DATED o 2001
XXXXXXX INTERNATIONAL plc
and
ING BARINGS LLC
--------------------------------------------------------------------------------
CONTINGENT PURCHASE CONTRACT
FOR THE PURCHASE OF UP TO 1,056,395
SHARES OF US$0.01 EACH IN THE
CAPITAL OF XXXXXXX INTERNATIONAL plc
--------------------------------------------------------------------------------
THIS AGREEMENT is made on , 2001
BETWEEN:
(1) XXXXXXX INTERNATIONAL plc (registered number 2798239) whose registered
office is at Masters House, 107 Hammersmith Road, London W14 OQH (the
"Company"); and
(2) ING BARINGS LLC whose US offices are located at 00 X. 00xx Xxxxxx, Xxx
Xxxx, XX 00000 (the "Vendor")
WHEREAS:
(A) The Company is a public company limited by shares having an authorized
share capital of (pound)57,000 divided into 7,125 "A" Ordinary Shares of
(pound)8 each ("Ordinary Shares") and US$150,000 divided into 15,000,000
Ordinary Shares of US$0.01 each ("$ Shares") of which 7,015 Ordinary Shares
and 10,563,950 $ Shares have been issued fully paid or credited as fully
paid.
(B) Pursuant to and in accordance with the terms of the Amended and Restated
Restricted Deposit Agreement dated 4th August 1997 between inter alia the
Company and Bankers Trust Company, a bank organized under the laws of the
State of New York (the "Deposit Agreement" and "Depositary" respectively),
the 10,563,950 issued $ Shares (such shares being referred to in the
Deposit Agreement as "Restricted American Depositary Shares ("ADS's")) are
held by the Depositary in the form of share warrants to bearer, the
beneficial ownership of which being evidenced by the issue by the
Depositary of American Depositary Receipts ("ADR's") on the basis of one
ADR for every one ADS held.
(C) Subject to the conditions in clause 1 below, the Company wishes to
purchase, and the Vendor wishes to sell up to 1,056,395 of such $
Shares on the terms and conditions set out below.
(D) The Company is authorized to purchase its own shares pursuant to article 11
of the Company's articles of association.
(E) A copy of this agreement has been available for inspection by the members
of the Company at its registered office for not less than 15 days ending
with 22nd May, 2001 and was similarly available at the annual general
meeting of the Company held on that date at which the terms of this
agreement were authorized by special resolution of the Company in
accordance with section 164 of the Companies Xxx 0000 (the "Act").
(F) The consideration for the purchase of any of the $ Shares is proposed to be
provided out of the distributable profits of the Company.
IT IS AGREED as follows:
1. Conditions Precedent
Each sale and purchase of any of the $ Shares is conditional on:
(a) the Company having notified the Vendor at any time prior to 31st
October, 2002 by one or more notices (in the form set out in Appendix
1) that it wishes to purchase up to a specified number of $ Shares and
the price or the range of prices and a maximum price at or within
which the Vendor shall acquire the ADRs representing such shares; and
following receipt by the Vendor of any notice pursuant to paragraph
(a) above, the Vendor having notified the Company at any time prior to
7th November, 2002 by one or more
(b) notices (in the form set out in Appendix 2) ("Vendor's Notice") that
it has acquired a specified number of ADRs (the "Sale ADRs") in
accordance with paragraph (a) above and that pursuant to and in
accordance with the relevant provisions of the Deposit Agreement, such
ADRs have been surrendered to the Depositary and that the Vendor is
the holder of share warrants to bearer in respect of a specified
number of $ Shares (the "Sale Shares").
2. Sale and Purchase
Subject to the satisfaction of the conditions in clause l, the Vendor
shall sell, and the Company shall purchase, the Sale Shares at an
aggregate price, payable in cash in US dollars, equal to the aggregate
of (i) the consideration paid by the Vendor for the Sale ADRs and (ii)
a commission equivalent markup of US[ ] per share and (iii) a
conversion fee of US[ ] per share (together, the "Purchase Price").
3. Warranties and Covenants
(1) The Vendor warrants that as at completion of each purchase of Sale
Shares (as referred to in clause 4 below) it will be the beneficial
owner of the number of Sale Shares specified in the relevant Vendor's
Notice and that such Sale Shares will be free from any lien, charge or
encumbrance.
