Exhibit 2.1
-----------
Dated 17 January 2001
SHARE PURCHASE AGREEMENT
BY AND BETWEEN
ACT TELECONFERENCING, INC.
AND
XXXXX X. XXXXXX & OTHERS
For Acquisition of 10,000 Shares of
ACT Teleconferencing Limited
Faegre Benson Xxxxxx Xxxxxx
0 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
TABLE OF CONTENTS
Page
ARTICLE I THE PURCHASE AND SALE OF THE SHARES........................... 1
Section 1.1 General.................................................. 1
Section 1.2 Purchase Price........................................... 1
Section 1.3 Payment of Purchase Price................................ 1
Section 1.4 Waiver of Pre-emption Rights............................. 2
ARTICLE II COMPLETION................................................... 2
Section 2.1 Place of Completion...................................... 2
Section 2.2 Date..................................................... 2
Section 2.3 Completion............................................... 2
Section 2.4 Shareholders' Agreement.................................. 2
ARTICLE III WARRANTIES OF VENDORS....................................... 2
Section 4.1 Title.................................................... 2
Section 4.2 Authority................................................ 2
Section 4.3 Ordinary Course.......................................... 2
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER...................... 3
Section 4.1 Organization............................................. 3
Section 4.2 Authorization; Non-Contravention; Approvals.............. 3
Section 4.3 Validity of Notes........................................ 3
Section 4.4 Financial Statements and SEC Filings..................... 3
Section 4.5 Material Events.......................................... 3
Section 4.6 Issuance of Shares....................................... 4
Section 4.7 Full Disclosure.......................................... 4
Section 4.8 Rule 144 Reporting....................................... 4
ARTICLE V INVESTMENT INTENT............................................. 4
ARTICLE VI ITEMS TO BE DELIVERED AT COMPLETION.......................... 5
Section 6.1 Completion Obligations................................... 5
ARTICLE VII VALUATION AND DELIVERY OF SHARES OF ACT COMMON STOCK........ 5
Section 7.1 Valuation................................................ 5
Section 7.2 Restricted Securities.................................... 5
Section 7.3 Legend................................................... 5
Section 7.4 Restrictions on Transfer................................. 6
Section 7.5 Permitted Transfers...................................... 6
Section 7.6 Piggy-Back Rights........................................ 6
ARTICLE VIII DIVIDEND................................................... 7
Section 8.1 Dividend................................................. 7
ARTICLE IX OTHER PROVISIONS............................................. 7
Section 9.1 Expenses; Transfer Taxes................................. 7
Section 9.2 Assignment............................................... 7
Section 9.3 Further Assurances....................................... 7
Section 9.5 Non-Disclosure........................................... 7
Section 9.6 Notices.................................................. 8
Section 9.7 Headings, Table of Contents and Interpretation........... 8
Section 9.8 Governing Law............................................ 9
Section 9.10 Waiver of Provisions..................................... 9
Section 9.11 Counterparts............................................. 9
Section 9.12 Entire Agreement......................................... 9
Section 9.13 Severability............................................. 9
Section 9.14 Joint and Several Liability.............................. 9
Section 9.15 Contracts (Rights of Third Parties) Act 1999............. 9
i
schedules
Schedule 1 - Vendors and Holden Shares
Schedule 6.1 - Completion formalities
EXHIBITS
--------
Exhibit A - Short term secured notes in the principal amount of
(Pounds)1,172,000 and secured loan notes in the principal
amount of (Pounds)2,980,000
Exhibit B - Regulation S Investment Agreement
Exhibit C - Mortgage of Shares in ACT-Ltd
Exhibit D - Variation of D Holden Service Agreement
Exhibit E - Bank Guarantee
Exhibit F - Buyer's Certificate
Exhibit G - Escrow Agreement
ii
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (the "Agreement") is made as of the 17/th/
day of January 2001, by and between ACT Teleconferencing, Inc., a Colorado
corporation ("Buyer"), and the persons whose names and addresses are set out in
column (1) of Schedule 1 (together the "Vendors" and individually a "Vendor").
WHEREAS, Vendors are the legal and beneficial owners of 10,000 ordinary
(Pounds)1 shares in the proportions set out against their respective names in
column (2) of Schedule 1 (the "Holden Shares"), representing 40 percent of the
issued share capital of ACT Teleconferencing Limited, a private company
incorporated under the laws of England and Wales with registered number 2707124
and whose registered office is at 0 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX("XXX-Xxx");
WHEREAS, Vendors desire to sell the Holden Shares to Buyer and Buyer
desires to purchase the Holden Shares from Vendors, all on the terms and subject
to the conditions set forth herein (the "Transaction");
WHEREAS, Buyer is the beneficial owner of 15,000 ordinary (Pounds)1 shares,
representing 60 percent of the issued share capital of ACT-Ltd;
IT IS AGREED as follows:
ARTICLE I
THE PURCHASE AND SALE OF THE SHARES
Section 1.1 General. Upon the terms and subject to the conditions of this
Agreement, Vendors hereby agree to sell to Buyer with full title guarantee all
the legal and beneficial interest in and free from all liens, charges and
encumbrances and Buyer in reliance on the warranties contained in Article III
hereby agrees to purchase the Holden Shares.
Section 1.2 Purchase Price. The consideration for the sale to Buyer of the
Holden Shares shall be the sum of (Pounds)6,450,000 (the "Purchase Price").
Section 1.3 Payment of Purchase Price. The Purchase Price shall be
satisfied at Completion (as defined in Article II), as follows:
(a) Buyer shall pay to the Vendors (Pounds)28,000 in cash, by
way of electronic transfer for following day value and apportioned
between the Vendors as set out opposite their respective names in
Schedule 1, column (3);
(b) Buyer shall deliver to Vendors short term secured notes in
the form of Exhibit A hereto (the "Short Term Notes") in the principal
amount of (Pounds)1,172,000, and apportioned between them as set out
opposite their respective names in Schedule 1, column (4);
(c) Buyer shall deliver to Vendors secured loan notes in the
principal amount of (Pounds)2,980,000 in the form of Exhibit A (the
"Loan Notes") and apportioned between them as set out opposite their
respective names in Schedule 1, column (5);
(d) Buyer shall deliver to Vendors such number of shares of
ACT Teleconferencing, Inc. Common Stock, no par value (the "ACT Common
Stock"), as is set out opposite their respective names in Schedule 1,
column (6) in the value of the U.S. dollar equivalent
(Pounds)1,920,000 (as determined in Article VII as at Completion); and
(e) Buyer shall pay to Xxxxx Xxxxxx (Pounds)350,000 in cash,
by way of electronic transfer for following day value in consideration
for him
entering into the Deed of Variation of his Service Agreement in the
form set out at Exhibit D
Section 1.4 Waiver of Pre-emption Rights. Each of the Vendors waives any
pre-emption rights he or she may have in relation to any of the Holden Shares
whether under the articles of association of ACT-Ltd. or otherwise.
ARTICLE II
COMPLETION
Section 2.1 Place of Completion. The sale and purchase of the Holden
Shares described in Article I hereof and the other transactions contemplated by
this Agreement (the "Completion") shall take place at the offices of Faegre
Benson Xxxxxx Xxxxxx (the "Buyer's Solicitors") a multinational partnership, 0
Xxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX Xxxxxxx immediately after the signature of the
Agreement at 4:00 p.m., local time, on January 17, 2000, or such other time and
date as Vendors and Buyer may mutually agree.
Section 2.2 Date. The date on which Completion occurs shall be referred to
in this Agreement as the "Completion Date."
Section 2.3 Completion. On Completion the parties shall comply with the
respective obligations under Article VI.
Section 2.4 Shareholders' Agreement. For the avoidance of doubt the
shareholders' agreement dated 10 April 1992 made between the Buyer, Xxxxx Xxxxxx
and ACT-Ltd shall terminate and cease to have any effect as at Completion.
ARTICLE III
WARRANTIES OF VENDORS
Vendors warrant to Buyer as follows:
Section 4.1 Title. There is no option, right of pre-emption, right to
acquire, mortgage, charge, pledge, lien or other form of security or encumbrance
on, over or affecting any of the Holden Shares nor is there any commitment to
give or create any of the foregoing, and no person has claimed to be entitled to
any of the foregoing.
Section 4.2 Authority. Vendors have the requisite power and authority to
enter into and perform this Agreement and any other agreement or instrument
ancillary hereto to which they or any of them are a party and all such
agreements and instruments will, when executed, constitute binding obligations
on Vendors in accordance with their respective terms.
Section 4.3 Ordinary Course. Xxxxx Xxxxxx warrants and undertakes that he
has not in his capacity as a director of ACT-Ltd entered into or committed ACT-
Ltd to any binding obligation which is outside the ordinary course of the
business of ACT-Ltd which has not been authorised by the board of directors of
ACT-Ltd or disclosed to such board or otherwise properly reflected in the books
and records of ACT-Ltd.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer warrants to Vendors as follows:
Section 4.1 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado, and is
duly authorized and qualified under all applicable laws, regulations, and
ordinances of public authorities to carry on its business in the places and in
the manner now conducted.
Section 4.2 Authorization; Non-Contravention; Approvals. Buyer has the
full legal right, power and authority to enter into this Agreement and to effect
the Transaction. The execution, delivery
2
and performance of this Agreement have been approved by the board of directors
of Buyer. No additional corporate proceedings on the part of Buyer are necessary
to authorize the execution and delivery of this Agreement and the consummation
by Buyer of the Transaction. This Agreement has been duly and validly executed
and delivered by Buyer, and, assuming the due authorization, execution and
delivery by Vendors, constitutes a valid and binding agreement of Buyer,
enforceable against Buyer in accordance with its terms.
Section 4.3 Validity of Notes. The Short Term Notes and Loan Notes have
been duly and validly authorized and when issued delivered and sold in
accordance with this Agreement will have been duly and validly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance
with their terms, except as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws or equitable
principles affecting the enforcement of creditors' rights generally.
Section 4.4 Financial Statements and SEC Filings. Buyer has delivered to
Vendors true and complete copies of (i) its annual report on Form 10-K for year
ended December 31, 1999; (ii) its quarterly reports on Form 10-Q for its fiscal
quarters ended March 31, June 30 and September 30, 2000; (iii) its proxy
statements relating to all meetings of the shareholders of Company held since
January 1, 2000; (iv) all of its other reports filed with the Securities and
Exchange Commission ("SEC") since January 1, 2000 and (v) registration
statements filed with the SEC since January 1, 2000. The reports and statements
so delivered are referred to collectively in this Agreement as the "Buyer SEC
Filings." As of their respective dates, the Buyer SEC Filings (including all
exhibits and schedules thereto and documents incorporated by reference therein)
did not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading. The audited financial
statements and unaudited interim financial statements of Buyer included or
incorporated by reference in the Buyer SEC Filings (i) have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved (except as may be indicated in the notes
thereto); (ii) complied as of their respective dates in all material respects
with applicable accounting requirements and the published rules and regulations
of the SEC with respect thereto; and (iii) fairly present, in all material
respects, the financial position of Buyer as of the dates thereof and the income
and cash flows for the periods then ended (subject, in the case of any unaudited
interim financial statements, to normal year-end adjustments).
Section 4.5 Material Events. Except as disclosed in the Buyer SEC Filings,
and except as expressly contemplated by this Agreement, since the date of the
most recent audited financial statements including in the Buyer SEC Filings
there has not been any event, occurrence or development of a state of
circumstances or facts which has had a material adverse effect on the
operations, results of operations, assets or financial condition of Buyer's
business, taken as a whole.
Section 4.6 Issuance of Shares. The shares to be issued pursuant to this
Agreement are duly authorized and, when issued in accordance with the terms
hereof, shall be validly issued, fully paid and non-assessable.
Section 4.7 Full Disclosure. No representation or warranty of Buyer
contained in this Agreement contains an untrue statement of material fact or, to
the knowledge of Buyer, omits to state a material fact required to be stated
therein or necessary to make the statements made, in the context in which made,
not false or misleading in any material respect when made.
Section 4.8 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission that may permit the
sale of the ACT Common Stock to the public without registration, the Buyer
agrees to use its best efforts to:
(a) Make and keep public information regarding the Buyer available
as those terms are understood and defined in Rule 144 under the 1933 Act (as
defined below), at all times;
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the Securities Exchange
Act of 1934 (the "1934 Act");
(c) So long as a Vendor owns any ACT Common Stock, furnish to the
Vendor forthwith upon written request a written statement by the Company as to
its compliance with the reporting
3
requirements of Rule 144, and of the 1933 Act and the 1934 Act (at any time
after it has become subject to such reporting requirements), a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed as a Vendor may reasonably request in availing itself of any
rule or regulation of the Commission allowing a Vendor to sell any such
securities without registration.
ARTICLE V
INVESTMENT INTENT
Vendors warrant and acknowledge that:
(a) Vendors are not acquiring any of the ACT Common Stock for
the purpose of immediate resale or disposition in any manner as would
require registration of the sale of such shares hereunder pursuant to
Section 5 of the US Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder (the "1933 Act") or any
applicable state securities law, and Vendors acknowledge that such
shares may not be resold in the absence of registration, or the
availability of an exemption from registration, under the 1933 Act or
any applicable state securities laws; and
(b) Each of the Vendors either (i) qualifies as an
"Accredited Investor" within the meaning of Rule 501(a) promulgated by
the SEC under the 1933 Act or (ii) if not an accredited investor,
either alone or with the Vendors' purchaser representative(s) has such
knowledge and experience in financial and business matters that the
Vendors are capable of evaluating the merits and risks of the
investment;
(c) Vendors are properly able to evaluate the business,
history, prospects and capital structure of Buyer and the risks
inherent in ownership of ACT Common Stock; and
(d) Vendors acknowledge that the issuance of ACT Common Stock
to Vendors is structured and intended to be exempt from registration
under the 1933 Act under Regulation D and/or Regulation S, promulgated
under the 1933 Act.
ARTICLE VI
ITEMS TO BE DELIVERED AT COMPLETION
Section 6.1 Completion Obligations. At Completion:-
(i) Vendors shall deliver or procure to be delivered to Buyer
those items set out in Paragraph 1 of Schedule 6.1;
(ii) Vendors shall procure that those matters specified in
Paragraph 2 of Schedule 6.1 are effected at or with
effect from Completion;
(iii) Buyer shall deliver or procure to be delivered to Vendors
or to Nabarro Xxxxxxxxx, of The Anchorage, 00 Xxxxxx
Xxxxxx, Xxxxxxx, XX0 0XX (the "Vendors' Solicitors") who
shall receive the same as agent for Vendors or any of
them (as the case may be) whose receipt shall be an
absolute discharge of Buyer and shall be binding upon and
conclusive against each of the Vendors, those items set
out in Paragraph 3 of Schedule 6.1.
ARTICLE VII
VALUATION AND DELIVERY OF SHARES OF ACT COMMON STOCK
Section 7.1 Valuation. For the purpose of computing the U.S. dollar value
of the (Pounds)1,920,000 referred to in Section 1.3(d), that sterling figure
shall be multiplied by an agreed GB Pounds sterling - U.S. dollar exchange rate
of US$1.50. For the purpose of computing the number of Shares of ACT Common
Stock to be delivered by the Buyer to the Vendors on the Completion Date in
accordance with Section 1.3
4
(d) hereof, the value of each Share of ACT Common Stock shall be assessed for
the purpose of this Agreement as being US$ 8.00 per share. Consequently, 360,000
Shares of ACT Common Stock shall be issued to Vendors on Completion.
Section 7.2 Restricted Securities. Vendors acknowledge that the ACT Common
Stock will constitute "restricted securities" as defined under Rule 144 of the
Securities Act of 1933, namely, they will not be offered or issued in a
transaction that was registered with the Securities and Exchange Commission
("SEC") under the Securities Act of 1933.
Section 7.3 Legend. Vendors acknowledge that the certificate or
certificates representing Shares of ACT Common Stock will bear a legend to the
following effect:
THE SECURITIES WHICH ARE THE SUBJECT OF THIS INVESTMENT
AGREEMENT HAVE BEEN ISSUED IN A TRANSACTION WHICH WAS NOT
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, IN RELIANCE ON AN EXEMPTION FROM
SUCH REGISTRATION REQUIREMENTS, AND MAY NOT BE OFFERED, SOLD,
OR PLEDGED IN THE UNITED STATES OR TO U.S. PERSONS (AS THAT
TERM IS DEFINED IN REGULATION S UNDER THE SECURITIES ACT)
UNLESS THE OFFER, SALE, OR PLEDGE IS REGISTERED UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT AND SUCH STATE SECURITIES LAWS IS AVAILABLE.
Section 7.4 Restrictions on Transfer. So as to maintain an orderly market
in ACT Common Stock, Vendors agree to the following restrictions on the sale,
transfer or other disposition of the shares of ACT Common Stock issued to them
pursuant to this Agreement without the prior written consent of Buyer
(concurrent with the one year restriction imposed by U.S. securities laws):
(a) two years from Completion on 33.3 percent of such shares;
(b) three years from Completion on 33.3 percent of such shares; and
(c) four years from Completion on 33.4 percent of such shares.
Section 7.5 Permitted Transfers. Notwithstanding Section 7.4 and provided
always that the proposed transfer does not infringe any applicable US securities
laws, Buyer will not unreasonably withhold or delay its consent to the transfer
of any shares of ACT Common Stock by any of the Vendors to a Permitted
Transferee. For these purposes, a "Permitted Transferee" means:-
(i) the husband or wife of such Vendor and all the lineal descendants and
ascendants in direct line of such Vendor and the brothers and sisters of
such Vendor and their lineal descendants (a "Family Member"); or
(ii) the trustee(s) of a trust under which no immediate beneficial interest in
any of the shares in question is at any time during the relevant
restriction periods under Section 7.4 to be vested in any person other
than that Vendor and/or a Family Member of that Vendor (a "Family
Trust");
(iii) a company which is and is to remain during the relevant restriction
periods under Section 7.4 controlled (as such expression is defined under
Section 416 of the Income & Corporation Taxes Act 1988) by a Family
Member or the trustee(s) of a Family Trust; or
(iv) any third party with whom any of the Vendors wishes to enter into any
hedging transaction in relation to any of their shares of ACT Common
Stock.
