
officers, employees and Affiliates for, and to hold each of them harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
5. REPRESENTATIONS AND WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares and each
certificate therefor are duly authorized, validly issued, fully paid,
non-assessable, legally obtained by such person and free of any preemptive
rights of the holders of outstanding Shares and that the person making such
deposit is duly authorized so to do. Every such person shall also be deemed
to represent that such Shares and the Receipts evidencing American Depositary
Shares representing such Shares are (a) not Restricted Securities (as defined
in the Deposit Agreement) and (b) not subject to any unfulfilled requirements
of the laws of England and Wales. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person
depositing the Shares, and in their sole and absolute discretion, to take any
and all actions necessary to correct the consequences thereof.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
4
<PAGE>
Any person presenting Shares for deposit or any Holder or
Beneficial Owner of a Receipt may be required from time to time (i) to file
with the Depositary or the Custodian such proof of citizenship or residence,
exchange control approval, payment of applicable taxes or other governmental
charges, legal or beneficial ownership of Receipts, Deposited Securities or
other securities, compliance with all applicable laws or regulations or terms
of the Deposit Agreement or the Receipts, or such information relating to the
registration on the books of the Company or the Foreign Registrar, if
applicable, or any other information the Custodian, the Depositary, or the
Company may deem necessary or appropriate as evidence of compliance with all
applicable laws and regulations, and (ii) to execute such certificates and to
make such representations and warranties, as the Depositary may deem
necessary or appropriate. Any such person shall be required to comply with
requests by the Company for information as to the capacity in which such
person owns Receipts and Shares, the identity of any other person interested
in any such Receipt or Share, and the nature of such interest. The Depositary
may withhold the delivery or registration of transfer of any Receipt or the
distribution of any dividend or distribution of rights or of the sale
proceeds thereof or, subject to the terms of Paragraph 23 hereof, the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed or such representations and
warranties made to the Depositary's reasonable satisfaction.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay or reimburse the fees, reasonable
expenses and out-of-pocket charges of the Depositary and those of any Registrar
in accordance only with agreements in writing entered into between the
Depositary and the Company from time to time. The right of the Depositary to
receive payments and/or reimbursements under this Paragraph 7 shall survive the
termination of the Deposit Agreement.
The following charges shall be incurred by the Holders and
Beneficial Owners, by any party depositing or withdrawing Shares or by any
party surrendering Receipts or to whom Receipts are issued (including,
without limitation, issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Paragraph 12
hereof and to the terms of the Deposit Agreement), whichever is applicable:
(1) taxes (including, without limitation, any amounts in respect of any
applicable stamp tax and other governmental charges), (2) such transfer or
registration fees as may from time to time be in effect for the registration
of transfers of Shares generally on the register of the Company or Foreign
Registrar and applicable to transfers of Shares to the name of the Depositary
or its nominee or the Custodian or its nominee on the making of deposits or
withdrawals hereunder, (3) such cable, telex and facsimile transmission
expenses as are expressly provided in the Deposit Agreement, (4) such
expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Paragraph 14 hereof and to the terms of the Deposit
Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares (or
portion thereof) for the execution and delivery of Receipts pursuant to
Paragraph 14 hereof and to the terms of the Deposit Agreement and the
surrender of Receipts pursuant to Paragraphs 2, 12 and 21 hereof and the
terms of the Deposit Agreement, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant
to the Deposit Agreement (other than as a cash dividend), (7) a fee of $1.50
per
5
<PAGE>
certificate for a Receipt or Receipts for transfers made pursuant to Paragraph 3
and (8) a fee for the distribution of securities pursuant to Paragraph 7 hereof
and to the terms of the Deposit Agreement, such fee being in an amount equal to
the fee for the execution and delivery of American Depositary Shares referred to
above which would have been charged as a result of the deposit of such
securities (for purposes of this clause (8) treating all such securities as if
they were Shares) but which securities are instead distributed by the Depositary
to Holders.
8. PRE-RELEASE OF RECEIPTS.
The Depositary may issue Receipts against evidence as to the
right to receive shares from the Company. No such issuance of Receipts shall
be deemed a Pre-Release (as defined below). Notwithstanding anything to the
contrary in this Receipt or in the Deposit Agreement but subject to the terms
and conditions thereof, the Depositary may execute and deliver Receipts prior
to the receipt of Shares (a "Pre-Release"). The Depositary may deliver Shares
upon the receipt and cancellation of Receipts which have been Pre-Released,
whether or not such cancellation is prior to the termination of such
Pre-Release or the Depositary knows that such Receipt has been Pre-Released.
The Depositary may receive Receipts in lieu of Shares in satisfaction of a
Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a
written representation from the person to whom Receipts or Shares are to be
delivered, that such person, or its customer, owns the Shares or Receipts to
be remitted, as the case may be, (b) at all times fully collateralized with
cash or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days notice,
and (d) subject to such further indemnities and credit regulations as the
Depositary deems appropriate. The number of American Depositary Shares which
are outstanding at any time as a result of Pre-Release will not normally
exceed thirty percent (30%) of the Shares deposited hereunder; provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it reasonably deems appropriate, and may change
such limit for purposes of general application. The Depositary will also set
Dollar limits with respect to Pre-Release transactions to be entered into
hereunder with any particular Pre-Releasee on a case-by-case basis as the
Depositary reasonably deems appropriate. For purposes of enabling the
Depositary to fulfill its obligations to the Holders under the Deposit
Agreement, the collateral referred to in clause (b) above shall be held by
the Depositary as security for the performance of the Pre-Releasee's
obligations to the Depositary in connection with a Pre-Release transaction,
including the Pre-Releasee's obligation to deliver Shares or Receipts upon
termination of a Pre-Release transaction (and shall not, for the avoidance of
doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Holder
and Beneficial Owner of this Receipt by accepting or holding the same
consents and agrees, that title to this Receipt when properly endorsed or
accompanied by proper instruments of transfer, is transferable by delivery
with the same effect as in the case of a negotiable instrument under the laws
of the State of New York (subject to satisfying the requirements of the
Deposit Agreement); provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the Holder hereof as the absolute
Holder hereof for the purpose of determining the person entitled to
distribution of
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dividends or other distributions or to any notice provided for in the Deposit
Agreement and for all other purposes. Neither the Depositary nor the Company
shall have obligation under the terms hereof or of the Deposit Agreement to any
Beneficial Owner or Holder of any Receipt issued pursuant to the Deposit
Agreement unless such person is registered as the Holder thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose, unless this
Receipt shall have been executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory of the Depositary; provided,
however, that if a Registrar for the Receipts shall have been appointed this
Receipt shall be countersigned by the manual signature of a duly authorized
officer of the Registrar. Such signature of this Receipt by manual signature
shall be conclusive evidence, and the only evidence, that this Receipt has
been duly executed and delivered under the terms hereof, and of the Deposit
Agreement.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the reporting requirements of the
Securities Exchange Act applicable to foreign private issuers and, in
accordance therewith files reports and other information with the Commission.
Such information may be inspected at public reference facilities maintained
by the Commission located at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington D.C. 20549 and at the Commission's New York City office located at
Seven World Trade Center, 13th Floor, New York, New York 10048.
The Depositary shall keep books, at its Corporate Trust
Office, for the registration of Receipts and transfers of Receipts which at
all reasonable times shall be open for inspection by the Holders in the
interest of a business or object other than the business of the Company or a
matter related to this Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or
other cash distribution on any Deposited Securities, the Depositary shall
establish an ADS Record Date pursuant to Paragraph 15 hereof and shall,
subject to this Paragraph 12, convert such dividend or distribution into
Dollars (if not paid in Dollars), as promptly as practicable, and shall
distribute the amount thus received (net of the fees and expenses of the
Depositary as provided in Paragraph 7 hereof and any taxes or other
governmental charges paid in conjunction with such conversion), as promptly
as practicable, to the Holders as of the ADS Record Date (as herein defined),
in proportion to the number of American Depositary Shares representing such
Deposited Securities held by them, respectively; provided, however, that in
the event that the Company or the Depositary shall be required to withhold
and does withhold from such cash dividend or such other cash distribution an
amount on account of taxes, the amount distributed to the Holder of the
Receipts evidencing American Depositary Shares representing such Deposited
Securities shall be reduced accordingly. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder
a fraction of one cent. Any such
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fractional amounts shall be rounded to the nearest whole cent and so distributed
to Holders entitled thereto, and any balance not so distributable shall be
retained by the Depositary (without liability for interest thereon) for
inclusion with funds received by the Depositary thereafter in respect of the
Deposited Securities for distribution to Holders of Receipts then outstanding.
The Depositary or the Company or their respective agents may (but shall not be
obligated to) file any reports necessary to obtain benefits under the applicable
tax treaties for the Holders of Receipts.
Subject to the terms of the Deposit Agreement, whenever the
Depositary shall receive any distribution other than a distribution in cash,
Shares or Rights under the terms of the Deposit Agreement the Depositary shall
establish an ADS Record Date pursuant to the terms of Paragraph 15 hereof, and
shall cause the securities or property received by it to be distributed as
promptly as practicable to the Holders as of the ADS Record Date, after
deduction or upon payment of any fees and expenses of the Depositary or any
taxes or other governmental charges, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Holders entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act in order to be distributed to
Holders) the Depositary deems such distribution not to be practicable, the
Depositary may adopt such method as it may deem equitable and practicable for
the purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the proceeds of any such sale (net of the fees and expenses of the
Depositary as provided in Paragraph 7 hereof and any taxes or other governmental
charges paid in conjunction with such sale or distribution) shall be distributed
by the Depositary to the Holders entitled thereto, all in the manner described
above in this Paragraph 12.
If any distribution upon any Deposited Securities consists of
a dividend in, or free distribution of, Shares, the Depositary shall
establish an ADS Record Date pursuant to the terms of Paragraph 15 hereof,
and may, and will if the Company so requests, distribute as promptly as
practicable to the Holders of outstanding Receipts as of the ADS Record Date,
in proportion to the number of American Depositary Shares held by them
respectively, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend
or free distribution, subject to the terms and conditions of the Deposit
Agreement and of this Receipt with respect to the deposit of Shares and the
issuance of American Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in this
Paragraph 12 and the payment of the fees and expenses of the Depositary as
provided in Paragraph 7 hereof. The Depositary may withhold any such
distribution of Receipts if it has not received satisfactory assurances from
the Company that such distribution does not require registration under the
Securities Act or is exempt from registration under the provisions of the
Securities Act. In lieu of delivering Receipts for fractional American
Depositary Shares the Depositary shall, to the extent practicable, sell the
amount of Shares represented by the aggregate of such fractions, at public or
private sale, at such place or places and upon such terms as it may deem
proper, and distribute the net proceeds of any
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such sale as if such proceeds were a cash distribution. If additional Receipts
are not so distributed (except as pursuant to the preceding sentence), each
American Depositary Share shall thenceforth also represent its proportionate
interest in the additional Shares so distributed upon such Deposited Securities.
13. RIGHTS.
In the event that the Company shall offer or cause to be
offered to the holders of any Deposited Securities any rights to subscribe for
additional Shares or any rights of any other nature, the Depositary shall, upon
receipt of timely notice thereof and after consultation with the Company, have
discretion as to the procedure to be followed in making such rights available to
any Holders or in disposing of such rights on behalf of any Holders and making
the net proceeds available to such Holders or, if by the terms of such rights
offering or for any other reason, the Depositary may not either make such rights
available to any Holders or dispose of such rights and make the net proceeds
available to such Holders, then the Depositary shall allow the rights to lapse.
If at the time of the offering of any rights the Depositary determines in its
reasonable discretion that it is lawful and practicable to make such rights
available to all or certain Holders but not to other Holders, the Depositary may
distribute to any Holder to whom it determines the distribution to be lawful and
practicable, in proportion to the number of American Depositary Shares held by
such Holder, warrants or other instruments therefor in such form as it deems
appropriate.
In circumstances in which rights would otherwise not be
distributed, if a Holder of Receipts requests the distribution of warrants or
other instruments in order to exercise the rights allocable to the Shares
evidenced by the American Depositary Shares held by such Holder hereunder, the
Depositary will make such rights available to such Holder upon written notice
from the Company to the Depositary that the Company has elected in its sole
discretion to permit such rights to be exercised.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Holders, then upon instruction from any
such Holder pursuant to such warrants or other instruments to the Depositary to
exercise such rights, upon payment by such Holder to the Depositary for the
account of such Holder of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Holder, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Holder. As agent
for such Holder, the Depositary will cause the Shares so purchased to be
deposited pursuant to the terms of the Deposit Agreement, and shall, pursuant to
the Deposit Agreement, execute and deliver Receipts to such Holder.
If the Depositary determines in its reasonable discretion that
it is not lawful and feasible to make such rights available to all or certain
Holders, it may sell the rights, warrants or other instruments in proportion to
the number of American Depositary Shares held by the Holders to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Paragraph 7 hereof and all taxes and governmental
charges payable in connection
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with such rights and subject to the terms and conditions of the Deposit
Agreement) for the account of such Holders otherwise entitled to such rights,
warrants or other instruments, upon an averaged or other practicable basis
without regard to any distinctions among such Holders because of exchange
restrictions or the date of delivery of any Receipt or otherwise. Any such
proceeds shall be distributed in accordance with as would a cash distribution
under Paragraph 12 hereof.
The Depositary will not distribute rights to Holders unless
both the rights and the securities to which such rights relate are either
exempt from registration under the Securities Act of 1933 with respect to a
distribution to all Holders or are registered under the provisions of such
Act; provided, that nothing in this Receipt or in the Deposit Agreement shall
create, or be construed to create, any obligation on the part of the Company
or the Depositary to file a registration statement with respect to such
rights or underlying securities or to endeavor to have such a registration
statement declared effective. If a Holder of Receipts requests the
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Depositary shall not effect
such distribution unless it has received an opinion acceptable to it from
recognized counsel in the United States for the Company upon which the
Depositary may rely that such distribution to such Holder is exempt from such
registration.
Subject to Paragraph 18 hereof, the Depositary shall not be
responsible for any good faith failure to determine that it may be lawful or
feasible to make such rights available to Holders in general or any Holder in
particular.
There can be no assurance that Holders generally, or any
Holder in particular, will be given the opportunity to exercise rights on the
same terms and conditions as the holders of Shares or to exercise such rights.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the
Depositary be converted on a practicable basis into Dollars and the resulting
Dollars transferred to the United States, the Depositary shall, as promptly
as practicable, convert or cause to be converted, by sale or in any other
manner that it may determine, such foreign currency into Dollars and such
Dollars (net of any fees, expenses, taxes or other governmental charges
incurred in the process of such conversion) shall be distributed, as promptly
as practicable, to the Holders entitled thereto or, if the Depositary shall
have distributed any warrants or other instruments which entitle the holders
thereof to such Dollars, then to the holders of such warrants and/or
instruments upon surrender thereof for cancellation. Such distribution may be
made upon an averaged or other practicable basis without regard to any
distinctions among Holders on account of exchange restrictions, the date of
delivery of any Receipt or otherwise.
If such conversion or distribution can be effected only with
the approval or license of any government or agency thereof, the Depositary
shall file as promptly as practicable such application for approval or license,
if any, as it may deem necessary. Nothing herein shall obligate the Depositary
to file or cause to be filed, or to seek effectiveness of any such application
or license.
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If at any time the Depositary shall determine that in its
reasonable judgment any foreign currency received by the Depositary or the
Custodian is not convertible on a practicable basis into Dollars transferable to
the United States, or if any approval or license of any government or agency
thereof which is required for such conversion is denied or in the opinion of the
Depositary is not readily obtainable, or if any such approval or license is not
obtained within a reasonable period as determined by the Depositary, the
Depositary may in its discretion, but subject to applicable laws and
regulations, either (i) distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary to the Holders entitled to receive such foreign currency, or (ii)
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of the Holders entitled to receive the same.
If any such conversion of foreign currency, in whole or in
part, cannot be effected for distribution to some of the Holders entitled
thereto, the Depositary may in its discretion, but subject to applicable laws
and regulations, either (i) make such conversion and distribution in Dollars to
the extent permissible to the Holders entitled thereto and (ii) distribute the
balance of the foreign currency received by the Depositary to, or hold such
balance uninvested and without liability for interest thereon for the respective
accounts of, the Holders entitled thereto.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be issued with respect to the Deposited Securities, or whenever
the Depositary shall receive notice of any meeting of holders of Shares or
other Deposited Securities, or whenever for any reason the Depositary causes
a change in the number of Shares that are represented by each American
Depositary Share, or whenever the Depositary shall find it necessary or
convenient, the Depositary shall fix a record date (the "ADS Record Date") as
close as practicable to the record date fixed by the Company with respect to
the Shares (a) for the determination of the Holders who shall be (i) entitled
to receive such dividend, distribution or rights or the net proceeds of the
sale thereof, (ii) entitled to give instructions for the exercise of voting
rights at any such meeting, or (iii) to act in respect of any other matter or
(b) on or after which each American Depositary Share will represent the
changed number of Shares. Subject to Paragraph 12 hereof and to the
provisions of the Deposit Agreement, the Holders at close of business in New
York on such ADS Record Date shall be entitled, as the case may be, to
receive the amount distributable by the Depositary with respect to such
dividend or other distribution or such rights or the net proceeds of sale
thereof in proportion to the number of American Depositary Shares held by
them respectively and to give voting instructions and to act in respect of
any other such matter.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of timely notice of any meeting of holders of
Shares or solicitation of consents or proxies of holders of Shares or other
Deposited Securities, the Depositary shall establish an ADS Record Date pursuant
to Paragraph 15 hereof and shall, as soon as practicable thereafter and if
requested in writing by the Company, mail to the Holders of Receipts a notice in
English, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting (or solicitation of consent
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or proxy) received by the Depositary from the Company, (b) a statement that the
Holders of Receipts as of the ADS Record Date will be entitled, subject to any
applicable provision of the laws of England and Wales, the terms of the Deposit
Agreement and of the Memorandum of Association and the Articles of Association
of the Company, to instruct the Depositary as to the exercise of the voting
rights (or right to consent to or to grant a proxy), if any, pertaining to the
amount of Shares or other Deposited Securities represented by their respective
American Depositary Shares and (c) a statement as to the manner in which such
instructions may be given. Upon the written request of a Holder of a Receipt as
of such ADS Record Date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor, insofar as
practicable, to vote or cause to be voted the amount of Shares or other
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt(s) in accordance with the instructions set forth in such request.
Neither the Depositary nor the Custodian shall, under any circumstances,
exercise any discretion as to voting, vote any Shares other than an integral
number thereof, or vote Shares in a manner that would be inconsistent with
applicable law. Instructions in respect of any ADS shall be deemed to have been
received only if received in accordance with the terms of the Deposit Agreement
and of this Receipt. The Company agrees to provide timely notice to the
Depositary which will enable the timely notification of Holders as to
limitations on the ability of the Depositary to vote a particular ADS according
to the voting instructions received in regard to such ADS.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances other than a distribution in Shares, upon any
change in nominal value, change in par value, split-up, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation, or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities shall, to the extent permitted by applicable laws, be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall (to the extent permitted by law) thenceforth represent,
in addition to the existing Deposited Securities, the right to receive the new
Deposited Securities so received in exchange or conversion, unless additional
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, but shall not without first receiving from counsel of Company an
opinion, which shall be satisfactory to the Depositary, that such delivery would
not violate any applicable law or regulation, execute and deliver additional
Receipts as in the case of a dividend in Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their
respective directors, employees, agents or Affiliates shall incur any liability
to any Holder or Beneficial Owner of any Receipt, if by reason of any provision
of any present or future law or regulation of the United States or any state
thereof, England and Wales including, without limitation, any provision of the
Companies Act of England and Wales or of the Commercial Code of England and
Wales, or any
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other country, or of any governmental or regulatory authority, stock exchange or
automated quotation system, or by reason of any provision, present or future, of
the Articles of Association of the Company, or by reason of any provision of any
securities issued or distributed by the Company, or any offering or distribution
thereof, or by reason of any act of God or war or other circumstances beyond its
control, the Depositary or the Company shall be prevented, delayed or forbidden
from, or be subject to any civil or criminal penalty on account of, doing or
performing any act or thing which by the terms of the Deposit Agreement or
Deposited Securities it is provided shall be done or performed; nor shall the
Depositary or the Company or any of their respective directors, employees,
agents or Affiliates incur any liability to any Holder or Beneficial Owner of
any Receipt by reason of any nonperformance or delay, caused as aforesaid, in
the performance of any act or thing which by the terms of the Deposit Agreement
it is provided shall or may be done or performed, or by reason of any exercise
of, or failure to exercise, any discretion provided for in the Deposit
Agreement. Neither the Depositary nor the Company shall incur any liability in
the case that any or all holders of Deposited Securities benefit from any
distribution, offering, right or other benefit which is not, under the terms of
the Deposit Agreement, made available to any or all Holder(s) or Beneficial
Owners of American Depositary Shares issued hereunder. Where, by the terms of a
distribution pursuant to the terms of the Deposit Agreement, or an offering or
distribution pursuant to the terms of the Deposit Agreement, or for any other
reason, such distribution or offering may not be made available to Holders, and
the Depositary may not dispose of such distribution or offering on behalf of
such Holders and make the net proceeds available to such Holders, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Holder
or Beneficial Owner of a Receipt, or any other person believed by it in good
faith to be competent to give such advice or information. The Depositary shall
not be responsible for any failure to carry out any instructions to vote any of
the Deposited Securities, or for the manner in which any such vote is cast or
the effect of any such vote, provided that any such action or nonaction is in
good faith. The Depositary shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises, the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary. The
Company agrees to indemnify the Depositary, its directors, employees, agents and
Affiliates and any Custodian against, and hold each of them harmless from, any
liability or expense (including, but not limited to, the reasonable fees and
expenses of counsel, but excluding any form of tax, fee, or other governmental
charge upon any stock transfer or registration owed by any party other than the
Company which shall be reimbursed only as provided in the penultimate sentence
of this paragraph) which may arise out of any registration with the Commission
of Receipts, American Depositary Shares or Deposited Securities or the offer or
sale thereof in the United States or out of acts performed or omitted, in
accordance with the provisions of the Deposit Agreement and of the Receipts, as
the same may be amended, modified, or supplemented from time to time, (i) by
either the Depositary or a Custodian or their respective directors, employees,
agents and Affiliates, except for any liability
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or expense arising out of the negligence or bad faith of either of them, or (ii)
by the Company or any of its directors, employees, agents and Affiliates.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR CUSTODIAN.
The Depositary may at any time resign as Depositary hereunder
by at least thirty days' advance written notice of its election so to do
delivered to the Company, such resignation to take effect upon the earlier of
(i) the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided, or (ii) upon expiration of a 90 day period
(commencing on the date that the resigning Depositary notifies the Company of
its intent to resign) during which time period a successor depositary is not
appointed as contemplated in (i) of this Paragraph.
The Depositary may at any time be removed by the Company by at
least thirty days' advance written notice of such removal, effective upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, except as
contemplated in Paragraph 7 hereof and in the Deposit Agreement, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Holders of all outstanding Receipts. Any such successor depositary shall
promptly mail notice of its appointment to the Holders.
Any corporation into or with which the Depositary may be
merged or consolidated shall be the successor of the Depositary without the
execution or filing of any document or any further act.
The Depositary may from time to time appoint one or more
entities as Custodian. The Custodian shall be subject at all times and in all
respects to the directions of the Depositary and shall be responsible solely to
it. Any Custodian may resign and be discharged from its duties hereunder by
notice of such resignation delivered to the Depositary at least 30 days prior to
the date on which such resignation is to become effective. If upon such
resignation there shall be no Custodian acting hereunder, the Depositary shall,
promptly after receiving such notice, appoint a substitute custodian or
custodians. Whenever the Depositary in its discretion determines that it is in
the best interest of the Holders to do so, it may appoint a substitute or
additional custodian or custodians, each of which shall thereafter be one of the
Custodians hereunder. Upon demand of the Depositary, any Custodian shall deliver
such of the Deposited Securities held by it as are requested of it, and any
rewards pertaining thereto, to any other Custodian or such substitute or
additional custodian or custodians. Each such substitute or additional custodian
shall deliver to
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the Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the Depositary.
20. AMENDMENT.
This Receipt and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the consent of the Holder or Beneficial Owner hereof. Any amendment
which shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees, cable, telex or facsimile transmission
costs, delivery costs or other such expenses), or which shall otherwise
prejudice any substantial existing right of the Holder hereof shall, however,
not become effective as to this Receipt until the expiration of thirty days
after notice of such amendment shall have been given to the Holder hereof. The
Holder and Beneficial Owner hereof agree that any amendments or supplements
which (i) are reasonably necessary (as agreed by the Company and the Depositary)
in order for (a) the American Depositary Shares to be registered on Form F-6
under the Securities Act or (b) the American Depositary Shares or Shares to be
traded solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold this Receipt and the ADSs
represented thereby, to consent and agree to such amendment and to be bound by
this Receipt and by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder or Beneficial Owner of this Receipt
to surrender this Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require the amendment or
supplement of this Receipt or of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement this Receipt
and the Deposit Agreement at any time in accordance with such changed laws,
rules or regulations. Such amendment or supplement hereof or of the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, rules or regulations.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall, at any time at the direction of the
Company, terminate the Deposit Agreement by mailing notice of such termination
to the Holders of all Receipts then outstanding at least 30 days prior to the
date fixed in such notice for such termination. The Depositary may likewise
terminate the Deposit Agreement by mailing notice of such termination to the
Company and the Holders of all Receipts then outstanding, if at any time 90 days
shall have expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor depositary shall not
have been appointed and accepted its appointment as provided in Paragraph 19. On
and after the date of termination, the Holder of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary,
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(b) payment of the fee of the Depositary for the surrender of Receipts referred
to in Paragraph 2, and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the terms of the Deposit Agreement, except that the Depositary shall
continue to collect dividends and other distributions pertaining to Deposited
Securities, shall sell rights and other property as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, together with any
dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder of such Receipt in accordance with the terms and conditions of the
Deposit Agreement, and any applicable taxes or governmental charges). At any
time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, unsegregated and without liability for
interest, for the pro rata benefit of the Holders of Receipts which have not
theretofore been surrendered, such Holders thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash (after deducting, in each
case, the fee of the Depositary for the surrender of a Receipt, any expenses for
the account of the Holder of such Receipt in accordance with the terms and
conditions of the Deposit Agreement, and any applicable taxes or governmental
charges). Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations under the Deposit Agreement except for certain
obligations to the Depositary described therein.
22. DISCLOSURE OF INTERESTS; OWNERSHIP RESTRICTIONS.
Notwithstanding any other provision of the Deposit Agreement
or of this Receipt, the Memorandum of Association and the Articles of
Association of the Company or applicable law in England and Wales, each Holder
and Beneficial Owner agrees to (a) provide such information as the Company may
request pursuant to the laws in England and Wales (including, without
limitation, the Companies Act of 1985 and the Commercial Code and England and
Wales), any applicable law of the United States, the Articles of Association of
the Company, any resolutions of the Company's Board of Directors adopted
pursuant to such Articles of Association, the requirements of any markets or
exchanges upon which the ADSs or Receipts are listed or traded, or to any
requirements of any electronic book-entry system by which the ADSs or Receipts
may be transferred, and (b) be bound by and subject to applicable provisions of
the laws of England and Wales, the Articles of Association of the Company and
the requirements of any markets or exchanges upon which the ADSs, Receipts or
Shares are listed or traded, or pursuant to any requirements of any electronic
book-entry system by which the ADSs, Receipts or Shares may be transferred, to
the same extent as if such Holder and Beneficial Owner held Shares directly.
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Failure by a Holder or Beneficial Owner to provide in a timely
fashion the information requested by the Company may, in the Company's sole
discretion, result in the withholding of certain rights in respect of such
Holder or Beneficial Owner's American Depositary Shares (including voting rights
and certain rights as to dividends in respect of the Shares represented by such
American Depositary Shares). The Depositary agrees to comply with any
instructions received from the Company requesting that the Depositary take the
actions specified therein to obtain such information.
In the event that the Company determines that there has been a
failure to comply with the applicable reporting requirements with respect to any
Deposited Securities and that sanctions are to be imposed against such Deposited
Securities pursuant to the laws of England and Wales by a court of competent
jurisdiction or the Memorandum of Association and the Articles of Association of
the Company, the Company shall so notify the Depositary, giving details thereof,
and shall instruct the Depositary in writing as to the application of such
sanctions to the Deposited Securities. The Depositary shall have no liability
for any actions taken in accordance with such instructions.
23. COMPLIANCE WITH U.S. LAWS.
Notwithstanding anything in the Deposit Agreement or this
Receipt to the contrary, the withdrawal or deliver of Deposited Securities will
not be suspended by the Company or the Depositary except as would be permitted
by Instruction I.A. (1) of the General Instructions to Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933.
