EXHIBIT 10.30
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
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SUBSCRIPTION AGREEMENT
among
SOCIETE EUROPEENNE DES SATELLITES, S.A.
iBEAM BROADCASTING CORPORATION
and
iBEAM EUROPE LIMITED
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Dated as of June 30, 2000
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS......................................................1
1.1 Definitions......................................................1
ARTICLE 2 SUBSCRIPTION FOR ORDINARY SHARES.................................4
2.1 Subscription for Shares..........................................4
2.2 Closing..........................................................4
ARTICLE 3 CONDITIONS TO THE OBLIGATION OF THE SUBSCRIBERS TO CLOSE.........4
3.1 Representations and Warranties...................................5
3.2 Compliance with this Agreement...................................5
3.3 Subscription Permitted by Applicable Laws........................5
3.4 Litigation.......................................................5
3.5 Consents and Approvals...........................................5
3.6 Articles of Association..........................................5
3.7 Transaction Agreements...........................................5
3.8 Subscription by other Subscribers................................5
ARTICLE 4 CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CLOSE.............6
4.1 Representations and Warranties...................................6
4.2 Compliance with this Agreement...................................6
4.3 Consents and Approvals...........................................6
4.4 Transaction Agreements...........................................6
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE COMPANY....................6
5.1 Corporate Existence and Power....................................6
5.2 Corporate Authorization; No Contravention........................7
5.3 Binding Effect...................................................7
5.4 Litigation.......................................................7
5.5 Compliance with Laws.............................................7
5.6 Disclosure.......................................................7
5.7 Subsidiaries.....................................................7
5.8 Capitalization...................................................8
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBERS................8
6.1 Authorization; No Contravention..................................8
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TABLE OF CONTENTS
(continued)
Page
6.2 Binding Effect...................................................8
ARTICLE 7 INDEMNIFICATION..................................................8
7.1 Indemnification..................................................8
7.2 Notification.....................................................9
7.3 Resolution of Actions............................................9
ARTICLE 8 AFFIRMATIVE COVENANTS............................................9
8.1 Operation of Company.............................................9
8.2 Taxes...........................................................10
ARTICLE 9 MISCELLANEOUS...................................................10
9.1 Obligations of the Subscribers..................................10
9.2 Termination.....................................................10
9.3 Survival of Representations and Warranties......................11
9.4 Notices.........................................................11
9.5 Successors and Assigns..........................................12
9.6 Determinations, Requests or Consents............................12
9.7 Amendment and Waiver............................................12
9.8 Counterparts....................................................12
9.9 Headings........................................................13
9.10 Governing Law...................................................13
9.11 Jurisdiction....................................................13
9.12 Severability....................................................13
9.13 Rights of Third Parties.........................................13
9.14 Entire Agreement................................................13
9.15 Publicity.......................................................13
9.16 Further Assurances..............................................14
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CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS
DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH
THE COMMISSION.
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT, dated as of June 30, 2000, among iBEAM
EUROPE LIMITED, a corporation registered in England (the "Company"), SOCIETE
EUROPEENNE DES SATELLITES S.A., a corporation organised and existing under the
laws of Luxembourg ("SES"), and iBEAM BROADCASTING CORPORATION, a corporation
organised and existing under the laws of Delaware ("iBEAM," and together with
SES, the "Subscribers").