5
Section 7.6 Piggy-Back Rights. Subject always to the foregoing provisions
of this Article VII Vendors shall have "piggy-back" rights in relation to their
shares of ACT Common Stock in respect of any underwritten public offering of ACT
Common Stock (other than offerings in connection with stock options and/or
benefit plans) and subject always to any limitations imposed by the underwriter
to such offerings at the underwriter's discretion.
ARTICLE VIII
DIVIDEND
Section 8.1 Dividend. The Parties acknowledge that a pre-sale dividend of
(Pounds)5.74 per share amounting to (Pounds)143,500 has been declared and
payment arrangements made resulting in a dividend payable to Mr Xxxxx Xxxxxx of
(Pounds)57,400 and to Buyer of (Pounds)86,100 (the "Pre-Sale Dividend").
Immediately following Completion, the parties shall procure that a meeting of
the board of directors of ACT-Ltd is held at which the directors shall resolve
to declare and pay a post-sale dividend of (Pounds)43.26 a share to Buyer
amounting to (Pounds)1,081,500 in total in respect of the 25,000 ordinary shares
of (Pounds)1 each in ACT-Ltd beneficially owned by Buyer (the "Post Sale
Dividend"). Buyer hereby acknowledges receipt of (Pounds)750,000 which has been
remitted by ACT-Ltd by bank transfer to Buyer's account with Barclays Bank Plc,
Reading and (Pounds)410,250 which has been remitted by ACT-Ltd by bank transfer
to Buyer's Solicitors client account, in part satisfaction of its entitlement to
Pre-Sale Dividend and Post-Sale Dividend and confirms that the balance of the
Pre-Sale dividend and the Post-Sale Dividend due to it of (Pounds)7,350 should
remain with ACT-Ltd until payment is demanded by Buyer. Buyer hereby authorises
Buyer's Solicitors to remit from the sum of (Pounds)410,250 and any further
amounts held by them on their client account on Buyer's behalf,:-
8.1.1 (Pounds)28,000 to Vendors' Solicitors by bank transfer in
satisfaction of Buyer's payment obligations under Section
1.3(a); and
8.1.2 (Pounds)350,000 to Vendors' Solicitors by bank transfer in
satisfaction of Buyer's payment obligations under Section
1.3(e); and
8.1.3 (Pounds)32,260 to the Stamp Office for the purpose of stamping
the transfers of the shares in ACT-Ltd acquired by Buyer under
this Agreement
ARTICLE IX
OTHER PROVISIONS
Section 9.1 Expenses; Transfer Taxes. Each of the parties shall pay its
own legal, accountancy and other professional or brokerage costs, charges and
expenses connected with the negotiation, preparation and implementation of this
Agreement and any agreements entered into in connection therewith.
Section 9.2 Assignment. The rights created by this Agreement shall inure
to the benefit of, and the obligations created hereby shall be binding upon, the
successors, heirs and permitted assigns of the respective parties hereto. This
Agreement and any rights or obligations thereunder may not be assigned or
transferred by Buyer or Vendors in whole or in part without the prior written
consent of the other party hereto.
Section 9.3 Further Assurances. Each party hereto will execute and deliver
all such instruments and take all such actions as are called for by this
Agreement, and all such instruments and actions that the other party shall
reasonably request in connection with carrying out and effecting the intent and
purpose hereof and all transactions and undertakings contemplated by this
Agreement, including, without limitation, the execution and delivery of any and
all reasonably necessary confirmatory documents and other instruments in
addition to those to be delivered on Completion Date, and any and all actions
which may reasonably be necessary to complete the transactions contemplated
hereby.
Section 9.5 Non-Disclosure. Buyer and Vendors shall each refrain from
disclosing (and shall prevent each person under such party's control from
disclosing) to anyone (other than Buyer, Vendors and (as applicable) their
respective shareholders, directors, officers, solicitors, attorneys, and
accountants) this Agreement or any term or provision hereof, except that each
party may make such disclosure (if any) (i) to
6
which each other party hereto has consented in writing (such consent not to be
unreasonably withheld or delayed), (ii) that is required by law or (iii) that is
reasonably necessary in order to enforce this Agreement.
Section 9.6 Notices. Any notices to be served hereunder shall be deemed
sufficiently given by one party to another only if in writing and if and when
delivered or tendered by personal delivery or as of five business days after
deposit by Buyer in the United States Mail or as of two business days after
sending by Vendors or Buyer by first class recorded delivery post, with postage
prepaid (airmail postage if addressee is in another country); 24 hours after
deposit with an overnight courier; or two hours after confirmation of delivery
by facsimile, addressed as follows:
If to Vendors, to: Xxxxx X. Xxxxxx
00 Xxxxxxxx
Xxxxxxx
Xxxxxxxxx XX0 0XX
With a copy to: Nabarro Xxxxxxxxx
The Anchorage
00 Xxxxxx Xxxxxx
Xxxxxxx XX0 0XX
Xxxxxxx
Attention: Xxxxx Xxxxxx
Fax: 0000 000 0000
If to Buyer, to: ACT Teleconferencing, Inc.
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000 XXX
Attention: Xxxxx X. Xxxxxxx, CFO
Fax: (000) 000-0000
With a copy to: Faegre Benson Xxxxxx Xxxxxx
0 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Xxxxxx Xxxxx
Fax: 000 0000-0000
or to such other address as the party addressed shall have previously designated
by written notice to the serving party, given in accordance with this Section
9.6. A notice not given as provided above shall, if it is in writing, be deemed
given if and when actually received by the party to whom it is given. Any party
may unilaterally change any one or more of the addresses to which a notice to
the party or its representative is to be delivered or mailed, by written notice
to the other party hereto given in the manner stated above.
In proving service of a notice or document it shall be sufficient to prove that
delivery was made or that the envelope containing the notice or document was
properly addressed and posted as a prepaid first class recorded delivery letter
or that the facsimile message was properly addressed and dispatched as the case
may be.
Section 9.7 Headings, Table of Contents and Interpretation. The headings
contained in this Agreement and the table of contents hereof are for convenience
of reference only and neither the headings nor the table of contents shall be
considered a part of this Agreement or used to construe any provision hereof.
Any reference to an enactment (or subordinate legislation or any rule made by a
local authority and having the effect of law) is a reference to it as amended
and includes a reference to any repealed enactment which it may re-enact with or
without amendment. Unless there is something in the subject or context
inconsistent therewith, words importing the singular include the plural and vice
versa; words importing any gender shall include all genders; and words importing
individuals shall include corporations or unincorporated bodies of persons and
partnerships.
7
Section 9.8 Governing Law. This Agreement and any dispute arising under
or in connection with it shall be construed and enforced in accordance with, and
governed by, English law and the parties hereby submit to the non-exclusive
jurisdiction of the English courts.
Section 9.10 Waiver of Provisions. Compliance with any term, covenant,
representation, warranty, or condition of this Agreement may be waived only by a
written instrument executed by the party waiving compliance. No waiver by any
party of any condition or any breach of any provision, term, covenant,
representation, or warranty contained in this Agreement, whether by conduct or
otherwise, in any one or more instances shall be deemed to be or construed as a
further or continuing waiver of any such condition or of the breach of any other
provision, term, covenant, representation or warranty. Notwithstanding any rule
of law or equity to the contrary any release, waiver or compromise or any other
arrangement of any kind whatsoever which Buyer may agree to or effect as regards
one Vendor in connection with this Agreement shall not affect the rights and
remedies of Buyer as regards the other Vendors.
Section 9.11 Counterparts. This Agreement may be executed in any number of
counterparts, and all counterparts so executed shall constitute one and the same
agreement, binding on the parties hereto, notwithstanding that the parties are
not signatory to the same counterpart.
Section 9.12 Entire Agreement. This Agreement, together with all Schedules
and Exhibits hereto and the instruments that are executed and if applicable
delivered pursuant hereto, constitutes the entire agreement between the parties
relating to the subject matter hereof and supersedes and cancels any and all
prior agreements and understandings, written or oral, relating to the subject
matter hereof, and may not be amended or modified except in writing signed by
all parties hereto.
Each of the parties acknowledges that in agreeing to enter into this Agreement
it has not relied on any representation, warranty, collateral contract or other
assurance (except those set out in this Agreement and the documents referred to
in it) made by or on behalf of any other party before the signature of this
Agreement. Each of the parties waives all rights and remedies which, but for
this clause, might otherwise be available to him in respect of any such
representation, warranty, collateral contract or other assurance, provided that
nothing in this clause shall limit or exclude any liability for fraud.
Section 9.13 Severability. If any provision of this Agreement is held
unlawful or unenforceable in any respect, such illegality or unenforceability
shall not affect any other provision and this Agreement shall be construed as if
the unlawful or unenforceable provision were not included herein.
Section 9.14 Joint and Several Liability. References under this Agreement
to the Vendors includes each Vendor severally and the obligations of the Vendors
under this Agreement and any instruments that are executed and if applicable
delivered pursuant hereto shall be joint and several obligations.
Section 9.15 Contracts (Rights of Third Parties) Xxx 0000. Save as
expressly provided in this Agreement, the parties do not intend any term of this
Agreement to be enforceable pursuant to the Contracts (Rights of Third Parties)
Xxx 0000.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
BUYER:
ACT TELECONFERENCING, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Its Assistant Secretary
-----------------------------
8
VENDORS:
/s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxx Xxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx Xxxxxx
/s/ Xxxxxx Xxxx Xxxxxx
------------------------------------
Xxxxxx Xxxx Xxxxxx
/s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx
9
SCHEDULE 1
----------
Vendors and Holden Shares
(1) (2) (3) (4) (5) (6)
Vendors Shareholding Cash Consideration Short Term Notes Loan Notes ACT Common Stock
------- ------------ ------------------ ---------------- ---------- ----------------
Xxxxx Xxxxxx 9,700 (Pounds)1 (Pounds)7000 (Pounds)1,136,840 (Pounds)2,890,600 349,200
41 Kingsend, Ordinary Shares
Xxxxxxx,
Xxxxxxxxx XX0 0XX
Xxxxxxx Xxxxxx 100 (Pounds)1 (Pounds)7000 (Pounds)11,720 (Pounds)29,800 3,600
Holden Ordinary Shares
00 Xxxxx Xxxx
Xxxxx, Xxxxxxx
Xxxxxxxx, nr
Xxxxxxxxx,
Xxxxxxx XX0 0XX
Xxxxxx Xxxx Xxxxxx 100 (Pounds)1 (Pounds)7000 (Pounds)11,720 (Pounds)29,800 3,600
00 Xxxxxxx Xxxxx, Xxxxxxxx Shares
Xxxxxxxx Xxxxxxx,
Xxxxxxxxxxxx XX0
0XX
Xxxx Xxxxxx 100 (Pounds)1 (Pounds)7000 (Pounds)11,720 (Pounds)29,800 3,600
00 Xxxxxxx Xxxxx, Xxxxxxxx Shares
Xxxxxxxx Xxxxxxx,
Xxxxxxxxxxxx XX0
0XX
---------------------- =====================
10,000 (Pounds)1 360,000 Fully Paid
Ordinary Shares and Non-Assessable
--------------------- Shares of No Par
====================== Value Common Stock
--------------------
=====================
SCHEDULE 6.1
COMPLETION FORMALITIES
1. Items To Be Delivered By Vendors
At Completion Vendors shall deliver or procure to be delivered to Buyer or
Buyer's Solicitors: (save for the items referred to in paragraph 1.1 and 1.2
below which will be delivered to the Vendor's Solicitors in accordance with the
provisions of the documents referred to in paragraphs 1.5 and 1.6 below)
1.1 duly executed transfers into the name of Buyer in respect of the
Holden Shares;
1.2 share certificates representing the Holden Shares (or an indemnity in
a form satisfactory to the Buyer in respect of any missing certificates);
1.3 any other documents which may be necessary to give good legal and
beneficial title to the Holden Shares (including any power of attorney under
which any document required to be delivered under this paragraph 1 has been
executed or signed);
1.4 if not already in the possession or under control of Buyer, the
certificates of incorporation, the certificates of incorporation on change of
name, the common seals, all minute books, share registers and share certificate
books of ACT-Ltd if not already in Buyer's possession;
1.5 the Mortgage of Shares in respect of the Holden Shares in the form
annexed as Exhibit C duly signed by Vendors;
1.6 the Escrow Agreement in respect of the Holden Shares in the form
annexed as Exhibit G duly signed by Vendors' Solicitors;
1.7. the Variation of D Holden's Service Agreement in the form annexed as
Exhibit D duly signed by Mr Xxxxx Xxxxxx
1.8 the Regulation S Investment Agreement in the form annexed as Exhibit B
duly executed by each of the Vendors;
1.9 a copy of the board minutes referred to in paragraph 2 below.
1.10 The Short Term Notes in the form annexed as Exhibit A duly executed by
Vendors
1.11 The Loan Notes in the form annexed as Exhibit A duly executed by
Vendors
2. Matters To Be Procured By Vendors
2.1 At Completion the Vendors shall procure that a meeting of the
directors of ACT-Ltd is held at which it is resolved that:-
2.1.1 ACT-Ltd shall approve for registration the transfers of the
Holden Shares to Buyer (subject only to their being duly stamped);
2.1.2 Act-Ltd shall approve and authorise the signing of the
Variation of D Holden's Agreement in the form annexed as Exhibit D.
3. Items to Be Delivered by Buyer
At Completion Buyer shall deliver or procure to be delivered to Vendors or
the Vendors' Solicitors whose receipt shall be an absolute discharge of Buyer
and shall be binding upon and conclusive against each of the Vendors;
3.1 Cash in the sum of (Pounds)28,000 in accordance with Section 1.3(a);
3.2. The Short Term Notes in the form annexed as Exhibit A duly executed by
Buyer totaling (Pounds)1,172,000 as further provided in Section 1.3(b);
3.3. The Loan Notes in the form annexed as Exhibit A duly executed by Buyer
totaling (Pounds)2,980,000 as further provided in Section 1.3(c);
3.4 360,000 Shares of ACT Common Stock in the value of US Dollar
equivalent (Pounds)1,920,000 as determined in accordance with Article VII;
3.5 Cash in the sum of (Pounds)350,000 payable to Xxxxx Xxxxxx in
accordance with Section 1.3(e);
3.6 The Mortgage of Shares in the form annexed as Exhibit C duly executed
by Buyer;
3.7 The Bank Guarantee in the form annexed as Exhibit E duly executed by
Barclays Bank PLC;
3.8 The Buyer's Certificate in the form annexed as Exhibit F duly executed
by company secretary of Buyer
3.9 The Variation of D Holden's Service Agreement in the form annexed as
Exhibit D duly signed by ACT-Ltd
2
Exhibit A
---------
Short Term Notes and Loan Notes
-------------------------------
DATED 17 JANUARY 2001
------------------------------------------------------
ACT TELECONFERENCING, INC.
------------------------------------------------------
INSTRUMENT CONSTITUTING (Pounds)1,172,000
CONVERTIBLE SECURED A LOAN NOTES AND (Pounds)2,980,000
CONVERTIBLE SECURED B LOAN NOTES
------------------------------------------------------
Nabarro Xxxxxxxxx
The Anchorage
00 Xxxxxx Xxxxxx
Xxxxxxx
XX0 0XX
Tel: 0000 000 0000
CONTENTS
Clause Subject matter Page
1. INTERPRETATION....................................................... 1
2. AMOUNT OF NOTES...................................................... 3
3. REPAYMENT OF NOTES................................................... 3
4. INTEREST............................................................. 4
5. CERTIFICATES......................................................... 4
6. COVENANTS............................................................ 4
7. EVENTS OF DEFAULT.................................................... 7
8. THE REGISTER......................................................... 8
9. TITLE TO NOTES....................................................... 8
10. TRANSFERS OF NOTES................................................... 9
11. DEATH OR BANKRUPTCY OF A NOTEHOLDER.................................. 9
12. NOTICES.............................................................. 9
13. VARIATION OF RIGHTS AND MEETINGS OF NOTEHOLDERS...................... 10
14. RE-ISSUES............................................................ 10
15. MORTGAGE............................................................. 10
16. SET OFF.............................................................. 11
17. THE SCHEDULES........................................................ 11
18. GOVERNING LAW........................................................ 11
SCHEDULE 1................................................................ 12
SCHEDULE 2 - CONVERSION RIGHTS AND NOTICE OF CONVERSION................... 13
SCHEDULE 3 - DEED OF GUARANTEE............................................ 17
i
LOAN NOTE INSTRUMENT
DATE 17 JANUARY 2001
BY ACT TELECONFERENCING, INC. ("Company"), a corporation organised
and existing under the laws of the State of Colorado with its
principal place of business at Golden, Colorado, USA.
WHEREAS by a resolution of the Board (being duly empowered in that behalf by the
Company's Bye-laws) passed on the fifth day of January 2001 the Company has
created (Pounds)1,172,000 convertible A loan notes and (Pounds)2,980,000
convertible secured B loan notes to be constituted in the manner following, to
be guaranteed by Barclays Bank PLC in accordance with the Guarantee (as defined
below) and to be issued in connection with the acquisition by the Company of
10,000 ordinary shares of (Pounds)1 each in the capital of ACT Teleconferencing
Limited ("Subsidiary"), a company registered in England and Wales with
registered number 2707124, representing 40 per cent of its issued share capital,
pursuant to a share purchase agreement dated the same date as this instrument
between the Noteholders (1) and the Company (2).
