EXHIBIT 10.3
DATED FEBRUARY 25, 2005
LOUDEYE CORP.
(as Loudeye)
- and -
THE SEVERAL PERSONS LISTED IN SCHEDULE 1
(as the Former OD2 Shareholders)
---------------------------------------------------
AGREEMENT TO AMEND CERTAIN TERMS OF THE ACQUISITION
OF ON DEMAND DISTRIBUTION LIMITED
---------------------------------------------------
[▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LOGO]
London
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇ (Tel)
▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇ (Fax)
▇▇▇.▇▇.▇▇▇
CONTENTS
Clause Page
------ ----
1. Interpretation............................................................................................1
1.1. Definitions......................................................................................1
1.2. Construction of certain references...............................................................2
2. Effectiveness of Agreement................................................................................3
3. Contingent Consideration..................................................................................3
3.1. Waiver of Right to Contingent Consideration......................................................3
3.2. Cancellation.....................................................................................4
3.3. Settlement of First Cash Payment and Second Cash Payment.........................................4
4. Acceleration of Deferred Consideration....................................................................4
5. Registration Rights.......................................................................................5
6. Lockup....................................................................................................6
7. Release...................................................................................................6
8. Announcements.............................................................................................6
9. Costs.....................................................................................................6
10. Law and jurisdiction and third party rights...............................................................7
10.1. English law......................................................................................7
10.2. Jurisdiction.....................................................................................7
10.3. Contracts (Rights of Third Parties) Act 1999.....................................................7
11. Representations and Warranties of Former OD2 Shareholders.................................................7
12. Notices...................................................................................................7
SCHEDULE 1: Former OD2 Shareholders....................................................................Schedule 1-1
SCHEDULE 2: Warranties of the Former OD2 Shareholders..................................................Schedule 2-1
i
THIS AGREEMENT TO AMEND CERTAIN TERMS OF THE ACQUISITION OF ON DEMAND
DISTRIBUTION LIMITED is made on February 25, 2005
BETWEEN
(1) LOUDEYE CORP. ("LOUDEYE") a Delaware corporation with its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇; and
(2) THE SEVERAL PERSONS LISTED IN SCHEDULE 1 that have either executed this
Agreement on the date hereof or that execute this Agreement after the
date hereof pursuant to Clause 2 of this Agreement (collectively, the
"FORMER OD2 SHAREHOLDERS").
BACKGROUND
(A) Pursuant to an offer document dated 22 June, 2004, Loudeye acquired
100% of the issued share capital of On Demand Distribution Limited
("OD2") from the Former OD2 Shareholders in June 2004 and August 2004
(the "ACQUISITION").
(B) Under the terms of the Acquisition, the Former OD2 Shareholders agreed
to sell their entire interest in the issued share capital of OD2 to
Loudeye in exchange for (i) Loudeye Shares, (ii) the right to receive
four instalments of deferred consideration payable in cash (or in
Loudeye Shares at the election of Loudeye) at specific dates following
completion of the Acquisition ("DEFERRED CONSIDERATION"), and (iii)
contingent upon OD2 achieving certain financial performance targets,
additional instalments of cash (or Loudeye Shares at the election of
Loudeye) in respect of four earn-out periods commencing June 2004 and
ending November 2006 ("CONTINGENT CONSIDERATION").
(C) Loudeye and the Former OD2 Shareholders have agreed to amend the terms
of the Acquisition such that Loudeye shall (i) satisfy its obligation
to make the final two instalment payments of Deferred Consideration
(currently scheduled for May 2005 and November 2005) by issuing Loudeye
Shares to the Former OD2 Shareholders pursuant to this Agreement and
(ii) make two cash payments to the Former OD2 Shareholders in exchange
for the Former OD2 Shareholders' release and waiver of any rights they
may have to receive any Contingent Consideration in the future, in each
case subject to the terms and conditions of this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1. DEFINITIONS
In this Agreement, including the Background and Schedules (which shall
be deemed to be part of and construed as one with this Agreement) the
following terms shall, where the context admits, have the meanings
hereby assigned to them:
"AGREEMENT" means this Agreement to Amend Certain Terms of the
Acquisition of On Demand Distribution Limited;
"AGREEMENT TO AMEND DEED POLL" means the Agreement to Amend Certain
Terms of the Deed Poll of Warranty and Indemnity dated as of the date
hereof between the Company and the Obligors;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for ordinary banking business in London and Seattle,
Washington USA;
1
"CUT-OFF TIME" means 5:00 p.m., Seattle, Washington time on March 7,
2005 or such later time and date as Loudeye may determine in its sole
discretion by providing notice to the Former OD2 Shareholder
Representatives prior to 5:00 p.m., Seattle, Washington time on March
7, 2005, provided that this later time and date shall be no later than
April 6, 2005;
"DEED POLL" means the deed poll of warranty and indemnity made by
certain Former OD2 Shareholders dated 22 June 2004;
"LAW" or "LAWS" means all applicable legislation, statutes, directives,
regulations, judgments, decisions, decrees, orders, instruments,
by-laws, and other legislative measures or decisions having the force
of law, treaties, conventions and other agreements between states, or
between states and the European Union or other supranational bodies,
rules of common law, customary law and equity, all civil and other
codes and all other laws of, or having effect in, any jurisdiction from
time to time and whether before or after the date of this Agreement;
"OBLIGORS" has the meaning given to that term in the Deed Poll;
"OFFER DOCUMENT" means the document dated 22 June, 2004 setting out the
terms of the offer from Loudeye to acquire the entire issued share
capital of OD2; and
"TRANSFER" means, with respect to any Loudeye Shares, any direct or
indirect sale, any offer to sell, any contract to sell (including,
without limitation, any short sale), the grant of any option to
purchase, or any other transfer or disposition of Loudeye Shares, or
the entry into a hedging or other transaction that transfers the
economic consequences of holding the Loudeye Shares.
