EXHIBIT 10.7
Private & Confidential
DATED as of 29 September, 1997
TILLER HOLDINGS LIMITED (1)
and
CARNEGIE INTERNATIONAL CORPORATION (2)
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AGREEMENT
for sale/purchase of the entire issued share
capitals of Profit Thru Telecommunications
(Europe) Limited and Talidan Limited
---------------------------------------------
Xxxxxx Xxxx
London
CONTENTS
Page
Recitals
Clause Heading
1 Definitions and interpretation.................................... 1
2 Purpose of this Agreement ......................................... 4
3 Sale of the Sale Shares ........................................... 5
4 Consideration ..................................................... 5
5 Completion ........................................................ 6
6 Post Completion matters ........................................... 7
7 Representations and warranties ................................... 10
8 Releases, waivers etc ............................................ 11
9 Underwriter Indemnity............................................. 12
10 Notices .......................................................... 14
11 Miscellaneous .................................................... 15
12 Successors and Assigns ........................................... 16
13 Applicable law and submission to jurisdiction .................... 16
Schedule
Warranties of the Purchaser ............................................... 17
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THIS DEED is dated as of 29 September, 1997 and is made BETWEEN:
(1) CARNEGIE, INTERNATIONAL CORPORATION a Colorado corporation whose
registered office is at 00000 Xxxxxxxxx Xxxxx, Xxxxx 0, Xxxxxx Xxxxx,
Xxxxxxxx 00000 ("the Purchaser"); and
(2) TILLER HOLDINGS LIMITED (No. 59205) whose registered office is at
Gilwell Offices, X.X. Xxx 0, Xxx Xxxxxx, Xxxxxxxx ("xxx Seller").
NOW IT IS HEREBY AGREED as follows:
1. Definitions and interpretation
1.1 In this Agreement unless the context otherwise requires:
"the 1933 Act" means the US Securities Act of 1933;
"Associate" means any person, partnership, joint venture, corporation
or other form of enterprise which directly or indirectly controls, is
controlled by, or is under common control with, a party and, for the
purposes of this definition, "control" means possession, directly or
indirectly of the power to direct or cause the direction of management
and policies through ownership of voting securities, contract, voting
trust or otherwise and in respect of an individual, means the spouse,
parents, step-children, adopted children or grand-children or the
trustees of any trust established for the benefit of the same;
"business day" means a day on which banks are ordinarily open for the
transaction of normal banking business in London and New York;
"CA 1985" means the Companies Xxx 0000;
"Carnegie Share" means a share of common stock in the capital of
Carnegie;
"the Companies" means each of PTT and Talidan;
"Completion" means completion of the sale and purchase of the Sale
Shares by the performance by the parties of their respective
obligations under clause 5;
"the Completion Date" means the date upon which Completion takes place
in accordance with Clause 5;
"the Consideration Securities" means the aggregate number of new
Carnegie Shares to be issued (fully paid) by the Purchaser to the
Seller pursuant to clause 4, issued pursuant to an exercise of the
Warrants or issued pursuant to an exercise of the Option, the share
certificates therefor to carry the following legend:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933 (THE "ACT) OR
WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR
OTHER JURISDICTION OF THE UNITED STATES. THESE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO DISTRIBUTION OR RESALE. AND ACCORDINGLY
MAY NOT BE OFFERED, SOLD. PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (1) IN ACCORDANCE WITH RULE 144A TO A
PERSON THAT IT AND ANY PERSON ACTING ON ITS BEHALF
REASONABLY BELIEVE IS A QUALIFIED INSTITUTIONAL BUYER
(QIB-) PURCHASING FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF ANOTHER QIB, OR (2) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR 000 XX
XXXXXXXXXX X, XX (3) PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE), IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES."
