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EXHIBIT 10.09
DATED 30 SEPTEMBER 1999
For the
Attention of
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(1) CNBC SPORTS INTERNATIONAL LIMITED
(2) FOCUSED MEDIA LIMITED
(3) ▇▇▇▇▇▇▇ HILLS LTD., INC.
(4) CYCAD FINANCIAL HOLDINGS LIMITED [STAMP]
(5) ▇▇▇▇ TRADING LIMITED
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SUBSCRIPTION AND SHAREHOLDERS'
AGREEMENT
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Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
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THIS AGREEMENT is made the 30th day of September 1999
BETWEEN:
(1) CNBC SPORTS INTERNATIONAL LIMITED of ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("CNBC SPORTS");
(2) FOCUSED MEDIA LIMITED of Carndonagh (c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇, Solicitors),
County Donegal, Ireland ("THE COMPANY");
(3) BEVERLEY HILLS LTD., INC. A Utah corporation whose principal office is at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ ("BHL");
(4) CYCAD FINANCIAL HOLDINGS LIMITED of ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇("▇▇▇▇▇"); and
(5) ▇▇▇▇ TRADING LIMITED of Lord Coutanche House, 66-68 Esplanade, St Helier,
Jersey, Channel Islands ("LUNS").
WHEREAS:
(A) The Company is a private company limited by shares and has an authorised
share capital of L.1,000,000 of which 242,706 shares of L.1 such have
been, and/or will by the First Completion Date (as defined below) have
been, issued and are fully paid.
(B) The Company carries on the business of, inter alia, operating, promoting
and maintaining the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ internet website.
(C) Cycad has agreed to subscribe for, and the Company has agreed to issue to
Cycad, shares representing ten (10) per cent of the issued shares in the
capital of the Company upon and subject to the terms and conditions
hereinafter appearing.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1 Unless expressly stated otherwise herein, the following expressions shall
have the following meanings in this Agreement:
"THE BOARD": means the board of directors of the Company for the time
being;
"THE BUSINESS": means the business of the Company as specified in Recital
(B);
"THE FIRST COMPLETION DATE": means 1 November 1999;
"THE SECOND COMPLETION DATE": means whichever is the earliest of the
following dates.
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(a) 30 June 2000;
(b) the date of any resolution by the Board that any Shares
are to be listed on the London Stock Exchange or any
other recognised stock exchange; and
(c) the date on which any binding agreement(s) is or are
signed in accordance with Clause 5 for the sale of more
than fifty (50) per cent of the total number of Shares in
issue;
"SHAREHOLDERS": means BHL, Cycad, ▇▇▇▇ and CNBC Sports for so
long as each of them is a holder of Shares;
"SHARES": means ordinary shares of L.1 each in the capital of
the Company.
2. COMPLETION
Subject to Clause 3, Cycad shall subscribe for, and hereby
applies for, a total of 26,967 (twenty-six thousand nine
hundred and sixty-seven) Shares at a total subscription price
of ten million United States Dollars (US$10,000,000)
equivalent to ten (10) per cent of the issued capital of the
Company in accordance with the provisions of Clauses 2.1 and
2.2:
2.1 on the First Completion Date a meeting of the Board shall be
held at which:
(a) Cycad shall subscribe for 13,484 (thirteen thousand four
hundred and eighty-four) Shares, representing on the
First Completion Date five (5) per cent of the issued
share capital of the Company, at a price of five
million United States Dollars (US$5,000,000) ("THE FIRST
SUBSCRIPTION PRICE"): and
(b) the Board shall (subject to receipt by the Company in
cleared funds of the First Subscription Price) allot
the Shares referred to in Clause 2.1(a) above, register
the Shares so allotted in the name of Cycad and execute
and deliver to Cycad a certificate for such Shares; and
2.2 on the Second Completion Date a meeting of the Board shall be
held at which:
(a) Cycad shall subscribe for 13,483 (thirteen thousand four
hundred and eighty-three) Shares, representing on the
First Completion Date five (5) per cent of the issued
share capital of the Company, at a price of five
million United States Dollars (US$5,000,000) ("THE
SECOND SUBSCRIPTION PRICE"); and
(b) the Board shall (subject to receipt by the Company in
cleared funds of the Second Subscription Price) allot
the Shares referred to in Clause 2.2(a) above, register
the Shares so allotted in the name of Cycad and execute
and deliver to Cycad a certificate for such Shares.