1.2. CONSTRUCTION OF CERTAIN REFERENCES
In this Agreement, where the context admits:
(A) unless otherwise defined herein, words and phrases the
definitions of which are contained or referred to in the Offer
Document shall have the same meaning in this Agreement;
(B) words and phrases the definitions of which are contained or
referred to in Part XXVI Companies Act 1985 shall be construed
as having the meanings thereby attributed to them;
(C) every reference to a particular statutory provision or other
Law shall be construed also as a reference to all other Laws
made under the Law referred to, and to all such Laws as
amended, re-enacted, consolidated or replaced or as their
application or interpretation is affected by other Laws from
time to time, and whether before or after the date of this
Agreement;
(D) references to Clauses and Schedules are references to clauses
of and schedules to this Agreement and references to this
Agreement include the schedules to this Agreement;
(E) references to the singular shall include the plural and vice
versa and references to the masculine, the feminine and the
neuter shall include each other such gender;
(F) "person" includes any individual, partnership, company, body
corporate, corporation sole or aggregate, state or agency of a
state, and any unincorporated association or organisation, in
each case whether or not having separate legal personality,
and shall include any trade union;
(G) "company" includes any body corporate; and
2
(H) references to the "parties" or to a "party" to this Agreement
shall mean the parties to this Agreement (or any one of them)
including their permitted successors and assigns.
2. EFFECTIVENESS OF AGREEMENT
2.1. Notwithstanding anything in this Agreement to the contrary, no
provision of this Agreement (other than this Clause 2 and Clauses 8, 9,
10, 11, and 12) shall be effective or binding on the parties hereto
unless each Former OD2 Shareholder listed on Schedule 1 hereto either
executes and delivers this Agreement on the date hereof or delivers to
Loudeye (in accordance with the notice provisions of Clause 12) a
validly and fully executed counterpart signature page to this Agreement
on or prior to the Cut-off Time (the "EFFECTIVENESS CONDITION");
provided that Loudeye may waive the Effectiveness Condition with
respect to one or more Former OD2 Shareholders that are not or do not
become parties to this Agreement in its sole discretion by notifying
the Former OD2 Shareholders that are parties to this Agreement (in
accordance with the notice provisions of Clause 12) of its election to
waive the Effectiveness Condition with respect to such Former OD2
Shareholder(s) that are not parties to this Agreement on or prior to
the Cut-off Time. Any Former OD2 Shareholder that delivers a validly
and fully executed counterpart signature page to this Agreement to
Loudeye (which delivery may be made by facsimile transmission in
accordance with Clause 12) on or prior to the Cut-off Time shall become
a party to this Agreement. Prior to the Effective Time, the original
terms of the Offer Document shall continue to apply.
2.2. If the Effectiveness Condition is satisfied or if the Effectiveness
Condition is waived by Loudeye prior to the Cut-off Time, then all
provisions of this Agreement shall automatically become effective and
binding upon Loudeye and each Former OD2 Shareholder that is or becomes
a party to this Agreement (the time at which the Effectiveness
Condition is satisfied or is waived by Loudeye is referred to as the
"EFFECTIVE TIME" and the date on which the Effective Time occurs is
referred to as the "EFFECTIVE DATE"). For the avoidance of doubt, only
Former OD2 Shareholders that have executed and delivered this Agreement
in accordance with the provisions hereof prior to the Cut-Off Time
shall have rights and obligations under this Agreement, and no other
person or entity (including any Former OD2 Shareholders that do not
become parties to this Agreement) shall be a third party beneficiary
hereof.
2.3. In the event the Effectiveness Condition has not been satisfied or
waived by Loudeye on or prior to the Cut-off Time, then this Agreement
shall automatically terminate and become null and void without any
further action required on the part of any of the parties hereto (in
which case the original terms of the Offer Document shall continue to
apply).
3. CONTINGENT CONSIDERATION
3.1. WAIVER OF RIGHT TO CONTINGENT CONSIDERATION
At the Effective Time, each Former OD2 Shareholder hereby surrenders to
Loudeye and agrees to the cancellation of its entire holding of
Contingent Value Rights (as specified opposite such Former OD2
Shareholder's name in column 3 of Schedule 1) and irrevocably waives
its right to any future payments in respect of such Contingent Value
Rights other than the consideration set forth in this Clause 3.1.
In consideration for and conditional upon such surrender and
cancellation, Loudeye undertakes to pay to the applicable Former OD2
Shareholder (i) the amount set forth opposite such Former OD2
Shareholder's name in column 4 of Schedule 1 hereto on or prior to the
date that is two Business Days following the Effective Date ("FIRST
CASH PAYMENT") and (ii) the amount set forth opposite such Former OD2
Shareholder's name in column 5 of Schedule 1 hereto on or prior to 15
July, 2005 (the "SECOND CASH Payment" and, together with the First Cash
Payment, the "CASH
3
PAYMENTS"). In the event that Loudeye fails to pay the First Cash
Payment and/or the Second Cash Payment to any Former OD2 Shareholder
when the same is due, then Loudeye agrees to pay to that Former OD2
Shareholder an amount per month equal to 1% of the amount of the unpaid
portion of the relevant Cash Payment until such time as that Cash
Payment is actually paid, which amount shall be pro-rated for partial
months. The payment of the First Cash Payment and the Second Cash
Payment to the Obligors shall be subject to the terms of the Deed Poll
as amended by the Agreement to Amend Deed Poll.
3.2. CANCELLATION
The surrender of Contingent Value Rights by Former OD2 Shareholders
pursuant to Clause 3.1 and cancellation of all such Contingent Value
Rights will automatically take effect at the Effective Time, will be
irrevocable and unconditional and will not require any further action
on the part of the parties hereto. At the Effective Time, the terms of
Offer Document (including, without limitation, Appendix II thereof)
relating to the Contingent Value Rights, the payment of Additional
Consideration and the issue of Series B Notes and/or Series C Notes
shall terminate and cease to have effect, and each Former OD2
Shareholder agrees that it shall not be entitled to any further
consideration in respect of such Contingent Value Rights other than as
specifically set out in Clause 3.1.
3.3. SETTLEMENT OF FIRST CASH PAYMENT AND SECOND CASH PAYMENT
The First Cash Payment and the Second Cash Payment will each be settled
by check sent to each Former OD2 Shareholder's address specified in
column 2 of Schedule 1 hereto or wire transfer of funds to each Former
OD2 Shareholder's bank account, details of which were provided to
Loudeye on the relevant Former OD2 Shareholder's Form of Acceptance and
Election (or such other account, details of which the relevant Former
OD2 Shareholder shall have notified Loudeye in writing, in relation to
the First Cash Payment, prior to the date of this Agreement and, in
relation to the Second Cash Payment, on or prior to 11 July, 2005).