"the Exchange Act" means the US Exchange Act;
"the Existing PTT Shareholders" means each of Trident Limited, Applied
Knowledge Ltd., Xxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxx
Xxxxxx and C&H Consultancy Services Ltd. who hold, in aggregate, the
entire issued share capital of PTT at the date hereof;
"the Existing Talidan Shareholders" means First Nominees Limited and
First Directors Limited who hold, in aggregate, the entire issued share
capital of Talidan at the date hereof;
"Options" means the options evidenced by the option agreements in the
agreed forms, the principal details of which are set out in clause 4;
"PTT" means Profit Thru Telecommunications (Europe) Limited, a company
incorporated in England with registered number 2744902;
"the PTT Agreement" means the agreement between the Seller and the
Existing PTT Shareholders providing for its acquisition of the PTT
Shares;
"the PTT Shares" means 10,000 issued Ordinary Shares of 11 each of PTT
being the entire issued* share capital of PTT, to be acquired by the
Seller pursuant to the PTT Agreement;
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"the Purchaser's Counsel" means Gershberg & Pearl, LLP of 1. 0000
Xxxxxxxxx Xxxxx, Xxxxx 0, Xxxxxx Xxxxx, Xxxxxxxx 00000; "related
company" in relation to any company means any subsidiary or holding
company of that company or any subsidiary of that holding company;
"the Sale Shares" means the PTT Shares and the Talidan Shares;
"Security Interest" means a mortgage, lien, pledge, charge,
hypothecation or other security interest (or an agreement or commitment
to create any of them), but excluding:
(a) any lien arising in the ordinary course of business to secure
amounts which are not material;
(b) any unpaid seller's or supplier's lien arising in the ordinary
course of either PTT's or Talidan's trading business to secure
amounts due in respect of goods or services sold or supplied; and
(c) liens arising by operation of law, including a banker's lien;
"Seller's Solicitors" means Xxxxxx Xxxx of Xxxxxxx Xxxxx, Xxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX;
"the Service Agreement" means the service agreement in the agreed form
between the Seller and the Purchaser;
"subsidiary" means a subsidiary (as defined by sections 736 and 736A CA
1985) or a subsidiary undertaking (as defined by section 258 CA 1985);
"Talidan" means Talidan Limited, a company incorporated in the British
Virgin Islands with registered number 71695;
"the Talidan Agreement" means the agreement between the Seller and the
Existing Talidan Shareholders providing for its acquisition of the
Talidan Shares;
"the Talidan Shares" means 20 issued Ordinary Shares of $1 each of
Talidan being the entire issued share capital of Talidan, to be
acquired by the Seller pursuant to the Talidan Agreement;
"Warrants" means as more particularly defined in clause 4;
"Warranties" means the representations and warranties referred to in
clause 7.1 and as set out in schedule 1.
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1.2 In this Agreement unless the context otherwise requires:
(a) references to a clause or schedule are to a clause, of or a
schedule to, this Agreement, references to this Agreement include
its schedules and references in a schedule or part of a schedule
to a paragraph are to a paragraph of that schedule or that part of
that schedule;
(b) references to this Agreement or any other document or to any
specified provision of this Agreement or any other document are to
this Agreement, that document or that provision as in force for
the time being and as amended from time to time in accordance with
the terms of this Agreement or that document or, as the case may
be, with the agreement of the relevant parties;
(c) words importing the singular include the plural and vice versa,
words importing a gender include every gender and references to
persons include corporations, partnerships and other
unincorporated associations or bodies of persons;
(d) the contents table and the descriptive headings to clauses,
schedules and paragraphs are inserted for convenience only, have
no legal effect and shall be ignored in the interpretation of this
Agreement;
(e) the words and phrases "other", "including" and "in particular"
shall not limit the generality of any preceding words or be
construed as being limited to the same class as the preceding
words where a wider construction is possible.
1.3 In this Agreement, unless the context otherwise requires:
(a) "enactment" means any statute or statutory provision (whether of
the United Kingdom or elsewhere), subordinate legislation, as
defined by section 21(l) Interpretation Xxx 0000, and any other
subordinate legislation made under any such statute or statutory
provision;
(b) a reference to any enactment shall be construed as including a
reference to:
(i) any enactment which that enactment has directly or
indirectly replaced (whether with or without modification);
and
(ii) that enactment as re-enacted, replaced or modified from time
to time, whether before, on or after the date hereof.
2. Purpose of this Agreement
2.1 This is an Agreement for the sale and purchase of the Sale Shares.
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2.2 This Agreement shall supersede as from the date hereof the letter of
intent dated 25th July, 1997 between the parties ("the Letter of
Intent").
3. Sale of the Sale Shares
3.1 The Seller shall sell to the Purchaser and the Purchaser shall purchase
from the Seller the Sale Shares.
3.2 The Seller shall sell and transfer such title as it shall have in and
to the Sale Shares.