WHEREAS, SES and iBEAM have executed a Memorandum of Understanding,
dated April 10, 2000 (the "MOU") containing the general terms for their
participation in a joint venture company to operate a business for the
distribution of streaming content via the Internet;
WHEREAS, the Company was established to act as such joint venture
company, in accordance with the terms of the MOU;
WHEREAS, as of the date hereof, the Company has an authorised share
capital of [*] divided into 4,500,000 ordinary shares of [*] each ("Ordinary
Shares") of which one issued Ordinary Share has been issued to iBEAM;
WHEREAS, the Company proposes to issue and iBEAM proposes to
subscribe for 100,000 Ordinary Shares on the First Closing Date, ,and 899,999
further Ordinary Shares on or before the Second Closing Date, as each of those
dates is hereafter defined on the terms of this Agreement;
WHEREAS, the Company proposes to issue and SES proposes to subscribe
for 100,000 Ordinary Shares on the First Closing Date, and 400,000 additional
Ordinary Shares on or before the Second Closing Date on the terms of this
Agreement; and
WHEREAS, the parties hereto are entering into a Shareholders'
Agreement, dated the date hereof (the "Shareholders' Agreement"), pursuant to
which the parties thereto are agreeing, among other things, to restrict the
transfer of Ordinary Shares.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Agreement, unless the context
requires otherwise, the following terms have the meanings indicated:
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* Confidential material redacted and filed separately with the Commission.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For the purposes of this definition, "control," when
used with respect to any Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities; by contract or otherwise.
"Agreement" means this Subscription Agreement (including the
schedule hereto) as the same may be amended, supplemented or modified in
accordance with the terms hereof.
"Articles of Association" means the articles of association of the
Company from time to time.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in London are authorised or required by law or
executive order to close.
"Closing" has the meaning assigned to that term in Section 2.2.
"Closing Date" means each date specified as such in Section 2.2.
"Company Network" means the Internet content distribution network to
be owned and operated by the Company within the Territory;
"Content Distribution Agreement" means the Content Distribution
Agreement executed by the Company, iBEAM, and iBEAM Asia, Ltd. as of the date
hereof.
"Contractual Obligations" means, as to any Person, any provision of
any security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument to which such Person is a
party or by which it or any of its property is bound.
"$" or "dollar" means the lawful currency of the United States of
America.
"Governmental Authority" means the government of any nation, state,
city, locality or other political subdivision of any thereof, any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of any of the foregoing.
"iBEAM Technology License Agreement" means the Technology License
Agreement executed by the Company and iBEAM as of the date hereof.
"Indemnified Party" has the meaning assigned to such term in Section
7.1 or 7-22.
"Indemnifying Party" has the meaning assigned to such term in
Section 7.1 or 7.2.
"Intellectual Property" means all of the following as they exist in
all jurisdictions throughout the world:
(i) patents and patent applications (including any divisions,
continuations, continuations-in-part, substitutions or reissues
thereof, whether or not patents are issued on such applications and
whether or not such applications are modified, withdrawn or
resubmitted) ("Patents");
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(ii) trademarks, service marks, trade names, brand names,
designs and logos, corporate names, product or service identifiers,
whether registered or unregistered, and all registrations and
applications for registration thereof (collectively, "Trademarks");
(iii) copyright registrations and applications for
registration thereof, and any non-registered copyrights
("Copyrights");
(iv) trade secrets, inventions (whether or not patentable and
whether or not reduced to practice), invention disclosures and
improvements thereto (collectively, "Trade Secrets");
(v) proprietary computer software programs and source code;
and
(vi) any other information concerning the Company that is not
generally available to the public and which is treated as
confidential or proprietary by the Company (collectively,
"Confidential Information").
"Liabilities" has the meaning assigned to such term in Section 7.1.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other) or preference, priority,
right or other security interest or preferential arrangement of any kind or
nature whatsoever (excluding preferred stock or equity related preferences),
including, without limitation, those created by, arising under or evidenced by
any conditional sale or other title retention agreement, any interest of a
lessor under a capital lease, or any financing lease having substantially the
same economic effect as any of the fore-going.
"Ordinary Shares" means ordinary shares of [*] each in the capital
of the Company having the rights and restrictions set out in the Articles of
Association.
"Person" means any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stack
company, Governmental Authority or other entity of any kind, and shall include
any successor (by merger or otherwise) of any such entity.