3. CONDITIONS PRECEDENT
Completion of this Agreement is conditional upon (a) the
approval of the terms of this Agreement by the Board and by
the board of directors of Cycad and (b) the approval by the
South African Reserve Bank of the payments which are to be
made to the Company by Cycad under Clause 2 by way of
subscription for Shares. If the approval
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of the South African Reserve Bank has not been obtained on or
before 31 October 1999, Cycad shall lodge the First
Subscription Price for retention in an agreed trust account
pending such approval. In the case of non-approval of the
terms of this Agreement by Cycad's Board by 15 October 1999,
or the South African Reserve Bank by 30 November 1999, the
Company shall forthwith notify each of the other parties to
that effect whereupon this Agreement shall lapse and none of
the parties shall have any rights or obligations, or any
liability whatsoever to any of the other parties, under or
arising out of this Agreement.
4. MANAGEMENT
4.1 Subject to Clause 4.2, all decisions regarding the management
and operation of the Company and the Business shall be taken
by the Board by a majority of votes. Each director of the
Company shall be entitled to cast one vote.
4.2 For as long as Cycad is a shareholder, it will be entitled to
appoint a director to the Board of the Company. The first
director so appointed will be ▇▇▇▇▇▇▇ ▇▇▇▇▇ Fine. Any
subsequent appointments will be subject to the approval of
the Company, which consent will not be unreasonably withheld.
4.3 As from the First Completion Date and for so long as Cycad is
a holder of Shares, no action shall be taken by the Company
in relation to any of the matters listed below (save as
expressly provided herein) unless such action shall have
been approved in writing by Cycad:
(a) the borrowing or raising of money of an aggregate amount
outstanding at any one time in excess of L.1,000,000
(ignoring any Shareholders' loans);
(b) the acquisition or disposal by one or more transactions
of any capital asset (which for the avoidance of doubt
shall include the acquisition or disposal of any
subsidiary or any business) with a value in excess of
L.1,000,000 per transaction;
(c) any material change, extension or limitation in the
nature or scope of the Business;
(d) the alteration of the memorandum or articles of
association of the Company;
(e) other than in the case of insolvency, the presentation
of any petition or the passing of any resolution for
winding up or placing the Company into liquidation or
the making of any application for an administration
order;
PROVIDED THAT, if Cycad fails to pay the Second Subscription
Price to the Company on the Second Completion Date, then
(without prejudice to any other rights and remedies which any
of the other Shareholders may have) the provisions of this
Clause 4, and the rights of Cycad under this Clause 4, shall
cease to be of any further force or effect.
5. TAG-ALONG
5.1 In the event that any Shareholder receives a bona fide offer
from a third party for the purchase of all or a proportion of
the Shares held by it (prior to the Shares being listed
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on any recognized Stock Exchange) which it wishes to accept, that
Shareholder shall give notice to each of the other Shareholders containing
full details of such offer and, if so requested by any other Shareholder
within fourteen (14) days after the date of such notice (a "REQUESTING
SHAREHOLDER"), it shall (subject to Clause 5.2):
(a) procure that the said third party shall make the same offer per Share
in respect of the same proportion of the Shares held by each
Requesting Shareholder; and
(b) (if the Offeree accepts such offer) shall not assign, transfer,
exchange or otherwise dispose of any Shares or any interest therein to
such third party unless such third party shall at the same time
acquire from each Requesting Shareholder the relevant number of Shares
in respect of which that Requesting Shareholder has accepted such
offer.
