DATED 2006
DATED 2006
(1) NEW
MEDIA LOTTERY SERVICES PLC
(2) XXXX
XXXXXX AND OTHERS
(3) NEW
MEDIA LOTTERY SERVICES, INC
(4) XXXXXXXXX
XXXXX INTERNATIONAL LIMITED
PLACING
AGREEMENT
Xxxxxxxxxxx
& Xxxxxxxx
Xxxxxxxxx
Xxxxxx LLP
000
Xxxxxx Xxxxxx Xxxxxx XX0X 0XX
Tel:
x00
(0)00 0000 0000
Fax:
x00
(0)00 0000 0000
Ref:
ARG/6011081.0001
|
Clause
|
Page
|
|
1.
|
DEFINITIONS
AND INTERPRETATION
|
1
|
|
2.
|
CONDITIONS
|
8
|
|
3.
|
DELIVERY
OF DOCUMENTS AND ADMISSION TO AIM AND CREST
|
9
|
|
4.
|
AUTHORITIES
AND AGREEMENTS
|
10
|
|
5.
|
PLACING
AND OFFER
|
11
|
|
6.
|
ALLOTMENT
|
12
|
|
7.
|
PAYMENT
|
12
|
|
8.
|
COSTS,
EXPENSES, FEES AND COMMISSIONS
|
13
|
|
9.
|
UNDERTAKINGS
PRIOR TO ADMISSION
|
14
|
|
10.
|
UNDERTAKINGS
FOLLOWING ADMISSION
|
15
|
|
11.
|
WARRANTIES
|
18
|
|
12.
|
INDEMNITIES
|
20
|
|
13.
|
SUPPLEMENTARY
PROVISION
|
23
|
|
14.
|
TERMINATION
AND CHANGE IN CIRCUMSTANCES
|
23
|
|
15.
|
EFFECT
OF TERMINATION
|
24
|
|
16.
|
WITHHOLDING
AND GROSSING UP
|
25
|
|
17.
|
REMEDIES
AND ENFORCEMENT
|
26
|
|
18.
|
INVALIDITY
|
26
|
|
19.
|
ASSIGNMENT
|
26
|
|
20.
|
WAIVER
|
27
|
|
21.
|
TIME
OF THE ESSENCE
|
27
|
|
22.
|
ENTIRE
AGREEMENT
|
27
|
|
23.
|
COUNTERPARTS
|
28
|
|
24.
|
THIRD
PARTY RIGHTS
|
28
|
|
25.
|
NOTICES
|
28
|
|
26.
|
GOVERNING
LAW AND JURISDICTION
|
29
|
|
SCHEDULE
1
|
31
|
|
|
Directors
|
31
|
|
|
SCHEDULE
2
|
33
|
|
|
Directors
Certificate
|
33
|
|
|
SCHEDULE
3
|
35
|
|
|
Documents
to be
delivered by the Company
|
35
|
|
|
SCHEDULE
4
|
37
|
|
|
Warranties
|
37
|
|
|
SCHEDULE
5
|
50
|
|
|
Tax
Indemnity
|
50
|
|
|
THIS
AGREEMENT
is
made on
|
2006
|
BETWEEN:
|
(1)
|
NEW
MEDIA LOTTERY SERVICES PLC (registered
in the Republic of Ireland under number 410845) whose registered
office is
at 00/00 Xxxxxxxxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx (the
"Company");
|
|
(2)
|
THE
PERSONS
whose names and addresses are set out in Schedule 1 (the "Directors");
|
|
(3)
|
NEW
MEDIA LOTTERY SERVICES, INC.