"Requirements of Law" means, as to any Person, the articles of
association or other organizational or governing documents of such Person, and
any law, treaty, rule, regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case (i) applicable or binding upon
such Person or any of its properties or to which such Person or any of its
properties is subject or (ii) pertaining to any or all of the transactions
contemplated herein.
"SES Services Agreement" means the Services Agreement executed by
the Company and SES as of the date hereof.
"Shareholders' Agreement" means the Shareholders' Agreement executed
by the parties hereto as of the date hereof.
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* Confidential material redacted and filed separately with the Commission.
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"Subsidiary" means, with respect to any Person, a corporation or
other entity of which 50% or more of the voting power of the voting equity
securities or equity interests is owned, directly or indirectly, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Company.
"Tax" or "Taxes" means all federal, state, county, local, foreign
and other taxes (including, without limitation, income, profits, premium,
estimated, excise, sales, use, occupancy, gross receipts, franchise, ad valorem,
severance, capital levy, production, transfer, withholding, employment,
unemployment compensation, payroll-related and property taxes, import duties and
other governmental charges and assessments), whether or not measured in whole or
in part by net income, and including deficiencies, interest, additions to tax or
interest, and penalties with respect thereto.
"Transaction Agreements" means, collectively, this Agreement, the
Shareholders' Agreement, the Content Distribution Agreement, the iBEAM
Technology License Agreement, and the SES Services Agreement.
ARTICLE 2
SUBSCRIPTION FOR ORDINARY SHARES
2.1 Subscription for Shares. Subject to the terms and conditions
herein set forth, the Company agrees that it will issue to each of the
Subscribers on each Closing Date, and each of the Subscribers, severally and not
jointly, agrees that it will subscribe on each Closing Date for the number of
Ordinary Shares set forth next to such Subscriber's name for each such Closing
Date on Schedule 2.1 hereto. The subscription price of the Ordinary Shares to be
acquired by each Subscriber on each Closing Date shall be as set forth in
relation to that Subscriber's name on Schedule 2.1 hereto for that Closing Date.
The Ordinary Shares shall be issued, credited as fully paid, and shall have the
rights attached thereto set out in the Articles of Association and the
Shareholders' Agreement.
2.2 Closing. The subscription shall take place at each of two
closings (each, a "Closing"). The first Closing shall be on July 21, 2000 (the
"First Closing Date"), and the second Closing shall be July 28, 2000 (the
"Second Closing Date"; the First Closing Date and Second Closing Date, each
referred to as a "Closing Date") or at such other times as the Company and the
Subscribers may agree in writing. At each Closing, the Company shall deliver to
each Subscriber a share certificate representing the Ordinary Shares purchased
by that Subscriber on that Closing Date against delivery to the Company by that
Subscriber of the subscription price therefor by wire transfer of immediately
available funds to an account specified in writing by the Company.
ARTICLE 3
CONDITIONS TO THE OBLIGATION OF THE SUBSCRIBERS TO CLOSE
On each Closing Date, the obligation of each Subscriber to subscribe
for the Ordinary Shares on that Closing Date as specified in Schedule 2.1, and
to perform any obligations hereunder, shall be subject to the satisfaction of
the following conditions on or before that Closing Date (subject to any waiver
of any such condition by any Subscriber):
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3.1 Representations and Warranties. The representations and
warranties of the Company contained in Article 5 hereof shall be true and
correct at and as of the First Closing Date as if made at and as of such date.
Said representations and warranties shall be restated in full on the Second
Closing Date, and shall be true and correct on and as of that date as if made on
that date.
3.2 Compliance with this Agreement. The Company shall have performed
and complied with all of the agreements and conditions set forth or contemplated
herein that are required to be performed or complied with on or before the
applicable Closing Date.