4. ACCELERATION OF DEFERRED CONSIDERATION
Loudeye and the Former OD2 Shareholders hereby agree and undertake that
if the Effective Time occurs, the final two instalments of Deferred
Consideration referred to at each of paragraphs 2(ii)(b) and 2(ii)(c)
of the Loudeye Letter shall be replaced and extinguished in full by the
issue to each Former OD2 Shareholder of the number of Loudeye Shares
set forth opposite such Former OD2 Shareholder's name in column 6 of
Schedule 1 hereto (the "ACCELERATED CONSIDERATION SHARES"). To the
extent a Former OD2 Shareholder was issued a Series A Note, such Former
OD2 Shareholder agrees that the issue of the Accelerated Consideration
Shares to such Former OD2 Shareholder shall be in full satisfaction of
all remaining obligations of Loudeye under such Former OD2
Shareholder's Series A Note, and each such Former OD2 Shareholder shall
surrender its Series A Note Certificate to Loudeye for cancellation.
The Accelerated Consideration Shares shall be issued within five
Business Days of the Effective Date. For the avoidance of doubt,
Accelerated Consideration Shares shall be considered Loudeye Shares for
purposes of this Agreement and the Offer Document. The issue of the
Accelerated Consideration Shares pursuant to this Clause 4 to the
Obligors shall be subject to the terms of the Deed Poll as amended by
the Agreement to Amend Deed Poll.
Unless Loudeye is notified in writing on or prior to the Effective Date
of a Former OD2 Shareholder's desire to receive a physical share
certificate, all share certificates evidencing Accelerated
Consideration Shares will be issued in electronic book-entry form and
will contain (in electronic format) the legends contemplated by this
Agreement and, if applicable, by the Deed Poll; provided that all
Accelerated Consideration Shares to be held in escrow by Loudeye
pursuant to the
4
terms of the Agreement to Amend Deed Poll and the Deed Poll shall be
issued in physical certificated form and will contain the legends
contemplated by this Agreement and the Deed Poll. Following the date
that a Registration Statement is declared effective by the Commission
with respect to the Accelerated Consideration Shares, if a Former OD2
Shareholder notifies Loudeye in writing that it has sold Accelerated
Consideration Shares in compliance with the Securities Act (and the
prospectus delivery requirements thereof), then Loudeye shall instruct
its transfer agent to remove the restrictive legends from such
Accelerated Consideration Shares (subject, in each case, to such Former
OD2 Shareholder's compliance with Clause 6 hereof and, if applicable,
Schedule 13 of the Deed Poll and Clause 4 of the Agreement to Amend
Deed Poll).
5. REGISTRATION RIGHTS
5.1. Unless otherwise defined herein, terms used in this Clause 5 have the
meaning set forth in Appendix III of the Offer Document.
5.2. Notwithstanding the provisions of Appendix III of the Offer Document,
Loudeye agrees (i) to use commercially reasonable best efforts to
prepare and file with the Commission a Registration Statement on Form
S-1 covering the resale of the Accelerated Consideration Shares on or
before the date that is 45 days after the Effective Date and (ii) to
cause such Registration Statement to become effective on or prior to
the date that is 90 days following the Effective Date if such
Registration Statement is not reviewed by the Commission or the date
that is 120 days following the Effective Date if such Registration
Statement is reviewed by the Commission (the applicable date set forth
in this clause (ii), the "TARGET EFFECTIVENESS DATE"). If such
Registration Statement has not been declared effective on or prior to
the Target Effectiveness Date, then Loudeye agrees to pay to each
Former OD2 Shareholder an amount equal to $0.02 per month per
Accelerated Consideration Share issued to such Former OD2 Shareholder
hereunder and then held by such Former OD2 Shareholder until such
Registration Statement is declared effective, which amount shall be pro
rated for partial months and paid at the end of each month in
accordance with Clause 3.3.
5.3. The parties agree that the definition of "REGISTRABLE SECURITIES" for
the purposes of Appendix III of the Offer Document shall be replaced
with the following definition:
"REGISTRABLE SECURITIES" means the Shares; provided, however, that any
Shares shall cease to be Registrable Securities upon the earliest of
when (i) they have been disposed of pursuant to an effective
Registration Statement, (ii) they have been transferred to any other
Person pursuant to Rule 144, (iii) such Shares shall have ceased to be
outstanding or (iv) March 7, 2006.
5.4. Except as provided in this Clause 5, the terms and conditions of
Appendix III of the Offer Document shall apply to the registration of
the Accelerated Consideration Shares.
6. LOCKUP
In addition to the transfer restrictions applicable to the Accelerated
Loudeye Shares set forth in Schedule 2 hereto and that arise under
applicable securities laws, each Former OD2 Shareholder agrees not to
Transfer fifty percent (50%) of the Accelerated Loudeye Shares issued
to it pursuant to this Agreement (the "LOCKUP SHARES") during the
period commencing on the date hereof and ending on the date that is 180
days following the date of this Agreement (the "LOCKUP EXPIRATION
DATE"). The Lockup Shares will bear appropriate restrictive legends
indicating that they are subject to the provisions of this Clause 6.
5
7. RELEASE
In consideration of the payments being made, Accelerated Loudeye Shares
issued and other rights granted to the Former OD2 Shareholders under
this Agreement, subject to the occurrence of the Effective Time, each
Former OD2 Shareholder hereby irrevocably releases and forever
discharges Loudeye, its officers, directors and employees and each of
its and their affiliates, successors and assigns (collectively,
"RELEASEES"), from any and all claims, demands, proceedings, causes of
action and liabilities whatsoever which any such Former OD2 Shareholder
now has, has ever had or may hereafter have against the respective
Releasees arising out of the timing of the filing and effectiveness of
Registration Statements (and amendments thereto) filed prior to the
date hereof pursuant to Appendix III of the Offer Document.
8. ANNOUNCEMENTS
Loudeye and the Former OD2 Shareholders agree that Loudeye will file
this Agreement (together with a summary thereof) on Form 8-K with the
Securities and Exchange Commission within one Business Day after this
Agreement has been executed and delivered by Loudeye. The Former OD2
Shareholders agree to treat as strictly confidential the provisions of
this Agreement until such time as the Form 8-K referenced in the
preceding sentence has been filed with the Commission.