5.2 Without prejudice to the provisions of Clause 6, the provisions of Clause
5.1 shall not apply to or in the event of any transfer of any Shares (a) by
Cycad to any wholly owned subsidiary or to any third party or (b) by ▇▇▇▇
to CNBC Sports, National Broadcasting Company, Inc., Business News (Europe)
Limited Partnership (the broadcaster of the CNBC Europe television
channel), Parallel Media Group International Limited or any subsidiary of
any of the foregoing.
6. RIGHTS OF PRE-EMPTION
6.1 Subject always to Clause 6.7, any Shareholder who wishes to sell any of its
Shares (a "VENDOR") shall give notice in writing to the Company and each of
the other Shareholders of such wish (a "TRANSFER NOTICE") identifying:
(a) the person to whom it proposes to sell its Shares if they are not
purchased by any of the other Shareholders or any person procured or
nominated by any of the other Shareholders pursuant to the provisions
of this Clause 6 ("THE PROPOSED TRANSFEREE");
(b) the name of the Proposed Transferee's ultimate parent company and
controlling shareholder, if any;
(c) the sale price (which must be a cash price per Share) agreed between
the Vendor and the Proposed Transferee ("PRESCRIBED PRICE") and other
terms of the proposed sale.
The Transfer Notice shall not be effective if it does not contain such
information. The Transfer Notice shall constitute the Company as the
Vendor's agent for the sale of all of the Shares which are the subject of
the Transfer Notice ("THE SALE SHARES") to the other Shareholders or any
person procured or nominated by any of the other Shareholders (as referred
to above) at the Prescribed Price.
6.2 Within ten (10) business days of receipt of the Transfer Notice by the
Company, the Company shall give notice in writing to each of the other
Shareholders specifying the number of Sale Shares and the Prescribed Price
and offering the Sale Shares for sale to the other Shareholders or any
person procured or nominated by any of the other Shareholders (as referred
to above) at the Prescribed Price. Such notice shall be
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accompanied by a copy of the Transfer Notice and shall require each of the
other Shareholders to state by notice in writing within one hundred and
twenty (120) days of the date of the notice:
(a) whether it, and/or any person procured or nominated by it as
aforesaid, is willing to purchase any of the Sale Shares at the
Prescribed Price and, if so, the maximum number of the Sale Shares
which it is willing so to purchase; or
(b) that it consents to the sale of all the Sale Shares within thirty (30)
days thereof to the Proposed Transferee at the Prescribed Price.
In the event that no notice is received from any of the other Shareholders
within the said period of one hundred and twenty (120) days then each of
the other Shareholders shall be deemed to have served a notice pursuant to
Clause 6.2(b) at the end of such one hundred and twenty (120) day period.
6.3 In the event that a notice is served by any Shareholder pursuant to Clause
6.2(a) in respect of any of the Sale Shares, that Shareholder or any person
procured or nominated by it as aforesaid (a "SHAREHOLDER PURCHASER") shall
within thirty (30) days thereafter complete the purchase from the Vendor of
the Relevant Number of the Sale Shares at the Prescribed Price. For this
purpose, the "Relevant Number" shall mean, in respect of each Shareholder
Purchaser, the maximum number of the Sale Shares specified by that
Shareholder Purchaser pursuant to Clause 6.2(a) PROVIDED THAT, if the
maximum numbers of the Sale Shares so specified by each Shareholder
Purchaser, when aggregated together, ("THE AGGREGATE MAXIMUM NUMBER")
exceed the total number of the Sale Shares, the Relevant Number in respect
of each Shareholder Purchaser shall mean a number equal to (A multiplied by
B) divided by C where A is the maximum number of the Sale Shares so
specified by that Shareholder Purchaser pursuant to Clause 6.2(a), B is the
total number of the Sale Shares and C is the Aggregate Maximum Number. The
Vendor shall be bound to transfer the Relevant Number of the Sale Shares
comprised in the notice to each Shareholder Purchaser at the Prescribed
Price and, if it makes default in so doing, the Company may receive the
purchase money and the Board may authorise some person to execute a
transfer of the Sale Shares in favour of that Shareholder Purchaser and the
Company shall hold the purchase money in trust for the Vendor. The receipt
by the Company of the purchase money shall be a good discharge to each
Shareholder Purchaser and, after the name of each Shareholder Purchaser has
been entered in the Company's Register of Members in exercise of the
aforesaid power, the validity of the proceedings shall not be questioned by
any person.