3.3 Subscription Permitted by Applicable Laws. The subscription
including payment for the Ordinary Shares to be subscribed by the Subscribers
hereunder and the consummation of the transactions contemplated hereby for that
Closing Date (i) shall not be prohibited by any Requirement of Law, (ii) shall
not subject any of the Subscribers to any penalty or, in their reasonable
judgment, any other onerous condition under or pursuant to any Requirement of
Law and (iii) shall be permitted by all Requirements of Law to which they or the
transactions contemplated by or referred to herein are subject; and the
Subscribers shall have received such certificates or other evidence as they may
request to establish compliance with this condition.
3.4 Litigation. There shall be no legal actions, suits, judgments,
proceedings, investigations, claims or disputes pending or, to the Company's
knowledge, threatened, at law, in equity, in arbitration or before any
Governmental Authority against or affecting the Company.
3.5 Consents and Approvals. All approvals, consents, exemptions,
authorizations, or other actions by, or notices to, or filings with,
Governmental Authorities and other Persons in respect of all Requirements of Law
and Contractual Obligations of the Company necessary or required in connection
with the execution, delivery or performance (including, without limitation, the
issuance of Ordinary Shares) by the Company, or enforcement against the Company,
of the Transaction Agreements to which it is a party, and the transactions
contemplated thereby for that Closing Date shall have been obtained and be in
full force and effect, and the Subscribers shall have been furnished with
appropriate evidence thereof, and all applicable waiting periods shall have
lapsed without extension or the imposition of any conditions or restrictions.
3.6 Articles of Association. The Articles of Association of the
Company shall be in form and substance satisfactory to the Subscribers and shall
be unchanged from such form and substance as of each of the Closing Dates.
3.7 Transaction Agreements. Each of the Transaction Agreements shall
have been duly executed and delivered by the Company and the other party or
parties named therein, and shall be in full force and effect.
3.8 Subscription by other Subscribers. Each other Subscriber shall
have paid in full the subscription price for the Ordinary Shares to be acquired
by such other Subscriber on such Closing Date, as set forth on Schedule 2.1
hereto.
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ARTICLE 4
CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CLOSE
On each Closing Date, the obligation of the Company to issue the
Ordinary Shares to be issued by the Company on that Closing Date as specified in
Schedule 2.1, and to perform any obligations hereunder, shall be subject to the
satisfaction of the following conditions on or before that Closing Date (subject
to any waiver of any such condition by the Company):
4.1 Representations and Warranties. The representations and
warranties of the Subscribers contained in Article 6 hereof shall be true and
correct at and as of the First Closing Date as if made at and as of such date.
Said representations and warranties shall be restated in full on the Second
Closing Date, and shall be true and correct on and as of that date as if made as
of that date.
4.2 Compliance with this Agreement. The Subscribers shall have
performed and complied in all material respects with all of their agreements and
conditions set forth or contemplated in any Transaction Agreement that are
required to be performed or complied with by the Subscribers on or before the
relevant Closing Date.
4.3 Consents and Approvals. All approvals, consents, exemptions,
authorizations, or other actions by, or notices to, or filings with,
Governmental Authorities and other Persons in respect of all Requirements of Law
and Contractual Obligations of the Subscribers necessary or required in
connection with the execution, delivery or performance by the Subscribers, or
enforcement against the Subscribers, of the Transaction Agreements shall have
been obtained and be in full force and effect, and the Company shall have been
furnished with appropriate evidence thereof, and all applicable waiting periods
shall have lapsed without extension or the imposition of any conditions or
restrictions.
4.4 Transaction Agreements. Each of the Subscribers shall have duly
executed and delivered each of the Transaction Agreements to which such
Subscriber is a party, and said Transaction Agreements shall be in full force
and effect.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Subscribers as
follows:
5.1 Corporate Existence and Power.
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(a) The Company: (i) is duly incorporated with limited
liability in England; (ii) has all requisite corporate power and authority to
conduct the business in which it is currently, or is currently proposed to be,
engaged; and (iii) has the corporate power and authority to execute, deliver and
perform its obligations under each Transaction Agreement to which it is or will
be a party.