9. COSTS
9.1. Save as provided in Clause 9.2, each party shall bear its own costs and
expenses arising out of or in connection with the preparation,
negotiation and implementation of this Agreement and the arrangements
contemplated herein.
9.2. If the Effective Time occurs, Loudeye agrees to pay the reasonable
legal costs of legal counsel to Former OD2 Shareholders directly
arising from the negotiation and completion of this Agreement and the
Agreement to Amend Deed Poll up to a maximum amount of Pound
Sterling41,125 (inclusive of VAT, if applicable), conditional upon the
Former OD2 Shareholders consulting with Loudeye regarding the
appointment of legal counsel and providing, in a form reasonably
acceptable to Loudeye, the following information in relation to such
professional costs: (i) a certification from the relevant professional
advisor that the rates charged are their standard rates or better and
that all time incurred in relation to the said costs have been incurred
solely in relation to this Agreement or the Agreement to Amend Deed
Poll; and (ii) where applicable a copy of an invoice which sets out the
fee earners, number of hours worked, narrative of work done and the
hourly rates applicable to the fee earners, and details the total
amount payable by the Former OD2 Shareholders to the relevant
professional advisor.
10. LAW AND JURISDICTION AND THIRD PARTY RIGHTS
10.1. ENGLISH LAW
This Agreement shall be governed by, and construed in accordance with,
English law, except that the provisions of Clause 5 of this Agreement
shall be governed by the laws of the State of Delaware, in each case
without regard to the principles of conflicts of law thereof.
10.2. JURISDICTION
In relation to any legal action or proceedings to enforce the
provisions of this Agreement or arising out of or in connection with
this Agreement ("PROCEEDINGS") each of the parties irrevocably submits
to the non-exclusive jurisdiction of the English courts and waives any
objection to
6
Proceedings in such courts on the grounds of venue or on the grounds
that the Proceedings have been brought in an inappropriate forum.
10.3. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any of its
terms.
11. REPRESENTATIONS AND WARRANTIES OF FORMER OD2 SHAREHOLDERS
Each Former OD2 Shareholder makes the representations, warranties and
undertakings to Loudeye set forth in Schedule 2 hereto.
12. NOTICES
All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed electronic mail, or
facsimile (subject, in the case of a facsimile, to confirmation of
uninterrupted transmission by a transmission report) if sent during
normal business hours of the recipient, or if not sent during normal
business hours of the recipient, then on the next Business Day, or (c)
two (2) days after deposit with an internationally recognized overnight
courier, specifying next day delivery, with written verification of
receipt. All communications shall be sent (i) if to Loudeye, to the
address (or electronic mail address or facsimile number) as set forth
on Loudeye's signature page hereto or to such other address or
electronic mail address or facsimile number as Loudeye may designate by
ten (10) days advance written notice to the other parties hereto and
(ii) if to a Former OD2 Shareholder (including a Former OD2 Shareholder
that becomes a party to this Agreement after the date hereof), to the
address (or electronic mail address or facsimile number) set forth on
Schedule 1 hereto opposite such Former OD2 Shareholder's name or to
such other address or electronic mail address or facsimile number as
any Former OD2 Shareholder may designate by ten (10) days advance
written notice to Loudeye. In addition, the parties agree that any
notice that constitutes a valid notice under this Agreement shall also
constitute a valid notice for all purposes under the Offer Document
(including Appendix 3 thereof).
AS WITNESS the hands of the parties or their duly authorised representatives on
the date first before written have executed this Agreement as a Deed.
7
SCHEDULE 1-11
SCHEDULE 1: FORMER OD2 SHAREHOLDERS
(1) NAME (2) ADDRESS, FAX AND EMAIL (3) NUMBER OF (4) ENTITLEMENT TO (5) ENTITLEMENT TO (6) ACCELERATED
DETAILS CONTINGENT VALUE FIRST CASH PAYMENT SECOND CASH PAYMENT CONSIDERATION
RIGHTS HELD SHARES
------------------------- -------------------------- ------------------ -------------------- --------------------- ---------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ Box Mill
Mill Lane
Box 4,686,909 Pound Pound 634,292
Wiltshire Sterling276,598.98 Sterling276,598.98
▇▇▇▇ ▇▇▇
▇▇
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇.▇▇
------------------------- -------------------------- ------------------ -------------------- --------------------- ----------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Little Court
Grib Lane
Blagdon 3,038,635 Pound Pound 411,227
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,▇▇▇.▇▇ ▇▇▇▇▇▇▇▇▇▇▇,▇▇▇.▇▇
▇▇▇▇ ▇▇▇
▇▇
▇▇@▇▇▇.▇▇▇
0117 9100 151
------------------------- -------------------------- ------------------ -------------------- --------------------- ----------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Little Court
Grib Lane
Blagdon 90,000 Pound Pound 12,179
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,▇▇▇.▇▇ ▇▇▇▇▇▇▇▇▇,▇▇▇.▇▇
▇▇▇▇ ▇▇▇
▇▇
▇.▇.▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇.▇▇
0117 9100 151
Schedule 1-1
(1) NAME (2) ADDRESS, FAX AND EMAIL (3) NUMBER OF (4) ENTITLEMENT TO (5) ENTITLEMENT TO (6) ACCELERATED
DETAILS CONTINGENT VALUE FIRST CASH PAYMENT SECOND CASH PAYMENT CONSIDERATION
RIGHTS HELD SHARES
------------------------------------------------------ -------------------------------------- --------------------- ---------------
Quester VCT 2 plc ▇▇ ▇▇▇▇▇ ▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ 3,754,650 Pound Pound 508,127
UK Sterling221,581.51 Sterling221,581.51
▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇.▇▇
------------------------------------------------------ -------------------------------------- --------------------- ---------------
Quester VCT 3 plc ▇▇ ▇▇▇▇▇ ▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ 3,754,650 Pound Pound 508,127
UK7 Sterling221,581.51 Sterling221,581.51
▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇.▇▇
------------------------------------------------------ -------------------------------------- --------------------- ---------------
Quester VCT 4 plc ▇▇ ▇▇▇▇▇ ▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ 1,407,644 Pound Pound 190,500
UK Sterling83,072.42 Sterling83,072.42
▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇.▇▇