6.4 In the event that the Vendor is not bound under the provisions of Clause
6.3 to transfer all of the Sale Shares to any or all of the other
Shareholders, the Vendor shall be at liberty to sell those of the Sale
Shares which remain unsold under Clause 6.3 at any time within nine (9)
months after the date of the Transfer Notice, to the Proposed Transferee at
the Prescribed Price and otherwise upon no more favourable terms than those
offered to the other Shareholders and as stated in the Transfer Notice.
6.5 The Board shall refuse to register any transfer of any Share other than a
transfer permitted by this Agreement, which transfer the Board shall
register.
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6.6 All Shares transferred pursuant to this Clause shall be transferred as
beneficial owner and free from all encumbrances together with all rights,
benefits and advantages attached thereto as at the date of the Transfer
Notice except the right to any dividend declared but not paid prior to the
date of the relevant Transfer Notice.
6.7 The provisions of Clauses 6.1 to 6.4 inclusive shall not apply:
(a) to or in the event of the listing of any Shares on the London Stock
Exchange or any other recognised stock exchange which is in compliance
with Clause 7 and has been approved by the Board; or
(b) to or in the event of the sale of more than fifty (50) per cent of the
total number of Shares in issue to a third party in compliance with
Clause 5; or
(c) to or in the event of any transfer of any Shares by Cycad to any
wholly owned subsidiary or ▇▇▇▇ to CNBC Sports, National Broadcasting
Company, Inc., Business News (Europe) Limited Partnership (the
broadcaster of the CNBC Europe television channel), Parallel Media
Group International Limited or any subsidiary of any the foregoing.
7. LISTING
7.1 Unless unanimously agreed otherwise by the Shareholders, the Shareholders
shall use their best endeavours to procure that, subject as mentioned in
Clause 7.2, the shares of the Company will be listed as soon as practicable
after the third anniversary of the Second Completion Date on the London
Stock Exchange and/or (if unanimously agreed by the Shareholders) any other
recognised Stock Exchange.
7.2 The obtaining of such listing shall be subject to market conditions and the
Company being suitable for a listing at a value which is not less than the
fair value of the Company provided that, if there is any dispute between
the parties in this connection, such dispute will be referred to a merchant
bank nominated by Shareholders holding together a majority of the total
number of Shares in issue. Such merchant bank shall act as an expert and
not as an arbitrator.
8. NON-CIRCUMVENTION
8.1 In the event that any Shareholder receives at any time after the date of
this Agreement a bona fide offer to subscribe for shares / acquire shares
in a Relevant Third Party which it wishes to accept, that Shareholder
undertakes (subject to Clause 8.2) that it shall give notice to Cycad
containing full details of such subscription / acquisition offer and, if so
requested by Cycad within fourteen (14) days after the date of such offer,
that Shareholder shall procure that the Relevant Third Party shall make to
Cycad the same offer to subscribe for / acquire the same proportion of
shares in the Relevant Third Party at the same price per share as (in each
case) has been made or offered to that Shareholder.
8.2 The provisions of Clause 8.1:
(a) shall continue in force for so long as Cycad is a Shareholder; and
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(b) shall in any event immediately cease to be of any further
force or effect if Cycad fails to pay the Second Subscription
Price to the Company on the Second Completion Date.