3.3 Title to, beneficial ownership of, and any risk attaching to, the Sale
Shares shall pass on Completion, and the Sale Shares shall be sold and
purchased together with all rights and benefits attached or accruing to
them at Completion (including the right to receive all dividends,
distributions or any return of capital declared, paid or made by the
Company on or after Completion) save to the extent provided in the PTT
and Talidan Agreements.
4. Consideration
4.1 The consideration for the sale of the Sale Shares shall be the issue to
the Seller of:
(a) in respect of the PTT Shares, of 9.34 million new Carnegie Shares;
and
(b) in respect of the Talidan Shares, of:
(i) 10 million new Carnegie Shares;
(ii) warrants in the agreed form ("Warrants") exercisable, in
whole or in part (by notification to the Purchaser in the
agreed form), at any time during the period of 24 months
after Completion, to subscribe for a further 5 million
Carnegie Shares at a subscription price per Carnegie Share
equal to 50 per cent. of the average market price of the
Carnegie Shares as quoted by the NASD Over the Counter
Bulletin Board Service ("OTCBB") for the 30 consecutive
trading days before exercise; and
(iii) Options:
(A) to be evidenced by an agreement in the agreed form; and
(B) to entitle the Seller or any assignee of such right
such right notified to the Purchaser (the Seller and/or
any such assignees being "Option Holders") at any time
to have issued to it or them for the consideration set
out therein new Carnegie Shares having an aggregate
value (at the average price ("the Price") per Carnegie
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Share quoted by the NASD Over the Counter Bulletin
Board Service ("OTC1313") for the 30 consecutive
trading days prior to the date of the service of the
relevant exercise notice) of $2,500,000.
4.2 The Consideration Securities shall be validly issued, fully paid and
nonassessable, and shall be issued free of all stamp taxes, liens and
encumbrances and shall rank paripassu in all respects with the Carnegie
Shares in issue:
(a) at the date hereof (in the case of the shares the subject of
clause 4.1(b)(ii)) and
(b) on the date of their issue, in the case of shares issued pursuant
to exercise of any Warrants or upon the exercise of any Option
save that such Carnegie Shares shall be subject to the applicable
transfer restrictions under US Securities Laws and the Certificates to
be delivered by the Purchaser in respect thereof shall be endorsed with
the agreed US Securities Laws legends.
5. Completion
Completion shall take place immediately following execution when all
(but not part only unless the Purchaser and the Seller shall so agree)
of the following business shall be transacted:
5.1 completion of the PTT and Talidan Agreements;
5.2 the Seller shall deliver (in the manner agreed between the parties) to
the Purchaser (to the extent not delivered prior thereto):
(a) transfers in relation to the Sale Shares duly executed and
completed in favour of the Purchaser together with the
certificates therefor and the duly executed powers of attorney or
other authorities under which any of the transfers have been
executed and certified copies of the Minutes recording the
Resolution of the Board of Directors of the Seller authorizing the
sale of the Sale Shares held by the Seller and the execution of
transfers in respect of them;
(b) legal opinions in respect of the Companies in the agreed form;
(c) service agreements in the agreed form;
(d) copies of the completion documentation relating to Tiller's
acquisition of PTT and Talidan, including evidence of the
appointment of the Carnegie nominated director for each of those
companies; and
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(e) a duly executed copy of the Service Agreement.
5.3 The Purchaser shall:
(a) issue the Consideration Securities to the Seller (and to its
permitted assignees) in accordance with clauses 4. 1 (a) and 4. 1
(b) and certificates in respect of those Consideration Securities
duly executed in favour of the Seller (or as it shall direct) and
certified copy of the minutes of the board of directors of the
Purchaser authorizing the acquisition of the Sale Shares and the
issue of the Consideration Securities and approving those further
matters noted at clause 5.2(b) below provided in consideration of
the Sale Shares;
(b) deliver to the Seller duly executed original copies of each of the
following:
(i) the Warrants in the agreed. form pursuant to clause
4.1(b)(ii);
(ii) the Option Agreement in the agreed form pursuant to clause
4.1 (b)(iii); and
(iii) a duly executed copy of the Service Agreement;
(c) cause the transfers of Carnegie Shares by the Seller to any of the
sellers under each of the PTT Agreement or the Talidan Agreement
(or as they shall direct) and as have otherwise been agreed by the
Purchaser to be resolved to be registered (subject only, where
applicable, to their being duly stamped); and
(d) pay to the Seller (and its assignees) an amount equal to one half
of any required stamp duty, stamp duty reserve tax or other taxes
payable by the Seller (and its assignees) as a result of its
acquisition and disposal of the PTT Shares and/or the Talidan
Shares and as a result of the acquisition of the Sale Shares by
the Purchaser.