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Exhibit 4.2
Company Number: 3608347 Certificate Number: 1
------------------------ ------------------
Shareholder:
-----------------------------------------------------------------
Date: 12 February 1999 Number of Shares: 279,000
------------------------ ------------------
SHARE CERTIFICATE
------------------ ----------------
Certificate Number Number of Shares
1 279,000
------------------ ----------------
Company Name: Town Pages Holdings plc
Company Number: 3608347
This is to Certify that Andrew Lyndon-Skeggs
is/are the Registered holder(s) of 279,000 Shares of each fully paid
in the above-named company, subject to the Memorandum and Articles of
Association of the Company.
*This document is hereby executed by the Company.The Common Seal of the
Company was hereto affixed in the presence of:
Director:
*Secretary/Director:
Date: 12 February 1999
*Deemed as appropriate
NO TRANSFER OF ANY OF THE ABOVE-MENTIONED SHARES CAN BE REGISTERED UNTIL THIS
CERTIFICATE HAS BEEN DEPOSITED AT THE REGISTERED OFFICE OF THE COMPANY.
<PAGE>
Exhibit 4.3
OHS DRAFT
- --------------------------------------------------------------------------------
TOWN PAGES HOLDINGS PLC
AND
SECURITY CAPITAL TRADING, INC.
REPRESENTATIVE'S
WARRANT AGREEMENT
DATED AS OF , 1999
- --------------------------------------------------------------------------------
<PAGE>
REPRESENTATIVE'S WARRANT AGREEMENT dated as of _________, 1999 between TOWN
PAGES HOLDINGS plc, a company formed under the laws of the United Kingdom (the
"Company"), and SECURITY CAPITAL TRADING, INC. ("SCT") (SCT is hereinafter
referred to variously as the "Holder" or "Holders" or the "Representative").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company proposes to issue to the Representative or its
designee(s) warrants ("Warrants") to purchase up to an aggregate 200,000
American Depositary Shares ("ADSs"), each representing one (1) Ordinary Share, 1
p per Ordinary Share, of the Company, and
WHEREAS, the Representative has agreed pursuant to the underwriting
agreement (the "Underwriting Agreement") dated as of the date hereof between the
Company and the several Underwriters listed on Schedule A therein to act as the
Representative in connection with the Company's proposed initial public offering
of 2,000,000 ADSs at a public offering price of $______ per ADS (the "Public
Offering"); and
WHEREAS, the Warrants to be issued pursuant to this Agreement will be
issued on the Closing Date (as such term is defined in the Underwriting
Agreement) by the Company to the Representative in consideration for, and as
part of the Representative's compensation in connection with, the Representative
acting as the Representative pursuant to the Underwriting Agreement;
NOW, THEREFORE, in consideration of the premises, the payment by the
Representative to the Company of an aggregate twenty dollars ($20.00), the
agreements herein set forth and other good and valuable consideration, hereby
acknowledged, the parties hereto agree as follows:
1. GRANT. The Representative (or its designees) is hereby granted the
right to purchase, at any time from _____________, 2000 [twelve months after
date of this Agreement],
2
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until 5:30 P.M., New York time, on ___________, 2004 [five years after date of
this Agreement], up to an aggregate of 200,000 ADSs, at an initial exercise
price (subject to adjustment as provided in SECTION 8 hereof) of $_____ per ADS
[120% of initial public offering price per ADS], subject to the terms and
conditions of this Agreement. Each ADS represents one (1) Ordinary Share of the
Company. Except as set forth herein, the ADSs issuable upon exercise of the
Warrants are in all respects identical to the ADSs being purchased by the
several Underwriters for resale to the public pursuant to the terms and
provisions of the Underwriting Agreement.
2. WARRANT CERTIFICATES. The warrant certificates (the "Warrant
Certificates") delivered and to be delivered pursuant to this Agreement shall be
in the form set forth in Exhibit A, attached hereto and made a part hereof, with
such appropriate insertions, omissions, substitutions, and other variations as
required or permitted by this Agreement.
3. EXERCISE OF WARRANT.
3.1 METHOD OF EXERCISE. The Warrants initially are exercisable at an
aggregate initial exercise price (subject to adjustment as provided in SECTION 8
hereof) per ADS set forth in SECTION 6 hereof payable by certified or official
bank check in New York Clearing House funds. Upon surrender of a Warrant
Certificate with the annexed Form of Election to Purchase duly executed,
together with payment of the Exercise Price (as hereinafter defined) for the
ADSs purchased at the Company's principal executive offices (presently located
at 11 Market Square, Alton, Hampshire, England, GU34 1HD, United Kingdom) the
registered holder of a Warrant Certificate ("Holder" or "Holders") shall be
entitled to receive a certificate or certificates for the ADSs so purchased.
The purchase rights represented by each Warrant Certificate are exercisable at
the option of the Holder thereof, in whole or in part (but not as to fractional
shares of the ADSs underlying the Warrants). Warrants may be exercised to
purchase all or part of the ADSs represented thereby. In the case of the
purchase of less than all the ADSs purchasable under any
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Warrant Certificate, the Company shall cancel said Warrant Certificate upon the
surrender thereof and shall execute and deliver a new Warrant Certificate of
like tenor for the balance of the ADSs purchasable thereunder.
3.2 EXERCISE BY SURRENDER OF WARRANT. In addition to the method of
payment set forth in Section 3.1 and in lieu of any cash payment required
thereunder, the Holder(s) of the Warrants shall have the right at any time and
from time to time to exercise the Warrants in full or in part by surrendering
the Warrant Certificate in the manner specified in Section 3.1 in exchange for
the number of ADSs equal to the product of (x) the number of ADSs as to which
the Warrants are being exercised, multiplied by (y) a fraction, the numerator of
which is the Market Price (as defined in Section 3.3 hereof) of the ADSs minus
the Exercise Price of the ADSs and the denominator of which is the Market Price
per ADS. Solely for the purposes of this Section 3.2, Market Price shall be
calculated either (i) on the date on which the form of election attached hereto
is deemed to have been sent to the Company pursuant to Section 14 hereof
("Notice Date") or (ii) as the average of the Market Price for each of the five
trading days immediately preceding the Notice Date, whichever of (i) or (ii)
results in a greater Market Price.
3.3 DEFINITION OF MARKET PRICE.
(a) As used herein, the phrase "Market Price of the ADSs" at any date
shall be deemed to be the last reported sale price, or, in case no such reported
sale takes place on such day, the average of the last reported sale prices for
the last three (3) trading days, in either case as officially reported by the
principal securities exchange on which the ADSs are listed or admitted to
trading or by the Nasdaq National Market ("Nasdaq/NM") or the Nasdaq Small Cap
Market ("Nasdaq Small Cap"), or, if the ADSs are not listed or admitted to
trading on any national securities exchange or quoted by the National
Association of Securities Dealers Automated Quotation System ("Nasdaq"), the
average closing bid price as furnished by the National
4
<PAGE>
Association of Securities Dealers, Inc. ("NASD") through Nasdaq or similar
organization if Nasdaq is no longer reporting such information.
(b) If the Market Price of the ADSs cannot be determined pursuant to
Section 3.3(a) above, the Market Price of the ADSs shall be determined in good
faith (using customary valuation methods) by resolution of the members of the
Board of Directors of the Company, based on the best information available to
it.
4. ISSUANCE OF CERTIFICATES. Upon the exercise of the Warrants, the
issuance of certificates for the total number of ADSs, Ordinary Shares, or other
securities, properties or rights underlying such Warrants, the issuance of
Certificates shall be made forthwith (and in any event such issuance shall be
made within five (5) business days thereafter) to the Custodian (as such term is
defined in the Deposit Agreement dated ____________, 1999 by and between the
Company and Bankers Trust Company) without charge to the Holder thereof
including, without limitation, any tax which may be payable in respect of the
issuance thereof, and such certificates shall (subject to the provisions of
Sections 5 and 7 hereof) be issued in the name of, or in such names as may be
directed by, the Holder thereof.
The Warrant Certificates and the certificates representing the Ordinary
Shares and ADSs underlying the Warrants (and/or other securities, property or
rights issuable upon the exercise of the Warrants) shall be executed on behalf
of the Company by the manual or facsimile signature of the then present Chairman
or Vice Chairman of the Board of Directors or President or Vice President of the
Company under its corporate seal reproduced thereon, attested to by the manual
or facsimile signature of the then present Secretary or Assistant Secretary or
Treasurer or Assistant Treasurer of the Company. Warrant Certificates shall be
dated the date of execution by the Company upon initial issuance, division,
exchange, substitution or transfer.
5
<PAGE>
5. RESTRICTION ON TRANSFER OF WARRANTS. The Holder of a Warrant
Certificate, by its acceptance thereof, covenants and agrees that the Warrants
are being acquired as an investment and not with a view to the distribution
thereof; that the Warrants may not be sold, transferred, assigned, hypothecated
or otherwise disposed of, in whole or in part, for a period of one (1) year from
the date hereof, except to officers or partners of the Representative.
6. EXERCISE PRICE.
6.1 INITIAL AND ADJUSTED EXERCISE PRICE. Except as otherwise provided in
Section 8 hereof, the initial exercise price of each Warrant shall be $____
[120% of the initial public offering price of the securities to be offered].
The adjusted exercise price shall be the price which shall result from time to
time from any and all adjustments of the initial exercise price in accordance
with the provisions of Section 8 hereof.
6.2 EXERCISE PRICE. The term "Exercise Price" herein shall mean the
initial exercise price or the adjusted exercise price, depending upon the
context.
7. REGISTRATION RIGHTS.
7.1 REGISTRATION UNDER THE SECURITIES ACT OF 1933. The Company undertakes
to register the Warrants, the Ordinary Shares and ADSs issuable upon exercise of
the Warrants, and the other securities issuable upon exercise of the Warrants
(collectively, the "Warrant Securities") at its own expense, within one (1) year
of the effective date of its initial public offering registration statement.
The Company agrees and covenants promptly to file post effective amendments to
such Registration Statements as may be necessary to maintain the effectiveness
of the Registration Statements as long as any Warrants are outstanding. In the
event that, for any reason, whatsoever, the Company shall fail to maintain the
effectiveness of the Registration Statements, upon exercise, in part or in
whole, of the Warrants, certificates representing the Ordinary Shares, ADSs, and
any
6
<PAGE>
other securities issuable upon exercise of the Warrants or the Warrant
Securities shall bear the following legend:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended ("Act"), and
may not be offered, sold, pledged, hypothecated, assigned or
transferred except pursuant to (i) an effective registration statement
under the Act, (ii) to the extent applicable, Rule 144 under the Act
(or any similar rule under such Act relating to the disposition of
securities), or (iii) an opinion of counsel, if such opinion shall be
reasonably satisfactory to counsel to the issuer, that an exemption
from registration under such Act is available.
7.2 PIGGYBACK REGISTRATION. If, at any time commencing after the
Closing Date of the public offering hereof and expiring five (5) years
thereafter, the Company proposes to register any of its securities under the Act
(other than pursuant to Form S-8, S-4 or a comparable registration statement)
the Company will give written notice by registered mail, at least thirty (30)
days prior to the filing of each such registration statement, to the
Representative and to all other Holders of the Warrants and/or the Warrant
Securities of its intention to do so. If the Representative or other Holders of
the Warrants and/or Warrant Securities notifies the Company within twenty (20)
days after receipt of any such notice of its or their desire to include any such
securities in such proposed registration statement, the Company shall afford the
Representative and such Holders of the Warrants and/or Warrant Securities the
opportunity to have any such Warrant Securities registered under such
registration statement.
Notwithstanding the provisions of this Section 7.2, the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section 7.2 (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect not to file any such proposed
registration statement, or to withdraw the same after the filing but prior to
the effective date thereof.
7
<PAGE>
7.3 DEMAND REGISTRATION.
(a) At any time commencing after the Closing Date of the public
offering hereof and expiring five (5) years thereafter, the Holders of the
Warrants and/or Warrant Securities representing a "Majority" (as hereinafter
defined) of such securities (assuming the exercise of all of the Warrants) shall
have the right (which right is in addition to the registration rights under
Section 7.2 hereof), exercisable by written notice to the Company, to have the
Company prepare and file with the Securities and Exchange Commission (the
"Commission"), on one occasion, a registration statement and such other
documents, including a prospectus, as may be necessary in the opinion of both
counsel for the Company and counsel for the Representative and Holders, in order
to comply with the provisions of the Act, so as to permit a public offering and
sale of their respective Warrant Securities for nine (9) consecutive months by
such Holders and any other Holders of the Warrants and/or Warrant Securities who
notify the Company within ten (10) days after receiving notice from the Company
of such request.
(b) The Company covenants and agrees to give written notice of any
registration request under this Section 7.3 by any Holder or Holders to all
other registered Holders of the Warrants and the Warrant Securities within ten
(10) days from the date of the receipt of any such registration request.
(c) Notwithstanding anything to the contrary contained herein, if the
Company shall not have filed a registration statement for the Warrant Securities
within the time period specified in Section 7.4(a) hereof pursuant to the
written notice specified in Section 7.3(a) of a Majority of the Holders of the
Warrants and/or Warrant Securities, the Company shall have the option, upon the
written notice of election of a Majority of the Holders of the Warrants and/or
Warrant Securities to repurchase (i) any and all Warrant Securities at the
higher of the Market Price per ADS on (x) the date of the notice sent pursuant
to Section 7.3(a) or (y) the expiration of the
8
<PAGE>
period specified in Section 7.4(a) and (ii) any and all Warrants at such Market
Price less the Exercise Price of such Warrant. Such repurchase shall be in
immediately available funds and shall close within two (2) days after the later
of (i) the expiration of the period specified in Section 7.4(a) or (ii) the
delivery of the written notice of election specified in this Section 7.3(c).
(d) In addition to the registration rights under Section 7.2 and
subsection (a) of this Section 7.3, at any time commencing after the date hereof
and expiring five (5) years thereafter, any Holder of Warrants and/or Warrant
Securities shall have the right, exercisable by written request to the Company,
to have the Company prepare and file, on one occasion, with the Commission a
registration statement so as to permit a public offering and sale for nine (9)
consecutive months by any such Holder of its Warrant Securities provided,
however, that the provisions of Section 7.4(b) hereof shall not apply to any
such registration request and registration and all costs incident thereto shall
be at the expense of the Holder or Holders making such request.
7.4 COVENANTS OF THE COMPANY WITH RESPECT TO REGISTRATION. In
connection with any registration under Section 7.2 or 7.3 hereof, the Company
covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration
statement within thirty (30) days of receipt of any demand therefor, shall
use its best efforts to have any registration statement declared effective
at the earliest possible time, and shall furnish each Holder desiring to
sell Warrant Securities such number of prospectuses as shall reasonably be
requested.
(b) The Company shall pay all costs (excluding fees and expenses of
Holder(s)' counsel and any underwriting or selling commissions), fees and
expenses in connection with all registration statements filed pursuant to
Sections 7.2 and 7.3(a) hereof including, without limitation, the Company's
legal and accounting fees, printing expenses, blue sky fees and expenses.
The Holder(s) will pay all costs, fees and expenses in connection with any
9
<PAGE>
registration statement filed pursuant to Section 7.3(d). If the Company
shall fail to comply with the provisions of Section 7.4(a), the Company
shall, in addition to any other equitable or other relief available to the
Holder(s), be liable for any or all incidental or special damages sustained
by the Holder(s) requesting registration of their Warrant Securities,
excluding consequential damages.
(c) The Company will take all necessary action which may be required
in qualifying or registering the Warrant Securities included in a
registration statement for offering and sale under the securities or blue
sky laws of such states as reasonably are requested by the Holder(s),
provided that the Company shall not be obligated to execute or file any
general consent to service of process or to qualify as a foreign
corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify the Holder(s) of the Warrant
Securities to be sold pursuant to any registration statement and each
person, if any, who controls such Holders within the meaning of Section 15
of the Act or Section 20(a) of the Securities Exchange Act of 1934, as
amended ("Exchange Act"), against all loss, claim, damage, expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which any of them
may become subject under the Act, the Exchange Act or otherwise, arising
from such registration statement but only to the same extent and with the
same effect as the provisions pursuant to which the Company has agreed to
indemnify the Underwriters contained in Section 7 of the Underwriting
Agreement. The Company further agree(s) that upon demand by an indemnified
person, at any time or from time to time, it will promptly reimburse such
indemnified person for any loss, claim, damage, liability, cost or expense
actually and reasonably paid by the indemnified person as to which the
Company has indemnified such person pursuant hereto.
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Notwithstanding the foregoing provisions of this Section 7.4(d) any such
payment or reimbursement by the Company of fees, expenses or disbursements
incurred by an indemnified person in any proceeding in which a final
judgment by a court of competent jurisdiction (after all appeals or the
expiration of time to appeal) is entered against the Company or such
indemnified person as a direct result of the Holder(s) or such person's
gross negligence or willful misfeasance will be promptly repaid to the
Company.
(e) The Holder(s) of the Warrant Securities to be sold pursuant to a
registration statement, and their successors and assigns, shall severally,
and not jointly, indemnify the Company, its officers and directors and each
person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, against all loss, claim,
damage or expense or liability (including all expenses reasonably incurred
in investigating, preparing or defending against any claim whatsoever) to
which they may become subject under the Act, the Exchange Act or otherwise,
arising from information furnished by or on behalf of such Holders, or
their successors or assigns, for specific inclusion in such registration
statement to the same extent and with the same effect as the provisions
contained in Section 7 of the Underwriting Agreement pursuant to which the
Underwriters have agreed to indemnify the Company. The Holder(s) further
agree(s) that upon demand by an indemnified person, at any time or from
time to time, they will promptly reimburse such indemnified person for any
loss, claim, damage, liability, cost or expense actually and reasonably
paid by the indemnified person as to which the Holder(s) have indemnified
such person pursuant hereto. Notwithstanding the foregoing provisions of
this Section 7.4(e) any such payment or reimbursement by the Holder(s) of
fees, expenses or disbursements incurred by an indemnified person in any
proceeding in which a final judgment by a court of competent jurisdiction
(after all appeals or the expiration of time to
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<PAGE>
appeal) is entered against the Company or such indemnified person as a
direct result of the Company or such person's gross negligence or willful
misfeasance will be promptly repaid to the Holder(s).
(f) Nothing contained in this Agreement shall be construed as
requiring the Holder(s) to exercise their Warrants prior to the initial
filing of any registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities
other than the Warrant Securities to be included in any registration
statement filed pursuant to Section 7.3 hereof, or permit any other
registration statement to be or remain effective during the effectiveness
of a registration statement filed pursuant to Section 7.3 hereof, without
the prior written consent of the Holders of the Warrants and Warrant
Securities representing a Majority of such securities (assuming the
exercise of all of the Warrants).
(h) The Company shall furnish to each Holder participating in the
offering and to each underwriter, if any, a signed counterpart, addressed
to such Holder or underwriter, of (i) an opinion of counsel to the Company,
dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, an opinion dated the
date of the closing under the underwriting agreement), and (ii) a "cold
comfort" letter dated the effective date of such registration statement
(and, if such registration includes an underwritten public offering, a
letter dated the date of the closing under the underwriting agreement)
signed by the independent public accountants who have issued a report on
the Company's financial statements included in such registration statement,
in each case covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the
case of such accountants' letter, with respect to events subsequent to the
date of such financial statements, as are customarily covered in
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opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date
of the registration statement, and in any event within 15 months
thereafter, make "generally available to its security holders" (within the
meaning of Rule 158 under the Act) an earnings statement (which need not be
audited) complying with Section 11(a) of the Act and covering a period of
at least 12 consecutive months beginning after the effective date of the
registration statement.
(j) The Company shall deliver promptly to each Holder participating
in the offering requesting the correspondence and memoranda described below
and to the managing underwriter, if any, copies of all correspondence
between the Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its staff with
respect to the registration statement and permit each Holder and
underwriter to do such investigation, upon reasonable advance notice, with
respect to information contained in or omitted from the registration
statement as it deems reasonably necessary to comply with applicable
securities laws or rules of the NASD. Such investigation shall include
access to books, records and properties and opportunities to discuss the
business of the Company with its officers and independent auditors, all to
such reasonable extent and at such reasonable times and as often as any
such Holder or underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the
managing underwriter selected for such underwriting by Holders holding a
Majority of the Warrant Securities requested to be included in such
underwriting, which may be the Representative. Such agreement shall be
satisfactory in form and substance to the Company, each Holder
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<PAGE>
and such managing underwriter, and shall contain such representations,
warranties and covenants by the Company and such other terms as are
customarily contained in agreements of that type used by the managing
underwriter. The Holders shall be parties to any underwriting agreement
relating to an underwritten sale of their Warrant Securities and may, at
their option, require that any or all of the representations, warranties
and covenants of the Company to or for the benefit of such underwriters
shall also be made to and for the benefit of such Holders. Such Holders
shall not be required to make any representations or warranties to or
agreements with the Company or the underwriters except as they may relate
to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request
therefor by any Holder(s), the Company shall include in the registration
statement any other securities of the Company held by such Holder(s) as of
the date of filing of such registration statement, including without
limitation, restricted Ordinary Shares, options, warrants or any other
securities convertible into Ordinary Shares.
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(m) For purposes of this Agreement, the term "Majority" in reference
to the Holders of Warrants or Warrant Securities shall mean in excess of
fifty percent (50%) of the then outstanding Warrants or Warrant Securities
that (i) are not held by the Company, an affiliate, officer, creditor,
employee or agent thereof or any of their respective affiliates, members of
their family, persons acting as nominees or in conjunction therewith and
(ii) have not been resold to the public pursuant to a registration
statement filed with the Commission under the Act.
8. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SECURITIES.
8.1 SUBDIVISION AND COMBINATION. In case the Company shall at any
time subdivide or combine the outstanding Ordinary Shares or ADSs, the Exercise
Price shall forthwith be proportionately decreased in the case of subdivision or
increased in the case of combination.
8.2 STOCK DIVIDENDS AND DISTRIBUTIONS. In case the Company shall pay
dividend in, or make a distribution of, Ordinary Shares or ADSs or of any of the
Company's capital stock convertible into Ordinary Shares, the Exercise Price
shall forthwith be proportionately decreased. An adjustment made pursuant to
this Section 8.2 shall be made as of the record date for the subject stock
dividend or distribution.
8.3 ADJUSTMENT IN NUMBER OF SECURITIES. Upon each adjustment of the
Exercise Price pursuant to the provisions of this Section 8, the number of
Warrant Securities issuable upon the exercise at the adjusted Exercise Price of
each Warrant shall be adjusted to the nearest whole number by multiplying a
number equal to the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Securities issuable upon exercise of the
Warrants immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
15
<PAGE>
8.4 DEFINITION OF ORDINARY SHARES. For the purpose of this
Agreement, the term "Ordinary Shares" shall mean (i) the class of stock
designated as Ordinary Shares in the Memorandum and Articles of Incorporation of
the Company, as may be amended or restated as of the date hereof, or (ii) any
other class of stock resulting from successive changes or reclassifications of
such Ordinary Shares consisting solely of changes in par value, or from par
value to no par value, or from no par value to par value.
8.5 MERGER OR CONSOLIDATION OR SALE.
(a) In case of any consolidation of the Company with, or merger of
the Company with, or merger of the Company into, another corporation (other than
a consolidation or merger which does not result in any reclassification or
change of the outstanding Ordinary Shares), the corporation formed by such
consolidation or merger shall execute and deliver to the Holder a supplemental
warrant agreement providing that the holder of each Warrant then outstanding or
to be outstanding shall have the right thereafter (until the expiration of such
Warrant) to receive, upon exercise of such Warrant, the kind and amount of
shares of stock and other securities and property receivable upon such
consolidation, merger, sale or transfer by a holder of the number Ordinary
Shares and ADSs of the Company for which such Warrant might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental warrant agreement shall provide for adjustments which shall be
identical to the adjustments provided in this Section 8. The above provision of
this subsection shall similarly apply to successive consolidations or mergers.
(b) In the event of (i) the sale by the Company of all or
substantially all of its assets, or (ii) the engagement by the Company or any of
its affiliates in a "Rule 13e-3 transaction" as defined in paragraph (a)(3) of
Rule 13e-3 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended, or (iii) a distribution to the Company's shareholders
of any cash, assets, property, rights, evidences of indebtedness, securities or
any other thing of value, or
16
<PAGE>
any combination thereof, the Holders of the unexercised Warrants shall receive
notice of such sale, transaction or distribution twenty (20) days prior to the
date of such sale or the record date for such transaction or distribution, as
applicable, and, if they exercise such Warrants prior to such date, they shall
be entitled, in addition to the Ordinary Shares and ADSs issuable upon the
exercise thereof, to receive such property, cash, assets, rights, evidence of
indebtedness, securities or any other thing of value, or any combination
thereof, on the payment date of such sale, transaction or distribution.
8.6 NO ADJUSTMENT OF EXERCISE PRICE IN CERTAIN CASES. No adjustment
of the Exercise Price shall be made if the amount of said adjustment shall be
less than ten cents (104) per ADS, provided, however, that in such case any
adjustment that would otherwise be required then to be made shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment so carried forward, shall amount
to at least ten cents (104) per ADS.
9. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal executive office of the Company, for a new
Warrant Certificate of like tenor and date representing in the aggregate the
right to purchase the same number of Ordinary Shares in such denominations as
shall be designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
17
<PAGE>
10. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of shares of Ordinary
Shares and ADSs upon the exercise of the Warrants, it being the intent of the
parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of Ordinary Shares and ADSs or other
securities, properties or rights.
11. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and keep available out of its authorized capital stock, solely for
the purpose of issuance upon the exercise of the Warrants, such number of
Ordinary Shares and ADSs or other securities, properties or rights as shall be
issuable upon the exercise thereof. The Company covenants and agrees that, upon
exercise of the Warrants and payment of the Exercise Price therefor, all
Ordinary Shares and ADSs and other securities issuable upon such exercise shall
be duly and validly issued, fully paid, non-assessable and not subject to the
preemptive rights of any stockholder. As long as the Warrants shall be
outstanding, the Company shall use its best efforts to cause all Ordinary Shares
and ADSs issuable upon the exercise of the Warrants to be listed (subject to
official notice of issuance) on all securities exchanges on which the ADSs
issued to the public in connection herewith may then be listed and/or quoted on
Nasdaq National Market or Nasdaq Small Cap Market.
12. NOTICES TO WARRANT HOLDERS. Nothing contained in this Agreement
shall be construed as conferring upon the Holders the right to vote or to
consent or to receive notice as a stockholder in respect of any meetings of
stockholders for the election of directors or any other matter, or as having any
rights whatsoever as a stockholder of the Company. If, however, at any time
prior to the expiration of the Warrants and their exercise, any of the following
events shall occur:
(a) the Company shall take a record of the holders of its Ordinary
Shares and ADSs for the purpose of entitling them to receive a dividend or
distribution payable
18
<PAGE>
otherwise than in cash, or a cash dividend or distribution payable
otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of the
Company; or
(b) the Company shall offer to all the holders of its Ordinary Shares
and ADSs any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital stock of
the Company, or any option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall
be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least twenty (20) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be. Failure to give such notice or any defect therein shall not affect the
validity of any action taken in connection with the declaration or payment of
any such dividend, or the issuance of any convertible or exchangeable
securities, or subscription rights, options or warrants, or any proposed
dissolution, liquidation, winding up or sale.
13. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made when delivered, or mailed by registered or certified mail, return
receipt requested:
(d) If to the registered Holder of the Warrants, to the address of
such Holder as shown on the books of the Company; or
19
<PAGE>
(e) If to the Company, to the address set forth in Section 3 hereof
or to such other address as the Company may designate by notice to the
Holders.
14. SUPPLEMENTS AND AMENDMENTS. The Company and the Representative
may from time to time supplement or amend this Agreement without the approval of
any Holders of Warrant Certificates (other than the Representative) in order to
cure any ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any provisions herein, or to make
any other provisions in regard to matters or questions arising hereunder which
the Company and the Representative may deem necessary or desirable and which the
Company and the Representative deem shall not adversely affect the interests of
the Holders of Warrant Certificates.
15. SUCCESSORS. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, the Holders and
their respective successors and assigns hereunder.
16. TERMINATION. This Agreement shall terminate at the close of
business on __________, 2004. Notwithstanding the foregoing, the
indemnification provisions of Section 7 shall survive such termination until the
close of business on _____________, 2009.