------------------------------------------------------ -------------------------------------- --------------------- ---------------
Quester Venture Partners ▇▇ ▇▇▇▇▇ ▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ 1,481,745 Pound Pound 200,528
UK Sterling87,445.51 Sterling87,445.51
▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇.▇▇
Schedule 1-2
(1) NAME (2) ADDRESS, FAX AND (3) NUMBER OF (4) ENTITLEMENT TO (5) ENTITLEMENT TO (6) ACCELERATED
EMAIL DETAILS CONTINGENT VALUE FIRST CASH PAYMENT SECOND CASH PAYMENT CONSIDERATION
RIGHTS HELD SHARES
----------------------------- ------------------------ ------------------ -------------------- --------------------- ---------------
Investment Enterprise Daiwa Yaesu Buildings
Partnership 'NIF New Tech 1-2-1 Kyobashi
Fund 99A' Chou-ku 275,000 Pound Pound 37,216
Tokyo 104-0031 Sterling16,229.19 Sterling16,229.19
Japan
▇▇▇▇▇▇@▇▇▇.▇▇.▇▇
----------------------------- ------------------------ ------------------ -------------------- --------------------- ---------------
Investment Enterprise Daiwa Yaesu Buildings
Partnership 'NIF New Tech 1-2-1 Kyobashi
Fund 99B' Chou-ku 275,000 Pound Pound 37,216
Tokyo 104-0031 Sterling16,229.19 Sterling16,229.19
Japan
▇▇▇▇▇▇@▇▇▇.▇▇.▇▇
----------------------------- ------------------------ ------------------ -------------------- --------------------- ---------------
Investment Enterprise Daiwa Yaesu Buildings
Partnership 'NIF New Tech 1-2-1 Kyobashi
Fund 2000/01' Chou-ku 650,000 Pound Pound 87,966
Tokyo 104-0031 Sterling38,359.89 Sterling38,359.89
Japan
▇▇▇▇▇▇@▇▇▇.▇▇.▇▇
----------------------------- ------------------------ ------------------ -------------------- --------------------- ---------------
Schedule 1-3
(1) NAME (2) ADDRESS, FAX AND (3) NUMBER OF (4) ENTITLEMENT TO (5) ENTITLEMENT TO (6) ACCELERATED
EMAIL DETAILS CONTINGENT VALUE FIRST CASH PAYMENT SECOND CASH PAYMENT CONSIDERATION
RIGHTS HELD SHARES
----------------------------- ------------------------- ----------------- -------------------- --------------------- ---------------
Investment Enterprise Daiwa Yaesu Buildings
Partnership 'NIF New Tech 1-2-1 Kyobashi
Fund 2000/02' Chou-ku 1,050,787 Pound Pound 142,206
Tokyo 104-0031 Sterling62,012.43 Sterling62,012.43
Japan
▇▇▇▇▇▇@▇▇▇.▇▇.▇▇
----------------------------- ------------------------- ----------------- -------------------- --------------------- ---------------
Investment Enterprise
Partnership "NIF 21-ONE(1)" Daiwa Yaesu Buildings
1-2-1 Kyobashi 400,787 Pound Pound 54,239
Chou-ku Sterling23,652.53 Sterling23,652.53
Tokyo 104-0031
Japan
▇▇▇▇▇▇@▇▇▇.▇▇.▇▇
----------------------------- ------------------------- ----------------- -------------------- --------------------- ---------------
NIF Ventures Co. Ltd Daiwa Yaesu Buildings
1-2-1 Kyobashi
Chou-ku 1,130,657 Pound Pound 153,015
Tokyo 104-0031 Sterling66,725.97 Sterling66,725.97
Japan
▇▇▇▇▇▇@▇▇▇.▇▇.▇▇
----------------------------- ------------------------- ----------------- -------------------- --------------------- ---------------
Schedule 1-4
(1) NAME (2) ADDRESS, FAX AND EMAIL (3) NUMBER OF (4) ENTITLEMENT TO (5) ENTITLEMENT TO (6) ACCELERATED
DETAILS CONTINGENT VALUE FIRST CASH PAYMENT SECOND CASH PAYMENT CONSIDERATION
RIGHTS HELD SHARES
------------------------ ---------------------------- ------------------ -------------------- --------------------- ---------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ 104,563 Pound Pound 14,150
Stanford Sterling6,170.81 Sterling6,170.81
▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
------------------------ ---------------------------- ------------------ -------------------- --------------------- ---------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ 45,463 Pound Pound 6,152
USA Sterling2,683.01 Sterling2,683.01
▇▇▇▇▇@▇▇▇▇-▇-▇▇▇▇.▇▇▇
------------------------ ---------------------------- ------------------ -------------------- --------------------- ---------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ 45,463 Pound Pound 6,152
USA Sterling2,683.01 Sterling2,683.01
▇▇▇▇▇▇▇▇@▇▇▇▇-▇▇▇▇▇▇▇.▇▇▇
------------------------ ---------------------------- ------------------ -------------------- --------------------- ---------------
Schedule 1-5
(1) NAME (2) ADDRESS, FAX AND (3) NUMBER OF (4) ENTITLEMENT TO (5) ENTITLEMENT TO (6) ACCELERATED
EMAIL DETAILS CONTINGENT VALUE FIRST CASH PAYMENT SECOND CASH PAYMENT CONSIDERATION
RIGHTS HELD SHARES
---------------------- -------------------------------- ------------------ -------------------- --------------------- --------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Flat 12
The Grange
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 9,088 Pound Pound Sterling536.33 1,229
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.▇▇
▇▇▇ ▇▇▇
▇▇
▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇.▇▇
---------------------- -------------------------------- ------------------ -------------------- --------------------- -------------
▇▇▇▇ ▇▇▇▇▇▇ The Malt House
Turleigh
Bradford on Avon 33,333 Pound Pound 4,511
Wiltshire Sterling1,967.15 Sterling1,967.15
BA15 2HF
UK
▇▇▇▇.▇▇▇▇▇▇@▇▇.▇▇▇▇▇▇.▇▇▇
---------------------- -------------------------------- ------------------ -------------------- --------------------- -------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Temple Manor
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Warminster 33,333 Pound Pound 4,511
Wiltshire Sterling1,967.15 Sterling1,967.15
BA12 0AQ
UK
▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇▇▇.▇▇▇
---------------------- -------------------------------- ------------------ -------------------- --------------------- -------------
Schedule 1-6
(1) NAME (2) ADDRESS, FAX AND EMAIL (3) NUMBER OF (4) ENTITLEMENT TO (5) ENTITLEMENT TO (6) ACCELERATED
DETAILS CONTINGENT VALUE FIRST CASH PAYMENT SECOND CASH PAYMENT CONSIDERATION
RIGHTS HELD SHARES
------------------------- ----------------------------- ------------------ -------------------- -------------------- ---------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ 33,333 Pound Pound 4,511
▇▇▇ ▇▇▇ Sterling1,967.15 Sterling1,967.15
UK
▇▇▇▇@▇▇▇.▇▇.▇▇
------------------------- ----------------------------- ------------------ -------------------- -------------------- ---------------
WEA International Inc ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
New York 940,275 Pound Pound 127,250
USA Sterling55,490.54 Sterling55,490.54
▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇
------------------------- ----------------------------- ------------------ -------------------- -------------------- ---------------
Edel Music ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 137,925 Pound Pound 18,665