8.3 For the purposes of Clause 8.1, a "RELEVANT THIRD PARTY" shall mean
any person (a) who operates a Web site on the Internet the content
of which is primarily related to one or more sports and (b) in which
no Shareholder holds any shares as at the date of this Agreement.
9. FUTURE SHARE ISSUES
9.1 If at any time after the First Completion Date and prior to 30 June
2000 the Company without the prior written consent of Cycad (such
consent not to be unreasonably withheld or delayed) issues any new
Shares at a price per Share ("THE LOWER PRICE") which is lower than
the price per Share paid by Cycad under this Agreement ("THE CYCAD
PRICE"), then, subject always to Clause 9.2, Cycad shall have the
right, exercisable by written notice to the Company to be served
within thirty (30) days after the issue of such new Shares, to
subscribe in cash the Relevant Amount for Additional Shares.
For this purpose:
(a) the "RELEVANT AMOUNT" shall mean an amount equal to (A minus
B) multiplied by C where:
A = the Cycad Price;
B = the Lower Price; and
C = the total number of Shares subscribed for by Cycad
pursuant to Clauses 2.1 and 2.2; and
(b) the number of "ADDITIONAL SHARES" is that number of new
Shares which, when added to the number of Shares subscribed
for by Cycad pursuant to Clauses 2.1 and 2.2 and the resultant
total is divided by the aggregate of the First Subscription
Price, the Second Subscription Price and the Relevant Amount,
results in an average subscription price per Share equal to
the Lower Price.
Notwithstanding the above, the Company shall not be obliged to issue
any Shares at less than par value and, if by virtue of this Clause,
it would otherwise be liable to do so, the subscription price per
Additional Share shall be increased to its par value.
9.2 The provisions of Clause 9.1:
(a) shall continue in force for so long as Cycad is a
Shareholder; and
(b) shall in any event immediately cease to be of any further
force or effect if Cycad fails to pay the Second Subscription
Price to the Company on the Second Completion Date.
10. CONFIDENTIALITY
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Each of the parties shall maintain strict confidence and secrecy in
respect of all information of a proprietary nature received by it
directly or indirectly pursuant to this Agreement and shall keep
confidential any information relating to the specific terms of this
Agreement. Each of the Shareholders shall continue to observe the
provisions of this Clause 10 regardless of whether its rights hereunder
shall be terminated or it shall cease to be a party hereto or a
Shareholder.
11. MISCELLANEOUS
11.1 Each of the parties shall do all such things as may be within its power
including without limitation the passing of resolutions (whether by the
Board or in general meeting of the Company) to procure that the
provisions of this Agreement are observed and performed.
11.2 In the event of any clause contained in this Agreement or any part
thereof being declared invalid or unenforceable, all other clauses or
parts thereof contained in this Agreement shall remain in full force
and effect and shall not be affected thereby.
12. NOTICES
12.1 Any notice or other communication given or made under this Agreement
shall be in writing and may be delivered to the relevant party or sent
by first class prepaid letter or facsimile transmission to the address
of that party specified in this Agreement or to that party's facsimile
transmission number thereat or such other address or number as may be
notified hereunder by that party from time to time for this purpose
and shall be effectual notwithstanding any change of address not so
notified.
12.2 Unless the contrary shall be proved, each such notice or communication
shall be deemed to have been given or made and delivered, if by letter,
forty-eight (48) hours after posting, if by delivery, when left at the
relevant address and, if by facsimile transmission, when transmitted.
13. GOVERNING LAW
13.1 This Agreement shall be governed by and construed in all respects in
accordance with English law and it is irrevocably agreed the courts of
England are to have jurisdiction to settle any disputes which may
arise out of or in connection with this Agreement and that accordingly
any suit, action or proceeding arising out of or in connection with
this Agreement (in this Clause referred to as "Proceedings") may be
brought in such courts. Nothing in this Clause shall limit the right of
any Shareholder to take Proceedings against any other Shareholder in
any other court of competent jurisdiction, nor shall the taking of
Proceedings in one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction, whether concurrently or not.