17. GOVERNING LAW, SUBMISSION TO JURISDICTION. This Agreement and
each Warrant Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of New York and for all purposes shall be construed
in accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
The Company, the Representative and the Holders hereby agree that any
action, proceeding or claim against it arising out of, or relating in any way
to, this Agreement shall be brought and enforced in the courts of the State of
New York or of the United States of America for the Southern District of New
York, and irrevocably submits to such jurisdiction, which jurisdiction
20
<PAGE>
shall be exclusive. The Company, the Representative and the Holders hereby
irrevocably waive any objection to such exclusive jurisdiction or inconvenient
forum. Any such process or summons to be served upon any of the Company, the
Representative and the Holders (at the option of the party bringing such action,
proceeding or claim) may be served by transmitting a copy thereof, by registered
or certified mail, return receipt requested, postage prepaid, addressed to it at
the address as set forth in Section 14 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the party so served in any
action, proceeding or claim. The Company, the Representative and the Holders
agree that the prevailing party(ies) in any such action or proceeding shall be
entitled to recover from the other party(ies) all of its/their reasonable legal
costs and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
18. ENTIRE AGREEMENT; MODIFICATION. This Agreement (including the
Underwriting Agreement to the extent portions thereof are referred to herein)
contains the entire understanding between the parties hereto with respect to the
subject matter hereof and may not be modified or amended except by a writing
duly signed by the party against whom enforcement of the modification or
amendment is sought.
19. SEVERABILITY. If any provision of this Agreement shall be held
to be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
20. CAPTIONS. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
21. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Representative and any other registered Holder(s) of the Warrant Certificates or
Warrant Securities any legal or equitable right, remedy or claim under this
Agreement; and this Agreement shall be for the sole and exclusive benefit of the
Company and the Representative and any other Holder(s) of the Warrant
Certificates or Warrant Securities.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall to either constitute but one and the
same instrument.
21
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
TOWN PAGES HOLDINGS PLC
By:
--------------------------------
Name:
Title:
Attest:
- ---------------------------
Secretary
SECURITY CAPITAL TRADING, INC.
By:
-------------------------------
Name:
Title:
23
<PAGE>
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
(ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR RULE
UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION
OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE
ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., NEW YORK TIME, ________, 2004
No. W-01 200,000 Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that __________, or registered
assigns, is the registered holder of __________ Warrants to purchase initially,
at any time from ____________, 2000 [one year from the effective date of the
Registration Statement] until 5:00 p.m. New York time on ____________, 2004
[five years from the effective date of the Registration Statement] ("Expiration
Date"), up to 200,000 American Depositary Shares ("ADSs"), each representing one
(1) Ordinary Share of the Company, of TOWN PAGES HOLDINGS plc, a corporation
organized under the laws of the United Kingdom (the "Company"), at the initial
exercise price, subject to adjustment in certain events (the "Exercise Price"),
of $_____________ [120% of the public offering price per ADS] per ADS upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, or by surrender of this Warrant Certificate in
lieu of cash payment, but subject to the conditions set forth herein and in the
warrant agreement dated as of _________________, 1999 between the Company and
Security Capital Trading, Inc. (the "Warrant Agreement"). Payment of the
Exercise Price shall be made by certified or official bank check in New York
Clearing House funds payable to the order of the Company or by surrender of this
Warrant Certificate.
<PAGE>
No Warrant may be exercised after 5:00 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in and made a part of this
instrument and is hereby referred to for a description of the rights, limitation
of rights, obligations, duties and immunities thereunder of the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such Warrant.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, and of any distribution to the holder(s) hereof, and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of ___________, 1999
TOWN PAGES HOLDINGS PLC
[SEAL] By:
-------------------------------
Name:
Title:
Attest:
- -----------------------------
Secretary
3
<PAGE>
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.1]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _____________ ADSs and
herewith tenders in payment for such securities a certified or official bank
check payable in New York Clearing House Funds to the order of Town Pages
Holdings plc in the amount of $__________, all in accordance with the terms of
Section 3.1 of the Representative's Warrant Agreement dated as of ___________,
1999 between Town Pages Holdings plc and Security Capital Trading, Inc. The
undersigned requests that certificates for such securities be registered in the
name of _______________ whose address is __________________________ and that
such certificates be delivered to ______________________________ whose address
is ____________________________.
Dated:
Signature
---------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant Certificate.)
------------------------------------------
(Insert Social Security or Other Identifying
Number of Holder)
4
<PAGE>
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.2]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ____________ ADSs all in
accordance with the terms of Section 3.2 of the Representative's Warrant
Agreement dated as of ______________, 1999 between Town Pages Holdings plc and
Security Capital Trading, Inc. The undersigned requests that certificates for
such securities be registered in the name of __________________ whose address is
_______________________ and that such certificates be delivered to
_____________________ whose address is ____________________________________.
Dated:
Signature
---------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant Certificate.)
------------------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
5
<PAGE>
[FORM OF ASSIGNMENT]
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED _____________ hereby sells, assigns and transfers
unto
- --------------------------------------------------------------------------------
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ________________ Attorney, to
transfer the within Warrant Certificate on the books of the within-named
Company, with full power of substitution.
Dated: Signature:
--------------------- ---------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant Certificate.)
-------------------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
6
<PAGE>
Exhibit 8.1
Town Pages Holdings plc
11 Market Square
Alton, Hampshire
United Kingdom
The tax opinion of Greenberg Traurig as to the material federal tax
consequences to U.S. investors relating to the offering of ADSs of Town Pages
Holdings plc is set forth in full in the section entitled "Taxation" in the
Form F-1 registration statement dated February ,1999.
<PAGE>
Exhibit 8.2
Town Pages Holdings Plc __ February 1999
11 Market Square
Alton Hampshire CJWS
Dear Sirs
Town Pages Holdings Plc
We refer to the Taxation section on pages 71-75 of the F1 registration
statement dated February 10, 1999 issued in respect of the offering of
2,000,000 ADSs. We confirm that we have reviewed these pages in relation to
UK taxation and that, in our opinion, the statements included therein are
correct and do not omit anything likely to materially affect the import of
such information.
Yours faithfully,
McFADDEN, PILKINGTON & WARD
<PAGE>
EXHIBIT 10.1
TOWN PAGES HOLDINGS PLC
- --------------------------------------------------------------------------------
THE RULES OF TOWN PAGES HOLDINGS PLC
EXECUTIVE SHARE OPTION PLAN
- --------------------------------------------------------------------------------
ADOPTED BY THE COMPANY
ON DECEMBER 15, 1998
<PAGE>
TOWN PAGES HOLDINGS PLC
EXECUTIVE SHARE OPTION PLAN
CONTENTS
<TABLE>
<CAPTION>
RULE
<S> <C> <C>
1 INTERPRETATION AND CONSTRUCTION
Definitions (a)
Construction (b) to (d)
2 LIMIT ON ORDINARY SHARE CAPITAL PLACED
UNDER OPTION (a) and (b)
3 ORDINARY SHARE CAPITAL
Availability of authorised capital and Scheme Shares (a)
Variation of capital and adjustment of Options (b) and (c)
4 LIMIT ON AN EMPLOYEE'S PARTICIPATION
5 GRANT OF AN OPTION
General (a)
Timing of grant (b) and (c)
Additional conditions (d)
Option Certificate (e)
Renunciation of Options (f)
6 NON TRANSFERABILITY OF OPTIONS
7 RIGHTS TO EXERCISE OPTIONS
General (a) and (b)
Transfer to another country (c)
Death (d)
Cessation of employment in special circumstances (e) and (f)
Cessation of employment in other circumstances (g) to (h)
Discretion to extend exercise period (i)
Lapsing of Options (j)
8 LOSS OF OFFICE OR EMPLOYMENT (a) to (c)
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
9 TAKEOVERS, RECONSTRUCTION, AMALGAMATION AND
LIQUIDATION
Change in Control of the Company - Acquiring Company (a) to (d)
Change in Control of the Company - Acquiring Person (e)
Change in Control of the Company - additional provisions
for Compromises (f) to (j)
Changes to Scheme Share class or rights (k)
Liquidation (l)
Administration order (m)
Voluntary arrangement (n)
10 EXERCISE OF OPTIONS AND LISTING OF SHARES
Procedures on exercise (a) and (b)
Deductions (c) and (d)
Rights attaching to Scheme Shares (e)
Listing (f)
11 SCHEME AMENDMENTS AND TERMINATION
Amendments (a) to (d)
Termination (e)
12 ADMINISTRATION
Notices and documents (a) to (b)
Disputes (c)
Costs of the Scheme (d)
Employee Trust (e)
Governing Law (f)
</TABLE>
<PAGE>
TOWN PAGES HOLDINGS PLC
EXECUTIVE SHARE OPTION PLAN
RULES
1 INTERPRETATION AND CONSTRUCTION
DEFINITIONS
(a) In the Rules of this Scheme and in the Schedule attached hereto unless
the context otherwise requires the following words and expressions
shall have the meanings set out below:
Acquiring Company Any company which:
(a) has obtained Control of the Company
either:
(i) as a result of making a
Takeover Offer; or
(ii) in pursuance of a
Compromise; or
(iii) becomes bound or entitled
to acquire Scheme Shares
on the terms of an offer
contained in Section 429
Notice(s).
Acquiring Person Any person, not being an Acquiring Company,
who:
(a) either alone or together with any
person acting in concert with him
has obtained Control of the Company
as a result of making a Takeover
Offer or otherwise; or
(b) having Control of the Company,
makes a general offer to acquire
the whole of the issued Ordinary
Share Capital (other than that
which is already owned by him
and/or by any person acting in
concert with him).
Acquisition Price The amount payable in relation to the
exercise of an
<PAGE>
Option, being the amount (after any
adjustment pursuant to Rule 3(b)) of the
Option Price multiplied by the number of
Scheme Shares in respect of which the Option
is exercised.
the Act The Income and Corporation Taxes Act 1988.
Adoption Date The date on which this Scheme is adopted by
the Company.
Appropriate Period In relation to:
(a) a Takeover Offer, means the period
of 6 months beginning with the time
when the person making the Takeover
Offer has obtained Control of the
Company and any condition subject
to which the Takeover Offer is made
is satisfied;
(b) a Compromise, means:
(i) where the Option is to be
exercised the period
permitted in the
operation of Rules 9(f)
to 9(j); or
(ii) where the Option is to be
Rolled-over, the period
of 6 months beginning
with the time when the
court sanctions the
Compromise;
(c) a Section 429 Notice means the
period during which the Acquiring
Company is entitled and bound to
acquire shares on the terms of the
offer contained in such Section 429
Notice; and
(d) an Acquiring Person who obtains
Control of the Company other than
in a consequence of a Compromise,
or who having Control of the
Company makes a general offer for
the whole of the issued Ordinary
Share Capital, (other than that
which is already owned by him
and/or any person acting in concert
with him) means the period of 6
months
<PAGE>
beginning with the time when the
Acquiring Person obtains Control or
makes the offer as the case may be.
Committee The compensation committee of the Company
from time to time which consists wholly or
mainly of non-executive directors;
the Companies Act The Companies Act 1985;
the Company Town Pages Holdings plc.
Compromise In relation to the Company, means a
compromise or arrangement sanctioned or to
be sanctioned by the court under section 425
of the Companies Act.
Control Control as defined in section 840 of the
Act.
Date of Grant The date on which an Option is granted to
an Employee, which shall be the date
specified on the Option Certificate.
Directors The board of directors of the Company or a
duly authorised committee thereof.
Employee An employee (other than a director) or a
director (other than a non-executive
director) of a Group Company;
Employees' Share Scheme An employees' share scheme as defined in
section 743 of the Companies Act.
Flotation Means the time when the ordinary shares of
the Company are placed on the official list
of a Recognised Stock Exchange.
Grantor Either:
(i) in relation to an Option granted by
the Company, the Committee; or
(ii) in relation to an Option granted by
the Trustees, the Trustees,
provided that the Trustees shall in
taking or refraining from
<PAGE>
taking any action or in exercising
any discretion take into account
the recommendations of the
Directors; or
(iii) in relation to an Option granted by
any other person, that other person
provided that such other person
shall in taking or refraining from
taking any action or in exercising
any discretion take into account
the recommendations of the
Directors.
Group The Company and its Subsidiaries from time
to time and the expression "member of the
Group" shall be construed accordingly.
Group Company The Company, or a company which is for the
time being a Subsidiary over which the
Company has Control and which has been
nominated by the Directors to participate
for the time being in this Scheme.
Market Value (a) In the case of Options granted
under this Scheme, means:
(i) if at the relevant time
shares which are of the
same class as Scheme
Shares are listed on
Nasdaq or on a Recognised
Stock Exchange an amount
equal to the closing
price of a Scheme Share
on Nasdaq or such
Recognised Stock Exchange
on the business day
immediately preceding the
Date of Grant; or
(ii) if paragraph (i) above
does not apply, the
market value of a Scheme
Share as determined in
accordance with Part VIII
of the Taxation of
Chargeable Gains Act 1992
on the Date of Grant; or
(b) in the case of options granted
under any other share option scheme
of the Company, the market value of
an ordinary share in the
<PAGE>
capital of the Company determined
under the rules of such scheme for
the purpose of the grant of each
such option.
Option A right to acquire Scheme Shares granted to
an Employee under the provisions of this
Scheme and for the time being subsisting.
Option Certificate The certificate in respect of a grant of
an Option which shall be issued to an
Option-holder in accordance with Rule 5(e).
Option-holder Any person who holds an Option or (where the
context admits) his legal personal
representative(s).
Option Price The price per Scheme Share determined by the
Grantor, being:
(i) if the Date of Grant is
any time in the period
from the Adoption Date to
the date which is 42 days
following Flotation, any
price, except where
Scheme Shares are to be
subscribed when the price
shall not be less than
the nominal value of a
Scheme Share; or
(ii) if the Date of Grant is
any time after the date
which is 42 days
following Flotation a
price not less than the
Market Value of a Scheme
Share at the Date of
Grant except where Scheme
Shares are to be
subscribed when the price
shall not be less than
the greater of:
(i) the nominal value
of a Scheme Share;
and
(ii) the Market Value
of a Scheme Share.
Option Rollover In relation to an Option, means a release by
an Option-holder with the consent of the
Acquiring Company of his rights ("old
rights") under this Scheme in consideration
of the grant to him of rights ("new rights")
which are equivalent to the old rights but
which relate to shares in:
<PAGE>
(a) the Acquiring Company; or
(b) a company which has Control of the
Acquiring Company; or
(c) a company which either is, or has
Control of, a company which is a
member of a consortium within the
meaning of section 187(7) of the
Act owning either the Acquiring
Company or a company having Control
of the Acquiring Company
and the term "equivalent" shall be construed
in accordance with Rule 9(c).
Ordinary Share Capital The ordinary share capital of the Company as
defined in section 832(1) of the Act.
Proscribed Period The period of eight weeks preceding the
announcement of the Company's annual or
interim results to a Recognised Stock
Exchange or any other time at which dealings
in Scheme Shares by directors would be
proscribed due to the existence of
unpublished price sensitive information,
whether by the rules of any national United
States securities exchange, the Model Code
of the London Stock Exchange, the Criminal
Justice Act 1993, the Company's code on
insider dealing or otherwise.
Recognised Stock Exchange A recognised stock exchange as defined in
Section 841(1) of the Act.
Rolled-over The action of effecting an Option Rollover
or its completion.
the Rules The rules for the time being governing this
Scheme.
this Scheme The Town Pages Holdings plc Executive Share
Option Plan in its present form or as from
time to time amended in accordance with the
provisions hereof.
Scheme Shares Fully paid ordinary shares in the capital of
the
<PAGE>
Company or any shares representing the same.
Section 429 Notice In relation to the Company, means a notice
served by a person who has become entitled
to serve such a notice on the shareholders
of the Company under section 429 of the
Companies Act 1985.
Subsidiary A company which is a subsidiary of the
Company within the meaning of section 736 of
the Companies Act.
Takeover Offer In relation to the Company, means either:
(a) a general offer to acquire the
whole of the issued Ordinary Share
Capital which is made on a
condition such that if it is
satisfied the person making the
offer will have Control of the
Company; or
(b) a general offer to acquire all the
shares in the Company of the same
class as the Scheme Share
in either case, other than shares already
owned by the offeror or persons acting in
concert with the offeror.
Trustees The trustees of any trust created by the
Company which taken together with the Rules
is an Employees' Share Scheme.
CONSTRUCTION
(b) Words or expressions used herein shall where appropriate:
(i) when denoting the masculine gender include the feminine and
vice-versa;
(ii) when denoting the singular include the plural and vice versa;
(iii) when referring to any enactment be construed as a reference to
that enactment as for the time being consolidated, amended,
re-enacted or replaced and shall include any regulations made
thereunder;
(iv) when a period of time is specified and starts from a given day
or the day of an act
<PAGE>
or event, be calculated inclusive of that day; and
(v) be construed such that the headings and sub-headings are for
ease of reference only, and do not affect the interpretation
of any Rule.
(c) For the purpose of any application of the provisions of this Scheme,
following an Option Rollover:
(i) Rules 1, 3, 7, 8, 9, 10, 12(a), 12(c), and 12(d), shall apply
only in relation to the new rights be construed as if the
following terms have the meaning assigned to them in this Rule
1(c) and not the meanings assigned to them in Rule 1(a):
Company the company in respect of whose shares new
rights have been granted;
Directors the board of directors of the company in
respect of whose shares new rights have been
granted or a duly authorised committee
thereof;
Scheme Shares fully paid ordinary shares in the capital of
the company for the time being over whose
shares new rights have been granted.
(d) Where under any of the provisions of these Rules it is provided that an
Option shall lapse, that Option shall cease to be exercisable
thereafter notwithstanding any other provision of these Rules.
2 LIMIT ON ORDINARY SHARE CAPITAL PLACED UNDER OPTION
(a) The aggregate nominal amount of Ordinary Share Capital over which
Options may be granted on any date when aggregated with:
(i) the nominal amount of Ordinary Share Capital issued or
remaining issuable pursuant to options granted in the previous
10 years under this Scheme and under any other share option
scheme established by the Company; and
(ii) the nominal amount of Ordinary Share Capital under any other
Employees' Share Scheme of the Company during the same 10 year
period
shall not exceed 10 per cent of the nominal amount of Ordinary Share
Capital in issue on the day preceding that date.
(b) For the purposes of this Rule 2:
<PAGE>
(i) an Ordinary Share taken into account as being issuable
pursuant to an Option, shall not also be taken into account as
an Ordinary Share issued pursuant to an Option; and
(ii) an Ordinary Share shall not be taken into account where the
Option has lapsed, been released or has otherwise become
incapable of exercise.
3 ORDINARY SHARE CAPITAL
AVAILABILITY OF AUTHORISED CAPITAL AND SCHEME SHARES
(a) The Company shall at all times keep available sufficient authorised and
unissued Scheme Shares or shall procure that sufficient Scheme Shares
are available for transfer to satisfy the exercise to the full extent
still possible of all Options which have neither lapsed nor been fully
exercised taking account of any other obligations of the Company to
provide shares of the same class as Scheme Shares.
VARIATION OF CAPITAL AND ADJUSTMENT OF OPTIONS
(b) In the event of any capitalisation issue or rights issue or rights
offer or any reduction, sub-division, consolidation or other variation
of the capital of the Company, the number and/or the class of Scheme
Shares comprised in any Option over Scheme Shares in the Company and/or
the Option Price may be adjusted by the Grantor in its absolute
discretion (including but without limitation retrospective adjustments
where appropriate). Except in the case of an Option over Scheme Shares
already in issue, no adjustment shall be made which would cause the
Option Price to be less than the nominal value of that Scheme Share.
Notice of any adjustment shall be given to those Option-holders
affected by such adjustment by the Grantor who may call in Option
Certificates for endorsement, cancellation or re-issue subsequent upon
such adjustment.
(c) Where an Option subsists over both issued and unissued Scheme Shares,
the adjustment permitted by Rule 3(b) may only be made if the reduction
of the Option Price of both issued and unissued Scheme Shares may be
made to the same extent.
4 LIMIT ON AN EMPLOYEE'S PARTICIPATION
An Employee shall not be granted an Option on or after the date which
is 42 days following the date of Flotation which would at the proposed
Date of Grant cause the aggregate of the Market Value of the shares
which he has or might have subscribed or may in future subscribe in
respect of options granted in the ten years preceding such Date of
Grant on the exercise of an option granted under this and any other
share option
<PAGE>
scheme established by the Company (other than a savings-related share
option scheme) but excluding any Option which has lapsed (and to the
extent that the Option to be granted at such Date of Grant is a
replacement Option also excluding any option which has been exercised)
to exceed ten times the greater of:
(i) the annual rate of the Employee's total remuneration
(exclusive of bonuses, commissions and benefits-in-kind) from
the Group as at the day immediately preceding the Date of
Grant of that Option; or
(ii) the total remuneration (inclusive of bonuses and commissions
but exclusive of benefits-in-kind) payable to the Employee by
the Group in the 12 months ending on the last day of the month
immediately preceding the month in which the Date of Grant
falls; or
(iii) the total remuneration (inclusive of bonuses and commissions
but exclusive of benefits-in-kind) payable to the Employee by
the Group for any 12 month period in which the Date of Grant
occurs.
Any purported grant in excess of this limit shall be and take effect
with respect to such number of Scheme Shares as would equal but not
exceed this limit.
5 GRANT OF AN OPTION
GENERAL
(a) Subject to statutory restrictions and subject to the Rules of this
Scheme the Grantor may grant any Employee an Option over such number of
Scheme Shares as the Grantor may determine.
TIMING OF GRANT
(b) Subject to (c) below Options shall only be granted:
(i) except during a Proscribed Period, at any time immediately
succeeding the date on which this Scheme is adopted by the
Company until the expiry of the period of 42 days following
the date of Flotation; and thereafter
(ii) except during a Proscribed Period, at any time within the
period of 42 days immediately succeeding the announcement of
the Company's annual or interim results provided always that
no Option shall be granted the Market Value of which would
fall to be determined by reference to a dealing day or days
preceding any such announcement; or
<PAGE>
(iii) at any other time if the Grantor considers that exceptional
circumstances exist to justify the grant at such other time
provided always that no Option shall be granted the Market
Value of which would fall to be determined by reference to a
dealing day or days within a Proscribed Period or where the
grant would take place during such period.
(c) No Option shall be granted more than 10 years after the Adoption Date
or to any Employee if the Date of Grant is less than two years before
his normal retirement date under his contract of employment. If the
Employee's normal retirement date is uncertain the Grantor may
determine his normal retirement date for the purposes of the Scheme.
ADDITIONAL CONDITIONS
(d) The Grantor when granting any Option at any time after the expiry of
the period of 42 days following the date of Flotation shall in its
absolute discretion impose any conditions and limitations (additional
to any conditions and limitations contained in any other of these
Rules) upon the exercise of such Option provided that such additional
conditions and limitations shall:
(i) be objective, specified at the date of Grant and set out in
full in, or details given with, the Option Certificate; and
(ii) be such that rights to exercise such Option after the
fulfilment or attainment of any conditions and limitations so
specified shall not be dependent upon the further discretion
of any person; and
(iii) not be capable of amendment, variation or waiver unless an
event occurs which causes the Directors to consider that a
waived, varied or amended condition would be a fairer measure
of performance and would be no more difficult to satisfy.
For the avoidance of doubt any Option granted prior to the expiry of
the period of 42 days following the date of Flotation shall not be
subject to any such additional conditions or limitations.
Where such additional conditions or limitations have been imposed and
have ceased to be capable of being satisfied or being satisfied in full
except as a result of an event to which Rules 7(d) to 7(g) or Rule 9
applies that Option shall lapse in whole or in part as the case may be.
OPTION CERTIFICATE
(e) Upon the grant of an Option each Option-holder shall be issued with a
certificate which shall be executed by the Grantor in such manner so as
to take effect in law as a deed
<PAGE>
specifying the Date of Grant, the number of Scheme Shares the subject
of the Option, the Option Price and shall specify or be accompanied by
any conditions and limitations which may have been imposed in
accordance with Rule 5(d).
RENUNCIATION OF OPTIONS
(f) Any Option may be renounced in whole or in part by the Option-holder by
notice in writing to the Grantor received not later than 30 days after
the Date of Grant of that Option in which case the Option shall for all
purposes to that extent be deemed never to have been granted.
6 NON TRANSFERABILITY OF OPTIONS
Save as provided in Rule 7(e) no Option nor any right thereunder shall be
capable of being transferred, assigned or charged. Any such purported transfer,
assignment or charge shall result in the cancellation of the Option.
7 RIGHTS TO EXERCISE OPTIONS
GENERAL
(a) Save as provided in Rules 7(c) to 7(g) and 9 an Option:
(i) shall not be exercisable before the expiry of a period
determined by the Grantor at the Date of Grant which shall not
in any event be less than 3 years or more than 10 years; and
(ii) shall not be exercisable or capable of being Rolled-over until
any additional conditions and limitations imposed on the
Option (and which have not been waived) in accordance with
Rule 5(d) have been fulfilled; but
(iii) subject to Rule 7(b), may thereafter be exercised in whole or
in part at any time or from time to time provided that, unless
the Directors determine otherwise, the exercise may not be
during a Proscribed Period.
(b) No Option is exercisable later than 10 years from its Date of Grant (or
the expiry of such shorter period as may be determined by the Grantor
at the time of grant).
TRANSFER TO ANOTHER COUNTRY
(c) If an Option-holder, while continuing to hold an office or employment
within the Group is to be transferred to work in another country and
the Directors are satisfied that as a result of that transfer either:
<PAGE>
(i) he will suffer a tax disadvantage upon exercising his
Option(s); or
(ii) he will become subject to restrictions on his ability to
exercise his Option(s) or to deal in the Scheme Shares
obtained upon exercise of his Option(s)
the Option-holder may subject to Rule 7(b), exercise all or any of his
Options in whole or in part in the period commencing three months
before and ending three months after the date of the transfer. Upon the
expiry of such period any Option, to the extent unexercised, shall
cease to be exercisable under this Rule 7(c) and shall be exercisable
at such other time as provided in these Rules.
DEATH
(d) If an Option-holder dies, his legal personal representatives may
exercise all or any of his Options in whole or in part within 12 months
of his death.
CESSATION OF EMPLOYMENT IN SPECIAL CIRCUMSTANCES
(e) If an Option-holder shall cease to be employed within the Group by
reason of:
(i) injury, ill-health or disability (evidenced to the
satisfaction of the Directors) or redundancy within the
meaning of the Employment Rights Act 1996; or
(ii) retirement on reaching his normal retirement age under his
contract of employment (or earlier with the consent of his
employing company); or
(iii) pregnancy
he may, subject to Rule 7(b) and subject to 7(a)(ii) if an
Option-holder ceases employment pursuant to Rule 7(e)(ii) exercise all
or any of his Options in whole or in part during the period ending 6
months after the date of such cessation.
(f) If an Option-holder shall cease to be employed within the Group solely
by reason that the company by which he is for the time being employed
then ceases to be a member of the Group or by reason of the transfer of
the undertaking or part of the undertaking in which the Option-holder
is employed to a transferee which is not in the Group, then, he may,
subject to Rule 7(b) exercise all or any of his Options in whole or in
part during the period within 6 months after the date of such cessation
or transfer as the case may be.
CESSATION OF EMPLOYMENT IN OTHER CIRCUMSTANCES
(g) If an Option-holder gives notice to terminate his employment such that
he shall cease to be employed within the Group for a reason not falling
within Rules 7(e) or 7(f) all his
<PAGE>
Options shall cease to be exercisable and shall lapse on the date such
employment ceases save that the Directors may in their absolute
discretion, but subject to Rules 7(a)(ii) and 7(b), prior to the
cessation of employment consent to the exercise of any such Options in
whole or in part to the extent determined by the Directors during the
period within 6 months (or such shorter period as may be determined by
the Directors) after such cessation.
(h) If an Option-holder is given notice terminating his employment such
that he shall cease to be employed within the Group in circumstances
not involving misconduct or impropriety on his part and for a reason
not falling within Rules 7(e) or 7(f), all his Options shall cease to
be exercisable and shall lapse on the date such notice is given save
that the Directors may in their absolute discretion but subject to
Rules 7(a)(ii) and 7(b) consent to the exercise of any such Options in
whole or in part to the extent determined by the Directors during the
period within 6 months (or such shorter period as may be determined by
the Directors) after the giving of such notice.
DISCRETION TO EXTEND EXERCISE PERIOD
(i) The Directors acting fairly and reasonably may in its absolute
discretion but subject to Rule 7(b) and before the expiry of the
specified periods extend the periods of 6 months specified in Rules
7(e), 7(f) and 7(h), to such longer period as it may determine.
LAPSING OF OPTIONS
(j) At the expiry of the periods specified in Rules 7(d) to 7(h), as the
case may be or such longer period as may have been determined under
Rule 7(i) any Options held by the Option-holder concerned shall, to the
extent unexercised, lapse.