IT IS DECLARED AS FOLLOWS:
1. INTERPRETATION
1.1 In this instrument and the Schedules hereto the following expressions shall
have the following meanings unless the context otherwise requires:
"Additional Notes"
means such further amount or amounts of guaranteed loan notes as may
be issued on exercise by any Noteholder of the Conversion Rights;
"A Notes"
means the (Pounds)1,172,000 convertible secured A loan notes of the
Company constituted by this instrument or, as the case may be, the
amount of those A Notes for the time being issued and outstanding,
to be issued to the Noteholders pursuant to Article 1, Section
1.3(a) of the Share Purchase Agreement;
"B Notes"
means the (Pounds)2,980,000 convertible secured B loan notes of the
Company constituted by this instrument or, as the case may be, the
amount of those B Notes for the time being issued and outstanding,
to be issued to the Noteholders pursuant to Article 1, Section
1.3(b) of the Share Purchase Agreement;
1
"Board"
means the Board of Directors for the time being of the Company or a
committee thereof;
"Conversion Rights"
means the conversion rights set out in Schedule 2 to this
instrument;
"Group Company"
means each of the Company and every subsidiary or holding company
for the time being of the Company and every subsidiary for the time
being of any such holding company and "subsidiary" and "holding
company" shall have the respective meanings ascribed to those
expressions by section 736 of the Companies Xxx 0000;
"Guarantee"
means the guarantee of Barclays Bank PLC dated the same date as this
instrument substantially in the form set out in Schedule 3;
"Net Worth"
at any time means the aggregate at such time of:
(i) the amounts paid up, or credited as paid up, on the issued
share capital of the Subsidiary;
(ii) any credit balance on the profit and loss account of the
Subsidiary; and
(iii) any amount standing to the credit of any other capital and
revenue reserves of the Subsidiary including any share premium
account and capital redemption reserve;
less the aggregate at such time of any debit balance on the profit
and loss account of the Subsidiary;
"Notes"
means, together, the A Notes and the B Notes;
"Noteholders"
means the several persons whose names are for the time being entered
in the Register as the holder or holders of the Notes and
"Noteholder" means any one of them;
"Register"
means the register of the holders of the Notes to be maintained by
the Company;
"Repayment"
includes redemption and vice versa and the words "repay", "redeem",
"repayable", "redeemable", "repaid" and "redeemed" shall be
construed accordingly;
2
"Share Purchase Agreement"
means an agreement dated the same date as this instrument, between
the Noteholders (1) and the Company (2) pursuant to which the
Noteholders have agreed to sell and the Company has agreed to
purchase 40 per cent of the issued share capital of the Subsidiary;
1.2 Words denoting the singular number only shall include the plural number
also and vice versa.
1.3 Words denoting the masculine gender only shall include the feminine gender
also.
1.4 Words denoting persons only shall include corporations.
1.5 Subject as aforesaid any word or expression defined in the Companies Xxx
0000 shall if not inconsistent with the subject or context bear the same
meaning in this instrument and in the Schedules hereto.
2. AMOUNT OF NOTES
2.1 The aggregate principal amount of the A Notes constituted by this
instrument is limited to (Pounds)1,172,000 and will be issued in registered
form in denominations of (Pounds)1 in accordance with Article 1, Section
1.3(a) of the Share Purchase Agreement. All of the A Notes will rank pari
passu equally and rateably without discrimination or preference.
2.2 The aggregate principal amount of the B Notes constituted by this
instrument is limited to (Pounds)2,980,000 and will be issued in registered
form in denominations of (Pounds)1 in accordance with Article 1, Section
1.3(b) of the Share Purchase Agreement. All of the B Notes will rank pari
passu equally and rateably without discrimination or preference.
2.3 The Notes are convertible by and at the sole option of the Noteholders in
whole or in part in accordance with the Conversion Rights.
3. REPAYMENT OF NOTES
3.1 The Company hereby covenants that unless and to the extent previously
converted under the Conversion Rights or redeemed or repaid under any of
the provisions of this instrument, the A Notes will be repaid in full at
par by telegraphic transfer to such bank account as is nominated by the
respective Noteholder, together with accrued interest in accordance with
clause 4, on 6 April 2002.
3.2 The Company hereby covenants that unless and to the extent previously
converted under the Conversion Rights or redeemed or repaid under any of
the provisions of this instrument, the B Notes will be repaid in four equal
tranches of (Pounds)745,000 at par by telegraphic transfer to such bank
account as is nominated by the respective Noteholder, together with accrued
interest in accordance with clause 4, on 31 December 2002, 31 December
2003, 31 December 2004 and 31 December 2005 respectively (or nearest
business day).
3.3 Each Noteholder shall be entitled to require the whole or any part of the A
Notes for the time being held by him to be repaid at par in integral
amounts of (Pounds)10,000 (or in the total amount of that Noteholder's
holding of A Notes if the principal is less than (Pounds)10,000), together
with accrued interest in accordance with clause 4, at any time on or after
31 December 2001.
3.4 The respective Noteholder shall exercise his right pursuant to clause 3.3
by giving at least 14 days' written notice (accompanied by the relative
loan note certificate) to the Company at its registered office, following
which the Company shall immediately repay all or any part of the Notes held
by him as specified in the written notice at par, together with accrued
interest. A notice of redemption given to the Company in accordance with
this clause shall be irrevocable.
3.5 Each Noteholder shall have the right on giving three months' written notice
(accompanied by the relative loan note certificate) to the Company at its
registered office, to require the immediate repayment of all the Notes for
the time being held by him, if a third party (not holding Shares in it at
the date of this instrument) acquires control of the Company or its holding
company (as defined in section 736 of the Companies Act 1985). For the
purposes of
3
this instrument a third party acquires control of the Company if the third
party directly or indirectly owns or controls more than 50% of the voting
stock of the Company.
4. INTEREST
4.1 The Company shall pay to the Noteholders interest (less any tax which the
Company is required by law to deduct from such interest) on the principal
amount of the A Notes for the time being held by them until they are
redeemed or repaid at the rate (as well after as before any judgement) of
10 per cent per annum, such interest to be paid by equal monthly
instalments in arrears on the first day of each month by telegraphic
transfer to such bank account as is nominated by each Noteholder and being
calculated in respect of the quarters (or any less period since the date of
issue of the relevant amount of the A Notes) ending on those dates.
4.2 If the A Notes shall not be repaid in full on 6 April 2002 in accordance
with clause 3.1, interest shall continue to accrue and the rate of interest
payable shall immediately increase to 11 per cent per annum and shall
increase by a further 1 per cent per annum every six months thereafter.
4.3 The Company shall pay to the Noteholders interest (less any tax which the
Company is required by law to deduct from such interest) on the outstanding
principal amount of the B Notes for the time being held by them until they
are redeemed or repaid at the rate (as well after as before any judgement)
of 7 per cent per annum, such interest to be paid by equal quarterly
instalments in arrears on 1 March, 1 June, 1 September and 1 December in
each year by telegraphic transfer to such bank account as is nominated by
each Noteholder and being calculated in respect of the quarters (or any
less period since the date of issue of the relevant amount of the B Notes)
ending on those dates.
4.4 If any tranche of B Notes shall not be repaid in full on the dates set out
in clause 3.2, interest shall continue to accrue and the rate of interest
payable shall immediately increase to 8 per cent per annum and shall
increase by a further 1 per cent per annum every 12 months thereafter.
4.5 For the avoidance of doubt, if any interest payable on the A Notes and the
B Notes is not paid on the due dates set out in clauses 4.1 and 4.3
respectively, interest shall immediately be payable on the interest due at
the rate of interest due on the principal amount then outstanding of the A
Notes and B Notes, as appropriate, and shall thereafter escalate in
accordance with clauses 4.2 and 4.4, as appropriate.
4.6 The Company shall if any deduction is required to be made by law against
any interest or sum due under this instrument on account of tax pay such
amount as may be required by law to be deducted to the authorities and
deliver a certificate of deduction to the Noteholders and shall pay such
additional amounts as may be necessary to ensure that the Noteholders
receive a net amount equal to the full amount which they would have
received had payment not been subject to tax.
5. CERTIFICATES
5.1 Each Noteholder shall be entitled without payment to receive one
certificate for the A Notes and one certificate for each tranche of B Notes
held by him in each case stating the amount of the A or B Notes held by
him, as appropriate, provided that joint holders of Notes will only be
entitled to receive one certificate in respect of Notes held jointly by
them and delivery of a certificate to one of several joint holders shall be
sufficient delivery to all.
5.2 The certificates for the Notes shall be created as deeds by the Company and
shall be in the form or substantially in the form set out in Schedule 1 and
have endorsed thereon the Conversion Rights. The Company shall comply with
the provisions of this instrument, the certificates and the Conversion
Rights and the Notes shall be issued and held subject to the Conversion
Rights which shall be binding upon the Company and the Noteholders and all
persons claiming through or under them respectively.
6. COVENANTS
6.1 The Company covenants whilst any of the Notes remains outstanding:
4
6.1.1 to perform and observe and to procure the Subsidiary to perform and
observe the following provisions of this clause and forthwith to notify
the Noteholders in writing of any matter or thing which may arise or
become known to it which is a breach of or inconsistent with any of the
said provisions and of any event of default pursuant to clause 7;
6.1.2 that the Company will provide the Noteholders with copies of the audited
consolidated balance sheets and profit and loss accounts of the Company
and the Subsidiary and copies of all notices of general meetings
(including the terms of all resolutions to be moved thereat and documents
accompanying such notices) not later than the date on which the same
ought to be sent to the members of the Company or the Subsidiary;
6.1.3 that each of the Company and the Subsidiary shall carry on and conduct
its business in a proper manner and no alteration in the nature of the
business of the Subsidiary (whether by acquisition or otherwise) shall be
made without the prior written consent of the Noteholders pursuant to
clause 13 (such consent not to be unreasonably withheld);
6.1.4 that the Company and the Subsidiary shall pay and discharge as they fall
due all debts and other obligations of the Company and the Subsidiary;
6.1.5 that the Subsidiary shall not without the prior written consent of the
Noteholders pursuant to clause 13 sell transfer or otherwise dispose of
the whole (or except in the ordinary course of business) a substantial
part of its undertaking property assets or rights whether by a single
transaction or a number of transactions related or not;
6.1.6 that each of the Company and the Subsidiary shall maintain such
insurances as are normally maintained by prudent companies carrying on
similar businesses and will duly pay all premiums and other moneys
necessary for effecting and keeping up such insurances within seven days
after the same becoming due;
6.1.7 that to the extent that any trading revenues sourced or obtained by the
Company outside the UK arise out of activities performed by the
Subsidiary in the UK, the Company shall pay to the Subsidiary transfer
prices calculated at the direct product/variable cost to the Subsidiary
together with an uplift of 10% which arrangement shall be deemed to have
taken effect from 1 January 2000 and all transactions between the
Subsidiary and the Company shall be on a proper arm's length basis;
6.1.8 that if the Company shall remain in default of any payment under any of
the Notes (whether of principal or interest) for a period of 6 months
from the date when that payment was due, the Noteholders shall have the
right forthwith to appoint such number of directors to the board of the
Subsidiary as shall give the Noteholders control of the board and the
Company shall take all actions as a shareholder in the Subsidiary to
procure that appointment;
6.1.9 that in respect of any dividend declared from time to time by the
Subsidiary in favour of the Company, the Company shall only be paid 60%
of such dividend and the remaining 40% of such dividend shall be
deposited in a bank account held in London in the sole name of the
Company, such bank account to be subject to a first ranking charge over
cash in favour of the Noteholders and in a form reasonably required by
the Noteholders;
6.1.10 to procure that the Subsidiary shall pay to the Company an annual royalty
of 3% of all revenue earned by the Subsidiary (other than revenues earned
by the Subsidiary in relation to Concert) in respect of intellectual
property owned by the Company and used by the Subsidiary;
6.1.11 that all indebtedness between the Company (or any of its subsidiaries
other than the Subsidiary) and the Subsidiary shall be settled quarterly
on the last day of January, April, July and October of each year,
commencing with the quarter ending March 2001. For the avoidance of
doubt, if the Company implements Actor or any other software which has
not been developed by the Subsidiary and the Subsidiary uses such
software, the Subsidiary shall pay to the Company 30% of the total costs
of development and implementation of such software and 30% of the
accumulated and ongoing financing costs, such costs to be amortised on a
straight line basis over a period of five years
5
commencing on the date when the Subsidiary first uses the software and
shall not be paid until full and final repayment of all the Loan Notes
then outstanding has been made;
6.1.12 that all payments (other than the payment by the Subsidiary to the
Company set out in Clause 6.1.10 above and, subject to the prior consent
of the Noteholders, any other payments by the Subsidiary to the Company
in connection with cost sharing programmes that substantially benefit
the Subsidiary), adjustments of balances and inter-company transfers
between the Company and the Subsidiary shall be limited so as not to
reduce the annual audited net after tax profit growth rates of the
Subsidiary to below 20% for the financial year ended 31 December 2000
(on an after tax profit base of 31 December 1999) and for all subsequent
financial years; and
6.1.13 that all business conducted in the UK by the Company or by any other of
its subsidiaries (including the Subsidiary) shall be for the benefit of
the Subsidiary and such business shall not be diverted away from the
Subsidiary.
6.2 The Company covenants that whilst any of the Notes remains outstanding,
the Subsidiary will not, without the prior consent of the Noteholders
pursuant to Clause 13:
6.2.1 vary the emoluments of any of its directors (outside annual increases in
line with the sector);
6.2.2 enter into any service agreement with any employee or director which is
terminable by payment of compensation of more than 3 months' notice;
6.2.3 enter into or materially vary any contract or arrangement (whether
legally binding or not) with any of the directors or any shareholder;
6.2.4 incur any material expenditure or liability of a capital nature
(including, for this purpose, the acquisition of any asset under lease
or hire purchase) except in respect of office machinery and equipment
reasonably required in the ordinary course of business or as otherwise
agreed in the agreed business plan;
6.2.5 enter into any material contract or arrangement out of the ordinary
course of business;
6.2.6 pay any remuneration or expenses to any person other than as proper
remuneration for work done or services provided or as proper
reimbursement for expenses incurred in connection with its business;
6.2.7 give any guarantee, indemnity or security in respect of the obligations
of any other person;
6.2.8 create or allow to subsist any lien, charge, or other encumbrance over
any of its assets other than in connection with normal asset finance
arrangements entered into in the ordinary course of business by the
Subsidiary (including, without limitation, retention of title clauses);
6.2.9 incur any indebtedness in excess of (Pounds)50,000 in the aggregate
outstanding which is in addition to that existing on completion of the
Share Purchase Agreement or vary the terms and conditions of any
borrowings or bank mandates which exist on completion of the Share
Purchase Agreement;
6.2.10 lend any money to any person (other than by way of deposit with the bank
or other financial institution) or grant any credit to any person except
to its customers in the normal course of business;
6.2.11 sell, transfer, lease, license or in any other way dispose of any of its
assets otherwise than in the ordinary course of business; or
6.2.12 factor or assign any of its book debts.
6.2.13 issue, allot, redeem, purchase or grant option over any of its shares or
other securities or reorganise its share capital in any way;
6.2.14 delete, add to, make any material alteration or variance to the
provisions of its Memorandum or Articles of Association or pass any
resolution for winding up;
6
6.2.15 acquire or make any investment in another company or business;
6.2.16 change the nature or scope of its business as carried on for the time
being or commence any new business not being ancillary or incidental to
such business;
6.2.17 enter into any partnership or joint venture with any other persons;
6.2.18 make any claim, disclaimer, surrender, election or consent of a material
nature for tax purposes otherwise than in the ordinary course of
business;
6.2.19 create any further security over the assets of the Subsidiary;
6.2.20 increase the level of indebtedness of the Subsidiary secured by any
existing security over the assets of the Subsidiary at the time of
completion of the Share Purchase Agreement;
6.2.21 in respect of any of the matters referred to in clause 6.2, permit any
power or authority of its directors to be delegated to any executive
director or committee of directors or to any other person whatsoever.
7. EVENTS OF DEFAULT
7.1 All the Notes held by any Noteholder shall become immediately repayable
on the happening of any one or more of the following events. For the
avoidance of doubt, should any of the events which are referred to in
sub-clauses 7.1.2, 7.1.3, 7.1.11, 7.1.12 and 7.1.16 occur but is fully
remedied within the period of six months following its occurrence, none
of the Notes held by any Noteholder shall continue to be immediately
repayable. For the purposes of this Clause 7 only, "Group Company" shall
refer to ACT Teleconferencing Inc., ACT Teleconferencing Services Inc.
and ACT Teleconferencing Limited.
7.1.1 if a majority of the issued shares in the capital of the Company is
acquired by a third party;
7.1.2 if the Company fails to pay any principal moneys owing in respect of the
B Notes;
7.1.3 if the Company makes default for a period of 15 days in the payment of
any interest on the B Notes when and as the same ought to be paid;
7.1.4 if a bona fide petition is presented which is not withdrawn or stayed
within 14 days or a resolution is passed for the winding-up of a Group
Company (except for the purposes of a reconstruction or amalgamation
previously approved by extraordinary resolution of the Noteholders
passed in accordance with clause 13);
7.1.5 if a Group Company stops payment of its debts or ceases or threatens to
cease to carry on its business;
7.1.6 if an encumbrancer takes possession or a receiver is appointed over the
whole or any substantial part of the assets or undertaking of a Group
Company or if a distress execution or other process is levied or
enforced upon or sued out against any property of a Group Company and is
not withdrawn discharged or paid out within 21 days;
7.1.7 if a bona fide application is made to court which is not discharged
within 5 days under section 9 of the Insolvency Xxx 0000 for an
administration order in relation to any Group Company or if a Group
Company passes a resolution for the making of any such application to
court;
7.1.8 if a bona fide proposal is made under section 1 of the Insolvency Xxx
0000 for a voluntary arrangement in relation to the debts or affairs of
a Group Company;
7.1.9 if a Group Company shall make a formal proposal to enter into any
arrangement with its creditors;
7.1.10 if any judgment or order given or made by any court or governmental
agency against any Group Company (which is incapable of, or further,
appeal) is not fully satisfied and complied with within 30 days or if an
execution sequestration distress or other process
7
(which expression shall include a garnishee and charging order nisi) be
levied or enforced or made upon or against any of the property or assets
of any Group Company for a minimum amount of (Pounds)100,000;
7.1.11 if the security for any debenture mortgage or charge of a Group Company
becomes enforceable and the holder or holders thereof take any steps to
enforce the same;
7.1.12 if any debenture of a Group Company becomes repayable prior to the due
date for repayment thereof (other than by reason of such Group Company
having offered or undertaken voluntarily to repay or redeem the same) or
is not paid when due and any steps are taken to obtain repayment;
7.1.13 if default is made by the Company in the performance or observance of
any obligation or provision binding on it hereunder (other than any
obligation for the payment of interest on the B Notes) and the same is
not remedied within 14 days (or within 6 months in the case of a default
under sub-clauses 7.1.2, 7.1.3, 7.1.11, 7.1.12 and 7.1.16) after notice
in writing of such default has been given to the Company by the holders
of not less than 50 per cent in nominal amount of the B Notes;
7.1.14 there occurs, in relation to any Group Company, any reasonably
equivalent insolvency event or proceeding in the United States of
America which, in the reasonable opinion of the holders of not less than
50 per cent in nominal amount of the B Notes, appears to correspond with
any of those mentioned in clauses 7.1.4 and 7.1.6 to 7.1.11;
7.1.5 if the Company allows the Net Worth of the Subsidiary to be less than
30% of the total assets of the Subsidiary provided that any diminution
of the Net Worth in any quarter (ending 31 March, 30 June, 30 September
and 31 December respectively) which is attributable to any trading
losses of the Subsidiary shall be disregarded and both the dividend of
(Pounds)143,500 paid immediately prior to completion of the Share
Purchase Agreement and the dividend of (Pounds)1,081,500 to be paid
immediately following Completion of the Share Purchase Agreement shall
be added back for the purposes of this calculation; and
7.1.16 if the employment of Xxxxx Xxxxxx by the Subsidiary is terminated by the
Subsidiary for any reason other than for gross misconduct or fraudulent
behaviour.