13.2 BHL and the Company appoint as their authorised agent in England and
Wales, for the purpose of accepting service of process for all purposes
in connection with this Agreement, the following person:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇
GLOBAL GOLF LTD
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ BT48 OLD
FAX: ▇▇▇▇▇ ▇▇▇▇▇▇
13.3 Cycad appoints as its authorised agent in England and Wales, for the
purpose of accepting service of process for all purposes in connection
with this Agreement, the following person:
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
TELEFAX: 01628 524715
AS WITNESS the hands of the duly authorised representatives of the parties
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SIGNED for and on behalf of )
CNBC SPORTS INTERNATIONAL ) /s/ [Illegible]
LIMITED in the presence of: [Illegible] )
[Illegible]
[Illegible]
[Illegible]
SIGNED for and on behalf of )
FOCUSED MEDIA LIMITED ) /s/ [Illegible]
in the presence of: )
[Illegible]
[Illegible]
[Illegible]
SIGNED for and on behalf of )
BEVERLEY HILLS LTD., INC. ) /s/ [Illegible]
in the presence of: )
[Illegible]
[Illegible]
[Illegible]
SIGNED for and on behalf of )
CYCAD FINANCIAL HOLDINGS ) /s/ [Illegible]
LIMITED in the presence of: )
[Illegible]
[Illegible]
[Illegible]
SIGNED for and on behalf of )
▇▇▇▇ TRADING LIMITED ) /s/ [Illegible]
LIMITED in the presence of: )
[Illegible]
[Illegible]
[Illegible]
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To: Cycad Financial Holdings Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Fine
1 October, 1999
Dear Sirs,
FOCUSED MEDIA LIMITED (THE "COMPANY")
Further to the proposed subscription by Cycad Financial Holdings Limited
("Cycad") of shares in the Company under a subscription and shareholders
agreement (the "Agreement"), dated 30 September 1999 between CNBC Sports
International Limited ("CNBC Sports"), the Company, ▇▇▇▇▇▇▇ Hills Ltd., Inc.
("▇▇▇▇▇▇▇ Hills"), Cycad and ▇▇▇▇ Trading Limited ("▇▇▇▇ Trading"):
(a) the matters set out in paragraphs 1 to 3 below are confirmed by CNBC
Sports, ▇▇▇▇▇▇▇ Hills and ▇▇▇▇ Trading; and
(b) the matters set out in paragraphs 4 to 7 are agreed as amendments to the
Agreement by all the parties thereto.
CONFIRMATIONS
1. We, CNBC Sports and ▇▇▇▇▇▇▇ Hills as shareholders of the Company, and ▇▇▇▇
Trading as holder of an option to purchase shares in the Company, confirm
as follows:
(i) the Company is a properly constituted company, incorporated as a
private limited company in the Republic of Ireland on 30 June 1998
with registered number 289308;
(ii) (subject to paragraph 2 below) the current authorised share capital
of the Company is L.1,000,000 of which 151,691 shares of L.1 each
are in issue;
(iii) the ▇▇▇▇▇▇▇▇▇▇.▇▇▇ domain name is owned by Global Golf Limited;
(iv) Global Golf Limited is a wholly owned subsidiary of the Company;
(v) the Company will have no outstanding loan accounts at the time of
Completion (as defined in paragraph 3 below); and
(vi) as far as we are aware, the financial statements of the Company
(including year to date results to 30 July 1999) presented to Cycad
for due diligence purposes on 30 September 1999 accurately
reflect the financial position of the Company at 30 July 1999. Any
financial liabilities (including tax liability and operational
expenditure) existing at and/or arising after 30 July 1999 but prior
to Completion (as defined in paragraph 3 below) will be the sole
responsibility of ▇▇▇▇▇▇▇ Hills.