8 LOSS OF OFFICE OR EMPLOYMENT
(a) The grant of an Option does not form part of the Option-holder's
entitlement to remuneration or benefits pursuant to his contract of
employment nor does the existence of a contract of employment between
an Employee and any company give such Employee any right or entitlement
to have an Option granted to him in respect of any number of Scheme
Shares or any expectation that an Option might be granted to him
whether subject to any conditions or at all and the grant of an Option
shall not give him any entitlement or expectation that further Options
will be granted.
(b) The rights and obligations of an Option-holder under the terms and
conditions of his office or employment shall not be affected by his
participation in the Scheme or any right he may have to participate in
the Scheme.
(c) An individual who participates in the Scheme waives all and any rights
to compensation
<PAGE>
or damages in consequence of the termination of his office or
employment with any company for any reason whatsoever in so far as
those rights arise, or may arise, from his ceasing to have rights under
or be entitled to exercise any Option under the Scheme as a result of
such termination or from the loss or diminution of value of such rights
or entitlements. If necessary, the Option-holder's terms of employment
shall be varied accordingly.
9 TAKEOVERS, RECONSTRUCTION, AMALGAMATION AND
LIQUIDATION
CHANGE IN CONTROL OF THE COMPANY - ACQUIRING COMPANY
(a) If after the Adoption Date, and subject to Rules 9(f) to 9(j), a
company has become an Acquiring Company the Directors shall as soon as
practicable thereafter notify every Option-holder accordingly and each
Option-holder may subject to Rule 7(b) within the Appropriate Period:
(i) exercise all or any of his Options in whole or in part (but in
the case of a Compromise Rules 9(f) to 9(j) shall apply); and
(ii) to the extent that an Option is not or has not been exercised,
execute, with the consent of the Acquiring Company, an Option
Rollover by a notice in writing in a form prescribed by the
directors of the Acquiring Company.
(b) To the extent that any Option which has become exercisable and/or
capable of being Rolled-over, pursuant to Rule 9(a)(i) or 9(a)(ii), has
not been exercised and/or Rolled-over at the expiry of the Appropriate
Period it shall thereupon continue to subsist unless shares cease to be
Scheme Shares or the Directors determine otherwise provided always that
such determination shall apply to all subsisting Options. Options which
continue to subsist shall be subject to the same terms and conditions
that applied before the date of the change of Control or service of the
Section 429 Notice (as the case may be). Where the Directors have
determined otherwise it shall notify all Option-holders to whom such
determination applies. Where Options continue to subsist any conditions
imposed on the Option under Rule 5(a) shall be deemed to be satisfied
at the expiry of the Appropriate Period.
(c) For the purposes of an Option Rollover the new rights shall only be
regarded as equivalent to the old rights if:
(i) the new rights are exercisable in the same manner as the old
rights and subject to the provisions of this Scheme as it had
effect immediately before an Option Rollover; and
<PAGE>
(ii) the total market value of Scheme Shares subject to an Option
which is being Rolled-over is equal immediately before such
Option Rollover to the total market value (determined in
accordance with Part VIII of the Taxation of Chargeable Gains
Act 1992) of the shares in respect of which an Option-holder's
new rights are being granted immediately after such Option
Rollover; and
(iii) the total amount payable in respect of the exercise in full of
an Option following an Option Rollover is equal to the total
Acquisition Price immediately preceding such Option Rollover.
(d) For the purposes of any application of the provisions of this Scheme,
following an Option Rollover any new rights granted pursuant to Rule
9(a) shall be regarded as having been granted at the time the
corresponding old rights were granted. With effect from the Option
Rollover, the new rights shall be subject to the provisions of the
Scheme as it had effect in relation to the Options which have been
released, except that Rule 11 shall not apply.
CHANGE IN CONTROL OF THE COMPANY - ACQUIRING PERSON
(e) If after the Adoption Date, a person has become an Acquiring Person and
subject to Rules 9(f) to 9(j) the Directors shall, as soon as
practicable thereafter, notify every Option-holder accordingly and each
Option-holder may, subject to Rule 7(b) within the Appropriate Period
exercise all or any of his Options in whole or in part (but in the case
of a Compromise Rules 9(f) to 9(j) shall apply) and to the extent that
any Option which has become exercisable pursuant to this Rule 9(e) has
not been exercised at the expiry of the Appropriate Period it shall
thereupon continue to subsist to the extent unexercised unless the
Scheme Shares cease to exist or the Directors determine otherwise.
Options which continue to subsist shall be subject to the same terms
and conditions which applied before the change of Control or the
general offer was made or the Section 429 Notice was served (as the
case may be). When the Directors has determined otherwise, it shall
notify all Option-holders to whom such determination applies. Options
which continue to subsist shall be subject to the same terms and
conditions which applied before the change in Control or the general
offer was made or the section 429 Notice was served (as the case may
be) with the exception that any conditions imposed on the Option in
accordance with Rule 5(d) shall be deemed to have been satisfied at the
expiry of the Appropriate Period.
CHANGE IN CONTROL OF THE COMPANY - ADDITIONAL PROVISIONS FOR COMPROMISES
(f) Where a Compromise is proposed between the Company and its members:
(i) Options which prior to the date of any general meeting of the
members ordered by the court have become exercisable pursuant
to the Rules of this Scheme excluding Rule 9 shall, subject to
Rules 9(h) to 9(j), remain exercisable and may at the election
of the Option-holder be exercised on the basis set out in Rule
9(g); and
<PAGE>
(ii) Rule 9(g) shall apply to any Option not falling within Rule
9(f)(i).
(g) Options to which this Rule 9(g) applies shall become exercisable from
the date of the meeting of the members ordered by the court on terms
that exercise is conditional on the court sanctioning the Compromise
and where exercise is permitted under this Rule 9(g):
(i) notice of exercise shall be in such form as may be prescribed
by the Directors; and
(ii) notwithstanding any other provision in this Scheme, the date
of exercise of all Options exercised conditionally pursuant to
this Rule 9(g) shall be the date on which the court sanctions
the Compromise.
(h) Notwithstanding any other Rule in this Scheme, unless the Directors
determine otherwise, no notice of exercise of an Option shall be
effective if received on or after the day on which it is anticipated
that the court will sanction the Compromise.
(i) If after six months from the date of the meeting ordered by the court
to consider the Compromise referred to in Rule 9(f) the court has not
sanctioned the Compromise, the conditional exercise of Options under
Rule 9(f) shall be of no effect and Rules 9(f) and 9(h) shall cease to
apply in relation to that Compromise.
(j) Upon the Compromise becoming effective, any Options, to the extent
unexercised, shall lapse.
CHANGES TO SCHEME SHARE CLASS OR RIGHTS
(k) If notice is duly given of a general meeting of the Company at which a
resolution will be proposed whereby:
(i) the class of shares for the time being constituting Scheme
Shares will be altered; or
(ii) the rights attaching to shares which for the time being
constitute Scheme Shares will be altered
so that such shares will cease to be Scheme Shares an Option shall,
subject to Rule 7(b) be exercisable in whole or in part at any time
thereafter until such resolution is duly passed or defeated or the
general meeting concluded or adjourned, sine die, whichever shall first
occur. If such a resolution is passed, an Option shall, to the extent
unexercised, thereupon lapse. If such a resolution is defeated, the
relevant Option shall, to the extent unexercised, thereupon continue to
subsist.
<PAGE>
LIQUIDATION
(l) If notice is duly given of a general meeting at which a resolution will
be proposed for the voluntary winding-up of the Company, except for the
purposes of reconstruction or amalgamation, an Option shall, subject to
Rules7(a)(ii) and 7(b), be exercisable in whole or in part at any time
thereafter until the resolution is duly passed or defeated or the
general meeting concluded or adjourned sine die, whichever shall first
occur. If such a resolution is passed the relevant Option shall, to the
extent unexercised, thereupon lapse. If such a resolution is defeated,
the relevant Option shall, to the extent unexercised, thereupon
continue to subsist.
ADMINISTRATION ORDER
(m) If an administration order is made in relation to the Company, each
Option-holder shall, subject to Rules7(a)(ii) and 7(b), be entitled to
exercise his Option in whole or in part within 6 weeks after the date
of the administration order, provided that the issue of Scheme Shares
pursuant to such exercise is authorised by the administrator(s) or the
court.
VOLUNTARY ARRANGEMENT
(n) If a voluntary arrangement is proposed in relation to the Company
pursuant to Part I of the Insolvency Act 1986, each Option-holder
shall, subject to Rules7(a)(ii) and 7(b), be entitled to exercise his
Option in whole or in part within 14 days after the date of despatch of
any notices of meetings summoned under Section 3 of the Insolvency Act
1986 in relation to such proposal.
10 EXERCISE OF OPTIONS AND LISTING OF SHARES
PROCEDURES ON EXERCISE
(a) Exercise of an Option, or of new rights under this Scheme shall be
effected by a notice of exercise in writing in a form prescribed from
time to time by the Grantor lodged with the Grantor at the Company's
registered office or such other address as may be determined by the
Grantor to be appropriate specifying the number of Scheme Shares in
respect of which the Option is being exercised and accompanied by
payment in full of the Acquisition Price for the Scheme Shares
concerned. Payment may be made by banker's draft or cheque provided
that if the cheque is not cleared the Employee shall be deemed never to
have exercised his Option and the Company will be under no obligation
to provide any Scheme Shares for him. Payment may also be made
electronically by agreement with the Grantor. Notwithstanding anything
to the contrary therein contained such notice shall (other than in the
circumstances mentioned in the immediately preceding proviso and/or in
Rule 9(g) above) take effect upon receipt of notice and payment in full
and such day shall constitute for all purposes the date of exercise of
such
<PAGE>
Option and, unless otherwise agreed between the Grantor and the
Option-holder the Trustees or any other person shall procure that the
relevant Scheme Shares in respect of an Option shall be transferred or
the Secretary of the Company shall procure that the said shares are
issued to the Option holder, or as directed in writing by the Option
holder (as the case may be) within 28 days thereafter. The Option
Certificate should also be lodged but failure to do so will not
invalidate the exercise of the Option. The Grantor will keep a suitable
form of notice available, so that an Option-holder desirous of
exercising an Option may obtain copies thereof from the Grantor. In the
case of a partial exercise of an Option, the Grantor shall deliver an
Option Certificate in relation to the balance.
(b) All transfers and all allotments of Scheme Shares shall be subject to
any necessary consents of HM Treasury or other authorities in the
United Kingdom or elsewhere under enactments or regulations for the
time being in force and it shall be the responsibility of the
Option-holder to comply with any requirements to be fulfilled in order
to obtain or obviate the necessity for any such consent.
DEDUCTIONS
(c) Where in relation to any Options the Trustees, the Company or any
member of the Group (as the case may be) is liable, or is in accordance
with current practice believed to be liable under any statute or
regulation or otherwise to account to any revenue or other authority
for sums in respect of any tax or social security liability of the
Option-holder then it may impose such conditions upon the exercise of
Options as are necessary to ensure that it is able to meet such
liabilities, including but without limitation a condition that no
exercise may take place unless the Trustees, the Company or any member
of the Group (as the case may be) has been provided by the
Option-holder with cash funds sufficient to meet any liability for
PAYE, pursuant to section 203B of the Act or otherwise, and social
security. As an alternative to the Option-holder providing such cash
funds he may enter into arrangements acceptable to the Trustees, the
Company or any member of the Group (as the case may be) to secure that
such cash funds are available (whether by authorising the sale of some
or all of the Scheme Shares on his behalf and the payment to the
Trustees, the Company or any member of the Group (as the case may be)
of the relevant amount out of the proceeds of sale or otherwise).
(d) Option-holders may be required to sign a copy of the Option Certificate
or some other document acknowledging the ability to impose such
conditions as are referred to in Rule 10(c) at any time, such signed
copy to be returned to the Grantor by the date specified at the time
the Option is granted. Failure to return such signed copy of the Option
Certificate in time will cause the Option to lapse.
RIGHTS ATTACHING TO SCHEME SHARES
(e) Scheme Shares transferred pursuant to the Scheme will be transferred
without the benefit of any rights attaching thereto by reference to a
record date preceding the date of exercise.
<PAGE>
Save as regards rights attaching to Scheme Shares by reference to a
record date prior to the date on which the Scheme Shares are allotted
and issued, Scheme Shares issued upon the exercise of Options shall be
identical and rank pari passu in all respects with the shares of the
same class then in issue.
LISTING
(f) At any time when the Scheme Shares are listed on a Recognised Stock
Exchange, the Company shall use its best endeavours to ensure that as
soon as practicable after the allotment of any Scheme Shares under this
Scheme the same shall be admitted to such Recognised Stock Exchange.
11 SCHEME AMENDMENTS AND TERMINATION
AMENDMENTS
(a) Subject to Rule 11(c) the Directors may from time to time at its
absolute discretion, but (where the Grantor is not the Company subject
to the prior consent of such Grantor if appropriate) amend any of the
Rules provided that after Flotation except with the prior approval of
the shareholders of the Company in general meeting no amendment to the
advantage of Option-holders (present or future) shall be made to:
(i) the persons to whom Options may be granted;
(ii) the limitations on the grant of Options;
(iii) the determination of the price at which Scheme Shares may be
acquired on the exercise of Options;
(iv) the adjustment of Options;
(v) the restrictions on the exercise of Options;
(vi) the rights to be attached to Scheme Shares issued upon the
exercise of Options;
(vii) the rights of Option-holders on a winding-up of the Company;
(viii) the transferability of Options; and
(ix) this Rule 11.
(b) No amendment waiver or replacement to or of this Scheme (or any Rule)
shall be made to the extent to which it would have the effect of
abrogating or altering adversely any of the
<PAGE>
subsisting rights of Option-holders except with such consent on their
part as would be required by the provisions of the relevant company's
Articles of Association if the Scheme Shares to be issued or
transferred on the exercise of the Options already granted and still
subsisting were so issued or transferred and constituted a separate
class of share capital and if such provisions applied mutatis mutandis
thereto.
(c) The requirement in Rule 11(a) to obtain the prior approval of the
shareholders to certain amendments after Flotation shall not apply to
any amendment which the Directors consider is necessary or desirable to
comply with or take account of the provisions of any proposed or
existing legislation including but without limitation overseas
securities legislation, or to take advantage of any changes to
legislation, or to take account of any of the events mentioned in Rule
9, or to obtain or maintain favourable exchange control taxation or
regulatory treatment of the Company, and Subsidiary or any
Option-holder provided any such alteration does not affect the basic
principles of the Scheme or the limits contained in Rule 2.
(d) The Directors shall have the power from time to time to make or vary
regulations for the administration of this Scheme and to amend the
terms or impose further conditions on the grant and exercise of Options
to take account of overseas taxation, and securities or exchange
control laws provided always that such regulations, terms and
conditions shall not be inconsistent with the provisions of this
Scheme.
TERMINATION
(e) Notwithstanding the provision contained in Rule 5(c) the Company by
ordinary resolution or the Directors may at any time resolve that no
further Options be granted under this Scheme, and in such event no
further Options will be granted but in all other respects the
provisions of this Scheme shall remain in full force and effect.
12 ADMINISTRATION
NOTICES AND DOCUMENTS
(a) Written notice of any amendment made in accordance with Rule 11 shall
be given to those Option-holders affected by such amendment.
(b) Any notice or other document required to be given hereunder to any
Option-holder shall be delivered to him or sent by First Class pre-paid
post to him at his home address according to the records of the Company
or such other address as may appear to the Grantor to be appropriate.
Any notice or other document required to be given to the Grantor shall
be delivered to the Grantor or sent by First Class pre-paid post to the
Grantor at the Company's registered office or such other address as may
be determined by the Grantor to be appropriate. Notices sent by post
shall be deemed to have been given on
<PAGE>
the third day following the date of posting.
DISPUTES
(c) The decision of the Directors in any dispute or question relating to
any Option shall be final and conclusive subject to the terms of this
Scheme.
COSTS OF THE SCHEME
(d) The costs of introducing and administering this Scheme shall be borne
by the Company.
EMPLOYEE TRUST
(e) The Company or any subsidiary may provide money to the Trustees or to
any other person to enable them or him to acquire shares to be held for
the purposes of the Scheme or enter into any guarantee or indemnity for
those purposes, to the extent permitted by section 153 of the Companies
Act.
GOVERNING LAW
(f) These Rules shall be governed by and construed in accordance with
English law.
<PAGE>
Exhibit 10.2
THIS AGREEMENT is made the 1st day of January 1999
BETWEEN:
1 TOWN PAGES HOLDINGS PLC registered number 3608347 OF 11 Market
Square, Alton, Hampshire GU34 1HD ("the Company"); and
2 ANDREW NEVILLE LYNDON-SKEGGS of Westbrook House, Holybourne,
Hampshire GU34 4HH ("the Executive")
WHEREBY IT IS MUTUALLY AGREED as follows:
1. INTERPRETATION
1.1 Clause headings are inserted at the head of each clause for the
convenience of reference only and shall not affect the construction of
the Agreement.
1.2 In this Agreement:
"Associated Person" means in relation to the Executive, his spouse,
parent, child or sibling
"Board" means the Board of Directors of the Company
"ERA" means Employment Rights Act 1996
"Operative Date" means the date hereof
"Review Date" means each anniversary hereof
1.3 References to a clause or sub-clause is to such part of that number in
or to this Agreement unless the context otherwise requires.
1.4 References to the provisions of any statute shall be deemed to include
any statutory modification or re-enactment thereof for the time being
in force.
2. APPOINTMENT
2.1 The Company employs the Executive who accepts that employment from the
Operative Date for a term of 12 months and thereafter upon the giving
of 12 calendar months notice by either party, such notice expiring at
any time after the expiry of the said 12 months.
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3. DESCRIPTION AND DUTIES
3.1 The Executive shall be employed as managing director and shall perform
such obligations and duties as listed in any job description annexed
hereto and exercise such powers and comply with all such reasonable
orders as may be designated to him by the Board consistent with the
status of his employment hereunder and shall do and perform all other
acts and things in the ordinary course of business which are reasonably
necessary or proper in the interests of the Company provided always
that the Board may at any time require the Executive to cease
performing and exercising such acts and things.
3.2 Whenever he is required to do so the Executive shall give an account to
the Board of all transactions matters and things relating to the
business of the Company or to the affairs thereof with which he is
entrusted.
3.3 The Executive shall perform such services for the Company as the Board
from time to time reasonably requires without further remuneration
unless otherwise agreed but in carrying out his duties the Executive
shall at all times be governed by the terms of this Agreement.
4. PROVISION OF SERVICES
4.1 Unless prevented from so doing by ill health and subject to permitted
absence for holidays the Executive shall throughout his employment
hereunder devote all of his time attention abilities and talents to the
business of the Company and shall loyally and conscientiously to the
utmost of his power skill and ability serve the Company and use his
best endeavours to maintain promote and improve the interests of the
Company. Provided Always that the Executive shall be entitled to devote
such limited amounts of time as the board shall from time to time
specify to the affairs of Westbrook Property Developments Limited and
Companies associated with Westbrook Property Developments Limited.
4.2 The Executive shall not either during or after the termination of the
said appointment without limit in point of time:
4.2.1 divulge or communicate to any person except to such personnel
of the Company whose province it is to know the same; or
4.2.2 use for his own purpose or for any purposes other than those
of the Company; or
4.2.3 through any failure to exercise all due care and diligence
cause any unauthorised disclosure of any secret confidential
or private information of the Company and shall use his best
endeavours to prevent the disclosure thereof by others.
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<PAGE>
4.3 For the purposes of clause 4.2 the expression "secret confidential or
private information " extends to:
4.3.1 any information concerning the business accounts or finances
of the Company or of any client thereof;
4.3.2 any trade secrets of the Company including know-how and
confidential transactions;
4.4 The restrictions in clause 4.2 shall apply both during and after the
termination of the Executive's appointment without limit in point of
time but shall cease to apply to any information or knowledge which may
(otherwise than through the unauthorised act or default of the
Executive) become available to the public generally without requiring a
significant expenditure of labour skill or money.
4.5 All records documents reports notes memoranda records and papers made
by the Executive relative to the business of the Company in whatever
form and howsoever stored and all copies thereof shall be and remain
the property of the Company and shall be handed over by him to the
Company from time to time on demand and in any event upon his leaving
the service of the Company.
4.6 The Executive's obligations under this clause shall be in addition to
and not in substitution to for any obligations imposed upon him by law
in relation to abuse of confidential information.
5. PLACE OF WORK
5.1 The Executive shall perform his duties at the head office of the
Company and/or such other place of business of the Company as the
Company requires within reasonable daily travelling distance of his
main residence whether inside or outside the United Kingdom but the
Company shall not without his prior consent require him to go to or
reside anywhere outside the United Kingdom except for occasional visits
in the ordinary course of his duties.
6. PAY
6.1 Commencing on the Operative Date and during the term of this Agreement
and any extension thereof the Company shall pay to the Executive:
6.1.1 a basic salary at the rate of (pound)80,000 per year which
shall accrue day-to-day and be payable by equal monthly
instalments in arrears on the last working day of each month.
The salary shall be deemed to include any fees receivable by
the Executive as a Director of the Company, or of any other
company or unincorporated body in which he holds office as
nominee or representative of the Company; and
3
<PAGE>
6.1.2 a bonus of (pound)20,000 per annum which shall be paid on each
anniversary hereof, provided always that in the event that
this agreement shall terminate other than on an anniversary
hereof the said bonus shall be deemed to have accrued on a
daily basis.
6.2 the Executive's basic salary shall be reviewed on the Review Date
during the term of this Agreement having regard to his performance and
the progress and prosperity of the Company and the rate of the said
salary paid immediately before the relevant Review Date shall be varied
as from the relevant Review Date by such amount as may be decided by
the Board.
7. PENSION
7.1 The Company shall pay a contribution to the Executive's personal
pension scheme during his employment in the amount of 10% of the basic
salary to be paid monthly in arrears. The amount of contributions
payable under this clause may be reviewed on the Review Date during the
term of this Agreement in the same manner as the salary pursuant to
clause 6.2 of this Agreement.
8. INSURANCE BENEFITS
8.1 The Executive shall be entitled to participate at the Company's expense
in the Company's permanent health insurance and life assurance schemes
and for himself in the Company's private medical expenses insurance
scheme, subject always to the rules of such schemes details of which
are available from the Secretary of the Company.
9. CAR
9.1 The Company shall provide the Executive for his sole business use and
private use by him with a car of a make, model and specification
specified by the Board.
9.2 The Company shall bear all standing and running expenses of the car.
9.3 The Executive shall always comply with all regulations laid down by the
Company from time to time with respect to company cars; shall forthwith
notify the Company of any accidents involving his company car and of
any charges of driving offences which are brought against him and, on
the termination of his appointment whether lawfully or unlawfully,
shall forthwith return his company car to the Company at its head
office.
4
<PAGE>
10. SICKNESS
10.1 If the Executive shall be absent due to sickness (including mental
disorder) or injury he shall be paid his full remuneration hereunder
(including bonus and commission).
11. EXPENSES
11.1 The Company shall pay to the Executive during the continuance of this
Agreement and any extension thereof all travelling, hotel and other
expenses that accord to the standard practices and policies of the
Company and sums wholly exclusively and necessarily incurred by him in
the performance of his duties hereunder including any expenses incurred
in attending meetings of the Board or committees of the Board or
general meetings of the Company provided that the Company may require
the Executive to produce receipts or other evidence of actual payment
in respect of such expenses before making any reimbursement to him.
12. HOLIDAYS
12.1 The Executive shall be entitled (in addition to the usual Public and
Bank Holidays) to 20 working days holiday in each calendar year, the
time or times of such holidays to be taken by the Executive in
consultation with and subject to the approval of the Board having
regard to the Company's business.
12.2 In the event of the Executive being employed for only part of a year he
shall be entitled to holidays proportional to the number of days worked
in that year.
12.3 Except with the written agreement of the Board, in the event of the
Executive failing to take his full holiday entitlement in the correct
calendar year he will not be entitled to salary in lieu nor to carry
over that entitlement to the following year.
13. IMMEDIATE DISMISSAL
13.1.1 The Company may by notice terminate this Agreement with
immediate effect if the Executive:
13.1.2 commits any act of gross misconduct or repeats or continues
(after written warning) any other serious breach of his
obligations under this Agreement.
13.1.2 becomes bankrupt or makes any arrangement or composition with
his creditors generally; or
13.1.3 becomes a patient under the Mental Health Legislation.
5
<PAGE>
14. MISCELLANEOUS
14.1 On the termination of this Agreement for whatever reason, the Executive
shall at the request of the Company resign (without prejudice to any
claims which the Executive may have against any company arising out of
this Agreement or the termination thereof) from all and any offices
which he may hold as a Director of the Company and from all other
appointments or offices which he holds as nominee or representative of
the Company.
15. CHANGE IN CONTROL (UNQUOTED OR PRIVATE COMPANY)
15.1 If there is a change in control of the Company or of its holding
company (as defined in s 736 of the Companies Act 1985) within six
months after which or as a direct result of which the Executive is
either dismissed by the Company (other than pursuant to clause 13.1
hereof) or treats himself as having been dismissed as a result of any
repudiation by the Company of this Agreement, the Company shall make to
the Executive in extinction of all and any claims which the Executive
may then have in respect of the termination of his employment a
compensation payment which (subject to deduction of income tax as
required by law and any other sums owed by the Executive to the
Company) is equal to his basic salary (at the rate then payable under
clause 6 hereof) for the unexpired portion of the duration of his
appointment on the date on which it was terminated.
15.2 The Executive shall be entitled to terminate his employment by giving
to the Company not less than 30 days prior notice at any time within
six months after a Change in Control which was at any time opposed by
the Company's or Holding Company's Board and upon such termination the
Executive shall be entitled to receive a payment calculated in
accordance with clause 15.1.
15.3 For the purposes of clauses 15.1 and 15.2, a person shall have
`Control' of a company if he or it holds, directly or indirectly,
shares which together with shares held by any persons acting in concert
with him or it carry 50 per cent or more of the voting rights of that
company and `Change in Control' shall be interpreted accordingly. Words
and phrases defined in the City Code on Takeovers and Mergers shall
have the same meaning here.
16. GENERAL
16.1 The provisions of the Company's standard terms and conditions of
employment (as amended from time to time) shall be terms of the
Executive's employment except to the extent that they are inconsistent
with this Agreement.
16.2 The Executive shall not during the continuance of this Agreement do
anything which would cause him to be disqualified from continuing to
act as a director.
6
<PAGE>
16.3 If the Executive is in breach of any of the terms of his employment, he
shall immediately disclose the breach to the Board and if he becomes
aware of any breach of the terms of employment of any other employee he
shall disclose the breach to the Board.
17. RESTRICTIVE AGREEMENT
17.1 The Executive undertakes as separate and independent agreements that he
will not:-
17.1.1 at any time after the termination hereof disclose to any
person, or himself use for any purpose, and shall use his best
endeavours to prevent the publication or disclosure of, any
information concerning the business, accounts or finances of
the Company or any of its clients' or customers' transactions
or affairs, which may, or may have, come to his knowledge save
for any matters which enter the public domain; other than
through any act or default of the Executive;
17.1.2 for a period of six months after the termination of this
Agreement either on his own account or for any other person
directly or indirectly solicit, interfere with or endeavour to
entice away from the Company any person who to his knowledge
is now or has during the two years preceding the date of this
agreement been a client, customer or employee of, or in the
habit of dealing with, the Company;
17.1.3 for a period of six months after the termination of this
Agreement without the Company's prior written consent either
alone or jointly with or as manager, agent for or employee of
any person, directly or indirectly carry on or be engaged or
concerned or interested
(a) in the business of the supply of Internet-based
interactive services, or
(b) in any other business similar to any business carried on
by the Company at the date of termination of this
agreement.
18. STATUTORY PARTICULARS
18.1 The further particulars of terms of employment not contained
in the body of this Agreement which must be given to the
Executive in compliance with Part 1 of the Employment Rights
Act 1996 are given in Schedule 1.
19. NOTICES
19.1 Any notice required to be served under this Agreement shall be
sufficiently served if sent by post in an envelope pre-paid at
the first class rate and addressed to the
7
<PAGE>
party to be notified at the relevant address set out above (or
such other address as such party may have notified to the
other for the purpose of this Agreement) and shall be deemed
to have been received on the second business day following
posting. A notice to the Executive delivered personally to the
Executive shall be deemed duly served on delivery.
20. WAIVER
20.1 No failure or delay by the Company in exercising any remedy right power
or privilege under or in relation to this Agreement shall operate as a
waiver of the same nor shall any single or partial exercise of the same
or exercise of any other remedy right power or privilege.
20.2 No waiver by the Company of any requirements of this Agreement or any
of its rights under this Agreement shall have effect unless given in
writing and signed by a director other than the Executive. No waiver of
any particular breach of the provisions of this Agreement shall operate
as a waiver of any repetition of that breach.