8. THE REGISTER
8.1 A register of the Noteholders will be kept by the Company and there
shall be entered in such register:
8.1.1 the names and addresses and descriptions of the Noteholders;
8.1.2 the amount of Notes held by every Noteholder;
8.1.3 the date at which each person was entered in the register as a
Noteholder;
8.1.4 the date at which any person ceased to be a Noteholder; and
8.1.5 the serial number of each loan note certificate issued and the date of
the issue thereof.
8.2 Any change of name or address on the part of any Noteholder shall
forthwith be notified to the Company and thereupon the register shall be
altered accordingly.
9. TITLE TO NOTES
The Company will recognise the registered holder of any of the Notes as
the absolute owner thereof free from any equity set off or cross claim
on the part of the Company against the original or any intermediate
holder and the Company will not be bound to take notice of or to see to
the execution of any trust whether express or implied or constructive to
which any of the Notes may be subject and the receipt of such person (or
in the case of joint holders of any one of such holders) for the
interest on or for the moneys payable on repayment of any of the Notes
8
shall be a good discharge to the Company notwithstanding any notice it
may have whether express or otherwise of the right title interest or
claim of any other person to or in such Notes interest or moneys. No
notice of any trust express implied or constructive shall (except as by
statute provided or as required by an order of a Court of competent
jurisdiction) be entered on the Register in respect of any of the Notes.
10. TRANSFERS OF NOTES
10.1 Each Noteholder may transfer his holding or any part thereof by an
instrument in writing in any usual or common form or in any other form
approved by the Board. There shall not be included in any instrument of
transfer any Notes other than Notes constituted by this instrument.
Every such instrument of transfer shall be signed by the transferor and
the transferor shall be deemed to remain the owner of such Notes until
the name of the transferee is entered in the register in respect
thereof. Upon and as a condition of the registration of the transferee
as the holder of the Notes, the transferee shall enter into a deed of
adherence to the terms of a mortgage of 40% of the issued shares in the
capital of the Subsidiary to be entered into on the same date as this
instrument.
10.2 Every instrument of transfer (duly stamped if required) must be left at
the offices of Xxxxxx Xxxxxx, 0 Xxxxxxx Xxxxxx, Xxxxxx (xxxxxxxxx:
Xxxxxx Xxxxx) for registration accompanied by the certificate for the
stock to be transferred and such other evidence as the Board may require
to prove the title of the transferor or his right to transfer the Notes.
Upon registration of such transferee as the holder of the Notes, the
transferee shall enter into a deed of adherence to the terms of a
mortgage of 40% of the issued shares in the capital of the Subsidiary to
be entered into on the same date as this instrument.
10.3 All instruments of transfer which shall be registered shall be retained
by the Company.
11. DEATH OR BANKRUPTCY OF A NOTEHOLDER
11.1 In the case of the death of a Noteholder the survivor or survivors where
the deceased was a joint holder and the legal personal representatives
of the deceased where he was a sole holder shall be the only persons
recognised by the Company as having any title to his interest in the
Notes registered in the name of the deceased.
11.2 Any person becoming entitled to any Notes in consequence of the death or
bankruptcy of any Noteholder may (upon producing such evidence that he
sustains the character in respect of which he proposed to act under this
clause or of his title as the Board shall think sufficient) elect either
to be registered himself as the holder of such Notes or to have some
other person nominated by him registered as the transferee thereof. Upon
(and as a condition of) the registration of such transferee as the
holder of the Notes, the transferee shall enter into a deed of adherence
to the terms of a mortgage of 40% of the issued shares in the capital of
the Subsidiary to be entered into on the same date as this instrument.
12. NOTICES
12.1 Any notice to be served under this instrument shall be in writing and
shall be served by delivering the same or sending the same by pre-paid
registered or recorded delivery post or by fax to the party on which it
is to be served at in the case of notice to the Company at the offices
of Faegre Benson Xxxxxx Xxxxxx, 0 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
(attention: Xxxxxx Xxxxx) and in the case of notice to a Noteholder his
address shown in the register or such other address as he may from time
to time notify in writing to the other parties for this purpose. A copy
of any notice served by fax as aforesaid shall be sent (for confirmation
purposes only) to the addressee of the notice by post in manner
aforesaid within 72 hours after the transmission or despatch of the fax.
12.2 Any notice shall be deemed to have been served:
12.2.1 if delivered, at the time of delivery;
12.2.2 if sent by post, on the second business day next following the date on
which it was properly posted; or
9
12.2.3 if sent by fax, on the day of transmission if transmitted before 4 pm on
a business day but otherwise on the next following business day.
12.3 In proving service of any notice by delivery or by post it shall be
sufficient to prove that the envelope containing the same was properly
addressed and was delivered or sent by registered or recorded delivery
post as aforesaid; in proving service of any notice by fax it shall be
sufficient to prove the notice was sent by fax to the correct fax number
of the addressee.
13. VARIATION OF RIGHTS AND MEETINGS OF NOTEHOLDERS
13.1 The Company may at any time and shall if requested in writing by the
holders of not less than 20 per cent of the principal amount of the
Notes outstanding convene a meeting of the Noteholders to be held at
such place as the Company shall reasonably determine (which, for the
avoidance of doubt, shall be in the UK) by giving not less than 14 days'
notice thereof to the Noteholders and such meeting shall have power by
an extraordinary resolution being a resolution passed by a majority
consisting of not less than three-fourths of the Noteholders voting
thereat upon a show of hands or if a poll is demanded by the Chairman of
the meeting or by Noteholders holding not less than one-tenth of the
Notes for the time being outstanding by a majority consisting of not
less than three-fourths of the votes cast on such poll to sanction any
modification or compromise or any arrangement in respect of the rights
of the Noteholders against the Company and to assent to any modification
of this instrument and such extraordinary resolution shall be binding on
all the Noteholders. A resolution in writing signed by all the holders
of the Notes for the time being outstanding shall be as valid and
effectual as if it had been passed as an extraordinary resolution at a
meeting of the Noteholders duly convened and held.
13.2 Any meeting for the purpose of the last preceding clause shall (subject
to this instrument) be convened conducted and held in all respects as
nearly as possible in the same way as shall be provided by the articles
of association for the time being of the Company with regard to general
meetings of the Company provided that neither a member of the Company
not being a director nor the auditors of the Company shall be entitled
to receive notice of or to attend at any such meeting unless he is a
Noteholder and that the quorum at any such meeting shall be Noteholders
holding or representing by proxy one-tenth of the principal amount of
the Notes for the time being outstanding and that if a poll is demanded
each (Pounds)1 of Notes held shall confer one vote.
14. RE-ISSUES
All Notes which are repaid shall be cancelled and the Company shall not
be at liberty to re-issue any Notes so repaid.
15. MORTGAGE
15.1 The Company shall procure that the payment of any principal monies under
the A Notes is irrevocably guaranteed by Barclays Bank PLC in the terms
of the Guarantee.
15.2 On final redemption or repayment of the A Notes, the Company shall
procure that the first tranche of B Notes is irrevocably guaranteed by
Barclays Bank PLC in the terms of the Guarantee until its redemption or
repayment whereupon the second tranche of B Notes shall be irrevocably
guaranteed by Barclays Bank PLC until its redemption or repayment,
whereupon the third tranche of B Notes shall be irrevocably guaranteed
by Barclays Bank PLC until its redemption or repayment, whereupon the
fourth tranche of B Notes shall be irrevocably guaranteed by Barclays
Bank PLC until its redemption or repayment.
15.3 On completion of the Share Purchase Agreement, the Company shall enter
into a mortgage over 40% of the issued shares in the capital of the
Subsidiary in favour of each of the Noteholders as security for payment
of all interest and the principal of Notes and any other sums due under
this instrument or the Share Purchase Agreement when due.
10
16. SET OFF
The Company shall not make any claim, deduction, abatement, set-off or
withholding whatsoever from or against any amount payable to any
Noteholder in respect of the Notes whether in respect of any claim or
alleged claim against the Noteholders (or any of them) under or in
connection with the Share Purchase Agreement or otherwise.
17. THE SCHEDULES
The provisions of the schedules to this instrument shall be deemed to be
incorporated in this instrument and shall be binding on the Company and
the Noteholders and all persons claiming through them respectively.
18. GOVERNING LAW
18.1 This instrument is governed by and shall be construed in accordance with
English law.
18.2 The Company irrevocably agrees for the exclusive benefit of the
Noteholders that the courts of England shall have jurisdiction to hear
and determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with this instrument
and for such purposes hereby irrevocably submits to the jurisdiction of
such courts.
18.3 Nothing contained in this clause shall limit the right of any other
party to take proceedings against the Company in any other court of
competent jurisdiction, nor shall the taking of any such proceedings in
one or more jurisdictions preclude the taking of proceedings in any
other jurisdiction, whether concurrently or not (unless precluded by
applicable law).
18.4 The Company irrevocably waives any objection which it may have now or in
the future to the courts of England being nominated for the purpose of
clause 18.2 above and agrees not to claim that any such court is not a
convenient or appropriate forum
18.5 The Company hereby authorises and appoints Faegre Benson Xxxxxx Xxxxxx
of 0 Xxxxxxx Xxxxxx Xxxxxx XX0X 0XX (attention: Xxxxxx Xxxxx) (or such
other person being a firm of solicitors or authorised institution in
England as it may substitute by notice to the Noteholders) to accept
service of all legal process arising out of or connected with this
Instrument. Service on such persons (or substitute) shall be deemed to
be service on the Company whether or not process is forwarded to or
received by it. Except upon such a substitution, the Company undertakes
not to revoke any such authority or appointment, at all times to
maintain an agent for service of process in England and, if any such
agent ceases for any reason to be an agent for this purpose, forthwith
to appoint another agent and advise the Noteholders accordingly.
IN WITNESS whereof this instrument has been executed and was delivered on the
date appearing as the date of this deed.
11
SCHEDULE 1
ACT TELECONFERENCING, INC.
No. AMOUNT: (Pounds)
ISSUE of (Pounds)[ ] [A] [B] Notes in accordance with the
constitution of the Company and to a resolution of the Board passed on the fifth
day of January 2001.
THIS IS TO CERTIFY THAT is the registered holder of
(Pounds) of the above Notes, which Notes are constituted by an
instrument entered into by the Company on and dated the fifth day of January
2001 and are issued subject to the provisions therein contained and to the
conditions endorsed hereon in respect of conversion of the Notes into Additional
Notes.
GIVEN under the Common Seal of the Company this day of January 2001.
Signature
.........................................
Title
.........................................
NOTES:
(1) The Notes shall be transferable in amounts and multiples of (Pounds)1.
(2) This certificate must be surrendered to the Company at its registered
office for the time being before any transfer of the whole or any portion
of the Notes comprised in it can be registered or any repayment made.
12
SCHEDULE 2
CONVERSION RIGHTS
1.1 Each Noteholder shall have the right in the case of the A Notes on or at
any time after 30 June 2002 and in the case of the B Notes on or at any
time after the redemption or repayment of any of the four tranches of B
Notes upon and subject to the terms and conditions hereinafter appearing
to convert such Notes in amounts or multiples of (Pounds)1 into
Additional Notes at any time on the basis of one Additional Note of
(Pounds)1 in nominal value for each (Pounds)1 in nominal value of Notes
by completing the Notice of Conversion printed on the loan note
certificate in respect of the whole or such part of the Notes comprised
herein as he wishes to convert and depositing the same at the registered
office of the Company. The date upon which such notice is served shall
be referred to in these conditions as the Conversion Date. Each
Noteholder shall have the right to subscribe for Additional Notes at
their nominal value which shall be subject to the same terms and
conditions as the Notes.
1.2 The Company shall until the Additional Notes are repaid pay to the
Noteholders interest on the principal amount of the Additional Notes for
the time being held by them from the date of issue of the Additional
Notes at the rate (as well after as before any judgement) of 7 per cent
per annum (less tax which the Company is required by law to deduct from
such interest) such interest being payable by equal monthly instalments
in arrears on the first day in each month and being calculated in
respect of the quarters (or any less period since the date of issue of
the relevant amount of the Additional Notes) ending on those dates.
Every such payment shall be made in sterling into the bank account
nominated by each Noteholder for that purpose.
1.3 In relation to Conversion the following provisions shall apply:
1.3.1 Once given, a Notice of Conversion shall not be amended or withdrawn
without the consent of the Board.
1.3.2 If the certificate with the Notice of Conversion duly completed has been
duly lodged with the Company aforesaid the Company will as at and not
later than 30 days after the Conversion Date issue to the Noteholder
such amount of Additional Notes to which he shall be entitled by virtue
of the exercise of his Conversion Rights and such issue shall be in full
satisfaction and discharge of the principal moneys in respect of the
Notes so converted which shall be cancelled.
1.4 If on or before the last Conversion Date the Company commences
liquidation whether voluntary (except for the purposes of a bona fide
reconstruction or amalgamation) or compulsory the Company shall within
14 days thereafter give notice thereof to the Noteholders and each
Noteholder shall in respect of all or such part of his Notes as he may
specify be entitled within 30 days after the giving of such notice to
elect by notice in writing to the Company to be treated as if
immediately before the date of such event the Conversion Rights attached
to the Notes so specified had been exercisable and had been exercised in
full on the basis of conversion then applicable and he will be entitled
to receive out of the assets of the Company available in the
liquidation, pari passu with the holders of the ordinary share capital
of the Company and in lieu of and in satisfaction of the amount owing to
him in respect of the Notes comprised in the notice, such a sum as he
would have received had he been the holder of the Additional Notes to
which he would have become entitled by virtue of such conversion.
Interest on Notes so treated as converted will cease to accrue as from
the interest payment date last preceding the date of such event.
1.5 If on or before the Conversion Date the Notes shall become repayable
under the provisions of this instrument (other than because of the
liquidation of the Company) the Company shall within 14 days thereafter
give notice thereof to the Noteholders and each Noteholder shall be
entitled within 30 days after the giving of such notice to elect, in
lieu of having his Notes repaid at par, to convert all or such part of
his Notes as he may specify on the basis of conversion then applicable.
Interest on Notes so converted will cease to accrue with effect from the
last day of the said period of 30 days.
1.6 The provisions of these paragraphs shall be applicable for so long only
as any of the B Notes may be or become convertible or treated as
converted under these Conversion Rights.
13
2 All Notes converted, repaid or purchased under the foregoing conditions
shall be cancelled and shall not be available for re-issue.
14
NOTICE OF CONVERSION
To: ACT Teleconferencing, Inc.
I/We being the registered holder(s) of the Notes represented by this certificate
hereby give notice of my/our desire to convert into Additional Notes of the
Company, (Pounds)[ ] of such Notes in accordance with the conditions
printed on this certificate.
NOTE: If the amount of Notes is not completed this Notice shall be deemed to
refer to all of the Notes comprised in this certificate.
PART A
I/We desire* all/ of such Additional Notes to be registered in my/our
name(s) and hereby authorise the entry of my/our name(s) in the register of
members in respect thereof and the despatch of a certificate therefor by
ordinary post at my/our risk to:
(Name) .................................................
(Address) .................................................
NOTE: If this space is left blank the certificate and cheque (if any) will be
sent to the registered address of the (first named) Noteholder.
PART B
I/We hereby authorise and direct you to allot *all/ of such Additional
Notes to be issued pursuant hereto to the person(s) who is/are named in and who
has/have signed the acceptance(s) in the **Form(s) of Nomination attached
hereto.
* Delete or complete as appropriate.
* * If it is desired to nominate some other person(s) as the recipient of the
Additional Notes, application should be made to the Company's Registrars for
the appropriate Form(s) of Nomination which must be completed and lodged
with this certificate.
I/We hereby authorise the despatch of a certificate for the balance of the Notes
represented by this certificate by ordinary post at my/our risk to:
(Name) .................................................
(Address) .................................................
NOTE: If this space is left blank the certificate (if any) will be sent to the
registered address of the (first named) Noteholder.
DATED this day of 200
15
SIGNATURE(S) OF NOTEHOLDER(S) ............................................
............................................
............................................
............................................
In the case of joint holdings all Noteholders must sign. In the case of a
corporation this form must be under the Common Seal or under the hand of some
officer or attorney of the corporation duly authorised on its behalf.
16
SCHEDULE 3
DEED OF GUARANTEE
THIS DEED OF GUARANTEE is made the 17/th/ day of JANUARY 2001 by:
BARCLAYS BANK PLC ("the Guarantor")
WHEREAS the Guarantor has agreed to guarantee (Pounds)750,000 of the
(Pounds)1,172,000 convertible secured A Notes and upon repayment of the A Notes
on 31 December 2001 thereafter to guarantee (Pounds)750,000 of the
(Pounds)2,980,000 convertible secured B Notes both to be issued by ACT
Teleconferencing Inc. pursuant to the terms of an instrument dated 17/th/
January, 2001 of which this Guarantee shall be deemed to form part (the
"Instrument") on the terms hereinafter provided.