6. Post Completion matters
6.1 The Seller hereby declares that for so long as it remains the
registered holder of any of the Sale Shares after Completion it will:
(a) hold the Sale Shares and the dividends and other distributions of
profits or surplus or other assets declared, paid or made in
respect of them after Completion and all rights arising out of or
in connection with them in trust for the Purchaser and its
successors in title; and
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(b) deal with and dispose of the Sale Shares and all such dividends,
distributions and rights as are described in clause 6.1(a) as the
Purchaser or any such successor may direct.
6.2 (a) The Seller hereby appoints the Purchaser as its lawful attorney
for the purpose of receiving notices of and attending and voting
at all meetings of the members of either PTT or Talidan, or to the
extent that it is able to do so to give directions to the Existing
PTT Shareholders and Existing Talidan Shareholders pursuant to the
agreements with them in respect thereof from Completion to the day
on which the Purchaser or its Nominee is entered in the register
of members of the respective companies as the holder of the
relevant Sale Shares.
(b) For such purpose the Seller hereby:
(i) undertakes that it shall forward to the Purchaser any
notices received by it in respect of its holding of Sale
Shares; and
(ii) authorizes the Purchaser to complete in such manner as it
thinks fit and to return proxy cards, consents to short
notice and any other document required to be signed by it in
its capacity as a member.
6.3 The Seller shall execute or, so far as it is able, procure from any
necessary third party such execution of all such documents and/or shall
do or, so far as it is able, procure the doing of such acts and things
as the Purchaser shall after Completion reasonably require in order to
give effect to this Agreement and any documents entered into pursuant
to it and to give to the Purchaser the full benefit of all the
provisions of those agreements.
6.4 The Seller hereby undertakes with the Purchaser that it will:
(a) save to the extent required pursuant to the agreements between the
Seller and the Existing Talidan Shareholders and the Existing PTT
Shareholders in relation to the respective sale of the Talidan
Shares and the PTT Shares to the Seller and as otherwise agreed
with the Purchaser, shall not without the Purchaser's prior
written consent dispose of any of the Consideration Securities
(other than in a private transaction with a Non-US Person or as
otherwise agreed from time to time by the Purchaser) within the
year immediately following Completion, or such shorter period
being the applicable statutory restriction period under Regulation
S of Rule 144 of the 1933 Act (the applicability of such
restriction being evidenced by a legal opinion prepared by US
Counsel to the Purchaser) without prejudice to the right of the
Seller to transfer Consideration Securities to Qualified
Institutional Buyers (as defined under Rule 144A of the 0000 Xxx)
or under Regulation S to Non-US Persons (as defined under that
Regulation) or pursuant to such other exemption from registration
under the 1933 Act as being applicable subject to the
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further restriction that save as expressly set out the beginning
of this paragraph, no transfer (other than in a private
transaction with a Non-US Person and/or as otherwise agreed from
time to time by the Purchaser) shall be made within 90 days from
Completion;
(b) in the event that pursuant to either of the PTT Agreement or the
Talidan Agreement, the Seller receives notice ("a transfer
notice") of an intended sale by any of the Existing PTT
Shareholders or the Existing Talidan Shareholders (as applicable),
as soon as practicable following receipt of a transfer notice, the
Seller shall notify the Purchaser and the Purchaser shall Have a
period from receipt thereof until 8 business days prior to the
final date for notification of an intention to take up the subject
rights in which to notify the Seller of the number of offered
shares which the members of the Purchaser's Board at such time in
aggregate wish to take up. Any such notice shall be irrevocable
and shall commit the Purchaser to procure payment by such members
of all sums due in respect of the shares the subject of such
notice and to be acquired by them in accordance with the
provisions of this clause. If the members of the Purchaser's Board
on the one hand and the Seller (together with its permitted
assignees) on the other hand both wish to take up 50 per cent. or
more of the offered Shares each shall be entitled to 50 per cent.
of the offered shares. If either wishes to acquire less than their
50 per cent., the other shall be entitled to acquire the balance.