(b) The copy of the Articles of Association made available to
each of the subscribers is a true and complete copy thereof as in effect as of
the date hereof. The minute books of the Company, copies of which have been made
available to the Subscribers as of the date hereof, contain true and complete
records of all meetings and consents in lieu of meetings of the Board of
Directors (and any committee thereof) of the Company, as the case may be, since
its incorporation and accurately reflect all material transactions referred to
in such minutes and consents in lieu of meeting as of that date. The register of
members of the Company, a copy of which has been made available to the
Subscribers for their inspection before the date hereof, are true and complete.
5.2 Corporate Authorization; No Contravention. The execution and
delivery by the Company of each Transaction Agreement to which it is a party and
the performance of the transactions contemplated hereby or thereby, including,
without limitation, the issue of the Ordinary Shares, (i) have been duly
authorized, and (ii) do not contravene the Company's Articles of Association.
5.3 Binding Effect. This Agreement and the other Transaction
Agreements have been duly executed and delivered by the Company.
5.4 Litigation. There are no legal actions, suits, judgments,
proceedings, investigations, claims or disputes pending or, to the Company's
knowledge, threatened, at law, in equity, in arbitration or before any
Governmental Authority against or affecting the Company. There are no
injunctions, writs, temporary restraining orders or the like in effect or, to
the Company's knowledge, threatened that could enjoin or restrain the execution,
delivery or performance of the Transaction Agreements.
5.5 Compliance with Laws. The Company is in compliance in all
material respects with all Requirements of Law, the failure to comply with which
would have a material adverse effect on the Condition of the Company.
5.6 Disclosure. The representations and warranties contained in this
Agreement and in any other agreements, documents and certificates furnished to
the Subscribers by the Company in connection with the transactions contemplated
hereby do not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make any statement contained herein or
therein, in the light of the circumstances under which it was made, not
misleading.
5.7 Subsidiaries. There are no Subsidiaries of the Company, and the
Company has not engaged in any transaction whereby it will acquire or establish
any Subsidiary.
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5.8 Capitalization. The authorized share capital of the Company is
divided into 4.5 million Ordinary Shares of [*] each. Prior to the date hereof,
one Ordinary Share had been issued fully paid, which Share is owned by iBEAM.
Assuming consummation of the first Closing, as of the First Closing Date,
200,001 Ordinary Shares will be issued, 100,001 of which will be owned by iBEAM,
and 100,000 of which shall be owned by SES. Assuming consummation of the first
and second Closings, as of the Second Closing Date, 1,500,000 Ordinary Shares
will be issued, of which 1,000,000 Ordinary Shares will be owned by iBEAM and
500,000 Ordinary Shares will be owned by SES.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBERS
Each of the Subscribers, severally and not jointly, hereby
represents and warrants as follows:
6.1 Authorization; No Contravention. The execution, delivery and
performance by such Subscriber of each Transaction Agreement (a) is within such
Subscriber's power and authority and has been duly authorized by all necessary
action (corporate, partnership or otherwise), (b) does not contravene the teens
of such Subscriber's organizational documents or any amendment thereof, and (c)
will not violate, conflict with or result in any breach or contravention of or
the creation of any Lien under any Contractual Obligation of such Subscriber or
any Requirement of Law applicable to such Subscriber.
6.2 Binding Effect. This Agreement and the other Transaction
Agreements to which such Subscriber is a party have been duly executed and
delivered by such Subscriber, and each constitutes the legal, valid and binding
obligation of such Subscriber enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
ARTICLE 7
INDEMNIFICATION
7.1 Indemnification. In addition to all other sums due hereunder or
provided for in this Agreement, the Company (the "Indemnifying Party" for
purposes of indemnification under this Section 7.1) agrees to indemnify and hold
harmless each of the Subscribers and their Affiliates and their respective
officers, directors, agents, employees, subsidiaries, partners and controlling
persons (each, an "Indemnified Party" for purposes of indemnification under this
Section 7.1) to the fullest extent permitted by law from and against all losses,
claims, damages, expenses (including, without limitation, reasonable fees,
disbursements and other charges of counsel) or other liabilities (collectively,
"Liabilities") resulting from or arising out of any breach of any representation
or warranty, covenant or agreement of the Indemnifying Party in any Transaction
Agreement, or any legal, administrative or other actions, proceedings or
investigations (whether formal or informal), or written threats thereof, based
upon, relating to or arising out of this Agreement, any other
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* Confidential material redacted and filed separately with the Commission.