21. EFFECT OF TERMINATION
21.1 The expiration or determination of this Agreement howsoever arising
shall not operate to affect any of the provisions hereof which in
accordance with their terms are expressed to operate or have effect
thereafter and shall be without prejudice to any right or action
already accrued to either party in respect of any breach of this
Agreement by the other party.
22. WHOLE AGREEMENT
22.1 This Agreement embodies the entire understanding of the parties in
respect of the employment of the Executive and there are no promises,
terms, conditions or obligations oral or written express or implied
other than those contained in this Agreement and no variation or
amendment of this Agreement shall be valid unless committed to writing
and signed by or on behalf of both parties.
8
<PAGE>
23. PROPER LAW
23.1 This Agreement shall be governed by and construed in accordance with
English law and the parties hereto submit to the non-exclusive
jurisdiction of the courts of England and Wales.
IN WITNESS whereof this Agreement has been signed by the Executive and by the
duly authorised representative of the Company the day and year first before
written.
SIGNED by )
for and on behalf of )
TOWN PAGES HOLDINGS PLC )
/s/ Viscount Lifford
...............................
SIGNED by )
ANDREW NEVILLE LYNDON- SKEGGS )
/s/ Andrew Lyndon-Skeggs
...............................
9
<PAGE>
PART 1 EMPLOYMENT RIGHTS ACT 1978
The following information is given to supplement the information given in the
body of the Agreement in order to comply with the requirements of Part 1 of the
Act.
1. The Executive's employment by the Company commenced on the Operative
Date.
2. The Executive's period of continuous employment with the Company began
on 25 October 1995.
3. The Executive's hours of work are the normal hours of the Company from
9.30 am to 5.30 pm Monday to Friday each week together with such
additional hours as may be necessary so as properly to fulfil his
duties.
4. A Contracting-Out Certificate pursuant to the provisions of the
Pensions Schemes Act 1993 is held by the Company in respect of the
Executive's employment.
5. The Executive is subject to the Company's Disciplinary Rules and
Disciplinary Procedures copies of which have been given to the
Executive, but has no contractual entitlement in those respects.
6. If the Executive is dissatisfied with any disciplinary decision
relating to him or he seeks redress of any grievance relating to his
employment then the Executive may apply either orally or in writing to
such director as the Board may have nominated to consider and act upon
the application. The Executive should set out the full details of the
matter and must promptly answer (in writing if required) such questions
(if any) as any member of the Board wishes to put to him on the matter
before the Board comes to a decision. The decision of the Board on such
matter shall be final.
The Company shall be at liberty at any time and at its own discretion to vary
the rules and procedures referred to in this Schedule.
10
<PAGE>
Exhibit 10.3
TOWN PAGES HOLDINGS PLC
Mr R J Smith
Goose Corner
La Route de la Haule Beaumont
St. Peter
Jersey
Channel Islands _____________, 1999
Dear Mr Smith,
I am writing on behalf of the Company to confirm the terms of your appointment
to the Board of Directors of Town Pages Holdings PLC ("the Company") as a
director and as part-time executive Chief Financial Officer.
Your responsibility as Chief Financial Officer will be for the financial affairs
of the Company.
You will be expected to devote such reasonable time as may be necessary to
discharge your responsibilities to the Company (up to a maximum of one full day
per week) including preparation for and attendance at all meetings of the
Board of Directors.
You will also be required to attend all board meetings of the Company subject
to the Company giving you at least 48 hours' prior notice, as well as every
Annual General Meeting and Extraordinary General Meeting there may be. Your
appointment will be subject to the Articles of Association of the Company as
in force from time to time or the Companies Act 1985.
You will be expected to discharge your responsibilities conscientiously and to
the best of your abilities and conforming in all respects and complying with the
reasonable and lawful directions and regulations from time to time given or made
by the Company and shall well and faithfully carry out the responsibilities of
this Agreement.
Under the Articles you will have to retire in accordance with the rotation
provisions and offer yourself for re-election. Subject to this your initial
appointment commenced on the date hereof and will continue until terminated by 6
months' written notice from either side.
For the purposes of affording you a holiday, your services will not be required
for an aggregate period of twenty-five working days in each year at such time or
times as may be agreed between us and neither shall we require your services on
public holidays.
During your appointment you may be asked to resign or be removed from your
position as a director upon the resolution of the Board in the following
circumstances, namely, if:-
<PAGE>
2
(i) you shall fail to comply with any of the provisions of this Agreement
and shall fail to remedy the same within seven days of having been
given written notice by the Company to so do; or
(ii) you shall be guilty of serious or persistent misconduct in connection
with the performance of your obligations under this Agreement; or
(iii) you have been convicted of any criminal offence; or
(iv) you have been unable by reason of illness or other incapacity to fulfil
your obligations for an aggregate period of one hundred and eighty-two
days in any one year; or
(v) you have suffered or taken any proceedings towards a bankruptcy order
or an interim order has been made against you or you shall have taken
any formal steps towards entry into any compromise or arrangement with
your creditors generally or with a majority in number or value of them;
or
(vi) you have become of unsound mind or (while a patient within the meaning
of the Mental Health Act 1983) shall have had an order made in respect
of your property under Section 95 of that Act); or
(vii) you have been the subject of any disqualification order made under the
provisions of the Company Directors Disqualification Act 1986; or
(viii) you have ceased to be a director of the Company.
You will not be entitled to any compensation if you are removed or asked to
resign as a director on any of the above grounds. You agree to resign your
directorship immediately on the termination of your appointment.
You shall receive a fee for your services as a director and Chief Financial
Officer of the Company of L20,000 a year payable monthly in arrears (and
reviewable periodically by the Board). The Board is aware that your
responsibilities may occasionally involve a greater commitment of time than is
contemplated in this letter, and accordingly you may be paid an additional sum
as the Board considers appropriate in the circumstances.
Your appointment will not be pensionable.
You will be entitled to participate in the Company's share option schemes.
The Company will naturally reimburse you for any reasonable expenses you incur
in performing your duties.
The Company will effect indemnity insurance for directors. The Company Secretary
will supply details of the cover.
<PAGE>
3
You shall not during the continuance of your appointment or at any time after
termination of your appointment for any reason use (except for the purposes of
the Company) or disclose to any person or persons whatsoever (except the proper
officers of the Company or under the authority of the Board) any confidential or
secret information relating to the business or finances of the Company or any of
its subsidiaries or any of the Company's customers which you may in the
performance of your duties for the Company become possessed.
In the event that the initial public offering of the Company's shares on Nasdaq
has not been concluded by 31st March 1999, this agreement shall cease to have
effect.
This letter sets out the terms of your appointment in full and by counter
signing it you confirm that you are accepting it not on the basis of any
representations or warranties on our part, or subject to any conditions of your
part.
To confirm your agreement to the terms of your appointment please sign the
accompanying copy of this letter and return it to me.
Yours sincerely,
CHIEF EXECUTIVE OFFICER
For and on behalf of
TOWN PAGES HOLDINGS PLC
I hereby acknowledge receipt of the original of this letter and confirm my
acceptance of the terms set out therein.
Dated:
<PAGE>
Exhibit 10.4
TOWN PAGES HOLDINGS PLC
Mr B J Charles
Mata-Rangi
Upper Froyle
Alton
Hampshire ______________, 1999
Dear Mr Charles,
I am writing on behalf of the Company to confirm the terms of your appointment
to the Board of Directors of Town Pages Holdings PLC ("the Company") as a
director with responsibility for technology co-ordination.
You will be expected to devote such reasonable time as may be necessary to
discharge your responsibilities to the Company (up to a maximum of one full
day per week) including preparation for and attendance at all meetings of the
Board of Directors.
You will also be required to attend all board meetings of the Company subject
to the Company giving you at least 48 hours' prior notice, as well as every
Annual General Meeting and Extraordinary General Meeting there may be. Your
appointment will be subject to the Articles of Association of the Company as
in force from time to time or the Companies Act 1985.
You will be expected to discharge your responsibilities conscientiously and to
the best of your abilities and conforming in all respects and complying with the
reasonable and lawful directions and regulations from time to time given or made
by the Company and shall well and faithfully carry out the responsibilities of
this Agreement.
Under the Articles you will have to retire in accordance with the rotation
provisions and offer yourself for re-election. Subject to this your initial
appointment commenced on the date hereof and will continue until terminated by 6
months' written notice from either side.
For the purposes of affording you a holiday, your services will not be required
for an aggregate period of twenty-five working days in each year at such time or
times as may be agreed between us and neither shall we require your services on
public holidays.
During your appointment you may be asked to resign or be removed from your
position as a Director upon the resolution of the Board in the following
circumstances, namely, if:-
(i) you shall fail to comply with any of the provisions of this Agreement
and shall fail to remedy the same within seven days of having been
given written notice by the Company to so do; or
<PAGE>
2
(ii) you shall be guilty of serious or persistent misconduct in connection
with the performance of your obligations under this Agreement; or
(iii) you have been convicted of any criminal offence; or
(iv) you have been unable by reason of illness or other incapacity to fulfil
your obligations for an aggregate period of one hundred and eighty-two
days in any one year; or
(v) you have suffered or taken any proceedings towards a bankruptcy order
you shall have taken any formal steps towards entry into any compromise
or arrangement with your creditors generally or with a majority in
number or value of them; or
(vi) you have become of unsound mind or (while a patient within the meaning
of the Mental Health Act 1983) shall have had an order made in respect
of your property under Section 95 of that Act); or
(vii) you have been the subject of any disqualification order made under the
provisions of the Company Directors Disqualification Act 1986; or
(viii) you have ceased to be a director of the Company.
You will not be entitled to any compensation if you are removed or asked to
resign as a director on any of the above grounds. You agree to resign your
directorship immediately on the termination of your appointment.
You shall receive a fee for your services as director of the Company of
L30,000 a year payable monthly in arrears and reviewable periodically by
the Board with effect from 31 March 1999. The Board is aware that your
responsibilities may occasionally involve a greater commitment of time than is
contemplated in this letter, and accordingly you may be paid an additional sum
as the Board considers appropriate in the circumstances.
Your appointment will not be pensionable.
You will be entitled to participate in any of the Company's share option
schemes.
The Company will naturally reimburse you for any reasonable expenses you incur
in performing your duties.
The Company will effect indemnity insurance for directors. The Company Secretary
will supply details of the cover
You shall not during the continuance of your appointment or at any time after
termination of your appointment for any reason use (except for the purposes of
the Company) or disclose to any person or persons whatsoever (except the proper
officers of the Company or under the authority of the Board) any confidential or
secret information relating to the business or finances of the Company or any of
its
<PAGE>
3
subsidiaries or any of the Company's customers which you may in the performance
of your duties for the Company become possessed.
In the event that the initial public offering of the Company's shares on Nasdaq
has not been concluded by 31st March 1999, this agreement shall cease to have
effect.
This letter sets out the terms of your appointment in full and by countersigning
it you confirm that you are accepting it not on the basis of any representations
or warranties on our part, or subject to any conditions of your part.
To confirm your agreement to the terms of your appointment please sign the
accompanying copy of this letter and return it to me.
Yours sincerely,
CHIEF EXECUTIVE OFFICER
For and on behalf of
TOWN PAGES HOLDINGS PLC
I hereby acknowledge receipt of the original of this letter and confirm my
acceptance of the terms set out therein.
Dated:
<PAGE>
Exhibit 10.5
TOWN PAGES HOLDINGS PLC
[Name of Director] ______________, 1999
Dear ___________,
I am writing on behalf of the Company to confirm the terms of your appointment
to the Board of Directors of Town Pages Holdings PLC ("the Company") as a
Non-Executive Director.
As a Non-Executive Director you along with your fellow Non-Executive Directors
will have a specific responsibility for setting and maintaining standards of
corporate governance and for bringing an independent judgement to bear on issues
of strategy, performance and resources (including key appointments). You have
particularly important contributions to make to the corporate governance process
as a consequence of your independence from executive responsibility in two
areas:-
1. in reviewing the effectiveness and performance of the Board and, in
particular, of the Executive Directors themselves; and
2. in taking the lead where potential conflicts of interest arise. Where
the specific interests of the Executive Directors and the wider
interests of the Company diverge, for example as may be the case over
takeovers, board succession or executives' pay, your assistance will be
required to help to resolve such situations.
You will be required to attend all board meetings of the Company subject to
the Company giving you at least 48 hours' prior notice, as well as every
Annual General Meeting and Extraordinary General Meeting there may be.
You will be expected to devote such reasonable time as may be necessary to
discharge your responsibilities to the Company (up to a maximum of 60 hours
per annum) including preparation for and attendance at all meetings of the
Board of Directors and the Audit and Remuneration Committees of the Board to
which you are elected, as well as every Annual General Meeting and
Extraordinary General Meeting there may be. Your appointment as a
Non-Executive Director will be subject to the Articles of Association of the
Company as in force from time to time or the Companies Act 1985. In the event
that you are removed from office, do not offer yourself for re-election as a
Director or are not re-elected as a Director or are otherwise removed from
office, in accordance with the Articles of Association, or the Companies Act
1985, you will not be entitled to any compensation for loss of office or for
termination of this Agreement.
You will be expected to discharge your responsibilities conscientiously and to
the best of your abilities and conforming in all respects and complying with the
reasonable and lawful directions and regulations from time to time given or made
by the Company and shall well and faithfully carry out the responsibilities of
this Agreement.
Under the Articles you will have to retire in accordance with the rotation
provisions and offer yourself for re-election. Subject to this your initial
appointment commenced
<PAGE>
2
on the date hereof and will continue until terminated by 6 months' written
notice from either side.
For the purposes of affording you a holiday, your services will not be required
for an aggregate period of twenty-five working days in each year at such time or
times as may be agreed between us and neither shall we require your services on
public holidays.
During your appointment you may be asked to resign or be removed from your
position as a Non-Executive Director upon the resolution of the Board in the
following circumstances, namely, if:-
(i) you shall fail to comply with any of the provisions of this Agreement
and shall fail to remedy the same within seven days of having been
given written notice by the Company to so do; or
(ii) you shall be guilty of serious or persistent misconduct in connection
with the performance of your obligations under this Agreement; or
(iii) you have been convicted of any criminal offence; or
(iv) you have been unable by reason of illness or other incapacity to fulfil
your obligations for an aggregate period of one hundred and eighty-two
days in any one year; or
(v) you have suffered or taken any proceedings towards a bankruptcy order
or you shall have taken any formal steps towards entry into any
compromise or arrangement with your creditors generally or with a
majority in number or value of them; or
(vi) you have become of unsound mind or (while a patient within the meaning
of the Mental Health Act 1983) shall have had an order made in respect
of your property under Section 95 of that Act); or
(vii) you have been the subject of any disqualification order made under the
provisions of the Company Directors Disqualification Act 1986; or
(viii) you have ceased to be a director of the Company.
You will not be entitled to any compensation if you are removed or asked to
resign as a director on any of the above grounds. You agree to resign your
directorship immediately on the termination of your appointment.
You shall receive a fee for your services as a Non-Executive Director of the
Company of (pound)6,000 a year payable monthly in arrears (and reviewable
periodically by the Board) with effect from 31st March 1999. The Board is aware
that your responsibilities may occasionally involve a greater commitment of time
than is contemplated in this letter, and accordingly you may be paid an
additional sum as the Board considers appropriate in the circumstances.
<PAGE>
3
Your appointment will not be pensionable.
You will be entitled to participate in the Company's share option schemes.
The Company will naturally reimburse you for any reasonable expenses you incur
in performing your duties.
The Company will effect indemnity insurance for directors. The Company Secretary
will supply details of the cover.
You shall not during the continuance of your appointment or at any time after
termination of your appointment for any reason use (except for the purposes of
the Company) or disclose to any person or persons whatsoever (except the proper
officers of the Company or under the authority of the Board) any confidential or
secret information relating to the business or finances of the Company or any of
its subsidiaries or any of the Company's customers which you may in the
performance of your duties for the Company become possessed.
In the event that the initial public offering of the Company's shares on Nasdaq
shall not have been concluded by 31st March 1999, this agreement shall cease to
have effect.
This letter sets out the terms of your appointment in full and by countersigning
it you confirm that you are accepting it not on the basis of any representations
or warranties on our part, or subject to any conditions of your part.
To confirm your agreement to the terms of your appointment please sign the
accompanying copy of this letter and return it to me.
Yours sincerely,
CHIEF EXECUTIVE OFFICER
For and on behalf of
TOWN PAGES HOLDINGS PLC
I hereby acknowledge receipt of the original of this letter and confirm my
acceptance of the terms set out therein.
Dated:
<PAGE>
Exhibit 10.6
TOWN PAGES HOLDINGS PLC
The Viscount Lifford
Field House ________________, 1999
Hursley
Winchester
Hampshire SO21 2LE
Dear Lord Lifford,
I am writing on behalf of the Company to confirm the terms of your appointment
to the Board of Directors of Town Pages Holdings PLC ("the Company") as its
Non-Executive Chairman.
As the Non-Executive Chairman you along with your fellow Non-Executive Directors
will have a specific responsibility for setting and maintaining standards of
corporate governance and for bringing an independent judgement to bear on issues
of strategy, performance and resources (including key appointments). You have
particularly important contributions to make to the corporate governance process
as a consequence of your independence from executive responsibility in two
areas:-
1. in reviewing the effectiveness and performance of the Board and, in
particular, of the Executive Directors themselves; and
2. in taking the lead where potential conflicts of interest arise. Where
the specific interests of the Executive Directors and the wider
interests of the Company diverge, for example as may be the case over
takeovers, board succession or executives' pay, your assistance will be
required to help to resolve such situations.
You will be required to attend all board meetings of the Company subject to
the Company giving you at least 48 hours' prior notice, as well as every
Annual General Meeting and Extraordinary General Meeting there may be.
You will be expected to devote such reasonable time as may be necessary to
discharge your responsibilities to the Company (up to a maximum of 60 hours
per annum) including preparation for and attendance at all meetings of the
Board of Directors and the Audit and Remuneration Committees of the Board to
which you are elected, as well as every Annual General Meeting and
Extraordinary General Meeting there may be. Your appointment as Non-Executive
Chairman will be subject to the Articles of Association of the Company as in
force from time to time or the Companies Act 1985. In the event that you are
removed from office, do not offer yourself for re-election as a Director or
are not re-elected as a Director or are otherwise removed from office, in
accordance with the Articles of Association, or the Companies Act 1985, you
will not be entitled to any compensation for loss of office or for
termination of this Agreement.
You will be expected to discharge your responsibilities conscientiously and to
the best
<PAGE>
2
of your abilities and conforming in all respects and complying with the
reasonable and lawful directions and regulations from time to time given or made
by the Company and shall well and faithfully carry out the responsibilities of
this Agreement.
Under the Articles you will have to retire in accordance with the rotation
provisions and offer yourself for re-election. Subject to this your initial
appointment commenced on the date hereof and will continue until terminated by
months' written notice from either side.
For the purposes of affording you a holiday, your services will not be required
for an aggregate period of twenty-five working days in each year at such time or
times as may be agreed between us and neither shall we require your services on
public holidays.
During your appointment you may be asked to resign or be removed from your
position as Non-Executive Chairman upon the resolution of the Board in the
following circumstances, namely, if:-
(i) you shall fail to comply with any of the provisions of this Agreement
and shall fail to remedy the same within seven days of having been
given written notice by the Company to so do; or
(ii) you shall be guilty of serious or persistent misconduct in connection
with the performance of your obligations under this Agreement; or
(iii) you have been convicted of any criminal offence; or
(iv) you have been unable by reason of illness or other incapacity to fulfil
your obligations for an aggregate period of one hundred and eighty-two
days in any one year; or
(v) you have suffered or taken any proceedings towards a bankruptcy order
or you shall have taken any formal steps towards entry into any
compromise or arrangement with your creditors generally or with a
majority in number or value of them; or
(vi) you have become of unsound mind or (while a patient within the meaning
of the Mental Health Act 1983) shall have had an order made in respect
of your property under Section 95 of that Act); or
(vii) you have been the subject of any disqualification order made under the
provisions of the Company Directors Disqualification Act 1986; or
(viii) you have ceased to be a director of the Company.
You will not be entitled to any compensation if you are removed or asked to
resign as
<PAGE>
3
a director on any of the above grounds. You agree to resign your directorship
immediately on the termination of your appointment.
You shall receive a fee for your services as Non-Executive Chairman of the
Company of (pound)12,000 a year payable quarterly in arrears (and reviewable
periodically by the Board) with effect from 31st March 1999. The Board is aware
that your responsibilities may occasionally involve a greater commitment of time
than is contemplated in this letter, and accordingly you may be paid an
additional sum as the Board considers appropriate in the circumstances.
Your appointment will not be pensionable.
You will be entitled to participate in any of the Company's benefit arrangements
including share option schemes.
The Company will naturally reimburse you for any reasonable expenses you incur
in performing your duties.
The Company will effect indemnity insurance for directors. The Company Secretary
will supply details of the cover.
You shall not during the continuance of your appointment or at any time after
termination of your appointment for any reason use (except for the purposes of
the Company) or disclose to any person or persons whatsoever (except the proper
officers of the Company or under the authority of the Board) any confidential or
secret information relating to the business or finances of the Company or any of
its subsidiaries or any of the Company's customers which you may in the
performance of your duties for the Company become possessed.
In the event that the initial public offer of the Company's shares on Nasdaq has
not been concluded by 31st March 1999 this agreement shall cease to have effect.
This letter sets out the terms of your appointment in full and by countersigning
it you confirm that you are accepting it not on the basis of any representations
or warranties on our part, or subject to any conditions of your part.
To confirm your agreement to the terms of your appointment please sign the
accompanying copy of this letter and return it to me.
Yours sincerely,
CHIEF EXECUTIVE OFFICER
For and on behalf of
TOWN PAGES HOLDINGS PLC
I hereby acknowledge receipt of the original of this letter and confirm my
acceptance of the terms set out therein.
Dated:
<PAGE>
EXHIBIT 10.7
TRAVEL SERVICES AGREEMENT
This Travel Services Agreement (the "Agreement") is made as of this
30th day of September, 1998 (the "Effective Date") between Town Pages
Limited., a UK corporation with its principal place of business at 11 Market
Square, Alton, Hampshire, GU34 1HD ("Town Pages"), and Travel the Net Limited
("Travel the net"), a subsidiary of UK corporation with its principal place of
business at Trafalgar House, 11 Waterloo Place, London, SW1Y 4AU.
Recitals
--------
WHEREAS, Travel the net wishes to act as Town Pages exclusive provider of
travel-related content, and to place certain advertisements on website locations
owned or controlled by Town Pages;
WHEREAS, Town Pages wishes to enter into such an exclusive relationship,
and to accept such advertising, subject to the terms of this Agreement.
NOW THEREFORE, Town Pages and Travel the net, for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
hereby agree as follows:
Agreement
---------
1. Definitions.
Capitalized terms used in this Agreement shall have the following meanings:
"Co-Branded Site" shall have the meaning assigned to it in Subsection 3.2
("Co-Branded Site").
"Confidential Information" shall have the meaning assigned to it in Section 9
("Confidentiality").
"Disclosing Party" shall have the meaning assigned to it in Section 9
("Confidentiality").
"Editorial Content" shall mean travel-related editorial content and related
materials provided by Travel the net hereunder.
"End User" means a person who visits Town Pages Site, or who links from Town
Pages Site to the Co-Branded Site, or both.
"Fee" shall have the meaning assigned to it in Subsection 6.1 ("Fees").
"Indemnified Party" shall have the meaning assigned to it in Section 15
("Indemnity").
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"Travel the net Content" shall mean all materials delivered by Travel the net to
Town Pages for display on Town Pages Site, including without limitation the
Travel the net Marks, the Editorial Content, "buttons", "banners", and other
materials described in Exhibit A ("Travel the net Content").
"Travel the net Marks" shall mean the trademarks, logos and other product and
service identifiers of Travel the net described in Exhibit B ("Marks"), and as
may be modified from time to time during the Term upon the agreement of the
parties.
"Phase" shall mean the periods of time and the corresponding work assigned to
such periods as described in Exhibit C ("Phases"). For purpose of this
Agreement, there shall be three (3) Phases, designated as "Phase I", "Phase II"
and "Phase III".
"Receiving Party" shall have the meaning assigned to it in Section 9
("Confidentiality").
"Registered User" shall mean an End User who has registered at Town Pages Site.
"Registration Page" shall mean the web page so designated by Town Pages at Town
Pages Site.
"Templates" shall have the meaning assigned to it in Subsection 8.2
("Templates").
"Term" shall have the meaning assigned to it in Section 12 ("Term and
Termination").
" Town Pages Site" shall mean http://www.townpages.co.uk, www.townpages.org or
such other site so designated by Town Pages.
" Town Pages Marks" shall mean the domain name and Town Pages trademarks,
service marks, logos and other company and product identifiers provided by Town
Pages to Travel the net under this Agreement, and as may be added to, deleted
from or modified from time to time by Town Pages
"Travel Services Company" shall have the meaning assigned to it in Subsection
3.1 ("Exclusive Travel Services Relationship").
"User Information" shall have the meaning assigned to it in Section 11 ("User
Information and Registration Data").
2. Phase I Services
The parties shall provide Phase I Services as provided herein and as provided in
Exhibit C ("Phases"):
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<PAGE>
2.1 E-mail or other approved Promotion. At least one (1) time each
calendar quarter during the Term, commencing with the Effective Date, Town
Pages will direct an e-mail campaign to all Registered Users. Such e-mail
campaign shall, at a minimum, reasonably promote the Co-Branded Site, and
may, at Town Pages discretion, include additional material regarding Town
Pages and its goods and services.
2.2 Framing. Town Pages in its sole discretion may frame all or any part of
the Travel the net website (currently, "http///www.travelthenet.co.uk"), or the
Co-Branded Site.
3. Phase II Services.
The parties shall provide Phase II Services as provided herein and as provided
in Exhibit C ("Phases"):
3.1 Exclusive Travel Services Relationship. Town Pages shall not, during
the Term, enter into any agreements with any of the companies ("Travel Services
Companies") described in Exhibit F ("Travel Services Companies") whereby such
Travel Services Companies shall provide travel-related content substantially
similar to that listed in Exhibit A ("Travel the net Content") to Town Pages and
receive placement of the trademarks, logos, or other company or product
identifiers on Town Pages Site. Notwithstanding the foregoing: (a) Town Pages
shall not be restricted in any manner from accepting banner ads or banner-like
ads from any party; and (b) the foregoing restriction shall not apply to
Registered User web pages (including any " Town Pages Stores" located at such
web pages) hosted by Town Pages.
3.2 Co-Branded Site. Travel the net shall, according to the schedule
contained in Exhibit C ("Phases"), develop and operate a web page (the
"Co-Branded Site"), to be located at one (1) or more server computers owned or
controlled by Travel the net, which shall include content provided by Travel the
net and shall reflect the user interface of the Template as licensed by Town
Pages pursuant to Section 8 ("Licenses and Standards"). The design, layout, and
"look & feel" of the Co-Branded Site shall be mutually agreed to by the parties.
3
<PAGE>
3.3 Placement.
(a) Linking to Co-Branded Site. Town Pages shall link by contextual
links, "buttons", or similar identifiers determined by Town Pages, from Town
Pages Site to the Co-Branded Site. The specific pages at Town Pages Site from
which such links may be made shall be determined by and agreed to by both
parties, but may include the following pages as may exist as of the Effective
Date, or as may be created or modified by Town Pages during the Term:
(i) Town Pages homepage
(ii) All Town Pages Local Home Pages
(b) Impressions. Town Pages shall deliver at least: (i)
25,000,000 End User page impressions of Travel the net banners and Content
at Town Pages Site during the first year of the Term in locations at Town
Pages Site to be mutually agreed upon by both parties; (ii) 50,000,000 End
User page impressions of Travel the net Content at Town Pages Site during the
second year of the Term in locations at Town Pages Site to be mutually agreed
upon by both parties; and (iii) 75,000,000 End User page impressions of
Travel the net Content at Town Pages Site during the third year of the Term
in locations at Town Pages Site to be mutually agreed upon by both parties.
Such page impressions shall include, without limitation, all impressions
given at Town Pages Site for all Travel the net banner ads and contextual
button impressions. It is the parties' shared expectation that the foregoing
page impressions shall be provided in the quantities and from the locations
at Town Pages Site described in Exhibit D ("Locations"); provided, however,
that the parties understand and agree that such expectation does not
represent any binding obligation on either party. Town Pages will work with
Travel the net to identify the most effective mix of banner ads, contextual
links, and "buttons" to be used on different pages of Town Pages Site,
including but not limited to new sections of Town Pages Site as they are
launched.