(a
company incorporated under the laws of Delaware) whose principal
place of
business is at 000 Xxxx Xxx Xxxxx X Xxxxxxxxxxxx, XX 00000 Xxxxxx
Xxxxxx
("NMLS");
and
|
|
(4)
|
XXXXXXXXX
XXXXX INTERNATIONAL LIMITED (registered
in England and Wales under number 5136014) whose registered office
is at 0
Xxxxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("ZAI").
|
WHEREAS:
|
(A)
|
The
Company was incorporated under the Irish Companies Acts and details
of it
are set out in Part V of the Admission
Document.
|
|
(B)
|
The
Company proposes to allot and issue the Placing Shares for cash
in
accordance with the terms of this
Agreement.
|
|
(C)
|
XXX
is acting as Nominated Adviser and Broker to the Company, and the
Company
has authorised ZAI to make application to the London Stock Exchange
for
admission to AIM of all the issued and to be issued Ordinary Shares
of the
Company.
|
|
(D)
|
XXX
has agreed, as agent for the Company, to use its reasonable endeavours
to
procure subscribers for the Placing Shares on the terms and subject
to the
conditions set out in this
Agreement.
|
NOW
IT IS AGREED
as
follows:
|
1.
|
DEFINITIONS
AND INTERPRETATION
|
|
1.1
|
In
this Agreement unless the context requires
otherwise:
|
"Accountants'
Report"
means
the long form report on the Company dated on or about the date of this Agreement
prepared by the Reporting Accountants;
1
"Accounts
Date"
means 30
April 2005;
"Accounts
Group"
means
NMLS and New Media Lottery Services (International) Limited (incorporated
in the
Republic of Ireland with number 330027);
"Act"
means
the Companies Act 1985 (as amended);
"Admission"
means
admission of the Ordinary Shares (issued and to be issued pursuant to the
Placing) to trading on AIM becoming effective as provided in rule 6 of the
AIM
Rules;
"Admission
Date"
means 31
March 2006 or such later date as ZAI and the Company shall agree in writing
(being, in any event, not later than 30 April 2006);
"Admission
Document"
means
the document proposed to be published by the Company in connection with the
AIM
Application as required by the AIM Rules and constituting an admission document
for the purposes of the AIM Rules;
"Affiliate"
means
in
relation to ZAI, any holding company or subsidiary of ZAI (as the case may
be)
or any subsidiary of any such holding company or subsidiary and any of their
representatives or advisors and the directors, partners, sole proprietor,
officers and employees of each of such persons and of ZAI (as the case may
be);
"AIM"
means
the market of that name operated by the London Stock Exchange;
"AIM
Application"
means
the application to be made for the Ordinary Shares to be admitted to trading
on
AIM;
"AIM
Rules"
means
the rules for AIM quoted companies and their nominated advisers published
by the
London Stock Exchange as amended from time to time and any other rules published
from time to time which govern the admission to trading on and the regulation
of
AIM;
"Associate"
has the
meaning used in the definition of "related party" contained in the AIM
Rules;
"Business
Day"
means a
day (excluding Saturdays, Sundays and statutory holidays) on which banks
are
open for business in the City of London;
"Company's
Solicitors"
means
Halliwells LLP of 0 Xxxxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
"Conditions"
means
the conditions set out in Clause 2.1;
2
"connected
person"
shall
have the meaning given to that term in section 346 of the Act;
"CREST"
means
the relevant system (as defined in the Regulations) in respect of which CRESTCo
is the Operator (as defined in the Regulations);
"CRESTCo"
means
CRESTCo Limited;
"CREST
Rules"
means
those rules made by CRESTCo with respect to the provision of CREST;
“Xxxxxxx
Shares”
the
921,925 new Ordinary Shares to be issued by the Company to Xxxxxx Xxxxxxx
and
the 921,925 new Ordinary Shares to be issued by the Company to Xxxxxx
Xxxxxxx;
"Due
Diligence Reports"
means
(i) the legal due diligence report in the agreed form in respect of the Company
and its business prepared by the Xxxxxxx Xxxxxxx of 00/00 Xxxxxxxxxxx Xxxxxx,
Xxxxxx 0, Xxxxxxx dated on or about the date of this Agreement and addressed
to
the Company and ZAI; (ii) the legal due diligence report in the agreed form
in
respect of New Media Lottery Services, Inc prepared by Ruffa & Ruffa, P.C.