(2) The Vendor covenants that all purchases of Sale ADRs by it hereunder
shall be made in accordance with all applicable US securities laws,
including but not limited to Rule 10b-18 under the US Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Regulation M
under the Exchange Act.
(3) Each party warrants to the other that this Agreement has been duly
authorized, executed and delivered by such Party, and constitutes the
legal, valid and binding obligation of such Party, enforceable against
it in accordance with its terms.
2
4. Completion
(1) Completion of each sale and purchase of the Sale Shares shall be
effected on the business day next following receipt by the Company of
the relevant Vendor's Notice, at a place to be agreed between the
Company and the Vendor, by:
(a) the Vendor delivering to the Company the share warrants to bearer
representing the Sale Shares referred to in the Vendor's Notice;
and
(b) the Company paying to the Vendor the Purchase Price.
(2) As soon as is reasonably practicable after completion the Company
shall (if applicable) alter its register of members so as to show that
the relevant Sale Shares have been cancelled in accordance with
section 160(4) of the Act.
5. Costs
Each of the Company and the Vendor shall bear all professional costs and
charges relating to this agreement respectively incurred by them and the
Company shall also pay all stamp duties falling due in respect of the
completion of the purchase of the Sale Shares in accordance with this
agreement.
6. Service of Notices
Any notice to be served under this agreement shall be validly served if
delivered or if sent by first class post, recorded delivery post or
facsimile process if addressed to the Company at its US Executive Offices
located at 00000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention:
Chief Financial Officer (facsimile number 937-644-0827) or, if addressed to
the vendor to ING Barings LLC at 00 X. 00xx Xxxxxx, Xxx Xxxx, XX 00000,
attention Xxxxxxx X. Xxxxxxx, Managing Director (facsimile number
212-409-5059), with a copy to Xxxxx Xxxxxxxx, Director (facsimile number
404-364-5255). Any notice shall be deemed to have been served:
(a) if delivered, at the time of delivery;
(b) if posted, on the third business day after it was put in the post; or
(c) if sent by facsimile process at the expiration of two hours after the
time of dispatch.
7. Termination
This agreement shall terminate on 7th November, 2002 (the "Termination
Date") as from which date neither of the parties will have any rights,
liabilities or obligations under this agreement save in respect of any
Vendor's Notice received or deemed received by the Company prior to the
Termination Date.
3
8. General
(1) The headings in this agreement are for convenience only and shall not
affect its construction.
(2) This agreement is governed by and shall be construed in accordance
with the laws of England and Wales.
AS WITNESS the hands of the duly authorized representatives of the parties on
the date, which appears first on page 1.
SIGNED by o
for and on behalf of
XXXXXXX INTERNATIONAL plc
SIGNED by o
for and on behalf of
ING BARINGS LLC
4
APPENDIX 1
To: o
Pursuant to clause 1(a) of the Contingent Purchase Contract made between us and
dated 2001 (the "Contract"), we hereby notify you that:
1. We wish to purchase up to [ ] $ Shares as defined in, and on the terms and
subject to the conditions of, the Contract;
2. [Wording to be inserted re: Rule 10b-18 of US Securities Exchange Act of
1934]; and
3. The maximum price which you may purchase ADRs representing $ Shares shall
be US$[ ] per ADR.
Dated:
Signed:
------------------------------
A duly authorized director
for and on behalf of
Xxxxxxx International plc
5
APPENDIX 2
To: The Directors
Xxxxxxx International plc
Masters House
000 Xxxxxxxxxxx Xxxx
Xxxxxx X00 0XX
Xxxxxxx
Pursuant to clause 1(b) of the Contingent Purchase Contract made between us and
dated 2001 (the "Contract"), we hereby notify you as follows:
1. We have acquired [ ] ADRs representing [ ] Sale Shares, as defined in the
Contract at a price or prices and on the dates specified below.
Date(s) ADR(s) Price paid No. of ADRs Total purchase price
Purchased per ADR $ purchased
[ ] [ ] [ ] [ ]
2. Pursuant to and in accordance with the relevant provisions of the Deposit
Agreement (as so defined) we have surrendered the above-mentioned ADRs to
the Depositary and that we are the holder of a share warrant to bearer in
respect of [ ] $ Shares.
Dated:
Signed:
------------------------------
A duly authorized director
for and on behalf of o
6