The Seller shall exercise its pre-emption rights so as to give
effect to this clause and the Purchaser shall indemnify the Seller
for any payment or other liabilities in respect of those shares to
be acquired on behalf of the members of its board;
(c) not during the period from the Completion Date until the first
anniversary of the issue of the Consideration Shares to be issued
pursuant to clause 4.1 ceasing to be subject to transfer
restrictions under the 1933 Act or (if earlier until the second
anniversary of the Completion Date) dispose (other than in a
private transaction with a Non-US Person and as otherwise agreed
from time to time by the Purchaser), in any one calendar month, of
Carnegie Shares amounting to 5 per cent. of its total holding of
Carnegie Shares acquired pursuant to this agreement. Unexercised
rights under this clause 6.4(c) will not carry forward to a
subsequent month. This restriction will not apply to the transfer
of any Carnegie Shares to any of (i) a related company of the
Seller, (ii) the members of the Board (or their Associates) from
time to time of the Seller; (iii) the Existing Talidan
Shareholders; and (iv) the Existing PTT Shareholders, with any of
such shares thereby being acquired by the relevant seller being
deemed added to the number of Carnegie Shares of such person held
post Completion; (d) notwithstanding clauses 6.4(a) to (c) above
inclusive, the Seller shall be entitled to sell its holding of
Carnegie Shares in any public offering or placing of Carnegie
Shares by Carnegie or otherwise relating to shares in Carnegie
save that the aggregate of the Carnegie Shares to be sold by the
Seller shall, when aggregated with those Carnegie Shares
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being sold by the Existing Talidan Shareholders, the Existing PTT
Shareholders and each of the members of the Board from time to
time of the Purchaser at that time, be limited to the greater of:
(i) 25 per cent. of the total number of Carnegie Shares which
are the subject of the offering; or
(ii) Carnegie Shares having a value (as determined by reference
to the average price quoted by NASD Over the Counter
Bulletin Board Service ("OTCBB") for the 30 consecutive
trading days prior to public offer or placing or other offer
being completed) $7.5 million.
Subject to this limit, the Seller shall be entitled to sell all or
part of its holding of Carnegie Shares under the secondary
offering pro-rata to its holdings of Carnegie Shares at that date.
The sale of Carnegie Shares pursuant to this clause 6.4(d) shall,
if required by any party, be overseen by an independent third
party agreed between the parties.
6.5 The Purchaser shall cause such persons as may be nominated by the
Seller in writing to be validly appointed as an additional member of
the board of the Purchaser, such appointment to take effect from the
Completion Date, and to be on such terms as may be agreed between the
parties. Save in the circumstances provided for in Clause 6.6 below, at
no time shall the Purchaser be obliged to appoint more than two persons
nominated by the Seller to be members of the board of the Purchaser.
6.6 If at any time after the Completion Date the Purchaser offers for sale
any Carnegie Shares in a public offering or placing, then the Seller
shall be entitled to nominate a person to be appointed as the Chairman
of the Board of the Purchaser, such person to be validly appointed by
the Purchaser prior to the offering of Carnegie Shares.
7. Representations and warranties
7.1 In consideration of the Seller entering into this Agreement the
Purchaser hereby acknowledges that it has represented and warranted to
the Seller (for itself and as trustee for its successors in title) in
the terms set out in schedule 1.
7.2 The Warranties shall not in any respect be extinguished or affected by
Completion.
7.3 The Purchaser hereby acknowledges that in respect of the Sale Shares
and the Companies:
(a) the Seller has given and gives no warranty or representation nor
has the Purchaser relied on any representation made by the Seller
or its advisers;
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(b) the Purchaser has conducted its own due diligence exercise and
satisfied itself as to any disclosures made to it; and
(c) it is fully aware of all the terms and provisions of each of the
PTT Agreement and the Talidan Agreement and shall not require the
Seller to take or refrain from taking any action thereunder that
could result in the Seller being in breach of those agreements.
7.4 The Parties agree that the remedy of rescission will not be available
after Completion.
7.5 The Seller hereby assigns to the Purchaser such interest as it has in
each of the representations and warranties granted in its favour
pursuant to (and subject to the terms of) each of the PTT Agreement and
the Talidan Agreement.