The rate per pages will be (pound)4 per 1,000 views. Travel the net
will pay an upfront payment of (pound)100,000 in the first year of the term,
(pound)200,000 upfront payment in the second year of the term and
(pound)300,000 upfront payment in the third year of the term. The hits will
then be aggregated on a quarterly basis and should the number of page views
exceed the number of page views paid for (at (pound) 4 per page) then the
difference will be invoiced at the end of the said quarter. Should the number
of page views at the end of the year be less than the upfront payment amount
this amount will be credited from the forthcoming years upfront payment. And
the forthcoming years upfront payment will revert to the previous years
upfront payment.
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<PAGE>
4. Phase III Services.
The parties shall provide Phase III Services as provided herein and as provided
in Exhibit C ("Phases");
4.1 Affiliate Program. At the discretion of Travel the net, Town Pages
shall promote an affiliate program, to be determined solely by Town Pages, to be
located on the Town Pages Site, or such other location as
determined by Town Pages, to allow Registered Users who have personal home pages
located at Town Pages Site to place on such home pages certain Travel the net
Content with links to the Co-Branded Site.
5. Content and Liability.
5.1 Travel the net Content. In addition to all other obligations of Travel
the net with respect to the Phases, Travel the net shall also from time to time
during the Term promptly deliver to Town Pages the Travel the net Content
described in Exhibit C ("Phases"), and shall continue to provide such Travel the
net Content during the Term of the Agreement in accordance therewith. Such
Travel the net Content shall be provided in file transfer protocol ("ftp")
format, at least one (1) time each week.
5.2 Liability. As between Town Pages and Travel the net, Travel the net is
solely responsible for any legal liability arising out of or relating to Travel
the net Content or the Co-Branded Site. The Travel the net Content and the
Co-Branded Site: (a) shall not infringe any third party's copyright, patent,
trademark, trade secret, or other proprietary rights or rights of publicity or
privacy; (b) shall not violate any law, statute, ordinance or regulation
(including without limitation the laws and regulations governing export control,
unfair competition, anti-discrimination or false advertising); (c) shall not be
defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d)
shall not be obscene, pornographic or indecent or contain child pornography; and
(e) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots
or other computer programming routines that are intended to damage,
detrimentally interfere with, surreptitiously intercept or expropriate any
system, data or personal information.
6. Payment.
6.1 Fees. During the Term, Travel the net shall pay to Town Pages
the following fees: (a) During the first year of the Term, Travel the net
shall pay to Town Pages a fee ("Fee") of (pound)100,000 to be made on the
Effective Date, (b) During the second year of the Term, Travel the net shall
pay to Town Pages a fee of (pound)200,000 on the one-year anniversary of the
Effective Date, (c) During the third year of the Term,
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<PAGE>
Travel the net shall pay to Town Pages fee of (pound)300,000 on the two-year
anniversary of the Effective Date.
6.2 Taxes. All fees and payments stated herein exclude and Lowestfare shall
pay, any sales, use, property, license, value added, withholding, excise or
similar tax, federal, state or local, related to such payments or the parties'
performance of their obligations or exercise of their rights under their
Agreement and any related duties, tariffs, imposts and similar charges,
exclusive of taxes based on Town Pages net income.
7. Support.
At its sole expense, Travel the net shall be responsible for, and shall provide,
all customer and technical support for End Users relating to the Co-Branded
Site, Town Pages may redirect any End User inquiries regarding the travel
component of the Co-Branded Site to Travel the net.
8. Licenses And Standards.
8.1 Content. Travel the net hereby grants to Town Pages a non-exclusive,
nontransferable worldwide, royalty-free license (without the right to grant
sublicenses) to use, download, or distribute publicly perform, publicly display
and digitally perform the Travel the net Content on or in conjunction with Town
Pages Site, and Town Pages performance under this Agreement.
8.2 Template. Town Pages hereby grants to Travel the net a non-exclusive,
non-transferable, worldwide royalty-free license (without the right to grant
sublicenses) to install the object code version of the software ("Template")
described in EXHIBIT E ("TEMPLATE") solely at the Co-Branded Site, and solely to
use and to permit End Users to use the Template pursuant to the use of such
Co-Branded Site. The Template shall at all times remain the sole and exclusive
property of Town Pages, subject only to the license expressly granted herein.
Travel the net understands and agrees that Town Pages may, from time to time and
in Town Pages discretion, provide modified, updated, correct or enhanced
versions of the Template to Travel the net, and Travel the net shall replace the
prior version with such new version within a reasonable amount of time. In the
event the Template is modified, updated, corrected or enhanced within six months
from the Effective Date, Town Pages shall reimburse Travel the net for any costs
incurred in implementing such Template.
8.3 Trademarks. Travel the net hereby grants Town Pages a non-exclusive,
nonsublicenseable license to use the Travel the net Marks in links to and
advertisements and promotions for Town Pages Site. Town Pages hereby grants to
Travel the net a non-exclusive, nonsublicenseable license to use Town Pages
Marks on the Co-Branded Site.
8.4 Restrictions. Each party, as a trademark owner hereunder, may terminate
the foregoing trademark license if, in its sole discretion, the licensee's use
of the marks does not conform to the such party's standards; alternatively, the
owner may specify that certain pages of the licensee's website may not contain
the licensed marks; provided, however, the objecting party must state in writing
the basis for the objection and provide the other party with a reasonable
opportunity to cure such offending action. Title to and ownership of the owner's
marks shall remain with the owner. The licensee shall use the marks exactly in
the form provided and in conformance with any trademark usage policies. The
licensee shall not form any
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<PAGE>
combination marks with the owner's marks. The licensee shall not take any action
inconsistent with ownership of the marks and any benefits accruing from use of
such trademarks shall automatically vest in the owner.
9. Confidentiality.
9.1 Confidential Information. Each party (the "Disclosing Party") may from
time to time during the Term of this Agreement disclose to the other party (the
"Receiving Party") certain non-public information regarding the Disclosing
Party's business, including technical, marketing, financial, personnel,
planning, and other information ("Confidential Information"). The Disclosing
Party shall mark all such Confidential Information in tangible form with the
legend 'confidential', 'proprietary', or with similar legend. With respect to
Confidential Information disclosed orally, the Disclosing Party shall describe
such Confidential Information as such at the time of disclosure, and shall
confirm such Confidential Information as such in writing within thirty (30) days
after the date of oral disclosure. Regardless of whether so marked, however, any
non-public information regarding the Template, including the Template itself,
shall be deemed to be the Confidential Information of Town Pages.
9.2 Protection of Confidential Information. Except as expressly permitted
by this Agreement, the Receiving Party shall not disclose the Confidential
Information of the Disclosing Party using the same degree of care which the
Receiving Party ordinarily uses with respect to its own proprietary information,
but in no event with less than reasonable care. The Receiving Party shall not
use the Confidential Information of the Disclosing Party for any purpose not
expressly permitted by this Agreement, and shall limit the disclosure of the
Confidential Information of the Disclosing Party to the employees or agents of
the Receiving Party who have a need to know such Confidential Information for
purposes of this Agreement, and with respect to agents who are recipients of the
Confidential Information of the Disclosing Party, who are bound in writing by
confidentiality terms no less restrictive than those contained herein. The
Receiving Party shall provide copies of such written agreements to the
Disclosing Party upon request; provided, however, that such agreement copies
shall themselves be deemed the Confidential Information of the Receiving Party.
9.3 Exceptions. Notwithstanding anything herein to the contrary,
Confidential Information shall not be deemed to include any information which:
(a) was already lawfully known to the Receiving Party at the time of disclosure
by the Disclosing Party as reflected in the written records of the Receiving
Party; (b) was or has been disclosed by the Disclosing Party to a third party
without obligation of confidence; (c) was or becomes lawfully known to the
general public without breach of this Agreement; (d) is independently developed
by the Receiving Party without access to, or use of, the Confidential
Information; (e) is approved in writing by the Disclosing Party for disclosure
by the Receiving Party; (f) is required to be disclosed in order for the
Receiving Party to enforce its rights under this Agreement; or (g) is required
to be disclosed by law or by the order or a court or similar judicial or
administrative body, including as part of any filing with the Securities
Exchange Commission; provided, however, that the Receiving Party shall notify
the Disclosing Party of such requirement immediately and in writing, and shall
cooperate reasonably with the Disclosing Party, at the Disclosing Party's
expense, in the obtaining of a protective or similar order with respect thereto.
9.4 Return of Confidential Information. The Receiving Party shall return to
the Disclosing Party, destroy or erase all Confidential Information of the
Disclosing Party in tangible form: (a) upon the written request of the
Disclosing Party (except for Software or
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<PAGE>
Modified Software contained in such Confidential Information); or (b) upon the
expiration or termination of this Agreement, whichever comes first, and in both
cases, the Receiving Party shall certify promptly and in writing that it has
done so.
10. USER INFORMATION AND REGISTRATION DATA.
10.1 User Information. Any information or data collected from or about End
Users (including without limitation voluntarily-disclosed information, any
information Travel the net collects regarding End Users from their access or use
of the Co-Branded Site (including without limitation all statistical,
demographic and psychographic information about such End Users) and any reports
about traffic (collectively, "User Information")) shall be owned exclusively by
Town Pages. However, during the Term of this Agreement, Town Pages hereby grants
to Travel the net a nonexclusive, nontransferable, nonsublicenseable license to
use User Information only as required to exercise its rights and carry out its
obligations hereunder. Travel the net acknowledges that the User Information
constitutes extremely valuable trade secrets of Town Pages. Travel the net shall
not use the User Information for any purpose other than as expressly granted
under this Agreement nor disclose the User Information to any third party.
Without limiting the foregoing, under no circumstances may Travel the net send
unsolicited emails to any End Users, nor may Travel the net permit or authorize
any third parties to do so. Travel the net shall use at least industry-standard
methods to protect the security of User Information. This Subsection 10.1 ("User
Information") shall not apply to End Users who (a) have registered as Travel the
net.co.uk users, including pursuant to Subsection 2.1 ("`Opt In' Registration")
and or (b) are or become customers of Travel the net.co.uk.
10.2 Registration Data. As part of the User Information, Town Pages shall
provide to Travel the net the email addresses and names of Registered Users.
11. Disclaimer of Warranties.
EACH PARTY PROVIDES ALL MATERIALS AND SERVICES TO THE OTHER PARTY "AS IS." EACH
PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Each party acknowledges
that it has not entered into this Agreement in reliance upon any warranty or
representation except those specifically set forth herein.
12. Term and Termination.
12.1 Term. The term of this Agreement ("Term") shall continue for a period
of three (3) years following the Effective Date.
12.2 Termination for Cause. Notwithstanding the foregoing, this Agreement
may be terminated by either party upon notice for the material breach of this
Agreement by the other party which breach has remained uncured for a period of
thirty (30) days from the date of written notice thereof.
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12.3 Effect of Expiration or Termination. Upon the expiration or
termination of this Agreement, all licenses granted hereunder shall immediately
terminate, and each party shall promptly remove all references to the other
party's trademarks from any site that caches, indexes or links to such party's
site.
13. Survival.
Upon the expiration or termination of this Agreement, Section 1 ("Definitions"),
Subsection 5.2 ("Liability"), Section 9 ("Confidentiality"), Section 11
("Disclaimer of Warranties"), Subsection 12.4 ("Effect of Expiration or
Termination"), Section 13 ("Survival"), Section 14 ("Limitation of Liability"),
Section 15 ("Indemnity") and Section 16 ("General Provisions") shall survive and
continue to bind the parties.
14. Limitation on Liability.
EXCEPT IN THE EVENT OF A BREACH OF SECTION 8 ("LICENSES AND STANDARDS") OR
SECTION 9 ("CONFIDENTIALITY"), NEITHER PARTY SHALL BE LIABLE FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING
NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT IN THE
EVENT OF A BREACH OF SECTION 8 ("LICENSES AND STANDARDS") OR SECTION 9
("CONFIDENTIALITY"), A FAILURE TO PAY FEES OWED, OR AN INDEMNITY CLAIM, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN AN AMOUNT GREATER THAN
THE AMOUNTS ACTUALLY PAID BY TRAVEL THE NET TO TOWN PAGES HEREUNDER.
15. Indemnity.
Each party (the "Indemnifying Party") shall indemnify the other party (the
"Indemnified Party") against any and all claims, losses, damages costs and
expenses, including reasonable attorneys' fees, which the Indemnified Party may
incur as a result of claims in any form by third parties arising from: (a) the
Indemnifying Party's acts, omissions or misrepresentations to the extent that
the Indemnified Party is deemed a principal of the Indemnifying Party, (b) the
violation of any third party proprietary right by the Indemnifying Party's
domain name, software or any content provided by the Indemnifying Party
(including without limitation the Travel the net Content) for use on the
Indemnified Party's servers, or (c) breach of Subsection 16.5 ("Compliance with
Laws"). In addition, Travel the net shall indemnify Town Pages against any and
all claims, losses, damages, costs and expenses, including reasonable attorneys'
fees, which Town Pages may incur as a result of claims in any form by third
parties arising from; the content on the Co-Branded Site. The foregoing
obligations are conditioned on the Indemnified Party's giving the Indemnifying
Party notice of the relevant claim, cooperating with the Indemnifying Party, at
the Indemnifying Party's expense, in the defense of such claim, and giving the
Indemnifying Party the right to control the defense and settlement of any such
claim, except that the Indemnifying Party shall not enter into any settlement
that affects the Indemnified Party's rights or interest without the Indemnified
Party's prior written approval. The Indemnified Party shall have the right to
participate in the defense at its expense.
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16. General Provisions.
16.1 Governing Law. This Agreement will be governed and construed in
accordance with the laws of the United Kingdom without giving effect to
conflict of laws principles. Both parties consent to jurisdiction in the
United Kingdom and further agree that any cause of action arising under this
Agreement shall be brought in a court in the United Kingdom. The parties
exclude the application of The United Nations Convention on Contracts for the
International Sale of Goods from this Agreement.
16.2 Severability; Headings. If any provision herein is held to be invalid
or unenforceable for any reason, the remaining provisions will continue in full
force without being impaired or invalidated in any way. Headings are for
reference purposes only and in no way define, limit, construe or describe the
scope or extent of such section.
16.3 Force Majeure. If performance hereunder is prevented, restricted or
interfered with by any act or condition whatsoever beyond the reasonable control
of a party, the party so affected, upon giving prompt notice to the other party,
shall be excused from such performance to the extent of such prevention,
restriction or interference. Each party acknowledges that the operation of the
other party's website and services may be interfered with by numerous factors
outside of a party's control, and Town Pages does not guarantee continuous or
uninterrupted display of Travel the net Content.
16.4 Independent Contractors. The parties are independent contractors, and
no agency, partnership, joint venture, employee-employer or franchisor-
franchisee relationship is intended or created by this Agreement. Neither party
shall make any warranties or representations on behalf of the other party.
16.5 Compliance with Laws. At its own expense, each party shall comply with
all applicable laws, regulations, rules, ordinances and orders regarding the
marketing, promotion and performance of its obligations hereunder, including
without limitation the operation of the Co-Branded Site and its other activities
related to this Agreement.
16.6 Notice. Any notices hereunder shall be given to the appropriate party
at the address specified above or at such other address as the party shall
specify in writing. Notice shall be deemed given: upon personal delivery; if
sent by fax, upon confirmation of receipt; or if sent by certified or registered
mail, postage prepaid, five (5) days after the date of mailing.
16.7 Entire Agreement; Waiver. This Agreement sets forth the entire
understanding and agreement of the parties, and supersedes any and all oral
or written agreements or understandings between the parties, as to the
subject matter of this Agreement. It may be changed only by a writing signed
by Town Pages and Travel the net. The waiver of a breach of any provision of
this Agreement will not operate or be interpreted as a waiver of any other or
subsequent breach.
16.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be taken together and deemed to be one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Travel the net Limited Town Pages Limited.
By: By:
------------------------------ ------------------------------
Title: CEO Title: Managing Director
------------------------------ ------------------------------
Date: Date:
------------------------------ ------------------------------
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Exhibit A
Travel the net Content
Editorial Content
- -----------------
- - Travel
- - Flight Reservations
- Quick Rez
- - Vacation Packages
- Vacations
- Getaways
- Cruises
- - Destination Guide
- - Travel Articles
- - Travel Resources
- Maps
- Weather
- Currency Converter
- - Travel Affiliate Program
Buttons, Banners, Etc.
- ----------------------
Format to be designed by Town Pages to approval of Travel the net.
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Exhibit B
Marks
To be attached
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Exhibit C
Phases
Phase I
(To commence upon the Effective Date and to continue for the Term of the
Agreement)
Promotional Matters
Phase II
(To commence the second calendar quarter of the first term and to continue
for the Term of the Agreement)
Site Integration
Phase III
(To commence the third calendar quarter of the first term and to continue
for the Term of the Agreement)
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Exhibit D
Locations
Strategic Locations throughout the Town Pages site to be agreed by both
parties.
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EXHIBIT E
Template
Subject to Subsection 8.2 ("Templates"), the initial Templates shall be
created, designed and programmed by Town Pages subject to design approval of
Travel the net such as to provide a user interface and design format for
entering the content into the Co-branded site.
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Exhibit F
Travel Services Companies
Travel Service Companies shall mean all companies that provide full-service
travel content and reservations for airlines, hotels, vacations, cars, cruises
and charter flights, including, but not limited to:
Travelocity
Expedia
Preview Travel
Internet Travel Network (ITN)
American Express Travel
Carson-Wagonlits
Omega Travel
Cheap Tickets
Biz Travel
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EXHIBIT 10.8
AUTOMOTIVE SERVICES AGREEMENT
This Automotive Services Agreement (the "Agreement") is made as of this
30th day of September, 1998 (the "Effective Date") between Town Pages Limited.,
a UK corporation with its principal place of business at 11 Market Square,
Alton, Hampshire, GU34 1HD ("Town Pages"), and All-Cars.com Limited
("All-Cars.com), a UK corporation with its principal place of business at
Courier Buildings, Longfield Road, Tunbridge Wells, Kent, TN2 3EY.
Recitals
--------
WHEREAS, All-Cars.com wishes to act as Town Pages exclusive provider of
auto-related content, and to place certain advertisements on website locations
owned or controlled by Town Pages;
WHEREAS, Town Pages wishes to enter into such an exclusive relationship,
and to accept such advertising, subject to the terms of this Agreement.
NOW THEREFORE, Town Pages and All-Cars.com, for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
hereby agree as follows:
Agreement
---------
1. Definitions.
Capitalized terms used in this Agreement shall have the following meanings:
"Co-Branded Site" shall have the meaning assigned to it in Subsection 3.2
("Co-Branded Site").
"Confidential Information" shall have the meaning assigned to it in Section 9
("Confidentiality").
"Disclosing Party" shall have the meaning assigned to it in Section 9
("Confidentiality").
"Editorial Content" shall mean auto-related editorial content and related
materials provided by All-Cars.com hereunder.
"End User" means a person who visits Town Pages Site, or who links from Town
Pages Site to the Co-Branded Site, or both.
"Fee" shall have the meaning assigned to it in Subsection 6.1 ("Fees").
"Indemnified Party" shall have the meaning assigned to it in Section 15
("Indemnity").
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"All-Cars.com Content" shall mean all materials delivered by All-Cars.com to
Town Pages for display on Town Pages Site, including without limitation the
All-Cars.com Marks, the Editorial Content, "buttons", "banners", and other
materials described in Exhibit A ("All-Cars.com Content").
" All-Cars.com Marks" shall mean the trademarks, logos and other product and
service identifiers of All-Cars.com described in Exhibit B ("Marks"), and as may
be modified from time to time during the Term upon the agreement of the parties.
"Phase" shall mean the periods of time and the corresponding work assigned to
such periods as described in Exhibit C ("Phases"). For purpose of this
Agreement, there shall be three (3) Phases, designated as "Phase I", "Phase II"
and "Phase III".
"Receiving Party" shall have the meaning assigned to it in Section 9
("Confidentiality").
"Registered User" shall mean an End User who has registered at Town Pages Site.
"Registration Page" shall mean the web page so designated by Town Pages at Town
Pages Site.
"Template" shall have the meaning assigned to it in Subsection 8.2 ("Template").
"Term" shall have the meaning assigned to it in Section 12 ("Term and
Termination").
"Town Pages Site" shall mean http://www.townpages.co.uk, www.townpages.org, or
such other site so designated by theglobe.com.
"Town Pages Marks" shall mean the domain name and Town Pages trademarks, service
marks, logos and other company and product identifiers provided by Town Pages to
All-Cars.com under this Agreement, and as may be added to, deleted from or
modified from time to time by Town Pages.
"Auto Services Company" shall have the meaning assigned to it in Subsection 3.1
("Exclusive Auto Services Relationship").
"User Information" shall have the meaning assigned to it in Section 11 ("User
Information and Registration Data").
2. Phase I Services
The parties shall provide Phase I Services as provided herein and as provided in
Exhibit C ("Phases"):
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2.1 E-mail or other approved Promotion. At least one (1) time each
calendar quarter during the Term, commencing with the Effective Date, Town
Pages will direct an e-mail campaign to all Registered Users. Such e-mail
campaign shall, at a minimum, reasonably promote the Co-Branded Site, and
may, at Town Pages discretion, include additional material regarding Town
Pages and its goods and services.
2.2 Framing. TownPages in its sole discretion may frame all or any part of
the All-Cars.com website (currently, "http///www.all-cars.com"), or the
Co-Branded Site.
3. Phase II Services.
The parties shall provide Phase II Services as provided herein and as provided
in Exhibit C ("Phases"):
3.1 Exclusive Travel Services Relationship. Town Pages shall not, during
the Term, enter into any agreements with any of the companies ("Auto Services
Companies") described in Exhibit F ("Auto Services Companies") whereby such Auto
Services Companies shall provide auto-related content substantially similar to
that listed in Exhibit A ("All-Cars.com Content") to Town Pages and receive
placement of the trademarks, logos, or other company or product identifiers on
Town Pages Site. Notwithstanding the foregoing: (a) Town Pages shall not be
restricted in any manner from accepting banner ads or banner-like ads from any
party; and (b) the foregoing restriction shall not apply to Registered User web
pages (including any "Town Pages Stores" located at such web pages) hosted by
Town Pages.
3.2 Co-Branded Site. All-Cars.com shall, according to the schedule
contained in Exhibit C ("Phases"), develop and operate a web page (the
"Co-Branded Site"), to be located at one (1) or more server computers owned or
controlled by All-Cars.com, which shall include content provided by All-Cars.com
and shall reflect the user interface of the Template as licensed by
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Town Pages pursuant to Section 8 ("Licenses and Standards"). The design, layout,
and "look & feel" of the Co-Branded Site shall be mutually agreed to by the
parties.
3.3 Placement.
(a) Linking to Co-Branded Site. Town Pages shall link by contextual
links, "buttons", or similar identifiers determined by Town Pages, from Town
Pages Site to the Co-Branded Site. The specific pages at Town Pages Site from
which such links may be made shall be determined by and agreed to by both
parties, but may include the following pages as may exist as of the Effective
Date, or as may be created or modified by Town Pages during the Term:
(i) Town Pages homepage
(ii) All Town Pages Local Home Pages
(b) Impressions. Town Pages shall deliver at least: (i) 22,500,000
End User page impressions of All-Cars.com Content at Town Pages Site during
the first year of the Term in locations at Town Pages Site to be mutually
agreed upon by both parties; (ii) 45,000,000 End User page impressions of
All-Cars.com Content at Town Pages Site during the second year of the Term in
locations at Town Pages Site to be mutually agreed upon by both parties; and
(iii) 67,500,000 End User page impressions of All-Cars.com Content at Town
Pages Site during the third year of the Term in locations at Town Pages Site
to be mutually agreed upon by both parties. Such page impressions shall
include, without limitation, all impressions given at Town Pages Site for all
All-Cars.com banner ads and contextual button impressions. It is the parties'
shared expectation that the foregoing page impressions shall be provided in
the quantities and from the locations at Town Pages Site described in Exhibit
D ("Locations"); provided, however, that the parties understand and agree
that such expectation does not represent any binding obligation on either
party. Town Pages will work with All-Cars.com to identify the most effective
mix of banner ads, contextual links, and "buttons" to be used on different
pages of Town Pages Site, including but not limited to new sections of Town
Pages Site as they are launched.
The rate per page view will be (pound)4 per 1,000 views. All-Cars
will pay an upfront payment of (pound)90,000 in the first year of the term,
(pound)180,000 upfront payment is in the second year of the term and
(pound)270,000 upfront payment in the third year of the term. The hits will
then be aggregated on a quarterly basis and should the number of page views
exceed the number of page views paid for (at (pound)4 per page) then the
difference will be invoiced at the end of the said quarter. Should the number
of page views at the end of the year be less than the upfront payment amount
this amount will be credited from the forthcoming years upfront payment. And
the forthcoming years upfront payment will revert to the previous years
upfront payment.
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4. Phase III Services.
The parties shall provide Phase III Services as provided herein and as provided
in Exhibit C ("Phases");
4.1 Affiliate Program. At the discretion of All-Cars.com, Town Pages
shall promote an affiliate program, to be determined solely by Town Pages, to
be located on the Town Pages Site, or such other location as determined by
Town Pages, to allow Registered Users who have personal home pages located at
Town Pages Site to place on such home pages certain All-Cars.com Content with
links to the Co-Branded Site.
5. Content and Liability.
5.1 All-Cars.com Content. In addition to all other obligations of
All-Cars.com with respect to the Phases, All-Cars.com shall also from time to
time during the Term promptly deliver to Town Pages the All-Cars.com Content
described in Exhibit C ("Phases"), and shall continue to provide such
All-Cars.com Content during the Term of the Agreement in accordance therewith.
Such All-Cars.com Content shall be provided in file transfer protocol ("ftp")
format, at least one (1) time each week.
5.2 Liability. As between Town Pages and All-Cars.com, All-Cars.com is
solely responsible for any legal liability arising out of or relating to
All-Cars.com Content or the Co-Branded Site. The All-Cars.com Content and the
Co-Branded Site: (a) shall not infringe any third party's copyright, patent,
trademark, trade secret, or other proprietary rights or rights of publicity or
privacy; (b) shall not violate any law, statute, ordinance or regulation
(including without limitation the laws and regulations governing export control,
unfair competition, anti-discrimination or false advertising); (c) shall not be
defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d)
shall not be obscene, pornographic or indecent or contain child pornography; and
(e) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots
or other computer programming routines that are intended to damage,
detrimentally interfere with, surreptitiously intercept or expropriate any
system, data or personal information.
6. Payment.
6.1 Fees. During the Term, All-Cars.com shall pay to Town Pages the
following fees: (a) During the first year of the Term, All-Cars.com shall pay
to Town Pages a fee ("Fee") of (pound)90,000 to be made on the Effective
Date, (b) During the second year of the Term, All-Cars.com shall pay to Town
Pages a fee of
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(pounds)180,000 on the one-year anniversary of the Effective Date.
(c) During the third year of the Term, All-Cars.com shall pay to Town Pages a
fee of (pounds)270,000 on the two-year anniversary of the Effective Date.
6.2 Taxes. All fees and payments stated herein exclude and All-Cars.com
shall pay, any sales, use, property, license, value added, withholding, excise
or similar tax, federal, state or local, related to such payments or the
parties' performance of their obligations or exercise of their rights under
their Agreement and any related duties, tariffs, imposts and similar charges,
exclusive of taxes based on Town Pages net income.
7. Support.
At its sole expense, All-Cars.com shall be responsible for, and shall provide,
all customer and technical support for End Users relating to the Co-Branded
Site, Town Pages may redirect any End User inquiries regarding theauto component
of the Co-Branded Site to All-Cars.com.
8. Licenses And Standards.
8.1 Content. All-Cars.com hereby grants to Town Pages a non-exclusive,
nontransferable worldwide, royalty-free license (without the right to grant
sublicenses) to use, download, or distribute publicly perform, publicly display
and digitally perform the All-Cars.com Content on or in conjunction with Town
Pages Site, and Town Pages performance under this Agreement.
8.2 Template. Town Pages hereby grants to All-Cars.com a non-exclusive,
non-transferable, worldwide royalty-free license (without the right to grant
sublicenses) to install the object code version of the software ("Template")
described in EXHIBIT E ("TEMPLATE") solely at the Co-Branded Site, and solely to
use and to permit End Users to use the Template pursuant to the use of such
Co-Branded Site. The Template shall at all times remain the sole and exclusive
property of Town Pages, subject only to the license expressly granted herein.
All-Cars.com understands and agrees that Town Pages may, from time to time and
in Town Pages discretion, provide modified, updated, correct or enhanced
versions of the Template to All-Cars.com, and All-Cars.com shall replace the
prior version with such new version within a reasonable amount of time. In the
event the Template is modified, updated, corrected or enhanced within six months
from the Effective Date, Town Pages shall reimburse All-Cars.com for any costs
incurred in implementing such Template.