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Transaction Agreement or any transaction contemplated hereby or thereby or any
Indemnified Party's role therein or in any transaction contemplated hereby or
thereby; provided, however, that the Indemnifying Party shall not be liable
under this Section 7.1 to an Indemnified Party (i) for any amount paid in
settlement of claims without the Indemnifying Party's consent (which consent
shall not be unreasonably withheld), (ii) to the extent that it is finally
judicially determined that such Liabilities resulted primarily from the wilful
misconduct or gross negligence of such Indemnified Party, or (iii) to the extent
that it is finally judicially determined that such Liabilities resulted from the
breach by such Indemnified Party of any representation, warranty, covenant or
other agreement of such Indemnified Party contained in any Transaction
Agreement.
7.2 Notification. Each Indemnified Party under this Article 7 will,
promptly after the receipt of notice of the commencement of any action,
investigation, claim or other proceeding against such Indemnified Party in
respect of which indemnity may be sought from an Indemnifying Party under this
Article 7, notify the Indemnifying Party in writing of the commencement thereof.
The omission of any Indemnified Party to so notify the Indemnifying Party of any
such action shall not relieve the Indemnifying Party from any liability which it
may have to such Indemnified Party (i) other than pursuant to this Article 7 or
(ii) under this Article 7 unless, and only to the extent that, such omission
results in the forfeiture or impairment of substantive rights or defenses. In
case any such action, claim or other proceeding shall be brought against any
Indemnified Party and it shall notify the Indemnifying Party of the commencement
thereof, the Indemnifying Party shall be entitled to assume the defense thereof
at its own expense, with counsel satisfactory to such Indemnified Party in its
reasonable judgment; provided, however, that any Indemnified Party may, at its
own expense, retain separate counsel to participate in such defense.
Notwithstanding the foregoing, in any action, claim or proceeding in which the
Indemnifying Party, on the one hand, and an Indemnified Party, on the other
hand, is, or is reasonably likely to become, a party, such Indemnified Party
shall have the right to employ separate counsel at the Indemnifying Party's
expense and to control its own defense of such action, claim or proceeding if,
in the reasonable opinion of counsel to such Indemnified Party, a conflict or
potential conflict exists between the Indemnifying Party, on the one hand, and
such Indemnified Party, on the other hand, that would make such separate
representation necessary to avoid prejudice to the Indemnified Party.
7.3 Resolution of Actions. Each Indemnifying Party agrees that it
will not, without the prior written consent of the relevant Indemnified Parties,
settle, compromise or con-sent to the entry of any judgment in any pending or
threatened claim, action or proceeding relating to the matters contemplated by
this Article (if any Indemnified Party is a party thereto or has been actually
threatened to be made a party thereto) unless such settlement, compromise or
consent includes an unconditional release of the Subscribers and each other
Indemnified Party from all liability arising or that may arise out of such
claim, action or proceeding. The rights accorded to Indemnified Parties
hereunder shall be in addition to any rights that any Indemnified Party may have
at common law, by separate agreement or otherwise.
ARTICLE 8
AFFIRMATIVE COVENANTS
8.1 Operation of Company. From and after the date hereof through the
Second Closing Date, the Company shall not enter into arty transaction or take
any action other than in the ordinary course of business, except that the
Company may enter into such transactions and take
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such other actions outside of the ordinary course of business if specifically
approved in advance in writing by the Subscribers, or as may be permitted by the
Transaction Agreements.