7.6 The Purchaser hereby undertakes to indemnify the Seller in respect of
all costs incurred by the Seller in respect of any claim made or
threatened against the Seller in respect of the Consideration
Securities and any Warranty or Representation given or made by the
Seller under the PTT Agreement and/or the Talidan Agreement.
8. Releases, waivers etc.
8.1 Either party may, in its discretion, in whole or in part release,
compound or compromise, or waive its rights or grant time or indulgence
in respect of, any liability to it under this Agreement.
8.2 Neither the single or partial exercise or temporary or partial waiver
by either party of any right, nor the failure by either party to
exercise in whole or in part any right or to insist on the strict
performance of any provision of this Agreement, nor the discontinuance,
abandonment or adverse determination of any proceedings taken by either
party to enforce any right or any such provision shall (except for the
period or to the extent covered by any such temporary or partial
waiver) operate as a waiver of, or preclude any exercise or enforcement
or (as the case may be) further or other exercise or enforcement by
either party of, that or any other right or provision.
8.3 The giving by the Purchaser of any consent to any act which by the
terms of this Agreement requires such consent shall not prejudice the
right of either party to withhold or give consent to the doing of any
similar act.
8.4 Notwithstanding the foregoing, the Seller shall not provide or agree
any waiver or release to or in favour of the holders of Carnegie Shares
issued pursuant to the PTT Agreement or the Talidan Agreement without
the prior written consent of the Purchaser save in respect of a waiver
of any rights of pre-emption in respect of Carnegie Shares granted at
or prior to Completion.
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9. Underwriter Indemnity
9.1 The parties acknowledge that they do not characterize the role of the
Seller as an underwriter however in the event the Seller or any of its
directors, officers, employees and agents shall be construed by the SEC
or other appropriate authority to be an underwriter (in any such case
"Underwriter") within the meaning of Section 15 of the 1933 Act or
Section 20 of the Exchange Act this clause shall apply and the Seller
receives the benefit of this clause for itself and as trustee for the
other persons indemnified pursuant to this clause 9. The Purchaser will
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person, if any, who
controls each Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the Exchange Act (each being an "indemnified
person"), from and against any and all losses, claims, liabilities,
expenses and damages (including, without limitation, any and all
investigative, legal and other expenses reasonably incurred in
connection with, and any and all amounts paid in settlement of, any
action, suit or proceeding between any of the indemnified parties and
any indemnifying parties or between the Purchaser and any third party,
or otherwise, or any claim asserted, which settlement has been approved
by the indemnifying party), as and when incurred, to which any
Underwriter, or any such person, may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities,
expenses or damages arise out of or are based on (i) any untrue
statement or alleged untrue statement of a material fact contained in
any pre-pricing prospectus supplement, the registration statement or
the prospectus or any amendment or supplement to the registration
statement or the prospectus, or any application or other document
executed by or on behalf of the Company or based on written information
furnished by or on behalf of the company filed in any jurisdiction in
order to qualify the shares under the securities laws thereof or filed
with the Commission, the omission or alleged omission to state in such
document a material fact required to be stated in it or necessary to
make the statements in it not misleading, or (iii) any act or failure
to act by any Underwriter in connection with, or relating in any manner
to, the Shares or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, liability,
expense or damage arising out of or based upon matters covered by
sub-clause (i) or (ii) above (provided that the Purchaser shall not be
liable under this sub-clause (iii) to the extent it is finally
judicially determined by a court of competent jurisdiction that such
loss, claim, liability, expense or damage resulted from any such acts
or failures to act undertaken or omitted to be taken by such
Underwriter due to its wilful misconduct) or (iv) on any other matter,
provided that the Purchaser will not be liable to an Underwriter to the
extent that such loss, claim, liability, expense or damage arises from
the sale of Consideration Shares in a public offering to any person by
such Underwriter and is based solely on an untrue statement or omission
or alleged untrue statement or omission made in reliance on and in
conformity with information relating to such Underwriter furnished in
writing to the Company by or on behalf of such Underwriter expressly
for inclusion in the registration statement any pre-pricing prospectus
supplement or the prospectus.
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This indemnity agreement will be in addition to any liability that the
Company might otherwise have to any person who is an indemnified party
hereunder.