NOW THIS DEED WITNESSES as follows:-
1. The Guarantor hereby irrevocably undertakes to each Noteholder that:-
1.1 if the A Notes or the B Notes (together the "Notes") any part thereof shall
become repayable or redeemable pursuant to the terms of the Instrument then
the Guarantor hereby guarantees to the Noteholders the payment by the
Company of the principal amount of the Notes to be so redeemed or repaid in
accordance with the terms and conditions of the Instrument and subject to
the terms and conditions of this Guarantee; and
1.2 payments to be made by the Guarantor shall be made within 21 days after
receipt by the Guarantor at its Corporate Banking Department, 00 Xxxxx'x
Xxxx, Xxxxxxx, Xxxxxxxxx for the time being marked for the attention of the
Branch Director , of a written demand by the Noteholder provided that such
demand shall:
(a) be accompanied by the certificate relating to the Notes or such other
documents, as the Guarantor may reasonably require, to establish the
title of the Noteholder to the Notes in respect of which such demand
is made;
(b) be signed by and on behalf of the Noteholder and such signature is
confirmed by the Noteholder's bankers or solicitors as that of the
person it purports to be;
(c) give full details of the Noteholder's name and address, the amount of
principal which is claimed and the bank account in the United Kingdom
in the name of the Noteholder to which the sum so demanded is to be
paid by the Guarantor;
(d) certify that:
(i) none of the Notes in respect of which such demand is made has
been cancelled, redeemed or repurchased by the Company or
converted into shares or securities of the Company or any other
company; and
(ii) the principal amount of the Notes (or part thereof) is and
remains due and payable by the Company, all conditions and
demands necessary in connection therewith have been fulfilled and
made, any grace period relating thereto has elapsed and the
Company is not contesting the liability in circumstances where
the Company is entitled to withhold payment.
(iii)
2. The undertakings contained in paragraph 1 above are continuing undertakings
and shall remain in force notwithstanding:
(a) any obligation of the Company in respect of its payment obligations
under the Instrument being void or unenforceable; or
17
(b) the liquidation or dissolution of the Company or the appointment of a
receiver or administrator of all or any part of the assets of the
Company or any analogous event occurring in any other relevant
jurisdiction.
3. .Notwithstanding anything to the contrary herein, it is hereby confirmed
that this Guarantee constitutes the Guarantor's direct obligation to make
payment in accordance with the terms of this Guarantee without reference to
the Company and without examination of the liability of the Company under
the Note or Notes. Any amounts due hereunder will be paid without reference
to any rights of set off or counter claim that the Company or the Guarantor
have against the Noteholders and whether or not the Company disputes the
truth or accuracy of any statement given .
4. Subject to the provisions of paragraphs 5 to 7 below the liability of the
Guarantor hereunder shall not be impaired or discharged by reason of any
time or other indulgence which the Noteholder may grant to the Company or
by any forbearance whether as to payment time or otherwise nor by any
variation compromise or release of the obligations of the Company, provided
that the Guarantor shall not be bound by any such other matter or thing
which would operate either to increase the Guarantor's actual or contingent
liabilities hereunder or extend any due date for any of the Company's
obligations under the Notes.
5. No variation or modification to the provisions of the Instrument or of the
rights of the Noteholder shall be made without the prior consent in writing
of the Guarantor.
6. The liabilities of the Guarantor hereunder shall :
(a) be limited to a sum or sums not exceeding in aggregate (Pounds)750,000
and in relation to the principal amount due under the Notes; and
(b) be null and void and this Guarantee shall cease to have effect on the
earlier of 31 March 2006 (being three months after the final tranche
of the B Notes has been repaid) and the date on which a demand by a
Noteholder is met by the Guarantor in the aggregate amount of
(Pounds)750,000 whether the Notes are returned to the Company or the
Guarantor or not and the Guarantor shall have no liability under this
Guarantee, save to the extent of any demand delivered to the Guarantor
prior to 31 March 2006 which complies with the requirements of this
Guarantee.
7. For the avoidance of doubt this Guarantee shall cease immediately in
respect of any Notes purchased or redeemed by the Company.
8. Payments by the Guarantor under this undertaking shall be made in
accordance with the provisions of the Instrument . Receipt by a Noteholder
of all or any sums paid by the Guarantor under this Guarantee shall be a
good discharge of the Guarantor's liabilities under this Guarantee as
against all Noteholders to the extent of the sums so paid and the Guarantor
shall not be concerned to see to the application of any such sums. The
Guarantor may rely on any demand or other document or information believed
by the Guarantor to be genuine and correct and to have been signed or
communicated by the person(s) by whom it purports to be signed or
communicated and the Guarantor shall not be liable for the consequences of
such reliance and shall have no obligation to verify that the facts or
matters stated therein are true and correct.
9. All payments made by the Guarantor under the terms of this Guarantee and
the Notes shall be treated as payment by it as Guarantor and shall
discharge the liabilities of the Guarantor in such capacity in respect of
the amounts for which such payments are made hereunder accordingly.
10. Any payment to be made hereunder will be made after any withholding or
deduction for or on account of any tax or duty imposed or levied by any
authority having power to tax such payment which the Guarantor shall for
the time being be required by any applicable law to withhold or deduct and
the Guarantor shall not be obliged to pay any additional amount to the
Noteholders in respect of the tax or duty so withheld or deducted.
11. This Guarantee shall be governed by and construed in accordance with
English law.
12. Words defined in the Instrument shall have the same meaning when used in
this Guaranteed.
13. If the Noteholder intends to make a demand under paragraph 1.2 above but
has lodged the certificate in respect of the Notes held by him with the
Company, he shall be entitled to make a demand under paragraph
18
1.2 above by instead delivering with his demand under paragraph 1.2 above a
true copy of the certificate together with his written certificate to the
Guarantor that the copy is a true copy, that he is entitled to payment
under the Notes represented by the copy certificate and that he has lodged
the original certificate in respect of the Notes held by him with the
Company and the Company has not paid.
In witness whereof this Guarantee has been executed by the Guarantor as a
deed and it shall take effect the day and year first above written.
THE COMMON SEAL of )
BARCLAYS BANK PLC )
was hereunto affixed )
in the presence of: )
19
Exhibit B
---------
Regulation S Investment Agreement
---------------------------------
Dated January 17, 2000
THE SECURITIES WHICH ARE THE SUBJECT OF THIS INVESTMENT AGREEMENT HAVE BEEN
ISSUED IN A TRANSACTION WHICH WAS NOT REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES, IN RELIANCE ON AN EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS, AND MAY NOT BE OFFERED, SOLD, OR PLEDGED IN THE
UNITED STATES OR TO U.S. PERSONS/1/] (AS THAT TERM IS DEFINED IN REGULATION S
UNDER THE SECURITIES ACT) UNLESS THE OFFER, SALE, OR PLEDGE IS REGISTERED UNDER
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT AND SUCH STATE SECURITIES
LAWS IS AVAILABLE.
ACT Teleconferencing, Inc.
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000 XXX
Ladies and Gentlemen:
1. Subscription. The undersigned Investor ("Investor") hereby agrees to
------------
purchase _______ shares of the common stock, no par value ("Shares") to be
issued by ACT Teleconferencing, Inc. ("Company"). This Regulation S Investment
Agreement ("Investment Agreement") is submitted to you in accordance with
Article V of the Share Purchase Agreement, dated January 17, 2001 ("Purchase
Agreement") between the Investor and the Company.
2. Closing. The final closing of the offering of the Shares to the
-------
Investor shall be deemed to occur at the effective time and date of the
execution of this Investment Agreement by the Investor and the delivery of a
certificate or certificates representing the Shares to the Investor.
3. Consideration. The Shares are issued by the Company as partial
-------------
satisfaction of the Company's payment of the purchase price ("Purchase Price")
pursuant to the Purchase Agreement for all of the ordinary (Pounds)1 shares
owned by Investor in ACT Teleconferencing Limited, a company organized under the
laws of England and Wales ("ACT Limited") a 60 percent-owned subsidiary of the
Company.
4. Legends on Certificates. The Company's transfer agent will be
-----------------------
instructed to issue one or more certificates representing the Shares with
restrictive legends in the name(s) of the Investor(s), stating substantially the
following:
The securities represented by this certificate have been issued by ACT
Teleconferencing, Inc. (the "Company") pursuant to Regulation S, which
is an exemption from registration under the United States Securities
Act of 1933, as amended (the "Securities Act"). These securities may
not be transferred, offered, sold, or pledged prior to the end of a
one-year period (the "Restricted Period") commencing on the later of
(i) the date the securities are first offered to persons other than
distributors (as defined in Regulation S) or (ii) the date of the final
closing of the offering of the securities by the Company, unless such
transfer, offer, sale, or pledge (x) is made in accordance with the
provisions of Regulation S or (y) is made pursuant to registration or
an applicable exemption under the Securities Act. Further, the
securities represented by this certificate cannot be sold except
pursuant to the terms and conditions of the
___________________
/1/ See Appendix attached hereto for definitions of "distributor", "U.S.
person", and "United States" under Regulation S
-1-
Regulation S Investment Agreement between the Company and the initial
holder of the shares; and hedging transactions involving these
securities may not be conducted unless in compliance with the
Securities Act.
These securities are deemed "restricted securities" under Rule 905 of
Regulation S and under Rule 144.
5. Representations, Warranties, and Agreements.
(a) The Investor hereby acknowledges, represents, and warrants to,
and agrees with, the Company as follows:
(i) The Investor understands that the sale of the Shares has
not been registered under the Securities Act or any state
securities laws, the Shares may be issued in reliance upon
Regulation S promulgated under the Securities Act, and the
sale has not been registered under any foreign securities
laws;
(ii) The Investor has examined and executed the Purchase
Agreement;
(iii) The Investor has been supplied with or has had sufficient
access to all other information, including financial
statements and other financial information of the Company,
to which a reasonable investor would attach significance in
making investment decisions, and has had the opportunity to
ask questions and receive answers from knowledgeable
individuals concerning the Company, so that, as a
reasonable investor, the Investor has been able to make his
or its own independent decisions to purchase the Shares;
(iv) The Investor has had a reasonable opportunity to ask
questions of and receive answers from a person acting on
behalf of the Company concerning the offering of the Shares
and all such questions have been answered to the full
satisfaction of the undersigned;
(v) No oral or written representations have been made, and no
oral or written information has been furnished to the
Investor in connection with the offering of the Shares
which were in any way inconsistent with other information
with which the Investor has been provided pursuant to
Section 5(a)(ii) or 5(a)(iii) hereof;
(vi) The Investor is not a U.S. person as defined in Regulation
S under the Securities Act (a "U.S. person") and is not
purchasing the Shares for the account or benefit of a U.S.
person;
(vii) Although one of the investors is an officer of ACT Limited,
to the Company's knowledge, none of the Investors are
officers, directors, or affiliates of the Company as
defined in Rule 405 under the Securities Act.;
6. Resales by the Investor. In the event that the Investor desires to
-----------------------
offer or sell the Shares, such offer or sale shall only be made in accordance
with the provisions of Regulation S, pursuant to registration under the
Securities Act, pursuant to an available exemption from registration, or
pursuant to Rule 144. In addition, prior to the expiration of the Restricted
-----
Period, the Investor agrees not to sell the
2
Shares to or for the account or benefit of a U.S. person, to a citizen of the
United States, or in the United States, and thereafter the Investor agrees not
----------
to sell the Shares in the United States except in compliance with the Securities
Act and the applicable rules and regulations promulgated thereunder, including
Regulation S and Rule 144, and all applicable state, federal, and foreign
securities laws. Further, in connection with any sale of the Shares prior to the
-----
expiration of the Restricted Period, the Investor will obtain from a prospective
purchaser written assurance that:
(a) The prospective purchaser is not a U.S. person or a citizen of
the United States;
(b) The Shares have been offered and sold to the prospective
purchaser outside the United States, and the prospective
purchaser has no present intention to re-offer or resell the
Shares to a U.S. person, to a citizen of the United States, or in
the United States;
(c) Prior to the expiration of the Restricted Period, the prospective
purchaser will not offer to sell the Shares to a U.S. person, to
a citizen of the United States or to any person or entity
purchasing the Shares for the account or benefit of a U.S.
person, or in the United States;
(d) The prospective purchaser consents to a stop transfer order being
placed on the Shares with the Company's transfer agent pursuant
to Regulation S of the Securities Act, provided such stop
transfer order shall be removed from the Shares upon the
expiration of the Restricted Period; and
(e) If the prospective purchaser effects any further transfer, offer,
or sale of the Shares, such transfer, offer, or sale shall comply
with the terms of this Section 6. If such transfer, offer, or
sale occurs prior to the expiration of the Restricted Period, the
Investor's prospective purchaser will obtain from any subsequent
purchaser similar written assurance set forth in Clauses (a)
through (d) of this Section 6.
7. Modification. Neither this Investment Agreement nor any provisions
------------
hereof may be waived, modified, discharged, or terminated except by an
instrument in writing signed by the party against which any such waiver,
modification, discharge, or termination is sought.
8. Notice. Any notice or other communication required or permitted to be
------
given hereunder shall be in writing and shall be mailed by certified mail return
receipt requested, or delivered personally or by courier against receipt of the
party to whom it is to be given:
(a) if to the Company, at the address set forth above; or
(b) if to the Investor, at the address set forth on the signature
page hereof;
(or in either case, to such other address as the party shall furnish in writing
in accordance with the provisions of this Section 8). Any notice or other
communication given hereunder shall be deemed given at the time of receipt
thereof.
9. Assignability. This Investment Agreement and the rights and
-------------
obligations of the Investor hereunder are not transferable or assignable by the
Investor.
10. Governing Law; Jurisdiction. This Investment Agreement shall be
---------------------------
governed by and construed in accordance with the laws of the United States and
the laws of the State of Colorado, USA (without giving effect to principles of
conflicts of law).
IN WITNESS WHEREOF, the Investor has executed this Investment Agreement this
______ day of ____________, 2001.
3
INVESTOR:
______________________________________
By ___________________________________
Name _________________________________
Title ________________________________
Place of Execution: London
Address for notices if different:
Investor's Address: ____________________
____________________ __________________________________
____________________
__________________________________
4
APPENDIX TO EXHIBIT B
Pursuant to Rule 902(d), (k), and (l) of Regulation S, the terms
"distributor," "U.S. person," and "United States" are defined as follows:
(d) Distributor. "Distributor" means any underwriter, dealer, or other
-----------
person who participates, pursuant to a contractual arrangement, in the
distribution of the securities offered or sold in reliance on this Regulation S.
(k) U.S. Person.
-----------
(1) "U.S. person" means:
(i) Any natural person resident in the United States;
(ii) Any partnership or corporation organized or incorporated
under the laws of the United States;
(iii) Any estate of which any executor or administrator is a
U.S. person;
(iv) Any trust of which any trustee is a U.S. person;
(v) Any agency or branch of a foreign entity located in the
United States;
(vi) 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;
(vii) Any non-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
(viii) Any partnership or corporation if:
(A) Organized 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
Securities Act of 1933, unless it is organized or
incorporated, and owned, by accredited investors (as
defined in Rule 501(a)) who are not natural persons,
estates, or trusts.
(2) The following are not "U.S. persons":
(i) 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;
(ii) Any estate of which any professional fiduciary acting as
executor or administrator is a U.S. person if:
-1-
(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;
(iii) Any trust of which any professional fiduciary acting as
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.
(iv) An 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 shall not be deemed a U.S. person.
(v) Any agency or branch of a U.S. person located outside the
United States shall not be deemed a "U.S. person" 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
(vi) 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.
(l) United States. "United States" means the United States of America, its
-------------
territories and possessions, any State of the United States, and the District of
Columbia.
-2-
Exhibit C
---------
MORTGAGE OF SHARES
------------------
DATED 17 January 2001
------------------------
ACT TELECONFERENCING, INC.
-and-
XXXXX XXXXXX
-and-
XXXXXXX XXXXXX XXXXXX
-and-
XXXXXX XXXX XXXXXX
-and-
XXXX XXXXXX
____________________________________________
MORTGAGE OF SHARES IN
ACT TELECONFERENCING LIMITED
____________________________________________
Nabarro Xxxxxxxxx
The Anchorage
00 Xxxxxx Xxxxxx
Xxxxxxx XX0 0XX
Tel: 0000 000 0000
CONTENTS
Clause Subject matter Page
1. DEFINITIONS AND INTERPRETATION................................. 1
2. COVENANT TO PAY................................................ 4
3. SECURITY....................................................... 4
4. FURTHER ASSURANCE.............................................. 4
5. DEPOSIT OF DOCUMENTS AND TITLE DEEDS........................... 4
6. NEGATIVE PLEDGE................................................ 4
7. DIVIDENDS AND VOTING RIGHTS.................................... 5
8. REPRESENTATIONS AND WARRANTIES................................. 6
9. RELEASE........................................................ 6
10. UNDERTAKINGS................................................... 6
11. COSTS UNDERTAKING.............................................. 7
12. DEFAULT........................................................ 7
13. STATUTORY POWER OF SALE........................................ 7
14. PROTECTION OF THIRD PARTIES.................................... 8
15. NO LIABILITY AS MORTGAGEE IN POSSESSION........................ 8
16. POWER OF ATTORNEY.............................................. 8
17. CUMULATIVE AND CONTINUING SECURITY............................. 8
18. AVOIDANCE OF PAYMENTS.......................................... 8
19. PAYMENTS AND WITHHOLDING TAXES................................. 9
20. ASSIGNMENT..................................................... 9
21. WAIVERS........................................................ 9
22. SEVERABILITY................................................... 9
23. NOTICES........................................................ 10
24. LAW AND JURISDICTION........................................... 10
25. COUNTERPARTS AND DELIVERY...................................... 10
THE SCHEDULE............................................................. 12
MORTGAGE
DATE 17 JANUARY 2001
PARTIES
(1) ACT TELECONFERENCING, INC., a Colorado corporation whose place of business
is at 0000 Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxxxxxx, 00000 (the "Buyer");
and
(2) Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxx Xxxxxx and Xxxx
Xxxxxx (the "Vendors").