▇▇▇▇▇▇_▇▇▇▇▇@▇▇▇▇.▇▇▇ Sterling8,139.67 Sterling8,139.67
------------------------- ----------------------------- ------------------ -------------------- -------------------- ---------------
RealWorld Records Ltd ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇,▇▇▇ Pound Pound 6,221
Wiltshire Sterling2,713.22 Sterling2,713.22
▇▇▇▇ ▇▇▇
▇▇
▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇.▇▇
------------------------- ----------------------------- ------------------ -------------------- -------------------- ---------------
Schedule 1-7
(1) NAME (2) ADDRESS, FAX AND (3) NUMBER OF (4) ENTITLEMENT TO (5) ENTITLEMENT TO (6) ACCELERATED
EMAIL DETAILS CONTINGENT VALUE FIRST CASH PAYMENT SECOND CASH PAYMENT CONSIDERATION
RIGHTS HELD SHARES
---------------------------- ----------------------------- ----------------- ------------------- ------------------- ---------------
BMG Entertainment Bedford House
International UK & Ireland ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 346,988 Pound Pound 46,958
▇▇▇ ▇▇▇ Sterling20,477.57 Sterling20,477.57
UK
▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
---------------------------- ----------------------------- ----------------- ------------------- ------------------- ---------------
Universal Music ▇ ▇▇ ▇▇▇▇▇'▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ 275,000 Pound Pound 37,216
UK Sterling16,229.19 Sterling16,229.19
▇▇▇▇▇▇.▇▇▇@▇▇▇▇▇▇.▇▇▇
---------------------------- ----------------------------- ----------------- ------------------- ------------------- ---------------
PlayLouder Limited ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇ ▇▇▇ 137,925 Pound Pound 18,665
UK Sterling8,139.67 Sterling8,139.67
▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
---------------------------- ----------------------------- ----------------- ------------------- ------------------- ---------------
Schedule 1-8
(1) NAME (2) ADDRESS, FAX AND (3) NUMBER OF (4) ENTITLEMENT TO (5) ENTITLEMENT TO (6) ACCELERATED
EMAIL DETAILS CONTINGENT VALUE FIRST CASH PAYMENT SECOND CASH PAYMENT CONSIDERATION
RIGHTS HELD SHARES
----------------------------- ------------------------ ----------------- -------------------- --------------------- ---------------
Lamb House
Association of Independent Church St
Music Ltd Chiswick 40,000 Pound Pound 5,413
▇▇▇▇▇▇ ▇▇ ▇▇▇ Sterling2,360.61 Sterling2,360.61
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
---------------------------- ------------------------ ------------------ -------------------- --------------------- ---------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 530,454 Pound Pound 71,787
▇▇▇ ▇▇▇ Sterling31,304.86 Sterling31,304.86
UK
▇▇▇@▇▇▇.▇▇▇
0117 9100 151
----------------------------- ------------------------ ----------------- -------------------- --------------------- ---------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ 519,154 Pound Pound 70,258
▇▇▇▇ ▇▇▇ Sterling30,637.99 Sterling30,637.99
UK
▇▇@▇▇▇.▇▇▇
0117 9100 151
----------------------------- ------------------------ ----------------- -------------------- --------------------- ---------------
Schedule 1-9
(1) NAME (2) ADDRESS, FAX AND (3) NUMBER OF (4) ENTITLEMENT TO (5) ENTITLEMENT TO (6) ACCELERATED
EMAIL DETAILS CONTINGENT VALUE FIRST CASH PAYMENT SECOND CASH PAYMENT CONSIDERATION
RIGHTS HELD SHARES
--------------------- ------------------------- --------------------- -------------------- --------------------- ---------------
▇▇▇▇▇▇ Averdieck ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ 475,655 28,070.89 Pound 64,371
▇▇▇▇ ▇▇▇ Sterling28,070.89
UK
▇▇@▇▇▇.▇▇▇
0117 9100 151
--------------------- ------------------------- --------------------- -------------------- --------------------- ------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ 415,493 Pound Pound 56,229
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,▇▇▇.▇▇ ▇▇▇▇▇▇▇▇▇▇,▇▇▇.▇▇
▇▇▇ ▇▇▇
▇▇
▇▇▇▇.▇▇▇▇@▇▇▇.▇▇.▇▇
0117 9100 151
--------------------- ------------------------- --------------------- -------------------- --------------------- ------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Bettws Hill
Newport 22,688 Pound Pound 3,070
▇▇▇▇ ▇▇▇ Sterling1,338.94 Sterling1,338.94
UK
▇▇▇@▇▇▇.▇▇▇
0117 9100 151
--------------------- ------------------------- --------------------- -------------------- --------------------- ------------------
Schedule 1-10
(1) NAME (2) ADDRESS, FAX AND (3) NUMBER OF (4) ENTITLEMENT TO (5) ENTITLEMENT TO (6) ACCELERATED
EMAIL DETAILS CONTINGENT VALUE FIRST CASH PAYMENT SECOND CASH PAYMENT CONSIDERATION
RIGHTS HELD SHARES
------------------------- --------------------------- ------------------- -------------------- --------------------- ---------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 3 The Regents
Empress Court
Cotford St Luke 62,500 Pound Pound 8,458
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,▇▇▇.▇▇ Sterling3,688.45
Somerset
TA4 1GG
UK
▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇.▇▇
------------------------- --------------------------- ------------------- -------------------- --------------------- ---------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Bristol 9,175 Pound Pound Sterling541.46 1,241
▇▇▇ ▇▇▇ Sterling541.46
UK
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
------------------------- --------------------------- ------------------- -------------------- --------------------- ---------------
▇▇▇ ▇▇▇ ▇▇▇▇ ▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ 4,163 Pound Pound Sterling245.68 ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.▇▇
▇▇ ▇▇▇
▇▇
▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
----------------------------------------------------- =================== ==================== ===================== ===============
TOTALS 26,264,410 POUND POUND 3,554,419
STERLING1,549,999.98 STERLING1,549,999.98
----------------------------------------------------- =================== ==================== ===================== ===============
Schedule 1-11
SCHEDULE 2: WARRANTIES OF THE FORMER OD2 SHAREHOLDERS
Each Former OD2 Shareholder (each, a "WARRANTOR") hereby makes the
following warranties, representations and undertakings to Loudeye:
1. STATUS
Each Warrantor is either:
1.1 an 'accredited investor' as that term is used in Regulation D
of the Securities Act of 1933 of the United States of America
(the "Securities Act"); or
1.2 not a 'U.S. Person' as that term is used in Regulation S of
the Securities Act and is not acquiring the Loudeye Shares,
Contingent Value Rights, Promissory Notes and Exchanged
Options for the account of or on behalf of such a U.S. Person.