8.3 Trademarks. All-Cars.com hereby grants Town Pages a non-exclusive,
nonsublicenseable license to use the All-Cars.com Marks in links to and
advertisements and promotions for Town Pages Site. Town Pages hereby grants to
All-Cars.com a non-exclusive, nonsublicenseable license to use Town Pages Marks
on the Co-Branded Site.
8.4 Restrictions. Each party, as a trademark owner hereunder, may terminate
the foregoing trademark license if, in its sole discretion, the licensee's use
of the marks does not conform to the such party's standards; alternatively, the
owner may specify that certain pages of the licensee's website may not contain
the licensed marks; provided, however, the objecting party must state in writing
the basis for the objection and provide the other party with a reasonable
opportunity to cure such offending action. Title to and ownership of the owner's
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marks shall remain with the owner. The licensee shall use the marks exactly in
the form provided and in conformance with any trademark usage policies. The
licensee shall not form any combination marks with the owner's marks. The
licensee shall not take any action inconsistent with ownership of the marks and
any benefits accruing from use of such trademarks shall automatically vest in
the owner.
9. Confidentiality.
9.1 Confidential Information. Each party (the "Disclosing Party") may from
time to time during the Term of this Agreement disclose to the other party (the
"Receiving Party") certain non-public information regarding the Disclosing
Party's business, including technical, marketing, financial, personnel,
planning, and other information ("Confidential Information"). The Disclosing
Party shall mark all such Confidential Information in tangible form with the
legend 'confidential', 'proprietary', or with similar legend. With respect to
Confidential Information disclosed orally, the Disclosing Party shall describe
such Confidential Information as such at the time of disclosure, and shall
confirm such Confidential Information as such in writing within thirty (30) days
after the date of oral disclosure. Regardless of whether so marked, however, any
non-public information regarding the Template, including the Template itself,
shall be deemed to be the Confidential Information of Town Pages.
9.2 Protection of Confidential Information. Except as expressly permitted
by this Agreement, the Receiving Party shall not disclose the Confidential
Information of the Disclosing Party using the same degree of care which the
Receiving Party ordinarily uses with respect to its own proprietary information,
but in no event with less than reasonable care. The Receiving Party shall not
use the Confidential Information of the Disclosing Party for any purpose not
expressly permitted by this Agreement, and shall limit the disclosure of the
Confidential Information of the Disclosing Party to the employees or agents of
the Receiving Party who have a need to know such Confidential Information for
purposes of this Agreement, and with respect to agents who are recipients of the
Confidential Information of the Disclosing Party, who are bound in writing by
confidentiality terms no less restrictive than those contained herein. The
Receiving Party shall provide copies of such written agreements to the
Disclosing Party upon request; provided, however, that such agreement copies
shall themselves be deemed the Confidential Information of the Receiving Party.
9.3 Exceptions. Notwithstanding anything herein to the contrary,
Confidential Information shall not be deemed to include any information which:
(a) was already lawfully known to the Receiving Party at the time of disclosure
by the Disclosing Party as reflected in the written records of the Receiving
Party; (b) was or has been disclosed by the Disclosing Party to a third party
without obligation of confidence; (c) was or becomes lawfully known to the
general public without breach of this Agreement; (d) is independently developed
by the Receiving Party without access to, or use of, the Confidential
Information; (e) is approved in writing by the Disclosing Party for disclosure
by the Receiving Party; (f) is required to be disclosed in order for the
Receiving Party to enforce its rights under this Agreement; or (g) is required
to be disclosed by law or by the order or a court or similar judicial or
administrative body, including as part of any filing with the Securities
Exchange Commission; provided, however, that the Receiving Party shall notify
the Disclosing Party of such requirement immediately and in writing, and shall
cooperate reasonably with the Disclosing Party, at the Disclosing Party's
expense, in the obtaining of a protective or similar order with respect thereto.
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9.4 Return of Confidential Information. The Receiving Party shall return to
the Disclosing Party, destroy or erase all Confidential Information of the
Disclosing Party in tangible form: (a) upon the written request of the
Disclosing Party (except for Software or Modified Software contained in such
Confidential Information); or (b) upon the expiration or termination of this
Agreement, whichever comes first, and in both cases, the Receiving Party shall
certify promptly and in writing that it has done so.
10. USER INFORMATION AND REGISTRATION DATA.
10.1 User Information. Any information or data collected from or about
End Users (including without limitation voluntarily-disclosed information,
any information All-Cars.com collects regarding End Users from their access
or use of the Co-Branded Site (including without limitation all statistical,
demographic and psychographic information about such End Users) and any
reports about traffic (collectively, "User Information")) shall be owned
exclusively by Town Pages. However, during the Term of this Agreement,
All-Cars.com hereby grants to Town Pages a nonexclusive, nontransferable,
nonsublicenseable license to use User Information only as required to
exercise its rights and carry out its obligations hereunder. All-Cars.com
acknowledges that the User Information constitutes extremely valuable trade
secrets of Town Pages. All-Cars.com shall not use the User Information for
any purpose other than as expressly granted under this Agreement nor disclose
the User Information to any third party. Without limiting the foregoing,
under no circumstances may All-Cars.com send unsolicited emails to any End
Users, nor may All-Cars.com permit or authorize any third parties to do so.
All-Cars.com shall use at least industry-standard methods to protect the
security of User Information. This Subsection 10.1 ("User Information") shall
not apply to End Users who (a) have registered as All-Cars.com users,
including pursuant to Subsection 2.1 ("`Opt In' Registration") and or (b) are
or become customers of All-Cars.com.
10.2 Registration Data. As part of the User Information, Town Pages shall
provide to All-Cars.com the email addresses and names of Registered Users.
11. Disclaimer of Warranties.
EACH PARTY PROVIDES ALL MATERIALS AND SERVICES TO THE OTHER PARTY "AS IS." EACH
PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Each party acknowledges
that it has not entered into this Agreement in reliance upon any warranty or
representation except those specifically set forth herein.
12. Term and Termination.
12.1 Term. The term of this Agreement ("Term") shall continue for a period
of three (3) years following the Effective Date.
12.2 Termination for Cause. Notwithstanding the foregoing, this Agreement
may be terminated by either party upon notice for the material breach of this
Agreement by the other party which breach has remained uncured for a period of
thirty (30) days from the date of written notice thereof.
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12.3 Effect of Expiration or Termination. Upon the expiration or
termination of this Agreement, all licenses granted hereunder shall immediately
terminate, and each party shall promptly remove all references to the other
party's trademarks from any site that caches, indexes or links to such party's
site.
13. Survival.
Upon the expiration or termination of this Agreement, Section 1 ("Definitions"),
Subsection 5.2 ("Liability"), Section 9 ("Confidentiality"), Section 11
("Disclaimer of Warranties"), Subsection 12.4 ("Effect of Expiration or
Termination"), Section 13 ("Survival"), Section 14 ("Limitation of Liability"),
Section 15 ("Indemnity") and Section 16 ("General Provisions") shall survive and
continue to bind the parties.
14. Limitation on Liability.
EXCEPT IN THE EVENT OF A BREACH OF SECTION 8 ("LICENSES AND STANDARDS") OR
SECTION 9 ("CONFIDENTIALITY"), NEITHER PARTY SHALL BE LIABLE FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING
NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT IN THE
EVENT OF A BREACH OF SECTION 8 ("LICENSES AND STANDARDS") OR SECTION 9
("CONFIDENTIALITY"), A FAILURE TO PAY FEES OWED, OR AN INDEMNITY CLAIM, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN AN AMOUNT GREATER THAN
THE AMOUNTS ACTUALLY PAID BY ALL CARS TO TOWNPAGES HEREUNDER.
15. Indemnity.
Each party (the "Indemnifying Party") shall indemnify the other party (the
"Indemnified Party") against any and all claims, losses, damages costs and
expenses, including reasonable attorneys' fees, which the Indemnified Party may
incur as a result of claims in any form by third parties arising from: (a) the
Indemnifying Party's acts, omissions or misrepresentations to the extent that
the Indemnified Party is deemed a principal of the Indemnifying Party, (b) the
violation of any third party proprietary right by the Indemnifying Party's
domain name, software or any content provided by the Indemnifying Party
(including without limitation the All-Cars.com Content) for use on the
Indemnified Party's servers, or (c) breach of Subsection 16.5 ("Compliance with
Laws"). In addition, All-Cars.com shall indemnify Town Pages against any and all
claims, losses, damages, costs and expenses, including reasonable attorneys'
fees, which Town Pages may incur as a result of claims in any form by third
parties arising from; the content on the Co-Branded Site. The foregoing
obligations are conditioned on the Indemnified Party's giving the Indemnifying
Party notice of the relevant claim, cooperating with the Indemnifying Party, at
the Indemnifying Party's expense, in the defense of such claim, and giving the
Indemnifying Party the right to control the defense and settlement of any such
claim, except that the Indemnifying Party shall not enter into any settlement
that affects the Indemnified Party's rights or interest without the Indemnified
Party's prior written approval. The Indemnified Party shall have the right to
participate in the defense at its expense.
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16. General Provisions.
16.1 Governing Law. This Agreement will be governed and construed in
accordance with the laws of the United Kingdom without giving effect to
conflict of laws principles. Both parties consent to jurisdiction in the
United Kingdom and further agree that any cause of action arising under this
Agreement shall be brought in a court in the United Kingdom. The parties
exclude the application of The United Nations Convention on Contracts for the
International Sale of Goods from this Agreement.
16.2 Severability; Headings. If any provision herein is held to be invalid
or unenforceable for any reason, the remaining provisions will continue in full
force without being impaired or invalidated in any way. Headings are for
reference purposes only and in no way define, limit, construe or describe the
scope or extent of such section.
16.3 Force Majeure. If performance hereunder is prevented, restricted or
interfered with by any act or condition whatsoever beyond the reasonable control
of a party, the party so affected, upon giving prompt notice to the other party,
shall be excused from such performance to the extent of such prevention,
restriction or interference. Each party acknowledges that the operation of the
other party's website and services may be interfered with by numerous factors
outside of a party's control, and Town Pages does not guarantee continuous or
uninterrupted display of All-Cars.com Content.
16.4 Independent Contractors. The parties are independent contractors, and
no agency, partnership, joint venture, employee-employer or franchisor-
franchisee relationship is intended or created by this Agreement. Neither party
shall make any warranties or representations on behalf of the other party.
16.5 Compliance with Laws. At its own expense, each party shall comply with
all applicable laws, regulations, rules, ordinances and orders regarding the
marketing, promotion and performance of its obligations hereunder, including
without limitation the operation of the Co-Branded Site and its other activities
related to this Agreement.
16.6 Notice. Any notices hereunder shall be given to the appropriate party
at the address specified above or at such other address as the party shall
specify in writing. Notice shall be deemed given: upon personal delivery; if
sent by fax, upon confirmation of receipt; or if sent by certified or registered
mail, postage prepaid, five (5) days after the date of mailing.
16.7 Entire Agreement; Waiver. This Agreement sets forth the entire
understanding and agreement of the parties, and supersedes any and all oral
or written agreements or understandings between the parties, as to the
subject matter of this Agreement. It may be changed only by a writing signed
by Town Pages and All-Cars.com. The waiver of a breach of any provision of
this Agreement will not operate or be interpreted as a waiver of any other or
subsequent breach.
16.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be taken together and deemed to be one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
All-Cars.com Limited Town Pages Limited
By: By:
------------------------------ ------------------------------
Title: CEO Title: Managing Director
------------------------------ ------------------------------
Date: Date:
------------------------------ ------------------------------
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Exhibit A
All-Cars.com Content
Editorial Content
- -----------------
- -- Car Descriptions, model types and specifications
- -- Car Dealer locations and Inventories
- -- Car New Price Information
- -- Car Used Price Information
- -- Automotive Articles
- -- Automotive Affiliate Program
Buttons, Banners, Etc.
- ----------------------
- -------------
Format to be designed by Town Pages to approval of All Cars.
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Exhibit B
Marks
To be attached
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Exhibit C
Phases
Phase I
(To commence upon the Effective Date and to continue for the Term of the
Agreement)
Promotional Matters
Phase II
(To commence the second calendar quarter of the first term and to continue
for the Term of the Agreement)
Site Integration
Phase III
(To commence the third calendar quarter of the first term and to continue
for the Term of the Agreement)
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Exhibit D
Locations
Strategic Locations throughout the Town Pages site to be agreed by both
parties.
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EXHIBIT E
Template
Subject to Subsection 8.2 ("Template"), the initial Templates shall be
created, designed and programmed by Town Pages subject to design approval of
All-Cars.com such as to provide a user interface and design format for
entering the content into the co-branded site.
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Exhibit F
Auto Services Companies
Auto Service Companies shall mean all companies that provide full auto content,
including, but not limited to:
Auto-By-Tel
CarPoint
Auto Trader
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Exhibit 10.9
HEALTH SERVICES AGREEMENT
This Heath Services Agreement (the "Agreement") is made as of this 19th
day of October, 1998 (the "Effective Date") between Town Pages Limited., a UK
corporation with its principal place of business at 11 Market Square, Alton,
Hampshire, GU34 1HD ("Town Pages"), and Medic Media Inc ("pharmachannel.com), a
US corporation with its principal place of business at 590 Madison Avenue, New
York, NY, 10022.
Recitals
--------
WHEREAS, pharmachannel.com wishes to act as Town Pages exclusive
provider of Health-related content, and to place certain advertisements on
website locations owned or controlled by Town Pages;
WHEREAS, Town Pages wishes to enter into such an exclusive relationship,
and to accept such advertising, subject to the terms of this Agreement.
NOW THEREFORE, Town Pages and pharmachannel.com, for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
hereby agree as follows:
Agreement
---------
1. Definitions.
Capitalized terms used in this Agreement shall have the following meanings:
"Co-Branded Site" shall have the meaning assigned to it in Subsection 3.2
("Co-Branded Site").
"Confidential Information" shall have the meaning assigned to it in Section 9
("Confidentiality").
"Disclosing Party" shall have the meaning assigned to it in Section 9
("Confidentiality").
"Editorial Content" shall mean auto-related editorial content and related
materials provided by pharmachannel.com hereunder.
"End User" means a person who visits Town Pages Site, or who links from Town
Pages Site to the Co-Branded Site, or both.
"Fee" shall have the meaning assigned to it in Subsection 6.1 ("Fees").
"Indemnified Party" shall have the meaning assigned to it in Section 15
("Indemnity").
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" pharmachannel.com Content" shall mean all materials delivered by
pharmachannel.com to Town Pages for display on Town Pages Site, including
without limitation the pharmachannel.com Marks, the Editorial Content,
"buttons", "banners", and other materials described in Exhibit A
("pharmachannel.com Content").
" pharmachannel.com Marks" shall mean the trademarks, logos and other product
and service identifiers of pharmachannel.com described in Exhibit B ("Marks"),
and as may be modified from time to time during the Term upon the agreement of
the parties.
"Phase" shall mean the periods of time and the corresponding work assigned to
such periods as described in Exhibit C ("Phases"). For purpose of this
Agreement, there shall be three (3) Phases, designated as "Phase I", "Phase II"
and "Phase III".
"Receiving Party" shall have the meaning assigned to it in Section 9
("Confidentiality").
"Registered User" shall mean an End User who has registered at Town Pages Site.
"Registration Page" shall mean the web page so designated by Town Pages at Town
Pages Site.
"Template" shall have the meaning assigned to it in Subsection 8.2 ("Template").
"Term" shall have the meaning assigned to it in Section 12 ("Term and
Termination").
"Town Pages Site" shall mean http://www.townpages.co.uk, www.townpages.org, or
such other site so designated by Town Pages.
"Town Pages Marks" shall mean the domain name and Town Pages trademarks, service
marks, logos and other company and product identifiers provided by Town Pages to
pharmachannel.com under this Agreement, and as may be added to, deleted from or
modified from time to time by Town Pages.
"Health Services Company" shall have the meaning assigned to it in Subsection
3.1 ("Exclusive Health Services Relationship").
"User Information" shall have the meaning assigned to it in Section 11 ("User
Information and Registration Data").
2. Phase I Services
The parties shall provide Phase I Services as provided herein and as provided in
Exhibit C ("Phases"):
2.1 E-mail or other approved Promotion. At least one (1) time each calendar
quarter during the Term, commencing with the Effective Date, Town Pages will
direct an e-mail or other approved promotion campaign to all Registered Users.
Such e-mail or other approved promotion campaign shall, at a minimum, reasonably
promote the Co-Branded Site, and may, at Town Pages discretion, include
additional material regarding Town Pages and its goods and services.
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2.2 Framing. TownPages in its sole discretion may frame all or any part of
the pharmachannel.com website (currently, "http//www.pharmachannel.com."), or
the Co-Branded Site.
3. Phase II Services.
The parties shall provide Phase II Services as provided herein and as provided
in Exhibit C ("Phases"):
3.1 Exclusive Health Services Relationship. Town Pages shall not, during the
Term, enter into any agreements with any of the companies ("Health Services
Companies") described in Exhibit F ("Health Services Companies") whereby such
Health Services Companies shall provide auto-related content substantially
similar to that listed in Exhibit A ("pharmachannel.com Content") to Town Pages
and receive placement of the trademarks, logos, or other company or product
identifiers on Town Pages Site. Notwithstanding the foregoing: (a) Town Pages
shall not be restricted in any manner from accepting banner ads or banner-like
ads from any party; and (b) the foregoing restriction shall not apply to
Registered User web pages (including any "Town Pages Stores" located at such web
pages) hosted by Town Pages.
3.2 Co-Branded Site. pharmachannel.com shall, according to the schedule
contained in Exhibit C ("Phases"), develop and operate the web site created by
Town Pages (the "Co-Branded Site"), to be located at one (1) or more server
computers provided by Town Pages, which shall include content provided by
pharmachannel.com entered by means of and reflecting the user interface of the
Templates as licensed by Town Pages pursuant to Section 8 ("Licenses and
Standards"). The design, layout, and "look & feel" of the Co-Branded Site shall
be mutually agreed to by the parties.
3.3 Placement.
(a) Linking to Co-Branded Site. Town Pages shall link by contextual
links, "buttons", or similar identifiers determined by Town Pages, from Town
Pages Site to the Co-Branded Site. The specific pages at Town Pages Site from
which such links may be made shall be determined by and agreed to by both
parties, but may include the following pages either directly or indirectly as
may exist as of the Effective Date, or as may be created or modified by Town
Pages during the Term:
(i) Town Pages homepage
(ii) All Town Pages Local Home Pages
(b) The rate per page view will be (pound)4.50 per 1,000 views.
pharmachannel.com will be invoiced on the 15th of each month for the page views
as at the end of the previous calendar month.
4. Phase III Services.
The parties shall provide Phase III Services as provided herein and as provided
in Exhibit C ("Phases");
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4.1 Affiliate Program. At the discretion of pharmachannel.com, Town
Pages shall promote an affiliate program, to be determined solely by Town Pages,
to be located on the Town Pages Site, or such other location as determined by
Town Pages, to allow Registered Users who have personal home pages located at
Town Pages Site to place on such home pages certain pharmachannel.com Content
with links to the Co-Branded Site.
5. Content and Liability.
5.1 pharmachannel.com Content. In addition to all other obligations of
pharmachannel.com with respect to the Phases, pharmachannel.com shall also from
time to time during the Term promptly deliver to Town Pages or direct to the
server provided by Town Pages as determined by Town Pages, the pharmachannel.com
Content described in Exhibit C ("Phases"), and shall continue to provide such
pharmachannel.com Content during the Term of the Agreement in accordance
therewith. Such pharmachannel.com Content shall be provided in file transfer
protocol ("ftp") format, at least one (1) time each week.
5.2 Liability. As between Town Pages and pharmachannel.com,
pharmachannel.com is solely responsible for any legal liability arising out of
or relating to pharmachannel.com Content or the Co-Branded Site. The
pharmachannel.com Content and the Co-Branded Site: (a) shall not infringe any
third party's copyright, patent, trademark, trade secret, or other proprietary
rights or rights of publicity or privacy; (b) shall not violate any law,
statute, ordinance or regulation (including without limitation the laws and
regulations governing export control, unfair competition, anti-discrimination or
false advertising); (c) shall not be defamatory, trade libelous, unlawfully
threatening or unlawfully harassing; (d) shall not be obscene, pornographic or
indecent or contain child pornography; and (e) shall not contain any viruses,
Trojan horses, worms, time bombs, cancelbots or other computer programming
routines that are intended to damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data or personal
information.
6. Payment.
6.1 Fees. Payment is due within 14 days of invoice.
6.2 Taxes. All fees and payments stated herein exclude and
pharmachannel.com shall pay, any sales, use, property, license, value added,
withholding, excise or similar tax, federal, state or local, related to such
payments or the parties' performance of their obligations or exercise of their
rights under their Agreement and any related duties, tariffs, imposts and
similar charges, exclusive of taxes based on Town Pages net income.
7. Support.
At its sole expense, pharmachannel.com shall be responsible for, and shall
provide, all customer and technical support for End Users relating to the
Co-Branded Site, Town Pages may redirect any End User inquiries regarding the
auto component of the Co-Branded Site to pharmachannel.com.
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8. Licenses And Standards.
8.1 Content. pharmachannel.com hereby grants to Town Pages a
non-exclusive, nontransferable worldwide, royalty-free license (without the
right to grant sublicenses) to use, download, or distribute publicly perform,
publicly display and digitally perform the pharmachannel.com Content on or in
conjunction with Town Pages Site, and Town Pages performance under this
Agreement.
8.2 Templates. Town Pages hereby grants to pharmachannel.com a
non-exclusive, non-transferable, worldwide royalty-free license (without the
right to grant sublicenses) to install the object code version of the software
("Templates") described in EXHIBIT E ("TEMPLATES") solely at the Co-Branded
Site, and solely to use and to permit End Users to use the Template pursuant to
the use of such Co-Branded Site. The Templates shall at all times remain the
sole and exclusive property of Town Pages, subject only to the license expressly
granted herein.
pharmachannel.com understands and agrees that Town Pages may, from time to time
and in Town Pages discretion, provide modified, updated, correct or enhanced
versions of the Templates to pharmachannel.com, and pharmachannel.com shall
replace the prior version with such new version within a reasonable amount of
time. In the event the Templates is modified, updated, corrected or enhanced
within six months from the Effective Date, Town Pages shall reimburse
pharmachannel.com for any costs incurred in implementing such Templates.
8.3 Trademarks. pharmachannel.com hereby grants Town Pages a
non-exclusive, nonsublicenseable license to use the pharmachannel.com Marks in
links to and advertisements and promotions for Town Pages Site. Town Pages
hereby grants to pharmachannel.com a non-exclusive, nonsublicenseable license to
use Town Pages Marks on the Co-Branded Site.
8.4 Restrictions. Each party, as a trademark owner hereunder, may
terminate the foregoing trademark license if, in its sole discretion, the
licensee's use of the marks does not conform to the such party's standards;
alternatively, the owner may specify that certain pages of the licensee's
website may not contain the licensed marks; provided, however, the objecting
party must state in writing the basis for the objection and provide the other
party with a reasonable opportunity to cure such offending action. Title to and
ownership of the owner's marks shall remain with the owner. The licensee shall
use the marks exactly in the form provided and in conformance with any trademark
usage policies. The licensee shall not form any combination marks with the
owner's marks. The licensee shall not take any action inconsistent with
ownership of the marks and any benefits accruing from use of such trademarks
shall automatically vest in the owner.
9. Confidentiality.
9.1 Confidential Information. Each party (the "Disclosing Party") may
from time to time during the Term of this Agreement disclose to the other party
(the "Receiving Party") certain non-public information regarding the Disclosing
Party's business, including technical, marketing, financial, personnel,
planning, and other information ("Confidential Information"). The Disclosing
Party shall mark all such Confidential Information in tangible form with the
legend 'confidential', 'proprietary', or with similar legend. With respect to
Confidential Information disclosed orally, the Disclosing Party shall describe
such Confidential Information as such at the time of disclosure, and shall
confirm such Confidential Information as such in writing within thirty (30) days
after the date of oral disclosure. Regardless of whether so marked, however, any
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non-public information regarding the Template, including the Template itself,
shall be deemed to be the Confidential Information of Town Pages.
9.2 Protection of Confidential Information. Except as expressly
permitted by this Agreement, the Receiving Party shall not disclose the
Confidential Information of the Disclosing Party using the same degree of care
which the Receiving Party ordinarily uses with respect to its own proprietary
information, but in no event with less than reasonable care. The Receiving Party
shall not use the Confidential Information of the Disclosing Party for any
purpose not expressly permitted by this Agreement, and shall limit the
disclosure of the Confidential Information of the Disclosing Party to the
employees or agents of the Receiving Party who have a need to know such
Confidential Information for purposes of this Agreement, and with respect to
agents who are recipients of the Confidential Information of the Disclosing
Party, who are bound in writing by confidentiality terms no less restrictive
than those contained herein. The Receiving Party shall provide copies of such
written agreements to the Disclosing Party upon request; provided, however, that
such agreement copies shall themselves be deemed the Confidential Information of
the Receiving Party.
9.3 Exceptions. Notwithstanding anything herein to the contrary,
Confidential Information shall not be deemed to include any information which:
(a) was already lawfully known to the Receiving Party at the time of disclosure
by the Disclosing Party as reflected in the written records of the Receiving
Party; (b) was or has been disclosed by the Disclosing Party to a third party
without obligation of confidence; (c) was or becomes lawfully known to the
general public without breach of this Agreement; (d) is independently developed
by the Receiving Party without access to, or use of, the Confidential
Information; (e) is approved in writing by the Disclosing Party for disclosure
by the Receiving Party; (f) is required to be disclosed in order for the
Receiving Party to enforce its rights under this Agreement; or (g) is required
to be disclosed by law or by the order or a court or similar judicial or
administrative body, including as part of any filing with the Securities
Exchange Commission; provided, however, that the Receiving Party shall notify
the Disclosing Party of such requirement immediately and in writing, and shall
cooperate reasonably with the Disclosing Party, at the Disclosing Party's
expense, in the obtaining of a protective or similar order with respect thereto.
9.4 Return of Confidential Information. The Receiving Party shall return
to the Disclosing Party, destroy or erase all Confidential Information of the
Disclosing Party in tangible form: (a) upon the written request of the
Disclosing Party (except for Software or Modified Software contained in such
Confidential Information); or (b) upon the expiration or termination of this
Agreement, whichever comes first, and in both cases, the Receiving Party shall
certify promptly and in writing that it has done so.
10. USER INFORMATION AND REGISTRATION DATA.
10.1 User Information. Any information or data collected from or about
End Users (including without limitation voluntarily-disclosed information, any
information pharmachannel.com collects regarding End Users from their access or
use of the Co-Branded Site (including without limitation all statistical,
demographic and psychographic information about such End Users) and any reports
about traffic (collectively, "User Information")) shall be owned exclusively by
Town Pages. However, during the Term of this Agreement, pharmachannel.com hereby
grants to Town Pages a nonexclusive, nontransferable, nonsublicenseable license
to use User Information only as required to exercise its rights and carry out
its obligations hereunder.
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pharmachannel.com acknowledges that the User Information constitutes extremely
valuable trade secrets of Town Pages. pharmachannel.com shall not use the User
Information for any purpose other than as expressly granted under this Agreement
nor disclose the User Information to any third party. Without limiting the
foregoing, under no circumstances may pharmachannel.com send unsolicited emails
to any End Users, nor may pharmachannel.com permit or authorize any third
parties to do so. pharmachannel.com shall use at least industry-standard methods
to protect the security of User Information. This Subsection 10.1 ("User
Information") shall not apply to End Users who (a) have registered as
pharmachannel.com users, including pursuant to Subsection 2.1 ("Opt In'
Registration") and; or (b) are or become customers of pharmachannel.com.
10.2 Registration Data. As part of the User Information, Town Pages
shall provide to pharmachannel.com the email addresses and names of Registered
Users.
11. Disclaimer of Warranties.
EACH PARTY PROVIDES ALL MATERIALS AND SERVICES TO THE OTHER PARTY "AS IS." EACH
PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Each party acknowledges
that it has not entered into this Agreement in reliance upon any warranty or
representation except those specifically set forth herein.
12. Term and Termination.
12.1 Term. The term of this Agreement ("Term") shall continue for a
period of three (3) years following the Effective Date.
12.2 Termination for Cause. Notwithstanding the foregoing, this
Agreement may be terminated by either party upon notice for the material breach
of this Agreement by the other party which breach has remained uncured for a
period of thirty (30) days from the date of written notice thereof.
12.3 Effect of Expiration or Termination. Upon the expiration or
termination of this Agreement, all licenses granted hereunder shall immediately
terminate, and each party shall promptly remove all references to the other
party's trademarks from any site that caches, indexes or links to such party's
site.