RECITALS
(A) The Vendors have agreed to sell all their shares in the Company
(representing 40 per cent of its issued share capital) to the Buyer upon
the terms and conditions contained in the share sale and purchase agreement
made between them dated the same date as this Mortgage (the "Agreement")
(B) Pursuant to the provisions of the Agreement and a loan note instrument made
between the Buyer and the Vendors dated the same date as the Agreement
("Loan Note") the Buyer has agreed to enter into this Mortgage for the
purpose of providing security to the Vendors for the Secured Liabilities as
defined below.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Mortgage the following expressions have the following meanings,
unless the context otherwise requires:
"Charged Property"
means the 10,000 ordinary shares in the issued share capital in ACT
Teleconferencing Limited previously registered in the name of the
Vendors and the Derivative Assets;
"Company"
means ACT Teleconferencing Limited;
1
"Costs"
means all reasonable costs, charges or expenses of whatsoever nature
(including, without limitation, legal fees) including, without
limitation, disbursements and any Value Added Tax to be charged on
such costs, charges, expenses and disbursements;
"Derivative Assets"
means all stocks, shares, warrants or other securities, rights,
dividends, interest or other property (whether of a capital or
income nature) accruing, offered, issued or deriving at any time now
or in the future by way of dividend, bonus, redemption, exchange,
purchase, substitution, conversion, consolidation, subdivision,
preference, option or otherwise attributable to any of the Shares or
any Derivative Assets previously described;
"Event of Default"
means any of those events or circumstances set out in Clause 7
(Events of Default) of the Loan Note;
"Insolvency Act"
means the Insolvency Xxx 0000;
"Loan Documents"
means the Agreement, this Mortgage and the Loan Note;
"LPA"
means the Law of Property Xxx 0000;
"Permitted Security Interest"
means:
(a) the security constituted by this Mortgage; and
(b) any Security Interest created with the prior written consent of
the Vendors;
"Secured Liabilities"
means all moneys, debts, liabilities and obligations due, owing or
incurred by the Buyer to the Vendors pursuant to the Loan Documents;
"Security Interest"
means any mortgage, charge, assignment, pledge, lien, right of set-
off, hypothecation, encumbrance, priority or other security interest
(whether fixed or floating) including, without limitation, any
"hold-back" or "flawed asset" arrangement together with any
preferential right, retention of title, deferred purchase, leasing,
sale or purchase, sale and leaseback arrangement, trust agreement,
declaration of trust, trust arising by operation of law, any option
or agreement for any of the same or any arrangement
2
which has substantially the same commercial or substantive effect as
the creation of security;
"Shares"
means those ordinary shares in the capital of the Company listed in
the Schedule and which were registered in the name of the Vendors in
the proportions stipulated in the Schedule immediately prior to
completion of the Agreement; and
"Vendors' Solicitors"
means Nabarro Xxxxxxxxx of The Anchorage, 00 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxx XX0 0XX.
1.2 Interpretation
1.2.1 In this Mortgage:
(a) the Contents page and clause headings are included for
convenience only and do not affect the construction of this
Mortgage;
(b) words denoting the singular include the plural and vice versa;
(c) words denoting one gender include each gender and all genders.
1.2.2 In this Mortgage, unless the context otherwise requires, references to:
(a) persons include references to natural persons, firms,
partnerships, companies, corporations, associations,
organisations and trusts (in each case whether or not having a
separate legal personality);
(b) documents, instruments and agreements (including, without
limitation, this Mortgage and any document referred to in this
Mortgage) are references to such documents, instruments and
agreements as modified, amended, varied, supplemented or novated
from time to time;
(c) receivers are references to receivers of whatsoever nature
including, without limitation, receivers and managers and
administrative receivers;
(d) a party to this Mortgage include references to its successors,
transferees and assigns;
(e) Recitals, Clauses and Schedules are references to recitals to
this Mortgage, clauses of this Mortgage and schedules to this
Mortgage;
(f) unless otherwise expressly provided, references to paragraphs are
references to paragraphs of the Schedule in which the references
appear;
(g) statutory provisions (where the context so admits and unless
otherwise expressly provided) are construed as references to
those provisions as respectively amended, consolidated, extended
or re-enacted from time to time, and to any orders regulations
instruments or other subordinate legislation made under the
relevant statute; and
3
(h) a time of day is a reference to London time.
1.3 Incorporation of Schedule
The Schedule to this Mortgage forms part of this Mortgage.
2. COVENANT TO PAY
The Buyer shall on demand pay to the Vendors the Secured Liabilities
when the Secured Liabilities become due in accordance with the
provisions of the Loan Note.
3. SECURITY
3.1 By way of continuing security in favour of the Vendors for the payment
and discharge of the Secured Liabilities, the Buyer with full title
guarantee hereby mortgages and charges to the Vendors by way of a first
equitable mortgage and charge, the Shares and the Derivative Assets.
3.2 In order to secure the full payment and performance of the Secured
Liabilities, the Buyer hereby grants Vendors a first priority purchase
money security interest in the Shares, Derivative Assets and proceeds
thereof under the Uniform Commercial Code as enacted in the State of
Colorado, United States of America.
3.3 On the irrevocable payment of the Secured Liabilities in full the
Noteholders will release and re-assign the Charged Property to the Buyer
promptly, file a termination statement with the Secretary of State in
Colorado in connection with the Uniform Commercial Code filing referred
to in clause 3.2 above and, in particular, will issue the required
certification to the Vendors' Solicitors as set out in the escrow
agreement referred to in clause 5.2.
3.4 When the Buyer has (A) paid in full all the interest and principal on
the A Notes and the B Notes (with the exception of the final tranche of
(Pounds)745,000 ("Final Tranche") payable on the B Notes); and (B) paid
in advance either (i) all interest which could accrue on the Final
Tranche until 31st December, 2005, or (ii) a sufficient amount of
principal of the Final Tranche so that the total amount of principal and
interest owning to the Noteholders will not exceed the amount of the
Guarantee and provided that the Guarantee (defined in the Loan Note) is
transferred to the final tranche of the B Notes as set out in clause
15.2 of the Loan Note, Xxxxx Xxxxxx on behalf of himself and the other
Vendors shall immediately release this Mortgage and shall file a
termination statement with the Secretary of State in Colorado as
referred to in clause 3.3 above and shall also issue the required
certification to the Vendors' solicitors, also as referred to in clause
3.3 above.
4. FURTHER ASSURANCE
The Buyer shall:
4.1 forthwith, at any time if so reasonably required by the Vendors, at its
own expense execute and deliver to the Vendors such further deeds,
authorities and other documents as may be reasonably necessary to
perfect and protect the security hereby constituted; and
4.2 pending the execution and delivery of any such further deeds,
authorities and documents, hold such Charged Property upon trust for the
Vendors subject to the provisions of this Mortgage.
5. DEPOSIT OF DOCUMENTS AND TITLE DEEDS
5.1 The Buyer shall deposit with the Vendors' Solicitors all stock and share
certificates or other documents of title to or representing the Shares
and the Derivative Assets together with such duly executed transfers or
assignments with the name of the transferee, date and consideration left
blank to allow perfection after this security has become enforceable of
the title of the Vendors or any nominee or purchaser from them to all or
any part of the Charged Property in respect of them.
4
5.2 The Vendors' Solicitors shall hold (and, as the case may be, release)
all the documents referred to in Clause 5.1 above only on the express
terms of an escrow agreement to be entered into between the Buyer, the
Vendors and the Vendors' Solicitors on the same date as this Mortgage.
6. NEGATIVE PLEDGE
The Buyer shall not:
6.1 create, purport to create or allow to subsist, any Security Interest
over the whole or any part of the Charged Property except for any
Permitted Security Interest;
6.2 convey, assign, transfer, or agree to convey, assign or transfer the
whole or any part of the Charged Property other than in accordance with
this Mortgage; or
6.3 permit or agree to any variation of the rights attaching to the whole or
any part of the Charged Property.
7. DIVIDENDS AND VOTING RIGHTS
7.1 Dividends and voting rights
For so long as no Event of Default has occurred, the Buyer will:
7.1.1 receive all dividends (other than scrip dividends), interest and other
income deriving from and received by it in respect of the Shares and the
Derivative Assets for its own account save as otherwise agreed in the
Loan Note; and
7.1.2 exercise all voting and other rights and powers attached to the Shares
and the Derivative Assets PROVIDED THAT such voting does not materially
adversely affect the Shares and the Derivative Assets and is not
otherwise inconsistent with this Mortgage.
7.2 Powers
Once an Event of Default has occurred and any applicable grace period
has expired, the Vendors may at their discretion exercise any voting
rights and any powers or rights which may be exercised by the person or
persons in whose name or names the Charged Property are registered
including (without limitation) all powers and rights given to trustees
by Section 10(3) and (4) of the Trustee Act 1925 (as amended by Section
9 of the Trustee Investment Act 1961) in respect of securities or
property subject to a trust.
7.3 Vendors' powers of enforcement over Shares and the Derivative Assets
7.3.1 All moneys received by or on behalf of the Vendors in respect of the
Shares or the Derivative Assets after this security has become
enforceable shall be applied by the Vendors in or towards payment of the
Secured Liabilities in such order as the Vendors think fit but without
prejudice to their rights to recover the shortfall from the Buyer.
7.3.2 The Vendors shall not have any duty as to any Shares and Derivative
Assets and shall incur no liability for:
(a) ascertaining or taking action in respect of any calls, instalments,
conversions, exchanges, maturities, tenders or other matters in
relation to any Shares and Derivative Assets or the nature or
sufficiency of any payment whether or not the Vendors have or are
deemed to have knowledge of such matters; or
(b) taking any necessary steps to preserve rights against prior parties
or any other rights pertaining to any Shares and Derivative Assets;
or
5
(c) for any failure to present any interest, coupon or any bond or
stock drawn for repayment or for any failure to pay any call or
instalment or to accept any offer or to notify the Buyer of any
such matter or for any failure to ensure that the correct amounts
(if any) are paid or received in respect of the Shares and the
Derivative Assets.
7.4 Xxxxx Xxxxxx
The Vendors other than Xxxxx Xxxxxx (and any person deriving title from
him) hereby irrevocably and unconditionally appoint Xxxxx Xxxxxx (and
any person deriving title under him) to act as their representative,
agent and trustee concerning the exercise of any of the rights and
powers of the Vendors under this Mortgage. Any notice or instruction
given or act taken by Xxxxx Xxxxxx in relation to this Mortgage shall
have the same effect as if signed by or on behalf of each of the
Vendors and any person deriving title from any of them or taken by each
of them and the Buyer shall be able to rely on it as if sanctioned by
all the Vendors.
8. REPRESENTATIONS AND WARRANTIES
8.1 The Buyer represents and warrants to the Vendors as at completion of the
Agreement that it has not sold or agreed to sell or otherwise disposed
of, or agreed to dispose of, the benefit of all or any of the Buyer's
right, title and interest in and to the Charged Property.
8.2 The representation and warranty set out in Clause 8.1 is given and made
on and as of the date of this Mortgage, shall survive the execution of
this Mortgage and is a continuing representation and warranty which is
deemed to be repeated during the continuance of the security constituted
by this Mortgage.
9. RELEASE
Upon all the Security Liabilities failing to arise or having been
unconditionally irrevocably discharged, the Shares, the Derivative
Assets and the unsigned stock transfer forms shall forthwith be released
from the security hereunder which shall have no further force or effect.
10. UNDERTAKINGS
The Buyer gives each of the undertakings contained in this Clause to the
Vendors.
10.1 Duration
The undertakings in this Clause shall remain in force during the
continuance of the security constituted by this Mortgage.
10.2 To comply with statutes
The Buyer shall comply with all requirements of any authority, all
obligations under any statute and all byelaws and regulations relating
to the whole or any part of the Charged Property.
10.3 To provide information
The Buyer shall furnish to the Vendors forthwith on demand by the
Vendors such information and supply such documents or papers relating to
the Charged Property from time to time supplied to other shareholders of
the Company.
6
10.4 The Shares and the Derivative Assets
The Buyer shall:
10.4.1 duly and promptly pay all calls, instalments or other payments which may
be made or become due in respect of any of the Shares and the Derivative
Assets as and when the same become due;
10.4.2 except with the prior written consent of the Vendors, not permit any
person other than the Buyer to be registered as holder of all or any
part of the Shares and the Derivative Assets;
10.4.3 except with the prior written consent of the Vendors (not to be
unreasonably withheld), not cause or permit to be issued any additional
shares of the Company or any securities convertible into, or carrying
rights to subscribe for, shares of the Company;
10.4.4 if the Vendors give their prior written consent to an issue of shares
pursuant to Clause 9.4.3, enter into such security documentation as the
Vendors may reasonably require or shall procure that the beneficial
and/or the registered owners enter into such security documentation as
the Vendors may reasonably require in respect of all such additional
shares or securities;
10.4.5 except with the prior written consent of the Vendors (not to be
unreasonably withheld), not exercise any right it may have against the
Company (except such rights as may be specifically conferred on the
Buyer by this Mortgage or which arise in the ordinary course of
business) except on such terms and in such manner as the Vendors may
reasonably require and, if it does so in contravention of this Clause,
it shall hold any amount received or recovered by it as a result of such
exercise on trust for the Vendors in reduction of the Secured
Liabilities; and
10.4.6 as soon as reasonably practicable following receipt by it of any report,
accounts, circular or notice sent or provided to it (or to any person on
its behalf) in connection with its holding of any of the Shares and the
Derivative Assets, provide or cause to be provided to the Vendors a copy
of such item together with a letter explaining that the copy is being
provided to the Vendors pursuant to this Clause.
11. COSTS UNDERTAKING
The Buyer shall on demand pay to the Vendors and discharge all Costs
payable by them after an Event of Default.
12. DEFAULT
12.1 Enforcement
This Mortgage shall become immediately enforceable on the occurrence of
any Event of Default, save on the occurrence of any Event of Default
referred to in Clauses 7.1.2, 7.1.3, 7.1.11, 7.1.12 and 7.1.16 of the
Loan Note where the Mortgage shall not become enforceable unless and
until such Event of Default shall remain unremedied for a period of six
months following its occurrence.
12.2 Consequences of default
On and at any time after the occurrence of an Event of Default, the
Vendors in their absolute discretion may by written notice to the Buyer
confirming such Event of Default:
7
12.2.1 declare the Secured Liabilities to be immediately due and payable,
together with accrued interest thereon and any other sums then owed by
the Buyer under and, upon that declaration, such sums shall become
immediately due and payable without demand or notice of any kind, all of
which are hereby expressly waived by the Buyer; or
12.2.2 declare the Secured Liabilities to be due and payable on demand of the
Vendors; and/or
12.2.3 subject to Clause 12.1, declare the security constituted by the Loan
Documents to be enforceable.
13. STATUTORY POWER OF SALE
13.1 For the purposes of all powers implied by statute, and in particular the
power of sale under Section 101 of the LPA (Powers incident to estate or
interest in a mortgage), the Secured Liabilities will be deemed to have
become due when the security created by this Mortgage becomes
enforceable in accordance with Clause 12.1 and Section 103 of the LPA
(Regulation of exercise of power of sale) and Section 93 of the LPA
(Restriction on consolidation of mortgages) will not apply.
13.2 The Vendors may exercise their statutory power of sale in respect of the
whole or any part of the Charged Property.
14. PROTECTION OF THIRD PARTIES
14.1 Any person (including, without limitation, any purchaser, mortgagor or
mortgagee) (in this Clause a "purchaser") dealing with the Vendors may
assume without inquiry that:
14.1.1 some part of the Secured Liabilities has become due;
14.1.2 a demand for the Secured Liabilities has been duly made; and
14.1.3 such Secured Liabilities have become due within the meaning of Section
101 of the LPA (Powers incident to estate or interest in a mortgage).
14.2 No purchaser dealing with the Vendors is to be concerned to enquire
whether any power exercised or purported to be exercised by the Vendors
has become exercisable, or as to the propriety or regularity of any sale
by, or other dealing with, the Vendors. Any such sale or dealing is
deemed to be within the powers conferred by this Mortgage and to be
valid and effective accordingly. All the protection to purchasers
contained in Section 104 (Conveyance on sale) and Section 107
(Mortgagee's receipt, discharges etc.) of the LPA and Section 42(3) of
the Insolvency Act (Prohibition upon enquiry into administrative
receiver's powers) apply to any purchaser.
15. NO LIABILITY AS MORTGAGEE IN POSSESSION
The Vendors are not liable to account as mortgagee in possession in
respect of the Charged Property.
16. POWER OF ATTORNEY
16.1 The Buyer hereby irrevocably appoints, by way of security, each of the
Vendors and each person deriving title from any of them, severally to be
its attorney (with full power to appoint substitutes and to sub-
delegate) for it, in its name, on its behalf and as its act and deed or
otherwise to sign or execute any deed or document or do any act or thing
which the Buyer is, or may become, obliged to sign, execute or do
pursuant to this Mortgage or which any of the Vendors or any person
deriving title from any of them may in the reasonable discretion of such
person think fit in connection with the exercise of any of the powers of
such person or the realisation of any security constituted by this
Mortgage.
16.2 Without prejudice to the generality of the foregoing, the Buyer
unconditionally undertakes to the Vendors, and separately to each person
deriving title from him, that it shall ratify and confirm
8
anything done or purported to be done in accordance with Clause 16.1 by
any attorney appointed pursuant to this Clause.
17. CUMULATIVE AND CONTINUING SECURITY
17.1 This Mortgage is a continuing security to the Vendors regardless of any
intermediate payment or discharge of any part of the Secured Liabilities
and will not be prejudiced or affected by any act, omission or
circumstance which, but for this Clause, might affect or diminish its
effectiveness.
17.2 The security constituted by this Mortgage is in addition to, is not in
substitution for, is without prejudice to, and does not merge with, any
rights whatsoever which the Vendors may have, whether in respect of the
Secured Liabilities or otherwise, including, without limitation, any
rights arising under any other Security Interest, any xxxx, note,
guarantee, contract or applicable rule of law.
17.3 Any receipt, release or discharge of the security constituted by, or of
any liability arising under, this Mortgage shall not release or
discharge the Buyer from any liability which may exist independently of
this Mortgage to the Vendors.