Please see paragraphs 12 and 13 below for the definitions of an
'accredited investor' and a 'U.S. Person' respectively.
2. HOLDING FOR OWN ACCOUNT
Each Warrantor confirms that such Warrantor is acquiring the
Accelerated Consideration Shares (collectively, the "SECURITIES") for
such Warrantor's own account, for investment purposes only, and not
with a view toward the resale or distribution thereof, except pursuant
to effective registrations or qualifications relating thereto under the
Securities Act and applicable U.S. state securities or "blue sky" laws
or pursuant to an exemption therefrom.
3. WARRANTOR'S BUSINESS EXPERIENCE
Each Warrantor has such knowledge and experience in financial and
business matters so that such Warrantor is capable of evaluating the
relative merits and risks of an investment in Loudeye. Each Warrantor
has adequate means of providing for its, his or her current economic
needs and possible personal contingencies, has no need for liquidity in
its, his or her investment in Loudeye and is able financially to bear
the risks of such investment.
4. OFFSHORE TRANSACTION
4.1 Each Warrantor agrees that it will not offer or sell or
otherwise transfer or assign the Securities (i) in the United
States or to, or (ii) for the benefit or account of, a U.S.
Person, until one year after the date of that the Securities
are issued, in each case other than pursuant to registration
under the Securities Act, Regulation S or another available
exemption from the registration requirements of the Securities
Act. Each Warrantor also agrees that, during the one year
period following the date the Securities are issued, it will
require any purchaser of Securities (other than Securities
that are covered by and sold pursuant to an effective
Registration Statement) to certify to Loudeye either that:
(A) it is not a U.S. Person and its is not acquiring the
Securities for the account or benefit of a U.S.
Person; or
(B) it is acquiring the Securities in a transaction not
requiring registration under the Securities Act.
4.2 Each Warrantor agrees that it will not engage in hedging
transactions with regard to the Securities unless in
compliance with the Securities Act.
Schedule 2-1
5. UNREGISTERED SECURITIES; REGISTRATION RIGHTS
Each Warrantor understands that:
5.1 the Securities will not have been registered under the
Securities Act or the securities laws of any state or other
jurisdiction in reliance upon exemptions from such
registration requirements for non-public offerings; and
5.2 the Securities may not be sold, pledged or otherwise
transferred except pursuant to effective registration
statements under the Securities Act and qualification under
applicable state securities or blue sky laws or pursuant to an
exemption therefrom.
6. LEGENDS
Each Warrantor understands that the Securities and any securities
issued in respect of or in exchange for the Securities, will bear the
following legend (or a legend with similar effect) and that all
transfers of shares of such Securities must satisfy the provisions of
such legend (which legends may be in electronic format, at the request
of a Warrantor):
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE
AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, REGULATION S PROMULGATED UNDER THE
ACT OR ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES OR
BLUE SKY LAWS AND, IN THE CASE OF A TRANSACTION NOT SUBJECT TO
SUCH REGISTRATION REQUIREMENTS, UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT
THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE
ACT. HEDGING TRANSACTIONS INVOLVING THE SHARES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH THE ACT.
7. STOP TRANSFER INSTRUCTIONS
Each Warrantor agrees that, in order to ensure compliance with the
transfer restrictions described in Schedule 2 and Clause 6 of this
Agreement, Loudeye will issue appropriate 'stop transfer' instructions
to its transfer agent.
8. No Requirement to Transfer
Loudeye shall not be required:
8.1 to transfer or have transferred on its books any Securities
that have been sold or otherwise transferred in violation of
any of the provisions of this Agreement; or
8.2 to treat as owner of such Securities or to accord the right to
vote or pay dividends to any purchaser or other transferee to
whom such Securities shall have been so transferred in
violation of any provision of this Agreement.
9. NO PUBLIC SOLICITATION
Each Warrantor represents that at no time was such Warrantor presented
with or solicited by any general mailing, leaflet, public promotional
meeting, newspaper or magazine article, radio or television
advertisement, or any other form of general advertising or general
solicitation in connection with the transactions contemplated by this
Agreement.
Schedule 2-2
10. PRINCIPAL RESIDENCE OR PRINCIPAL PLACE OF BUSINESS
The address shown after each Warrantor's name in Schedule 1 to this
Agreement is such Warrantor's principal residence if such Warrantor is
an individual or such Warrantor's principal place of business if it is
an entity.
11. CONSULTATION WITH LEGAL ADVISOR
Each Warrantor has carefully read this Agreement and, to the extent
such Warrantor believes necessary, has discussed with such Warrantor's
legal advisors the representations, warranties and agreements that such
Warrantor makes herein and the applicable limitations upon such
Warrantor's resale of the Securities.
12. DEFINITIONS OF ACCREDITED INVESTOR
An "accredited investor" means:
12.1 any natural person (i) whose individual net worth, or joint
net worth with such person's spouse, will at the time of
receipt of the Accelerated Consideration Shares exceed
$1,000,000, or (ii) who had an individual income in excess of
$200,000 in each of the two most recent years or joint income
with such person's spouse in excess of $300,000 in each of
those years and has a reasonable expectation of reaching the
same income level in the current year;
12.2 a corporation, partnership, limited liability company or other
legal entity with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Accelerated
Consideration Shares; or
12.3 an entity all of the equity owners of which are as specified
in clause 12.1 or 12.2 or above.