9.2 Any person that proposes to assert the right to be indemnified under
this clause 9 will, promptly after receipt of notice of commencement of
any action against such person in respect of which a claim is to be
made against the Purchaser under this clause 9, notify the Purchaser of
the commencement of such action, enclosing a copy of all material
papers served, but the omission so to notify the Purchaser (or to copy
such material to it) will not relieve it from any liability that it may
have to any indemnified party under the foregoing provisions of this
clause 9. If any such action is brought against any indemnified party
and it notifies the Purchaser of its commencement, the Purchaser will
be entitled to participate in and, to this extent that it elects by
delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified
party, to assume the defence of the action, with Counsel reasonably
satisfactory to the indemnified party and after notice of the Purchaser
to the indemnified person of its election to assume the defence, the
Purchaser will not be liable to the Seller for any legal or other
expenses incurred after the date of such notice which relate to
unnecessary duplication of the legal costs involved in such defence,
except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in
connection with the defence.
9.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the
foregoing paragraphs of this clause 9 is applicable in accordance with
its terms but for any reason is held to be unavailable from the
Purchaser, the Purchaser will contribute to the total losses, claims,
liabilities, expenses and damages, including any investigative, legal
and other expenses reasonably incurred in connection with, and any
amount paid consistent with the Agreement in settlement of, any action,
suit or proceeding or any claim asserted, less any net contribution
received by the indemnified party otherwise than from the Purchaser.
Any indemnified person entitled to contribution, promptly after receipt
of notice of commencement of any action against such person in respect
of which a claim for contribution may be made under this clause 9,
shall notify the Purchaser from whom contribution may be sought~ within
one (1) year from the date of receipt of notice of any such claim.
9.4 The indemnity and contribution agreements contained in this clause 9
and the representations and warranties of the Purchaser contained in
this Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of the
Underwriters, (ii) acceptance of any of the Shares and payment therefor
or (iii) any termination of this Agreement.
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10. Notices
10.1 Except as otherwise provided in this Agreement, every notice under this
Agreement shall be in writing and shall be deemed to be duly given if
it (or the envelope containing it) identifies the party to whom it is
intended to be given as the addressee and:
(a) it is delivered by being handed personally to the addressee (or,
where the addressee is a corporation, any one of its Directors or
its Secretary); or
(b) it is delivered by a specialist courier firm whose delivery is
(unless the giving of such a receipt is refused) receipted by the
intended recipient; or
(c) it is delivered by facsimile transmission with a hard copy
despatched in accordance with the above procedure, and, in proving
the giving or service of such notice, it shall be conclusive
evidence to prove that the notice was duly given within the
meaning of this clause 10.1.
10.2 The addresses for service of notice are as follows:
For the Seller:
Name: Tiller Holdings Limited
Address: Gilwell Offices, X.X. Xxx 0, Xxx Xxxxxx,
Xxxxxxxx
For the attention of: Xxx Xxxxxx
With a copy to Xxx Xxxxxx on fax number: 00 000000 0000
For the Purchaser:
Name: Carnegie International Corporation
Address: 00000 Xxxxxxxxx Xxxxx, Xxxxx 0, Xxxxxx Xxxxx,
Xxxxxxxx 00000
Fax number: 0 000 000 0000
For the attention of: Xxxxxx Xxxxxx
With a copy to the Purchaser's Counsel on fax number: 0 000 000 0000.
10.3 For the purposes of this clause 10 "notice" shall include any request
demand, instructions, communication or other document.
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11. Miscellaneous
11.1 All provisions of this Agreement shall so far as they are capable of
being performed or observed continue in full force and effect
notwithstanding Completion except in respect of those matters then
already performed.
11.2 The Parties hereby undertake that this Agreement and the terms set out
herein, shall remain confidential and shall not be disclosed to any
party except to the extent required by law or any regulatory body to
the Existing PTT Shareholders, the Existing Talidan Shareholders and
the respective professional advisers and consultants engaged for the
purposes of the transaction referred to herein. Each the Parties
undertakes, following entry into of this Agreement not to disclose the
contents of Agreement, in whole or in part, to any third person until
such time as the Purchaser and the Seller agree that it is appropriate,
or as circumstances render it necessary to make a public announcement
of the transaction, or subject to any legal or regulatory requirements.
Save to the extent required by law or regulation, any such announcement
is in turn to be agreed between the Purchaser and the Seller.
11.3 Time shall be of the essence of this Agreement as regards any such
time, date or period fixed by this Agreement for the performance of any
obligation by any of the' parties hereto whether as originally fixed or
as altered in any manner provided herein.