13. Survival.
Upon the expiration or termination of this Agreement, Section 1 ("Definitions"),
Subsection 5.2 ("Liability"), Section 9 ("Confidentiality"), Section 11
("Disclaimer of Warranties"), Subsection 12.4 ("Effect of Expiration or
Termination"), Section 13 ("Survival"), Section 14 ("Limitation of Liability"),
Section 15 ("Indemnity") and Section 16 ("General Provisions") shall survive and
continue to bind the parties.
14. Limitation on Liability.
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EXCEPT IN THE EVENT OF A BREACH OF SECTION 8 ("LICENSES AND STANDARDS") OR
SECTION 9 ("CONFIDENTIALITY"), NEITHER PARTY SHALL BE LIABLE FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING
NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT IN THE
EVENT OF A BREACH OF SECTION 8 ("LICENSES AND STANDARDS") OR SECTION 9
("CONFIDENTIALITY"), A FAILURE TO PAY FEES OWED, OR AN INDEMNITY CLAIM, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN AN AMOUNT GREATER THAN
THE AMOUNTS ACTUALLY PAID PHARMACHANNEL.COM TO TOWN PAGES HEREUNDER.
15. Indemnity.
Each party (the "Indemnifying Party") shall indemnify the other party (the
"Indemnified Party") against any and all claims, losses, damages costs and
expenses, including reasonable attorneys' fees, which the Indemnified Party may
incur as a result of claims in any form by third parties arising from: (a) the
Indemnifying Party's acts, omissions or misrepresentations to the extent that
the Indemnified Party is deemed a principal of the Indemnifying Party, (b) the
violation of any third party proprietary right by the Indemnifying Party's
domain name, software or any content provided by the Indemnifying Party
(including without limitation the pharmachannel.com Content) for use on the
Indemnified Party's servers, or (c) breach of Subsection 16.5 ("Compliance with
Laws"). In addition, pharmachannel.com shall indemnify Town Pages against any
and all claims, losses, damages, costs and expenses, including reasonable
attorneys' fees, which Town Pages may incur as a result of claims in any form by
third parties arising from; the content on the Co-Branded Site. The foregoing
obligations are conditioned on the Indemnified Party's giving the Indemnifying
Party notice of the relevant claim, cooperating with the Indemnifying Party, at
the Indemnifying Party's expense, in the defense of such claim, and giving the
Indemnifying Party the right to control the defense and settlement of any such
claim, except that the Indemnifying Party shall not enter into any settlement
that affects the Indemnified Party's rights or interest without the Indemnified
Party's prior written approval.
The Indemnified Party shall have the right to participate in the defense at its
expense.
16. General Provisions.
16.1 Governing Law. This Agreement will be governed and construed in
accordance with the laws of the United Kingdom without giving effect to conflict
of laws principles. Both parties consent to jurisdiction in the United Kingdom
and further agree that any cause of action arising under this Agreement shall be
brought in a court in the United Kingdom. The parties exclude the application of
The United Nations Convention on Contracts for the International Sale of Goods
from this Agreement.
16.2 Severability; Headings. If any provision herein is held to be
invalid or unenforceable for any reason, the remaining provisions will continue
in full force without being impaired or invalidated in any way. Headings are for
reference purposes only and in no way define, limit, construe or describe the
scope or extent of such section.
16.3 Force Majeure. If performance hereunder is prevented, restricted or
interfered with by any act or condition whatsoever beyond the reasonable control
of a party, the party so affected, upon giving prompt notice to the other party,
shall be excused from such performance to the extent of such prevention,
restriction or interference. Each party acknowledges that the
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operation of the other party's website and services may be interfered with by
numerous factors outside of a party's control, and Town Pages does not guarantee
continuous or uninterrupted display of pharmachannel.com Content.
16.4 Independent Contractors. The parties are independent contractors, and no
agency, partnership, joint venture, employee-employer or franchisor- franchisee
relationship is intended or created by this Agreement. Neither party shall make
any warranties or representations on behalf of the other party.
16.5 Compliance with Laws. At its own expense, each party shall comply
with all applicable laws, regulations, rules, ordinances and orders regarding
the marketing, promotion and performance of its obligations hereunder, including
without limitation the operation of the Co-Branded Site and its other activities
related to this Agreement.
16.6 Notice. Any notices hereunder shall be given to the appropriate party
at the address specified above or at such other address as the party shall
specify in writing. Notice shall be deemed given: upon personal delivery; if
sent by fax, upon confirmation of receipt; or if sent by certified or registered
mail, postage prepaid, five (5) days after the date of mailing.
16.7 Entire Agreement; Waiver. This Agreement sets forth the entire
understanding and agreement of the parties, and supersedes any and all oral or
written agreements or understandings between the parties, as to the subject
matter of this Agreement. It may be changed only by a writing signed by Town
Pages and pharmachannel.com. The waiver of a breach of any provision of this
Agreement will not operate or be interpreted as a waiver of any other or
subsequent breach.
16.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be taken together and deemed to be one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Medic Media Inc Town Pages Limited
By: By:
------------------------------ ------------------------------
Title: Director Title: Director
Date: Date:
------------------------------ ------------------------------
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Exhibit A
pharmachannel.com.Content
Content
News
Journa1s
Patients Information
Biospace
Libraries
Dietary Information
Fitness Information
Format to be designed by Town Pages to approval of pharmachannel.com.
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Exhibit B
Marks
To Be Attached
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Exhibit C
Phases
Phase I
(To commence upon the Effective Date and to continue for the Term of the
Agreement)
Promotional Matters
Phase II
(To commence the second calendar quarter of the first term and to continue for
the Term of the Agreement)
Site Integration
Phase III
(To commence the third calendar quarter of the first term and to continue for
the Term of the Agreement)
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Exhibit D
Locations
Strategic Locations through out the Town Pages site to be agreed by both
parties.
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EXHIBIT E
Template
Subject to Subsection 8.2 ("Templates"), the initial Templates shall be created,
designed and programmed by Town Pages subject to design approval of
pharmachannel.com such as to provide a user interface and design format for
entering the content into the Co-branded site.
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Exhibit F
Health Services Companies
Health Service Companies shall mean all companies that provide full hea1th
content, including, but not limited to:
Medscape
Onhealth
Thrive
Mediconsult
Pharamceutical Information Network
Healthy Ideas
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Exhibit 10.10
RETAIL MALL SERVICES AGREEMENT
This Retail Mall Services Agreement (the "Agreement") is made as of this
10th day of November, 1998 (the "Effective Date") between Town Pages Limited., a
UK corporation with its principal place of business at 11 Market Square, Alton,
Hampshire, GU34 1HD ("Town Pages"), and Location Developments Limited
("eshoppingcentre.com), a UK corporation with its principal place of business at
Talbot House, High Street, Crowthorne, Berks, RG45.
Recitals
--------
WHEREAS, eshoppingcentre.com wishes to act as Town Pages exclusive
provider of shopping-related content, and to place certain advertisements on
website locations owned or controlled by Town Pages;
WHEREAS, Town Pages wishes to enter into such an exclusive relationship,
and to accept such advertising, subject to the terms of this Agreement.
NOW THEREFORE, Town Pages and eshoppingcentre.com, for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
hereby agree as follows:
Agreement
---------
1. Definitions.
Capitalized terms used in this Agreement shall have the following meanings:
"Co-Branded Site" shall have the meaning assigned to it in Subsection 3.2
("Co-Branded Site").
"Confidential Information" shall have the meaning assigned to it in Section 9
("Confidentiality").
"Disclosing Party" shall have the meaning assigned to it in Section 9
("Confidentiality").
"Editorial Content" shall mean auto-related editorial content and related
materials provided by eshoppingcentre.com hereunder.
"End User" means a person who visits Town Pages Site, or who links from Town
Pages Site to the Co-Branded Site, or both.
"Fee" shall have the meaning assigned to it in Subsection 6.1 ("Fees").
"Indemnified Party" shall have the meaning assigned to it in Section 15
("Indemnity").
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" eshoppingcentre.com Content" shall mean all materials delivered by
eshoppingcentre.com to Town Pages for display on Town Pages Site, including
without limitation the eshoppingcentre.com Marks, the Editorial Content,
"buttons", "banners", and other materials described in Exhibit A
("eshoppingcentre.com Content").
" eshoppingcentre.com Marks" shall mean the trademarks, logos and other product
and service identifiers of eshoppingcentre.com described in Exhibit B ("Marks"),
and as may be modified from time to time during the Term upon the agreement of
the parties.
"Phase" shall mean the periods of time and the corresponding work assigned to
such periods as described in Exhibit C ("Phases"). For purpose of this
Agreement, there shall be three (3) Phases, designated as "Phase I", "Phase II"
and "Phase III".
"Receiving Party" shall have the meaning assigned to it in Section 9
("Confidentiality").
"Registered User" shall mean an End User who has registered at Town Pages Site.
"Registration Page" shall mean the web page so designated by Town Pages at Town
Pages Site.
"Templates" shall have the meaning assigned to it in Subsection 8.2
("Templates").
"Term" shall have the meaning assigned to it in Section 12 ("Term and
Termination").
"Town Pages Site" shall mean http://www.townpages.co.uk, www.townpages.org, or
such other site so designated by Town Pages.
"Town Pages Marks" shall mean the domain name and Town Pages trademarks, service
marks, logos and other company and product identifiers provided by Town Pages to
eshoppingcentre.com under this Agreement, and as may be added to, deleted from
or modified from time to time by Town Pages.
"Shopping Services Company" shall have the meaning assigned to it in Subsection
3.1 ("Exclusive Retail Mall Services Relationship").
"User Information" shall have the meaning assigned to it in Section 11 ("User
Information and Registration Data").
2. Phase I Services
The parties shall provide Phase I Services as provided herein and as provided in
Exhibit C ("Phases"):
2.1 E-mail or other approved Promotion. At least one (1) time each calendar
quarter during the Term, commencing with the Effective Date, Town Pages will
direct an e-mail or other approved promotion campaign to all Registered Users.
Such e-mail or other approved promotion campaign shall, at a minimum, reasonably
promote the Co-Branded Site, and may, at Town Pages discretion, include
additional material regarding Town Pages and its goods and services.
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2.2 Framing. TownPages in its sole discretion may frame all or any part of
the eshoppingcentre.com website (currently, "http//www.eshoppingcentre.com"), or
the Co-Branded Site.
3. Phase II Services.
The parties shall provide Phase II Services as provided herein and as provided
in Exhibit C ("Phases"):
3.1 Exclusive Shopping Services Relationship. Town Pages shall not, during
the Term, enter into any agreements with any of the companies ("Shopping
Services Companies") described in Exhibit F ("Shopping Services Companies")
whereby such Shopping Services Companies shall provide shopping-related content
substantially similar to that listed in Exhibit A ("eshoppingcentre.com
Content") to Town Pages and receive placement of the trademarks, logos, or other
company or product identifiers on Town Pages Site. Notwithstanding the
foregoing: (a) Town Pages shall not be restricted in any manner from accepting
banner ads or banner-like ads from any party; and (b) the foregoing restriction
shall not apply to Registered User web pages (including any "Town Pages Stores"
located at such web pages) hosted by Town Pages.
3.2 Co-Branded Site. eshoppingcentre.com shall, according to the
schedule contained in Exhibit C ("Phases"), develop and operate the web site
created by Town Pages (the "Co-Branded Site"), to be located at one (1) or more
server computers provided by Town Pages, which shall include content provided by
eshoppingcentre.com entered by means of and reflecting the user interface of the
Templates as licensed by Town Pages pursuant to Section 8 ("Licenses and
Standards"). The design, layout, and "look & feel" of the Co-Branded Site shall
be mutually agreed to by the parties.
3.3 Placement.
(a) Linking to Co-Branded Site. Town Pages shall link by contextual
links, "buttons", or similar identifiers determined by Town Pages, from Town
Pages Site to the Co-Branded Site. The specific pages at Town Pages Site from
which such links may be made shall be determined by and agreed to by both
parties, but may include the following pages either directly or indirectly as
may exist as of the Effective Date, or as may be created or modified by Town
Pages during the Term:
(i) Town Pages homepage
(ii) All Town Pages Local Home Pages
(b) The rate per page view will be (pound)4 per 1,000 views. Town
Pages will charge (pound)1,000 per "Town" per annum and 10% of all rental income
received from that "Town". The rental income will be calculated on a quarterly
basis and will be invoiced 14 days after the end of the said quarter. "Town"
will be defined as an area where Town Pages installs a full service (to include
a minimum of three kiosks).
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4. Phase III Services.
The parties shall provide Phase III Services as provided herein and as provided
in Exhibit C ("Phases");
4.1 Affiliate Program. At the discretion of eshoppingcentre.com, Town
Pages shall promote an affiliate program, to be determined solely by Town Pages,
to be located on the Town Pages Site, or such other location as determined by
Town Pages, to allow Registered Users who have personal home pages located at
Town Pages Site to place on such home pages certain eshoppingcentre.com Content
with links to the Co-Branded Site.
5. Content and Liability.
5.1 eshoppingcentre.com Content. In addition to all other obligations of
eshoppingcentre.com with respect to the Phases, eshoppingcentre.com shall also
from time to time during the Term promptly deliver to Town Pages or direct to
the server provided by Town Pages as determined by Town Pages, the
eshoppingcentre.com Content described in Exhibit C ("Phases"), and shall
continue to provide such eshoppingcentre.com Content during the Term of the
Agreement in accordance therewith. Such eshoppingcentre.com Content shall be
provided in file transfer protocol ("ftp") format, at least one (1) time each
week.
5.2 Liability. As between Town Pages and eshoppingcentre.com,
eshoppingcentre.com is solely responsible for any legal liability arising out of
or relating to eshoppingcentre.com Content or the Co-Branded Site. The
eshoppingcentre.com Content and the Co-Branded Site: (a) shall not infringe any
third party's copyright, patent, trademark, trade secret, or other proprietary
rights or rights of publicity or privacy; (b) shall not violate any law,
statute, ordinance or regulation (including without limitation the laws and
regulations governing export control, unfair competition, anti-discrimination or
false advertising); (c) shall not be defamatory, trade libelous, unlawfully
threatening or unlawfully harassing; (d) shall not be obscene, pornographic or
indecent or contain child pornography; and (e) shall not contain any viruses,
Trojan horses, worms, time bombs, cancelbots or other computer programming
routines that are intended to damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data or personal
information.
6. Payment.
6.1 Fees. Payment is due within 14 days of invoice.
6.2 Taxes. All fees and payments stated herein exclude and
eshoppingcentre.com shall pay, any sales, use, property, license, value added,
withholding, excise or similar tax, federal, state or local, related to such
payments or the parties' performance of their obligations or exercise of their
rights under their Agreement and any related duties, tariffs, imposts and
similar charges, exclusive of taxes based on Town Pages net income.
7. Support.
At its sole expense, eshoppingcentre.com shall be responsible for, and shall
provide, all customer and technical support for End Users relating to the
Co-Branded Site, Town Pages may redirect
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any End User inquiries regarding the shopping component of the Co-Branded Site
to eshoppingcentre.com.
8. Licenses And Standards.
8.1 Content. eshoppingcentre.com hereby grants to Town Pages a
non-exclusive, nontransferable worldwide, royalty-free license (without the
right to grant sublicenses) to use, download, or distribute publicly perform,
publicly display and digitally perform the eshoppingcentre.com Content on or in
conjunction with Town Pages Site, and Town Pages performance under this
Agreement.
8.2 Templates. Town Pages hereby grants to eshoppingcentre.com a
non-exclusive, non-transferable, worldwide royalty-free license (without the
right to grant sublicenses) to install the object code version of the software
("Templates") described in EXHIBIT E ("TEMPLATES") solely at the Co-Branded
Site, and solely to use and to permit End Users to use the Template pursuant to
the use of such Co-Branded Site. The Templates shall at all times remain the
sole and exclusive property of Town Pages, subject only to the license expressly
granted herein.
eshoppingcentre.com understands and agrees that Town Pages may, from time to
time and in Town Pages discretion, provide modified, updated, correct or
enhanced versions of the Templates to eshoppingcentre.com, and
eshoppingcentre.com shall replace the prior version with such new version within
a reasonable amount of time. In the event the Templates is modified, updated,
corrected or enhanced within six months from the Effective Date, Town Pages
shall reimburse eshoppingcentre.com for any costs incurred in implementing such
Templates.
8.3 Trademarks. eshoppingcentre.com hereby grants Town Pages a
non-exclusive, nonsublicenseable license to use the eshoppingcentre.com Marks in
links to and advertisements and promotions for Town Pages Site. Town Pages
hereby grants to eshoppingcentre.com a non-exclusive, nonsublicenseable license
to use Town Pages Marks on the Co-Branded Site.
8.4 Restrictions. Each party, as a trademark owner hereunder, may
terminate the foregoing trademark license if, in its sole discretion, the
licensee's use of the marks does not conform to the such party's standards;
alternatively, the owner may specify that certain pages of the licensee's
website may not contain the licensed marks; provided, however, the objecting
party must state in writing the basis for the objection and provide the other
party with a reasonable opportunity to cure such offending action. Title to and
ownership of the owner's marks shall remain with the owner. The licensee shall
use the marks exactly in the form provided and in conformance with any trademark
usage policies. The licensee shall not form any combination marks with the
owner's marks. The licensee shall not take any action inconsistent with
ownership of the marks and any benefits accruing from use of such trademarks
shall automatically vest in the owner.
9. Confidentiality.
9.1 Confidential Information. Each party (the "Disclosing Party") may
from time to time during the Term of this Agreement disclose to the other party
(the "Receiving Party") certain non-public information regarding the Disclosing
Party's business, including technical, marketing, financial, personnel,
planning, and other information ("Confidential Information"). The Disclosing
Party shall mark all such Confidential Information in tangible form with the
legend 'confidential', 'proprietary', or with similar legend. With respect to
Confidential Information
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disclosed orally, the Disclosing Party shall describe such Confidential
Information as such at the time of disclosure, and shall confirm such
Confidential Information as such in writing within thirty (30) days after the
date of oral disclosure. Regardless of whether so marked, however, any
non-public information regarding the Template, including the Template itself,
shall be deemed to be the Confidential Information of Town Pages.
9.2 Protection of Confidential Information. Except as expressly
permitted by this Agreement, the Receiving Party shall not disclose the
Confidential Information of the Disclosing Party using the same degree of care
which the Receiving Party ordinarily uses with respect to its own proprietary
information, but in no event with less than reasonable care. The Receiving Party
shall not use the Confidential Information of the Disclosing Party for any
purpose not expressly permitted by this Agreement, and shall limit the
disclosure of the Confidential Information of the Disclosing Party to the
employees or agents of the Receiving Party who have a need to know such
Confidential Information for purposes of this Agreement, and with respect to
agents who are recipients of the Confidential Information of the Disclosing
Party, who are bound in writing by confidentiality terms no less restrictive
than those contained herein. The Receiving Party shall provide copies of such
written agreements to the Disclosing Party upon request; provided, however, that
such agreement copies shall themselves be deemed the Confidential Information of
the Receiving Party.
9.3 Exceptions. Notwithstanding anything herein to the contrary,
Confidential Information shall not be deemed to include any information which:
(a) was already lawfully known to the Receiving Party at the time of disclosure
by the Disclosing Party as reflected in the written records of the Receiving
Party; (b) was or has been disclosed by the Disclosing Party to a third party
without obligation of confidence; (c) was or becomes lawfully known to the
general public without breach of this Agreement; (d) is independently developed
by the Receiving Party without access to, or use of, the Confidential
Information; (e) is approved in writing by the Disclosing Party for disclosure
by the Receiving Party; (f) is required to be disclosed in order for the
Receiving Party to enforce its rights under this Agreement; or (g) is required
to be disclosed by law or by the order or a court or similar judicial or
administrative body, including as part of any filing with the Securities
Exchange Commission; provided, however, that the Receiving Party shall notify
the Disclosing Party of such requirement immediately and in writing, and shall
cooperate reasonably with the Disclosing Party, at the Disclosing Party's
expense, in the obtaining of a protective or similar order with respect thereto.
9.4 Return of Confidential Information. The Receiving Party shall return
to the Disclosing Party, destroy or erase all Confidential Information of the
Disclosing Party in tangible form: (a) upon the written request of the
Disclosing Party (except for Software or Modified Software contained in such
Confidential Information); or (b) upon the expiration or termination of this
Agreement, whichever comes first, and in both cases, the Receiving Party shall
certify promptly and in writing that it has done so.
10. USER INFORMATION AND REGISTRATION DATA.
10.1 User Information. Any information or data collected from or about
End Users (including without limitation voluntarily-disclosed information, any
information eshoppingcentre.com collects regarding End Users from their access
or use of the Co-Branded Site (including without limitation all statistical,
demographic and psychographic information about such End Users) and any reports
about traffic (collectively, "User Information")) shall be
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owned exclusively by Town Pages. However, during the Term of this Agreement
eshoppingcentre.com hereby grants to Town Pages a nonexclusive, nontransferable,
nonsublicenseable license to use User Information only as required to exercise
its rights and carry out its obligations hereunder. eshoppingcentre.com
acknowledges that the User Information constitutes extremely valuable trade
secrets of Town Pages. eshoppingcentre.com shall not use the User Information
for any purpose other than as expressly granted under this Agreement nor
disclose the User Information to any third party. Without limiting the
foregoing, under no circumstances may eshoppingcentre.com send unsolicited
emails to any End Users, nor may eshoppingcentre.com permit or authorize any
third parties to do so. eshoppingcentre.com shall use at least industry-standard
methods to protect the security of User Information. This Subsection 10.1 ("User
Information") shall not apply to End Users who (a) have registered as
eshoppingcentre.com users, including pursuant to Subsection 2.1 ("`Opt In'
Registration") and; or (b) are or become customers of eshoppingcentre.com.
10.2 Registration Data. As part of the User Information, Town Pages
shall provide to eshoppingcentre.com the email addresses and names of Registered
Users.
11. Disclaimer of Warranties.
EACH PARTY PROVIDES ALL MATERIALS AND SERVICES TO THE OTHER PARTY "AS IS." EACH
PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Each party acknowledges
that it has not entered into this Agreement in reliance upon any warranty or
representation except those specifically set forth herein.
12. Term and Termination.
12.1 Term. The term of this Agreement ("Term") shall continue for a
period of three (3) years following the Effective Date.
12.2 Termination for Cause. Notwithstanding the foregoing, this
Agreement may be terminated by either party upon notice for the material breach
of this Agreement by the other party which breach has remained uncured for a
period of thirty (30) days from the date of written notice thereof.
12.3 Effect of Expiration or Termination. Upon the expiration or
termination of this Agreement, all licenses granted hereunder shall immediately
terminate, and each party shall promptly remove all references to the other
party's trademarks from any site that caches, indexes or links to such party's
site.
13. Survival.
Upon the expiration or termination of this Agreement, Section 1 ("Definitions"),
Subsection 5.2 ("Liability"), Section 9 ("Confidentiality"), Section 11
("Disclaimer of Warranties"), Subsection 12.4 ("Effect of Expiration or
Termination"), Section 13 ("Survival"), Section 14 ("Limitation of Liability"),
Section 15 ("Indemnity") and Section 16 ("General Provisions") shall survive and
continue to bind the parties.
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14. Limitation on Liability.
EXCEPT IN THE EVENT OF A BREACH OF SECTION 8 ("LICENSES AND STANDARDS") OR
SECTION 9 ("CONFIDENTIALITY"), NEITHER PARTY SHALL BE LIABLE FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING
NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT IN THE
EVENT OF A BREACH OF SECTION 8 ("LICENSES AND STANDARDS") OR SECTION 9
("CONFIDENTIALITY"), A FAILURE TO PAY FEES OWED, OR AN INDEMNITY CLAIM, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN AN AMOUNT GREATER THAN
THE AMOUNTS ACTUALLY PAID BY ESHOPPINGCENTRE.COM TO TOWN PAGES HEREUNDER.
15. Indemnity.
Each party (the "Indemnifying Party") shall indemnify the other party (the
"Indemnified Party") against any and all claims, losses, damages costs and
expenses, including reasonable attorneys' fees, which the Indemnified Party may
incur as a result of claims in any form by third parties arising from: (a) the
Indemnifying Party's acts, omissions or misrepresentations to the extent that
the Indemnified Party is deemed a principal of the Indemnifying Party, (b) the
violation of any third party proprietary right by the Indemnifying Party's
domain name, software or any content provided by the Indemnifying Party
(including without limitation the eshoppingcentre.com Content) for use on the
Indemnified Party's servers, or (c) breach of Subsection 16.5 ("Compliance with
Laws"). In addition, eshoppingcentre.com shall indemnify Town Pages against any
and all claims, losses, damages, costs and expenses, including reasonable
attorneys' fees, which Town Pages may incur as a result of claims in any form by
third parties arising from; the content on the Co-Branded Site. The foregoing
obligations are conditioned on the Indemnified Party's giving the Indemnifying
Party notice of the relevant claim, cooperating with the Indemnifying Party, at
the Indemnifying Party's expense, in the defense of such claim, and giving the
Indemnifying Party the right to control the defense and settlement of any such
claim, except that the Indemnifying Party shall not enter into any settlement
that affects the Indemnified Party's rights or interest without the Indemnified
Party's prior written approval. The Indemnified Party shall have the right to
participate in the defense at its expense.
16. General Provisions.
16.1 Governing Law. This Agreement will be governed and construed in
accordance with the laws of the United Kingdom without giving effect to conflict
of laws principles. Both parties consent to jurisdiction in the United Kingdom
and further agree that any cause of action arising under this Agreement shall be
brought in a court in the United Kingdom. The parties exclude the application of
The United Nations Convention on Contracts for the International Sale of Goods
from this Agreement.
16.2 Severability; Headings. If any provision herein is held to be
invalid or unenforceable for any reason, the remaining provisions will continue
in full force without being impaired or invalidated in any way. Headings are for
reference purposes only and in no way define, limit, construe or describe the
scope or extent of such section.
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16.3 Force Majeure. If performance hereunder is prevented, restricted or
interfered with by any act or condition whatsoever beyond the reasonable control
of a party, the party so affected, upon giving prompt notice to the other party,
shall be excused from such performance to the extent of such prevention,
restriction or interference. Each party acknowledges that the operation of the
other party's website and services may be interfered with by numerous factors
outside of a party's control, and Town Pages does not guarantee continuous or
uninterrupted display of eshoppingcentre.com Content.
16.4 Independent Contractors. The parties are independent contractors, and no
agency, partnership, joint venture, employee-employer or franchisor- franchisee
relationship is intended or created by this Agreement. Neither party shall make
any warranties or representations on behalf of the other party.
16.5 Compliance with Laws. At its own expense, each party shall comply
with all applicable laws, regulations, rules, ordinances and orders regarding
the marketing, promotion and performance of its obligations hereunder, including
without limitation the operation of the Co-Branded Site and its other activities
related to this Agreement.
16.6 Notice. Any notices hereunder shall be given to the appropriate party
at the address specified above or at such other address as the party shall
specify in writing. Notice shall be deemed given: upon personal delivery; if
sent by fax, upon confirmation of receipt; or if sent by certified or registered
mail, postage prepaid, five (5) days after the date of mailing.
16.7 Entire Agreement; Waiver. This Agreement sets forth the entire
understanding and agreement of the parties, and supersedes any and all oral or
written agreements or understandings between the parties, as to the subject
matter of this Agreement. It may be changed only by a writing signed by Town
Pages and eshoppingcentre.com. The waiver of a breach of any provision of this
Agreement will not operate or be interpreted as a waiver of any other or
subsequent breach.
16.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be taken together and deemed to be one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Location Developments Limited Town Pages Limited
By: By:
------------------------------ -------------------------
Title: Director Title: Director
Date: Date:
------------------------------ -----------------------
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Exhibit A
eshoppingcentre.com Content
Content
National and Local virtual shopping centre.
Format to be designed by Town Pages to approval of eshoppingcentre.com
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Exhibit B
Marks
To Be Attached
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Exhibit C
Phases
Phase I
(To commence upon the Effective Date and to continue for the Term of the
Agreement)
Promotional Matters
Phase II
(To commence the second calendar quarter of the first term and to continue for
the Term of the Agreement)
Site Integration
Phase III
(To commence the third calendar quarter of the first term and to continue for
the Term of the Agreement)
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Exhibit D
Locations
Strategic Locations through out the Town Pages site to be agreed by both
parties.
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EXHIBIT E
Template
Subject to Subsection 8.2 ("Templates"), the initial Templates shall be created,
designed and programmed by Town Pages subject to design approval of
eshoppingcentre.com such as to provide a user interface and design format for
entering the content into the Co-branded site.
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Exhibit F
Shopping Services Companies
Shopping Service Companies shall mean all companies that provide shopping
content, including, but not limited to:
Shopping Mall/Centre companies
I.mall
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Exhibit 21.1
Subsidiaries of the Registrant
Town Pages Limited.