17.4 Where the security constituted by this Mortgage initially takes effect
as a collateral or further security to any other Security Interest held
by the Bank then, notwithstanding any receipt, release or discharge
given in respect of such other Security Interest, this Mortgage shall
take effect as an independent security for any monies, liabilities or
other sums secured by such other Security Interest.
18. AVOIDANCE OF PAYMENTS
18.1 No assurance, security or payment which may be avoided under the law or
subject to an order of the court made under any law relating to
bankruptcy, insolvency, administration or winding-up, including, without
limitation, the Insolvency Act, and no release, settlement or discharge
given or made by the Vendors on the faith of any such assurance,
security or payment, prejudices or affects the right of the Vendors:
18.1.1 to recover any monies from the Buyer (including, without limitation, any
monies which it is compelled to refund under Chapter X (Malpractice
before and during liquidation; penalisation of companies and company
officers; investigations and prosecutions) of the Insolvency Act and any
Costs payable by it incurred in connection with such process); or
18.1.2 to enforce the security constituted by this Mortgage to the full extent
of the Secured Liabilities.
18.2 The Vendors may at their discretion retain the security so created as
security for the Secured Liabilities for a period of one month plus any
statutory period within which any such assurance, security or payment
can be avoided or invalidated notwithstanding and without prejudice to
any release, settlement, discharge or arrangement given or made by the
Vendors.
18.3 If at any time within the period referred to in Clause 17.2 any person
takes any step whatsoever relating to (i) the winding-up or
administration of the Buyer; or (ii) any arrangement with the creditors
of the Buyer, the Vendors may retain the whole or any part of the
security constituted by this Mortgage for such further period as the
Vendors may in their reasonable discretion think fit. Such security will
be deemed to have been held and remained held by the Vendors as security
for the payment to the Vendors of the Secured Liabilities.
19. PAYMENTS AND WITHHOLDING TAXES
The Buyer shall pay and discharge the Secured Liabilities without any
set-off, counterclaim, restriction or condition, without regard to any
equities between the Buyer and the Vendors and free and clear of, and
without deduction or withholding for, or on account of, any Taxes,
except to the extent that the Buyer is required by law to deduct or
withhold any Taxes on any amounts
9
payable under this Mortgage, in which case it shall pay to the Vendors
such additional amount as may be necessary in order to ensure that the
net amount received by the Vendors after the required deduction or
withholding (including, without limitation, any required deduction or
withholding on such additional amount) is equal to the amount that the
Vendors would have received had no such deduction or withholding been
made. Any additional amount paid under this Clause shall be treated as
agreed compensation and not as interest.
20. ASSIGNMENT
The Buyer may not assign, transfer, novate or dispose of any of or any
interest in, its rights and obligations under this Mortgage. The Vendors
may assign, transfer, novate or dispose of any of or any interest in
their rights under this Mortgage provided that they also transfer all
their interest under the Loan Note.
21. WAIVERS
No failure or delay or other relaxation or indulgence on the part of the
Vendors to exercise any power, right or remedy shall operate as a waiver
thereof nor shall any single or partial exercise or waiver of any power,
right or remedy preclude its further exercise or the exercise of any
other power, right or remedy.
22. SEVERABILITY
Each of the provisions of this Mortgage is distinct and severable from
the others and if at any time one or more of such provisions is or
becomes illegal, invalid or unenforceable the validity, legality and
enforceability of the remaining provisions hereof shall not in any way
be affected or impaired thereby.
23. NOTICES
23.1 Each party may give any notice, demand or other communication under or
in connection with this Mortgage by letter, facsimile or comparable
means of communication addressed to the other party at the address
identified with its name below. Any such communication will be deemed to
be given as follows:
23.1.1 if personally delivered, at the time of delivery;
23.1.2 if by letter, at noon on the business day following the day such letter
was posted (or in the case of airmail, seven days after the envelope
containing the same was delivered into the custody of the postal
authorities); and
23.1.3 if by facsimile transmission or comparable means of communication during
the business hours of the addressee then on the day of transmission,
otherwise on the next following business day.
23.2 In proving such service it shall be sufficient to prove that personal
delivery was made or that such letter was properly stamped first class,
addressed and delivered to the postal authorities in the case of
facsimile transmission or other comparable means of communication, that
a confirming hard copy was provided promptly after transmission.
24. LAW AND JURISDICTION
24.1 This Mortgage shall be governed by and construed in accordance with
English law.
10
24.2 The Buyer agrees that any legal action or proceedings arising out of or
in connection with this Mortgage against the Buyer or any of its assets
may be brought in the High Court of Justice in England, irrevocably and
unconditionally submits to the jurisdiction of such Court and
irrevocably designates, appoints and empowers Faegre Benson Xxxxxx
Xxxxxx of 0 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (attention: Xxxxxx Xxxxx) to
receive for it and on its behalf, service of process issued out of such
Court in any such legal action or proceedings. The submission to such
jurisdiction shall not (and shall not be construed so as to) limit the
right of the Vendors to take proceedings against the Buyer in whatsoever
jurisdictions it thinks fit, nor shall the taking of proceedings in any
one or more jurisdiction preclude the taking of proceedings in any other
jurisdiction, whether concurrently or not. The Buyer waives objection to
such Court on the grounds of inconvenient forum or otherwise as regards
proceedings in connection with this Mortgage and agrees that the
judgment or order of such Court in connection with this Mortgage is
conclusive and binding on it and may be enforced against it in the
courts of any other jurisdiction.
25. COUNTERPARTS AND DELIVERY
25.1 This Mortgage may be executed in any number of counterparts, each of
which is an original, and which together constitute one and the same
document.
25.2 If this Mortgage is executed in more than one counterpart, this Mortgage
is deemed to be delivered and has effect when:
25.2.1 each party other than the Vendors has executed a counterpart of this
Mortgage;
25.2.2 each party other than the Vendors has handed over such counterpart to
one of the other parties to this Mortgage; and
25.2.3 each of the counterparts has been dated.
25.3 If this Mortgage is not executed in more than one counterpart, this
Mortgage is deemed to be delivered and has effect when each party other
than the Bank has executed this Mortgage and this Mortgage has been
dated.
25.4 The execution (whether under hand or as a deed) or sealing of this
Mortgage by or on behalf of a party constitutes an authority to the
solicitors or legal counsel acting for that party in connection with
this Mortgage, or any agent or employee of such solicitors or legal
counsel, to deliver it as a deed on behalf of that party.
25.5 Each party to this Mortgage agrees to be bound by this Mortgage despite
the fact that any other person which was intended to execute or to be
bound does not do so or is not effectually bound and despite the fact
that any Security Interest contained in this Mortgage is terminated or
becomes invalid or unenforceable against any other person whether or not
such termination, invalidity or unenforceability is known to the
Vendors.
IN WITNESS WHEREOF this Mortgage has been executed and delivered as a deed on
the date written at the beginning of this Mortgage.
11
THE SCHEDULE
The Shares
Xxxxx Xxxxxx 9,700 ordinary shares
Xxxxxxx Xxxxxx Xxxxxx 100 ordinary shares
Xxxxxx Xxxx Xxxxxx 100 ordinary shares
Xxxx Xxxxxx 100 ordinary shares
12
EXECUTED and DELIVERED as a DEED ) /s/ Xxxxxxx X. Xxxxx
for and on behalf of ACT Teleconferencing, Inc. ) Assistant Secretary
acting by:
Notice details
Address:
Fax No:
Telephone No:
Attention:
EXECUTED and DELIVERED as a DEED ) /s/ Xxxxx Xxxxxx
by Xxxxx Xxxxxx in the presence of: )
Witness name:
Witness signature:
Witness occupation:
Witness address:
Notice details
Address:
Fax No:
Telephone No:
Attention:
EXECUTED and DELIVERED as a DEED ) /s/ Xxxxxx Xxxx Xxxxxx
by Xxxxxx Xxxx Xxxxxx in the presence of: )
Witness name:
Witness signature:
Witness occupation:
Witness address:
Notice details
Address:
Fax No:
Telephone No:
Attention:
13
EXECUTED and DELIVERED as a DEED ) /s/ Xxxx Xxxxxx
by Xxxx Xxxxxx in the presence of : )
Witness name:
Witness signature:
Witness occupation:
Witness address:
Notice details
Address:
Fax No:
Telephone No:
Attention:
EXECUTED and DELIVERED as a DEED ) /s/ Xxxxxxx Xxxxxx Xxxxxx
by Xxxxxxx Xxxxxx Xxxxxx in the presence of: )
Witness name:
Witness signature:
Witness occupation:
Witness address:
Notice details
Address:
Telex No:
Fax No:
Telephone No:
Attention:
14
Exhibit D
---------
VARIATION OF D HOLDEN'S SERVICE AGREEMENT
-----------------------------------------
A G R E E M E N T dated 17 January 0000
X X X X X X X:
(1) ACT TELECONFERENCING LIMITED (company number 2707124) whose registered
office is 0 Xxxxxxx Xxxxxx Xxxxxx XX0X 0XX (xxx "Company")
(2) XXXXX XXXXXX of 00 Xxxxxxxx, Xxxxxxx, Xxxxxxxxx XX0 0XX ("Xx. Xxxxxx")
RECITALS
A. Xx. Xxxxxx is employed by the Company as Managing Director pursuant to the
Service Agreement.
B. Xx. Xxxxxx and the Company have agreed that the employment of Xx. Xxxxxx
will continue with effect from the Effective Date on the terms of the
Service Agreement as varied by this Agreement.
C. In consideration of the payment to him by ACT Teleconferencing, Inc. of the
sum of (Pounds)350,000 under the terms of the Share Purchase Agreement made
between ACT Teleconferencing, Inc. and Xx. Xxxxxx and others dated 17/th/
January 2001 Xx. Xxxxxx hereby agrees to the terms of this Agreement.
THE PARTIES AGREE as follows:
1. Definitions
-----------
In this Agreement the following words and expressions shall have the
following meanings:
"Effective Date" 17/th/ January 2001
"Service Agreement" the Service Agreement made between Xx. Xxxxxx and
the Company dated 10/th/ April 1992 as
varied on 30/th/ November 1993
"Share Purchase Agreement" the Share Purchase Agreement dated 17/th/
January 2001 made between ACT
Teleconferencing, Inc. and Xx. Xxxxxx and
others
2. The Service Agreement shall be amended with effect from the Effective Date
as follows:
2.1 The following clause shall be substituted for Clause 2:
"2.1 This Service Agreement shall commence on a date to be mutually
agreed and shall (subject as hereinafter provided) continue until
31st December 2005 (the "Fixed Term") and thereafter unless and
until terminated by either party giving to the other six months'
notice in writing such notice not to expire before 31st December
2005 provided that Xx. Xxxxxx may terminate this Agreement at any
time by giving the Company six months' notice in writing within
six months of either the redemption of the A Notes and B Notes as
defined in a loan note instrument dated 17th January 2001 made
between ACT Teleconferencing, Inc. and Xx Xxxxxx and others (the
"Loan Note Instrument") or an Event of Default as defined in
Clause 7 of the Loan Note Instrument."
2.2 The following clause shall be added as Clause 2.2:
"2.2 Notwithstanding the provisions of Clauses 2.1 (Notice) and 10(b)
(Termination on account of illness or injury) the Company may at
any time elect in its sole and absolute discretion to terminate
Xx. Xxxxxx'x employment forthwith on payment to Xx. Xxxxxx of an
amount equal to the basic salary (at the rate then payable under
Clause 5) together with any bonus and benefits in kind (subject
to deduction of tax and national insurance) which he would have
received during the period ending on either the expiry of the
Fixed Term or, if later, the date on which the notice to which
Xx. Xxxxxx is entitled under Clause 2.1 or Clause 10(b) would
have expired."
2.2 The following clause shall be added as Clause 2.3:
"2.3 Without prejudice to the terms of Clause 2.2, the Company may at
any time and for a period of no more than three months require
Xx. Xxxxxx to cease performing his job. During any such period
of garden leave:
2.3.1 the Company shall continue to pay Xx. Xxxxxx'x salary and
provide all benefits and any bonus to which he is entitled
under the Service Agreement;
2.3.2 the Company shall be under no obligation to provide any
work for Xx. Xxxxxx;
2.3.3 the Company may require Xx. Xxxxxx to stay away from and
have no contact with any premises, employees, officers,
customers, clients, agents or suppliers of the Company;
2.3.4 Xx. Xxxxxx shall, at the request of the Board, immediately
deliver to the Company all or any property in his
possession or control which belongs to the Company or
which relates to the business of the Company;
2.3.5 Xx. Xxxxxx shall at the written request of the Board
immediately resign (without claim for compensation) from
all and any directorships and other offices which he may
hold in the Company
2
and from any other appointments or offices which he
holds as nominee or representative of the Company; and
2.3.6 for the avoidance of doubt, Xx. Xxxxxx shall continue
to be bound by Clause 4 of the Service Agreement
(obligation not to be employed in any other business)."
2.3 The following Clause shall be substituted for Clause 5:
"5.1 The Company will continue to pay Xx. Xxxxxx a salary at the
rate of (Pounds)75,000 per annum during his employment which
salary will accrue from day to day and be payable in arrears by
equal monthly instalments on or around the last day of each
calendar month.
5.2 Xx. Xxxxxx'x salary shall be reviewed by the Board of Directors
of the Company with effect from 1/st/ January 2001 and
subsequently with effect from 1/st/ January in each year and
shall be increased by not less than the rate of increase in the
Retail Prices Index for the preceding 12 month period.
5.3 The salary referred to in Clause 5.1 will not be inclusive of
any director's fees to which Xx. Xxxxxx may be entitled as a
director of the Company."
2.4 Clause 8 shall be amended to refer to Xx Xxxxxx'x entitlement to five
weeks' paid holiday, in place of four weeks' paid holiday, in every
year.
2.5 Clause 12 of the Service Agreement shall be amended to read:
"12.1 In this Clause 12 the following words and expressions shall
have the following meanings:
"Business" the business or businesses of the
Company in or with which Xx. Xxxxxx
has been involved or concerned,
namely the provision of
teleconferencing and electronic
meeting services and products, at
any time during the Prior Period
"directly or indirectly" Xx. Xxxxxx acting either alone or
jointly with or on behalf of any
other person, firm or company,
whether as principal, partner,
manager, employee, contractor,
director, consultant, investor or
otherwise
"Group Company" any holding company for the time
being of the Company or any
subsidiary for the time being of
the Company or of any such holding
company (for which purpose "holding
company" and "subsidiary" have the
meanings ascribed to them by
section 736 of the Companies Xxx
0000 as amended by the Companies
Act 1989)
"Key Personnel" any person who was an employee,
agent, director, consultant or
independent
3
contractor employed, appointed or engaged by
the Company or any Relevant Group Company at
any time within the Prior Period who by
reason of such employment, appointment or
engagement and in particular his/her
seniority and expertise or knowledge of trade
secrets or confidential information of the
Company or any Relevant Group Company or
knowledge of or influence over the clients,
customers or suppliers of the Company or any
Relevant Group Company is likely to be able
to assist or benefit a business in or
proposing to be in competition with the
Company or any Relevant Group Company
"Prior Period" the period of 12 months immediately preceding
the Termination Date
"Relevant Area" the United Kingdom and any and all European
countries where the Company has a material
presence
"Relevant Customer" any person, firm company or organisation who
or which at any time during the Prior Period
is or was:-
(i) negotiating with the Company or a
Relevant Group Company for the sale or
supply of Relevant Products or
Services; or
(ii) a client or customer of the Company or
any Relevant Group Company for the sale
or supply of Relevant Products or
Services; or
(iii) in the habit of dealing with the
Company or any Relevant Group Company
for the sale of supply of Relevant
Products or Services
and in each case with whom or which Xx.
Xxxxxx was directly concerned or connected or
of whom or which Xx. Xxxxxx had personal
knowledge during the Prior Period in the
course of his employment
"Relevant Group Company" any Group Company (other than the Company)
for which Xx. Xxxxxx has performed services
under the Service Agreement or for which he
has had operational/management responsibility
at any time during the Prior Period
4
"Relevant Products products or services which are of the same
or Services" kind as or of a materially similar kind to or
competitive with any products or services
sold or supplied by the Company or any
Relevant Group Company, including, but not
limited to, teleconferencing and electronic
meeting services and products, within the
Prior Period and with which sale or supply
Xx. Xxxxxx was directly concerned or
connected or of which he had personal
knowledge during the Prior Period in the
course of his employment
"Relevant Supplier" any person, firm or company who at any time
during the Prior Period was a supplier of any
goods or services to the Company or any
Relevant Group Company and with whom or which
Xx. Xxxxxx had personal dealings during his
employment
"Restricted Period" means the period of 12 months from the
Termination Date, such period being reduced
by any period of garden leave served by Xx.
Xxxxxx pursuant to Clause 2.3 of the Service
Agreement
"Termination Date" the date of termination for any reason of Xx.
Xxxxxx'x employment with the Company
12.2 Xx. Xxxxxx understands and acknowledges that his senior position with
the Company gives him access to and the benefit of confidential
information vital to the continued success of the Company and
influence over and connection with the Company's customers, suppliers,
distributors, agents, employees and directors in or with which he is
engaged or in contact and Xx. Xxxxxx hereby acknowledges and confirms
that he agrees that the provisions appearing in Clause 12 below (on
which he has had an opportunity to take independent advice as he
hereby acknowledges) are reasonable in their application to him and
necessary but no more than sufficient to protect the interests of the
Company.
12.3 Xx. Xxxxxx shall not without the prior written consent of the Board
directly or indirectly at any time within the Restricted Period be
engaged or concerned or interested in, or provide technical,
commercial or professional advice to, any business within the Relevant
Area which (a) competes or (b) will at any time during the Restricted
Period compete with the Business. Nothing in this Clause 12.3 shall
prevent Xx. Xxxxxx from holding securities in a company listed on a
Recognised Stock Exchange where his holding does not exceed 5% of the
class of securities concerned.