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SHAREHOLDINGS
2. It is the intention that, at the time of completion of the transaction
described in paragraph 3 below, 242,706 shares shall be in issue. This
will be a consequence of ▇▇▇▇ Trading exercising its outstanding option
for 30% of the shares in the Company and the subsequent issue to CNBC
Sports of additional shares to maintain its 20% shareholding. The
respective shareholdings will therefore be as follows:
CNBC Sports 48,541 shares (20%)
▇▇▇▇▇▇▇ Hills 121,353 shares (50%)
▇▇▇▇ Trading 72,812 shares (30%)
3. Further subject to completion occurring on the First Completion Date (as
defined in the Agreement and as amended below) ("Completion"):
(i) the board of directors of the Company will be constituted in the
following manner:
CNBC Sports - one director
▇▇▇▇▇▇▇ Hills - three directors
▇▇▇▇ Trading Limited - two directors
Cycad - one director
Representative from one of the six tours of the world of golf - one
non-executive director; and
(ii) the relevant shareholdings (and percentage shareholdings) in the
Company shall be:
CNBC Sports 48,541 shares (18%)
▇▇▇▇▇▇▇ Hills 121,353 shares(45%)
▇▇▇▇ Trading 72,812 shares (27%)
Cycad 26,967 shares (10%).
AMENDMENTS TO THE AGREEMENT
4. Definitions (Clause 1)
The definition for "First Completion Date" shall be replaced to read as
follows:
""First Completion Date" means 1 November 1999 or, if the approval of the
South African Reserve Bank referred to in Clause 3 has not been obtained
by 1 November 1999 and if this Agreement has not lapsed by virtue of
Clause 3, the date on which such approval is obtained."
5. Condition Precedent (Clause 3)
The following sentence shall be added to the end of Clause 3:
"In the event that the First Subscription Price has not been
unconditionally released from such trust account and paid to the Company
by Cycad in full by 30 November 1999, this Agreement shall automatically
lapse and none of the parties shall have any rights or obligations, or any
liability whatsoever to any of the other parties, under or arising out of
this Agreement."
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6. Governing Law (Clause 13)
Clause 13.1 shall be amended to read as follows:
"This Agreement shall be governed by and construed in all respects in
accordance with English law."
The following shall be inserted as new clauses 13.2, 13.3 and 13.4:
"13.2 Any dispute or difference of any kind arising between any of the
parties in connection with the Agreement shall be referred to
arbitration in London before a single arbitrator.
13.3 If the parties are unable to agree to the appointment of such
arbitrator within 30 days of one party serving notice on the other
calling for the appointment of an arbitrator then such arbitrator
shall:
(i) in the event of a financial dispute, be appointed on the
application of any party to the independent accountancy firm of
Deloitte & Touche; and
(ii) in the event of a legal dispute, be appointed on the application
of any party to the President for the time being of the Law
Society of England and Wales.
13.4 The decision and award of the arbitrator shall be final and binding
on the parties."
7. Insolvency
The following shall be inserted into the Agreement as new Clause 11.3:
"11.3 The insolvency of a Shareholder shall automatically give rise to an
offer for sale for all of that Shareholder's Shares. The terms of
Clause 6 shall apply to such offer for sale as applicable."
Save as expressly stated in this letter, the Agreement remains in full force and
effect.
Yours faithfully,
/s/ ILLEGIBLE /s/ ILLEGIBLE
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For and on behalf of For and on behalf of
▇▇▇▇▇▇▇ Hills Ltd., Inc CNBC Sports International
Limited
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/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
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For and on behalf of For and on behalf of
▇▇▇▇ Trading Limited the Company
By acknowledging this letter, we, Cycad Financial Holdings
Limited agree to the terms of this letter as they amend the
Agreement.
/s/ [ILLEGIBLE]
-------------------------
For and on behalf of
Cycad Financial Holdings Limited