8.2 Taxes. The Company shall prepare and timely file, in accordance
with applicable laws and regulations, all Tax returns required to be filed on or
before each Closing Date, and all such Tax returns will be true and complete in
all material respects. The Company shall timely pay all Taxes required to be
paid by them on or before each Closing Date, or that are claimed or asserted by
any taxing authority to be due on or before each Closing Date, except for those
Taxes that are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves have been set aside.
ARTICLE 9
MISCELLANEOUS
9.1 Obligations of the Subscribers. Each Subscriber's obligation and
the obligations of the Company hereunder are subject to the execution and
delivery of this Agreement by the other Subscriber. The obligations of each
Subscriber shall be several and not joint and no Subscriber shall be liable or
responsible for the acts of the other Subscriber.
9.2 Termination.
(a) This Agreement may be terminated prior to the Second
Closing Date, as to transactions scheduled to take place on the Second Closing
Date, as follows:
(i) at the election of the Company if any one or more of
the conditions to its obligation to close has not been fulfilled as of the
Second Closing Date;
(ii) at the election of either of the Subscribers if any
one or more of the conditions to their obligation to close has not been
fulfilled as of the Second Closing Date;
(iii) at the election of the either of the Subscribers
if the other Subscriber has breached a covenant or agreement contained in this
Agreement, which breach cannot be or is not cured by the Second Closing Date;
(iv) at the election of either of the Subscribers if the
Company has breached a covenant or agreement contained in this Agreement, which
breach cannot be or is not cured by the Second Closing Date; or
(v) at any time on or prior to the Second Closing Date,
by mutual written consent of the Company and the Subscribers.
If this Agreement so terminates, it shall become null and void and
have no further force or effect, except as provided in Section 9.2(b).
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(b) If this Agreement is terminated in accordance with Section
9.2(a) and any of the transactions contemplated by this Agreement are not
consummated, this Agreement shall become null and void and of no further force
and effect with respect to those transactions not consummated, except for the
provisions of Article 7. Any such termination shall have no effect on
transactions consummated on the First Closing Date, and such consummated
transactions shall continue to be governed by the Transaction Agreements to the
fullest extent possible. None of the parties shall have any liability in respect
of a termination of this Agreement except to the extent that failure to satisfy
any conditions results from the intentional or willful violation by such party
of its obligations contained in this Agreement or any documents delivered
pursuant to this Agreement.
9.3 Survival of Representations and Warranties. All of the
representations and warranties made herein shall survive the execution and
delivery of this Agreement, any investigation by or on behalf of the
Subscribers, acceptance of the Ordinary Shares and payment therefor, or
termination of this Agreement and shall remain in full force and effect until
the second anniversary of the Second Closing Date.
9.4 Notices. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be sent by
registered or certified first-class mail (return receipt requested), telecopier,
courier service or personal delivery:
(a) if to the Company, to:
iBEAM Europe Limited
c/o Gouldens Solicitors
00 Xxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxxx Xxxxxx, Esq.
Xxxxxx Xxxxxx, Esq.
Telecopier: 00-00-0000-0000
(b) if to iBEAM, to:
iBEAM Broadcasting Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
(c) if to SES, to:
Societe Europeenne des Satellites, S.A.
X-0000 Xxxxxxx xx Xxxxxxxx
Xxxxxxxxxx
Attention: Jacques Noppaney, Esq.
Telecopier: 352-710-725-291
with a copy to:
11
Xxxxxxx X. Xxxxxxx, Esq.
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 X Xxxxxx, XX
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Telecopier: 000-000-0000
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial overnight courier service; when delivered,
as evidenced by the return receipt, if mailed; and when receipt is acknowledged,
if telecopied.