13. DEFINITION OF U.S. PERSON
A "U.S. person" means:
13.1 any natural person resident in the United States;
13.2 any partnership or corporation organized or incorporated under
the laws of the United States;
13.3 any estate of which any executor or administrator is a U.S.
person;
13.4 any trust of which any trustee is a U.S. person;
13.5 any agency or branch of a foreign entity located in the United
States;
13.6 any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for
the benefit or account of a U.S. person;
13.7 any discretionary account or similar account (other than an
estate or trust) held by a dealer or other fiduciary
organized, incorporated, or (if an individual) resident in the
United States; and
13.8 any partnership or corporation if:
(A) organised or incorporated under the laws of any
foreign jurisdiction; and
(B) formed by a U.S. person principally for the purpose
of investing in securities not registered under the
Act, unless it is organized or incorporated, and
owned, by accredited investors (as defined in Section
230.501(a)) who are not natural persons, estates or
trusts.
Schedule 2-3
The following are not "U.S. persons":
13.9 any discretionary account or similar account (other than an
estate or trust) held for the benefit or account of a non-U.S.
person by a dealer or other professional fiduciary organized,
incorporated, or (if an individual) resident in the United
States;
13.10 any estate of which any professional fiduciary acting as
executor or administrator is a U.S. person if:
(A) An executor or administrator of the estate who is not
a U.S. person has sole or shared investment
discretion with respect to the assets of the estate;
and
(B) The estate is governed by foreign law;
13.11 any trust of which any professional fiduciary acting as
trustee is a U.S. person, if a trustee who is not a U.S.
person has sole or shared investment discretion with respect
to the trust assets, and no beneficiary of the trust (and no
settlor if the trust is revocable) is a U.S. person;
13.12 any employee benefit plan established and administered in
accordance with the law of a country other than the United
States and customary practices and documentation of such
country;
13.13 any agency or branch of a U.S. person located outside the
United States if:
(A) the agency or branch operates for valid business
reasons; and
(B) the agency or branch is engaged in the business of
insurance or banking and is subject to substantive
insurance or banking regulation, respectively, in the
jurisdiction where located; and
13.14 The International Monetary Fund, the International Bank for
Reconstruction and Development, the Inter-American Development
Bank, the Asian Development Bank, the African Development
Bank, the United Nations, and their agencies, affiliates and
pension plans, and any other similar international
organizations, their agencies, affiliates and pension plans.
Schedule 2-4
Executed as a Deed by )
LOUDEYE CORP )
Acting by: )
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Authorised signatory
SIGNED AS A DEED by ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
in the presence of:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by
QUESTER CAPITAL MANAGEMENT LIMITED
in its capacity as manager of
QUESTER VENTURE PARTNERSHIP LLP
acting by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
, a director and ....................
/s/ ▇.▇. ▇▇▇▇▇▇▇▇
, a director ....................
S-1
SIGNED AS A DEED by
Quester VCT2 plc acting by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
, a director and ....................
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
, secretary ....................
SIGNED AS A DEED by
Quester VCT3 plc acting by
/s/ ▇.▇. ▇▇▇▇▇▇
, a director and ....................
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
, secretary ....................
SIGNED AS A DEED by
Quester VCT4 plc acting by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
, a director and ....................
/s/ ▇.▇. ▇▇▇▇▇▇▇▇
, secretary ....................
SIGNED AS A DEED by
Investment Enterprise Partnership 'NIF New
Technology Fund 99A' acting by
in the presence of:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
.............................................. ......................
Name: Authorised signatory
Address:
Occupation:
SIGNED AS A DEED by
Investment Enterprise Partnership 'NIF New /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Technology Fund 99B' acting by ......................
Authorised signatory
in the presence of:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
..............................................
Name:
Address:
Occupation:
S-2
SIGNED AS A DEED by
Investment Enterprise Partnership 'NIF New /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Technology Fund 2000/01' acting by ......................
Authorised signatory
in the presence of:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by
Investment Enterprise Partnership 'NIF New /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Technology Fund 2000/02' acting by ......................
Authorised signatory
in the presence of:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
NIF Ventures Co. Limited acting by ......................
Authorised signatory
in the presence of:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by
Investment Enterprise Partnership 'NIF New /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Technology Fund NIF 21-One(1)' acting by ......................
Authorised signatory
in the presence of:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
..............................................
Name:
Address:
Occupation
S-3
SIGNED AS A DEED by ▇▇▇▇ ▇▇▇▇▇▇▇ .....................
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by ▇▇▇▇▇ ▇▇▇▇▇▇ .....................
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
.....................
in the presence of:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ .....................
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by ▇▇▇▇ ▇▇▇▇▇▇ ....................
in the presence of:
..............................................
Name:
Address:
Occupation:
S-4
SIGNED AS A DEED by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ....................
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ....................
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by WEA International Inc
acting by
....................
Authorised signatory
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by Edel Music AG
acting by
....................
Authorised signatory
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by RealWorld Records Ltd
/s/ ▇▇▇▇▇▇▇ Large
acting by ....................
, a director and
/s/ ▇▇▇▇▇ ▇▇▇▇
....................
, secretary
S-5
SIGNED AS A DEED by BMG Entertainment
International UK & Ireland Limited
acting by ....................
, a director and
....................
, a director/secretary
SIGNED AS A DEED by PlayLouder Limited
....................
acting by
....................
, a director and
, a director/secretary
SIGNED AS A DEED by the Association of Independent
Music Limited
....................
acting by
....................
, a director and
, a director/secretary
SIGNED AS A DEED by ▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of:
..............................................
Name:
Address:
Occupation:
S-6
SIGNED AS A DEED by ▇▇▇▇▇▇ Averdieck /s/ ▇▇▇▇▇▇ Averdieck
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ....................
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ....................
in the presence of:
..............................................
Name:
Address:
Occupation:
S-7
SIGNED AS A DEED by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ....................
in the presence of:
..............................................
Name:
Address:
Occupation:
SIGNED AS A DEED by ▇▇▇ ▇▇▇ ....................
in the presence of:
..............................................
Name:
Address:
Occupation:
S-8