11.4 This Agreement (together with all documents which are required by its
terms to be entered into by the parties or any of them) sets out the
entire agreement and understanding between the parties in connection
with the Companies and the sale and purchase and other matters
described in it.
11.5 No purported alteration of this Agreement shall be effective unless it
is in writing, refers specifically to this Agreement and is duly
executed by each party hereto.
11.6 Each provision of this Agreement is severable and distinct from the
others. The parties intend that every such provision shall be and
remain valid and enforceable to the fullest extent permitted by law. If
any such provision is or at any time becomes to any extent invalid,
illegal or unenforceable under any enactment or rule of law, it shall
to that extent be deemed not to form part of this Agreement but (except
to that extent in the case of that provision) it and all other
provisions of this Agreement shall continue in full force and effect
and their validity, legality and enforceability shall not be thereby
affected for impaired, provided that the operation of this clause would
not negate the commercial intent and purpose of the parties under this
Agreement.
11.7 If any provision of this Agreement is illegal or unenforceable as a
result of any time period being stated to endure for a period in excess
of that permitted by a regulatory authority, that provision shall take
effect with a time period that is acceptable to the
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relevant regulatory authorities subject to it not negating the
commercial intent of the parties under this Agreement.
11.8 This Agreement may be entered into in the form of two or more
counterparts each executed by one or more of the parties but, taken
together, executed by all and, provided that all the parties so enter
into the Agreement, each of the executed counterparts, when duly
exchanged or delivered, shall be deemed to be an original, but, taken
together, they shall constitute one instrument.
11.9 Each of the parties shall be responsible for its respective legal and
other costs incurred in relation to the negotiation, preparation and
completion of this Agreement and all ancillary documents.
12. Successors and assigns
12.1 This Agreement shall be binding on and shall enure for the benefit of
the successors in title and personal representatives of each party.
12.2 The benefit of this Agreement (including the Warranties) shall be
freely assignable by either party and, in the event of any such
assignment, all references in this Agreement to either party shall be
deemed to include its assigns.
12.3 The Purchaser hereby consents to the Seller assigning certain of its
rights to Tigan Capital Holdings Limited and others.
13. Applicable law and submission to jurisdiction
This Agreement shall be governed by and construed in accordance with
English law.
IN WITNESS whereof this Agreement has been entered into as a Deed the day and
year first above written.
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Schedule
Warranties of the Purchaser
1. The Purchaser is a public company duly incorporated and validly
existing under the laws of the State of Colorado.
2. The Purchaser has the requisite corporate power and authority under its
Articles of Incorporation to enter into, execute, deliver and perform
its obligations under this Agreement and other documents to be entered
into by it pursuant to this Agreement.
3. The execution and delivery of this Agreement and the other documents to
be entered into by the Purchaser pursuant to this Agreement and the
performance of the Purchaser's obligations under them have been duly
authorized by all necessary corporate action on the part of the
Purchaser (whether under its Articles of Association or otherwise).
4. This Agreement and any other documents to be entered into by the
Purchaser pursuant to this Agreement constitute and the other documents
executed by the Purchaser which are to be delivered at Completion will,
when executed, constitute legal, valid and binding obligations of the
Purchaser in accordance with their respective terms.
5. The execution and delivery of, and the performance by the Purchaser of
its obligations under, any compliance with the provisions of, this
Agreement and other documents to be entered into pursuant to this
Agreement will not result in any breach or violation by the Purchaser
of any provision of its Articles of Incorporation.
6. No consent, authorization, license or approval of the Purchaser's
shareholders or of any governmental, administrative, judicial or
regulatory body, authority or organization is required to authorize the
execution, delivery, validity, enforceability or admissibility in
evidence of this Agreement or other documents to be entered into
pursuant to this Agreement or the performance by the Purchaser of its
obligations under them.
7. The Consideration Securities have been properly issued in accordance
with all applicable regulations.
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EXECUTED AND DELIVERED ) /s/
by TILLER HOLDINGS LIMITED ) -------------------------------
in the presence of: /s/ ) Director
EXECUTED AND DELIVERED )
by CARNEGIE ) /s/ Xxxxxx Xxxxxx
INTERNATIONAL CORPORATION ) -------------------------------
in the presence of: /s/ ) Director
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