9.5 Successors and Assigns. Each Subscriber may assign this
Agreement to an Affiliate. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the parties hereto. The
Company may not assign any of its rights or obligations under this Agreement
without the written consent of the Subscribers. Except as provided in Article 7,
no Person other than the parties hereto and their successors and permitted
assigns is intended to be a beneficiary of any of the Transaction Agreements.
9.6 Determinations, Requests or Consents. All determinations,
requests, consents, waivers or amendments to be made by the Subscribers on or
before a particular Closing Date in their opinion or judgment, or with their
approval or otherwise, pursuant to this Agreement shall be made (i) if prior to
that Closing Date, by all Subscribers, or (ii) if after that Closing Date, by
the holders of a majority of the Ordinary Shares issued pursuant to this
Agreement.
9.7 Amendment and Waiver.
(a) No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to any party hereto
at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by any party hereto from the terms of any provision
of this Agreement, shall be effective (i) only if it is made or given in writing
and signed by the other parties hereto (to the extent required by Section 9.6)
and (ii) only in the specific instance and for the specific purpose for which
made or given. Except where notice is specifically required by this Agreement,
no notice to or demand on any party hereto in any case shall entitle such party
to any other or further notice or demand in similar or other circumstances.
9.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
12
9.9 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
9.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of England.
9.11 Jurisdiction. In the event of any dispute or controversy
arising out of or relating to this Agreement , the parties shall first attempt
in good faith amicably to resolve such dispute or controversy. If such attempt
fails to resolve the dispute or controversy within thirty (30) days of any
written request from one of the parties to try in good faith to resolve the
dispute amicably, the dispute shall be settled by arbitration in London or any
other place agreeable by the Parties involved in such dispute, in accordance
with the UNCITRAL Arbitration Rules, and shall be conducted in the English
language. The number of arbitrators shall be 3. The award rendered by the
arbitrators shall be final and binding upon the parties concerned.
9.12 Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
9.13 Rights of Third Parties. Nothing contained in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
9.14 Entire Agreement. This Agreement and the other Transaction
Agreements are intended by the parties to be a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein and therein. There are no restrictions, promises, warranties or
undertakings other than those set forth or referred to herein or therein. This
Agreement and the other Transaction Agreements supersede all prior agreements
and understandings between the parties with respect to such subject matter.
9.15 Publicity. Except as may be required by applicable law, none of
the parties hereto shall issue a publicity release or announcement or otherwise
make any public disclosure concerning this Agreement or the transactions
contemplated hereby, without prior approval by the other parties hereto (which
approval shall not be unreasonably withheld). If any announcement is required by
law to be made by any party hereto, prior to making such announcement such party
will deliver a draft of such announcement to the other parties and shall give
the other parties a reasonable opportunity to comment thereon.
(Balance of this page intentionally left blank)
13
9.16 Further Assurances. Each of the parties shall execute such
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations, or other actions by, or
giving any notices to, or making any filings with, any Governmental Authority or
any other Person) as may be reasonably required or desirable to carry out or to
perform the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered as of the date first above written.
iBEAM EUROPE LIMITED
By:_________________________________________
Name:
Title:
iBEAM BROADCASTING CORPORATION
By:_________________________________________
Name:
Title:
SOCIETE EUROPEENNE DES SATELLITES, S.A.
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
SCHEDULE 2.1
Dated as of June 30, 2000
--------------------------------------------------------------------------------
Ordinary Shares
Shares held as of Shares to be purchased Shares to be purchased
the date hereof on the on or before the
First Closing Date Second Closing Date
Subscriber Shares Shares Total Price Shares Total Price
---------- ------ ------ ----------- ------ -----------
(First Closing) (Second Closing)
iBEAM Broadcasting Corporation 1 100,000 [*] 899,999 [*]
Societe 0 100,000 [*] 400,000 [*]
Europeenne des
Satellites, S.A.
Total Ordinary Shares 1 200,000 [*] 1,299;999 [*]
--------
* Confidential material redacted and filed separately with the Commission.