12.4 Xx. Xxxxxx shall not without the prior written consent of the Board
directly or indirectly at any time within the Restricted Period:-
12.4.1 solicit the custom of, facilitate the solicitation of or
deal with any Relevant Customer in respect of any Relevant
Products or Services; or
5
12.4.2 interfere or endeavour to interfere with the continuance of
supplies to the Company or any Relevant Group Company (or
the terms relating to those supplies) by any Relevant
Supplier.
12.5 Xx. Xxxxxx shall not without the prior written consent of the Board
directly or indirectly at any time during the Relevant Period:-
12.5.1 entice away from the Company or any Relevant Group Company;
or
12.5.2 endeavour to entice away from the Company or any Relevant
Group Company; or
12.5.3 employ or engage; or
12.5.4 endeavour to employ or engage, any Key Personnel.
6
12.6 Xx. Xxxxxx acknowledges that the provisions of this Clause 12
shall constitute severable undertakings given for the benefit of
the Company and each other Relevant Group Company and may be
enforced by the Company on behalf of any of them.
12.7 If any of the restrictions or obligations contained in this
Clause 12 is held not to be valid on the basis that it exceeds
what is reasonable for the protection of the goodwill and
interests of the Company and any Relevant Group Company but would
be valid if part of the wording were deleted then such
restrictions or obligations shall apply with such deletions as
may be necessary to make it enforceable.
12.8 Xx. Xxxxxx acknowledges and agrees that he shall be obliged to
draw the provisions of this Clause 12 to the attention of any
third party who could reasonably be considered a competitor of
the Company or any Relevant Group Company and who may at any time
before or after the termination of his employment offer to engage
him in any capacity and for whom or with whom Xx. Xxxxxx intends
to work during the Restricted Period."
3. In consideration of the amendments to the Service Agreement set out at
Clause 2 above, ACT Teleconferencing, Inc. shall pay to Xx. Xxxxxx the sum
of (Pounds)350,000 without deduction of tax pursuant to the Share Purchase
Agreement.
SIGNED by )
on behalf of )
ACT TELECONFERENCING LIMITED)
SIGNED by XXXXX XXXXXX )
7
Exhibit E
---------
BANK GUARANTEE
--------------
DEED OF GUARANTEE
THIS DEED OF GUARANTEE is made the 17/th/ JANUARY 2001 by:
BARCLAYS BANK PLC ("the Guarantor")
WHEREAS the Guarantor has agreed to guarantee (Pounds)750,000 of the
(Pounds)1,172,000 convertible secured A Notes and upon repayment of the A Notes
on 31 December 2001 thereafter to guarantee (Pounds)750,000 of the
(Pounds)2,980,000 convertible secured B Notes both to be issued by ACT
Teleconferencing Inc. pursuant to the terms of an instrument dated 17th January,
2001 of which this Guarantee shall be deemed to form part (the "Instrument") on
the terms hereinafter provided.
NOW THIS DEED WITNESSES as follows:-
1. The Guarantor hereby irrevocably undertakes to each Noteholder that:-
1.1 if the A Notes or the B Notes (together the "Notes") any part thereof shall
become repayable or redeemable pursuant to the terms of the Instrument then
the Guarantor hereby guarantees to the Noteholders the payment by the
Company of the principal amount of the Notes to be so redeemed or repaid in
accordance with the terms and conditions of the Instrument and subject to
the terms and conditions of this Guarantee; and
1.2 payments to be made by the Guarantor shall be made within 21 days after
receipt by the Guarantor at its Corporate Banking Department, 00 Xxxxx'x
Xxxx, Xxxxxxx, Xxxxxxxxx for the time being marked for the attention of the
Branch Director, of a written demand by the Noteholder provided that such
demand shall:
(a) be accompanied by the certificate relating to the Notes or such other
documents, as the Guarantor may reasonably require, to establish the
title of the Noteholder to the Notes in respect of which such demand
is made;
(b) be signed by and on behalf of the Noteholder and such signature is
confirmed by the Noteholder's bankers or solicitors as that of the
person it purports to be;
(c) give full details of the Noteholder's name and address, the amount of
principal which is claimed and the bank account in the United Kingdom
in the name of the Noteholder to which the sum so demanded is to be
paid by the Guarantor;
(d) certify that:
(i) none of the Notes in respect of which such demand is made has
been cancelled, redeemed or repurchased by the Company or
converted into shares or securities of the Company or any other
company; and
(ii) the principal amount of the Notes (or part thereof) is and
remains due and payable by the Company, all conditions and
demands necessary in connection therewith have been fulfilled
and made, any grace period relating thereto has elapsed and the
Company is not contesting the liability in circumstances where
the Company is entitled to withhold payment.
(iii)
2. The undertakings contained in paragraph 1 above are continuing undertakings
and shall remain in force notwithstanding:
(a) any obligation of the Company in respect of its payment obligations
under the Instrument being void or unenforceable; or
(b) the liquidation or dissolution of the Company or the appointment of a
receiver or administrator of all or any part of the assets of the
Company or any analogous event occurring in any other relevant
jurisdiction.
3. Notwithstanding anything to the contrary herein, it is hereby confirmed
that this Guarantee constitutes the Guarantor's direct obligation to make
payment in accordance with the terms of this Guarantee without reference to
the Company and without examination of the liability of the Company under
the Note or Notes. Any amounts due hereunder will be paid without reference
to any rights of set off or counter claim that the Company or the Guarantor
have against the Noteholders and whether or not the Company disputes the
truth or accuracy of any statement given.
4. Subject to the provisions of paragraphs 5 to 7 below the liability of the
Guarantor hereunder shall not be impaired or discharged by reason of any
time or other indulgence which the Noteholder may grant to the Company or
by any forbearance whether as to payment time or otherwise nor by any
variation compromise or release of the obligations of the Company, provided
that the Guarantor shall not be bound by any such other matter or thing
which would operate either to increase the Guarantor's actual or contingent
liabilities hereunder or extend any due date for any of the Company's
obligations under the Notes.
5. No variation or modification to the provisions of the Instrument or of the
rights of the Noteholder shall be made without the prior consent in writing
of the Guarantor.
6. The liabilities of the Guarantor hereunder shall:
(a) be limited to a sum or sums not exceeding in aggregate (Pounds)750,000
and in relation to the principal amount due under the Notes; and
(b) be null and void and this Guarantee shall cease to have effect on the
earlier of 31 March 2006 (being three months after the final tranche
of the B Notes has been repaid) and the date on which a demand by a
Noteholder is met by the Guarantor in the aggregate amount of
(Pounds)750,000 whether the Notes are returned to the Company or the
Guarantor or not and the Guarantor shall have no liability under this
Guarantee, save to the extent of any demand delivered to the Guarantor
prior to 31 March 2006 which complies with the requirements of this
Guarantee.
7. For the avoidance of doubt this Guarantee shall cease immediately in
respect of any Notes purchased or redeemed by the Company.
8. Payments by the Guarantor under this undertaking shall be made in
accordance with the provisions of the Instrument. Receipt by a Noteholder
of all or any sums paid by the Guarantor under this Guarantee shall be a
good discharge of the Guarantor's liabilities under this Guarantee as
against all Noteholders to the extent of the sums so paid and the Guarantor
shall not be concerned to see to the application of any such sums. The
Guarantor may rely on any demand or other document or information believed
by the Guarantor to be genuine and correct and to have been signed or
communicated by the person(s) by whom it purports to be signed or
communicated and the Guarantor shall not be liable for the consequences of
such reliance and shall have no obligation to verify that the facts or
matters stated therein are true and correct.
9. All payments made by the Guarantor under the terms of this Guarantee and
the Notes shall be treated as payment by it as Guarantor and shall
discharge the liabilities of the Guarantor in such capacity in respect of
the amounts for which such payments are made hereunder accordingly.
10. Any payment to be made hereunder will be made after any withholding or
deduction for or on account of any tax or duty imposed or levied by any
authority having power to tax such payment which the Guarantor shall for
the time being be required by any applicable law to withhold or deduct and
the Guarantor shall not be obliged to pay any additional amount to the
Noteholders in respect of the tax or duty so withheld or deducted.
11. This Guarantee shall be governed by and construed in accordance with
English law.
12. Words defined in the Instrument shall have the same meaning when used in
this Guaranteed.
2
13. If the Noteholder intends to make a demand under paragraph 1.2 above but
has lodged the certificate in respect of the Notes held by him with the
Company, he shall be entitled to make a demand under paragraph 1.2 above by
instead delivering with his demand under paragraph 1.2 above a true copy of
the certificate together with his written certificate to the Guarantor that
the copy is a true copy, that he is entitled to payment under the Notes
represented by the copy certificate and that he has lodged the original
certificate in respect of the Notes held by him with the Company and the
Company has not paid.
In witness whereof this Guarantee has been executed by the Guarantor as a
deed and it shall take effect the day and year first above written.
THE COMMON SEAL of )
BARCLAYS BANK PLC )
was hereunto affixed )
in the presence of: )
3
Exhibit F
BUYER'S CERTIFICATE
-------------------
SECRETARY'S CERTIFICATE
ACT Teleconferencing, Inc.
January 5, 2001
I, Xxxxxxx X. Xxxxx, hereby certify that the following action was taken by the
Board of Directors of ACT Teleconferencing, Inc. effective as of January 5,
2001:
RESOLVED, that:
1. ACT Teleconferencing, Inc. ("Company") appoint Barclays Bank PLC (the
"Bank") as the Company's bankers;
2. the Company accept the terms of the Barclays Customer Agreement (a copy of
which the Bank has provided) and confirm such acceptance to the Bank by
completing the Bank's form of Appointment of Bankers;
3. Xxxxx Xxxxxxx and Xxxxxx Xxx Xxxxxxxx ("Authorized Persons") are authorized
by the Company individually to:
(a) enter into any other agreements (including banking facility agreements
and indemnities) which they consider to be in the interests of the
Company from time-to-time; and
(b) give instructions concerning the operation of the Company's bank
accounts and otherwise communicate with the Bank in each case in
writing or verbally or by computer, in accordance with the Customer
Agreement; and any Authorized Person can arrange for the Bank to
provide products or services which are covered by the Customer
Agreement.
FURTHER RESOLVED, that 360,000 shares of stock of ACT Teleconferencing, Inc.
("Company") be, and they hereby are, fully authorized for issuance to Xxxxx
Xxxxxx and his family members as divided by him as partial consideration of the
Company's purchase of 40% of the common shares of ACT Teleconferencing Limited.
FURTHER RESOLVED, that the purchase of 40% of the common shares of ACT
Teleconferencing Limited be, and it hereby is, approved as presented to the
Board in its meeting of January 5, 2001, the form of documentation is ratified,
and the officers are directed and authorized to negotiate any remaining issues,
and are further authorized to execute all necessary documents, deliver the
consideration required by the documents, and take all other action to complete
the transaction within five business days following January 15, 2001.
/s/ Xxxxxxx X. Xxxxx Date: January 12, 2001
--------------------------------- ----------------------------
Xxxxxxx X. Xxxxx
Assistant Secretary
Exhibit G
ESCROW AGREEMENT
----------------
DATED 17 JANUARY 2001
-----------------------------------------------------------
ACT TELECONFERENCING, INC.
and
XXXXX XXXXXXX XXXXXX
and
XXXXXXX XXXXXX XXXXXX
and
XXXXXX XXXX XXXXXX
and
XXXX XXXXXX
and
NABARRO XXXXXXXXX
-----------------------------------------------------------
ESCROW AGREEMENT RELATING TO THE
MORTGAGE OF 10,000 ORDINARY SHARES OF ACT
TELECONFERENCING LIMITED
-----------------------------------------------------------
Nabarro Xxxxxxxxx
The Anchorage
00 Xxxxxx Xxxxxx
Xxxxxxx XX0 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Ref: BSM/RHC
2
THIS AGREEMENT is made this 17th day of January 2001
BETWEEN:
(1) ACT TELECONFERENCING, INC. a Colorado Corporation whose principal place of
business is at 0000 Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxxxxxx, 00000, XXX
("Buyer");
(2) XXXXX XXXXXXX XXXXXX, XXXXXXX XXXXXX XXXXXX, XXXXXX XXXX XXXXXX and XXXX
XXXXXX (together "Vendors");
(3) NABARRO XXXXXXXXX of The Anchorage, 00 Xxxxxx Xxxxxx, Xxxxxxx XX0 0XX
("Escrow Agent" which expression shall include any successor to such firm).
WHEREAS:
(A) The Vendors and the Buyer have entered into an agreement of even date
("Sale Agreement") providing for the sale by the Vendors to the Buyer of
10,000 ordinary shares in the capital of ACT Teleconferencing Limited
("Limited"). Part of the consideration to be satisfied by the Buyer
pursuant to the Sale Agreement is in the form of loan notes ("Notes") in
favour of the Vendors pursuant to a loan note instrument of even date
("Loan Note Instrument").
(B) As partial security for the consideration which the Vendors are receiving
pursuant to the Sale Agreement, the Buyer and the Vendors have entered into
a mortgage of 40% of the ordinary shares in Limited of even date
("Mortgage").
(C) Clause 5.2 of the Mortgage sets out the requirement for an escrow
arrangement as set out in this Agreement.
1. DEFINITIONS AN INTERPRETATIONS
1.1 Words and expressions defined in the Sale Agreement, Mortgage and Loan Note
Instrument shall, unless otherwise defined herein or inconsistent herewith,
have the same meaning or use in this Agreement.
1.2 In the event that the Sale Agreement, Mortgage and Loan Note Instrument or
any instructions by the Vendors are inconsistent with the provisions of
this Agreement the provisions of this Agreement shall prevail.
1.3 Unless the context otherwise requires, in this Agreement:
(a) the headings are for convenience only and shall not affect the
interpretation hereof;
(b) any reference to "this Agreement" or any other agreement or document
shall be deemed to refer to the same as amended or modified or
supplemented from time to time by the parties hereto or thereto;
(c) any reference to a "clause" is a reference to a clause hereof;
1
(d) words importing the singular shall include the plural and vice versa,
words incorporating a gender shall include every gender and references
to a person shall include bodies corporate, unincorporated
associations and partnerships.
2. APPOINTMENT
The Vendors and the Buyer hereby irrevocably appoint and designate Nabarro
Xxxxxxxxx as the Escrow Agent for the purposes specified in this Agreement
and the Escrow Agent hereby accepts such appointment and designation.
3. ESCROW AGENT'S UNDERTAKING
The Escrow Agent undertakes to the Buyer not to release the stock and share
certificates or other documents of title to or representing the Shares or
the Derivative Assets (both as defined in the Mortgage) delivered to it
together with such duly executed transfers or assignments with the name of
the transferee, date and consideration left blank which may be delivered to
it (together the "Security Documents") unless and until Xxxxx Xxxxxx (or
his personal representatives or successors in title to the Notes issued to
him) has certified to the Escrow Agent either (a) that he has given 14
days' notice to the Buyer that an unremedied (after allowing for any
applicable grace period) Event of Default (as defined in the Mortgage) has
occurred and that he seeks the immediate release of the Security Documents
from the Escrow Agent or (b) that the Secured Liabilities (as defined in
the Mortgage) have been repaid in full and accordingly the Security
Documents shall be released to the Buyer (in which event the Escrow Agent
shall so release them as soon as reasonably practicable).
4. CERTIFICATES
4.1 The certificate required under clause 3 of this Agreement shall be in
writing and signed by the person giving it. A certificate shall not be
valid if transmitted by fax or email and the Escrow Agent shall not be
deemed to have received a certificate prior to its actual receipt.
4.2 Any certificate under this Agreement to the Escrow Agent shall be delivered
or sent to the Escrow Agent at The Anchorage, 00 Xxxxxx Xxxxxx, Xxxxxxx
XX0 0XX (reference BSM/RHC) or to such other address as may be notified by
the Escrow Agent to the other parties to this Agreement from time to time.
5. LIABILITY
5.1 The Escrow Agent shall not be liable in any manner to the Vendors or the
Buyer for any action taken or omitted to be taken in good faith by such
Escrow Agent hereunder or in connection herewith.
5.2 The Vendors and the Buyer hereby agree that the Escrow Agent shall be
entitled to rely conclusively upon and shall be fully protected in acting
upon any certificate received by it in connection with this Agreement and
believed by the Escrow Agent in good faith to be genuine, contains the
certification required in Clause 3 and correct and to have been signed by a
proper person even if any such certificate or signature or endorsement
thereon should prove to be invalid, unauthorised, fraudulent or forged.
5.3 The Vendors and the Buyer hereby agree that the Escrow Agent may release
the Security Documents to the Vendors without any enquiry whatsoever as to
the underlying circumstances or the accuracy or truthfulness of any
certificate delivered to it under this Agreement and in particular without
any enquiry of or notification to the Buyer.
2
5.4 The Vendors and the Buyer, jointly and severally, covenant and agree that
they will indemnify and hold harmless the Escrow Agent from and against any
and all damages, losses, costs and expenses incurred by the Escrow Agent by
reason of its acceptance of its appointment and the conduct of its duties
under this Agreement or by reason of any action taken or not taken by the
Escrow Agent (otherwise than as a result of the Escrow Agent's wilful
default) and each of the Vendors and the Buyer hereby waives to the fullest
extent permitted by law, all of its rights to bring any action or bring any
claim against the Escrow Agent for any action taken or not taken by the
Escrow Agent under or in connection with this Agreement (unless such claim
is caused by the Escrow Agent's wilful default in its obligations under
this Agreement).
6. COUNTERPARTS
This Agreement may be executed in any number of counterparts by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, with all the counterparts held
together to constitute one and the same instrument.
7. LAW
This Agreement shall be governed by and construed in accordance with
English Law.
IN WITNESS whereof this Agreement has been duly executed on the date written at
the being of it.
ACT Teleconferencing Inc. )
by: ) /s/ Xxxxxxx X. Xxxxx
(authorised signatory) ) Assistant Secretary
XXXXX XXXXXX ) /s/ Xxxxx Xxxxxx
)
XXXXXXX XXXXXX XXXXXX ) /s/ Xxxxxxx Xxxxxx Xxxxxx
)
XXXXXX XXXX XXXXXX ) /s/ Xxxxxx Xxxx Xxxxxx
)
XXXX XXXXXX ) /s/ Xxxx Xxxxxx
)
NABARRO XXXXXXXXX ) /s/ Nabarro Xxxxxxxxx
3