of 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, XXX dated on or about the date
of
this Agreement and addressed to the Company and ZAI; and (iii) the legal
due
diligence report in respect of NMSI prepared by Schivartche
Advogados;
"Exchange
Rate"
means
the €/£
Sterling spot exchange rate published by the European Central Bank from time
to
time;
"First
Day Announcement"
means
the announcement in the agreed form to be made by the Company via the Regulatory
News Service at or about 8.00 am on the Admission Date;
"FSA"
means
the Financial Services Authority;
"FSMA"
means
the Financial Services and Markets Act 2000;
"Group"
means
the Company, its subsidiaries and subsidiary undertakings and each of them
as
the context admits and "Group
Company"
means
any one of them;
"Indemnified
Person"
means
ZAI and each of its Affiliates;
"Institutional
Investors"
means
any entity falling within the definition of "qualified investor" in Article
2.1(e) of the Prospectus Directive;
3
"Intellectual
Property"
means
patents, trade marks, service marks, domain names, registered designs, design
rights, database rights, copyright and topography rights (whether or not
any of
these is or are registered and including, without limitation, applications
for
registration) (including without limitation, rights in computer software),
models, trade or business names, get up, know-how, confidential information,
and
any other similar protected rights in any country together with pending
applications and rights to apply for the registration or recording or protection
of such rights;
"Intellectual
Property Rights" means
all
Intellectual Property owned or used by the Group in the course of carrying
on
its business;
"Investor
Presentation"
means
the investor presentation in the agreed form relating to the
Placing;
"Irish
Companies Acts"
means
the Companies Acts 1963 to 2005 (as amended) of the Republic of
Ireland;
"Irish
Takeover Code"
means
the Irish Takeover Panel Act 1996, the Irish Takeover Rules 2001 and 2002
and
the Irish Takeover Panel Act 1997 (Substantial Acquisitions) Rules 2001,
or any
of them as the context requires;
"Issue
Documents"
means
the Admission Document, any placing proofs of the Admission Document, any
supplementary admission document, the Investor Presentation, the Press
Announcement, the Placing Letters and the First Day Announcement;
"Issue
Price"
means 50
xxxxx per Ordinary Share;
"Locked-In
Shares"
means
those Ordinary Shares, legally or beneficially owned by NMLS or Xxxx Xxxxxxxx
(as the case may be) on Admission and any shares in the Company into which
such
shares are sub-divided or converted and any Ordinary Shares (or any shares
in
the capital of the Company) allotted to or acquired by NMLS or Xxxx Xxxxxxxx
(as
the case may be) on or after Admission;
"London
Stock Exchange"
means
London Stock Exchange plc;
"Model
Code"
means
the code on directors' dealings adopted by the Company in the agreed
form;
"NMSI"
means
New Media Serviços
de
Internet Ltda., a corporation incorporated in Brazil;
4
"Nominated
Adviser and Broker Agreements" means
the
agreements of even date between the Company (1) and ZAI (2) appointing ZAI
as
Nominated Adviser and Broker of the Company for the purposes of the AIM
Rules;
"Nominated
Solicitors"
means
Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP of 000 Xxxxxx Xxxxxx, Xxxxxx,
XX0X 0XX as solicitors to ZAI;
"Ordinary
Shares"
means
ordinary shares of 2/3 xxxxx each in the capital of the Company;
"Placees"
means
the persons procured by XXX as agent of the Company with whom Placing Shares
are
placed pursuant to the Placing;
"Placing"
means
the proposed placing of the Placing Shares by ZAI in accordance with this
Agreement;
"Placing
Letters"
means
the placing letters in the agreed form;
"Placing
Shares"
means
the 3,672,572 new Ordinary Shares to be issued by the Company pursuant to
the
Placing;
"Press
Announcement"
means
the press announcement (if any) in the agreed form giving details of the
Placing;
"Prospectus
Directive"
means
directive 2003/7/6C of 4 November 2003 of the European Parliament and of
the
Council;
"Prospectus
Rules"
means
the prospectus rules published by the FSA from time to time;
"Registrars"
means
Computershare Investor Services (Ireland) Limited of Heron House, Corrig
Road,
Sandyford Industrial Estate, Dublin 18, Ireland;
"Registrars'
Agreement"
means
the agreement between the Company and the Registrars in the agreed
form;
"Regulations"
means
the Uncertificated Securities Regulations 2001 (as amended);
"Reporting
Accountants"
means
UHY Hacker Young of St Alphage House, 0 Xxxx Xxxxxx, Xxxxxx XX0X
0XX;
5
"Short
Form Report"
means
the short form report in the agreed form prepared by the Reporting Accountants
on the financial affairs of the Company dated on or about the date of this
Agreement and incorporated in the Admission Document;
"Supplementary
Admission Document"
means a
document containing all such information as is required to be contained in
a
supplementary admission document pursuant to the AIM Rules;
"Taxation"
has the
meaning given in Schedule 5;
"Taxation
Authority"
means
any statutory, governmental, state, provincial, local or municipal authority,
whether of the United Kingdom or elsewhere competent to administer, collect,
assess or impose any Taxation;
"UK
Listing Authority"
means
the FSA acting in its capacity as the competent authority for the purposes
of
Part VI of FSMA;
"VAT"
means
the tax as constituted by the Value Added Tax Act 1994 and any other tax
imposed
in addition to or in substitution for it at the rate from time to time
imposed;
"Verification
Notes"
means
the verification notes in the agreed form prepared by the Company's Solicitors
and based on information and answers provided by the Directors, for the purpose
of substantiating certain information in the Admission Document;
"Warranties"
means
the warranties given by the Warrantors set out or referred to in Clause 11
and
Schedule 4 and "Warranty"
shall be
construed accordingly;
"Warranting
Directors"
means
each of the Directors other than Xxxx Xxxxxxxx;
"Warrantors"
means
each of the Company, the Directors and NMLS;
"Warranty
Certificate"
means
the certificate set out in Schedule 2 of this Agreement;
"Wider
Group"
means
NMLS, the Company, their subsidiaries and subsidiary undertakings and each
of
them as the context admits and "Wider
Group Company"
means
any one of them;
"Working
Capital Report"
means
the working capital report prepared by the Reporting Accountants in respect
of
the Company for the period ending 30 April 2010 dated on or about the date
of
this Agreement;
"ZAI
Engagement Letter"
means
the letter from ZAI to the Company dated 22 September 2005 relating to XXX’s
appointment as corporate advisor to the Company;
6
"ZAI
Warrant Instrument"
means
the warrant instrument in the agreed form to be executed by the Company
and
constituting the ZAI Warrants; and
"ZAI
Warrants"
means
the warrants granted to ZAI pursuant to the ZAI Warrant Instrument.
In
this
Agreement, unless the context requires otherwise:
|
(a)
|
references
to Clauses, Recitals and Schedules are references to clauses and
recitals
of and schedules to this Agreement and references within a sub-clause
to
"this Clause" shall refer to the whole Clause and not merely to
the
sub-clause in which it appears;
|
|
(b)
|
the
Recitals and Schedules form part of and are incorporated in this
Agreement;
|
|
(c)
|
headings
are included for ease of reference only and shall not affect the
interpretation of this Agreement;
|
|
(d)
|
the
singular shall include the plural and vice versa and references
to any
gender shall include references to the other
genders;
|
|
(e)
|
the
expression "person"
shall mean any natural person, partnership, joint venture, corporation,
trust, firm, association, government, governmental (or supra-governmental)
agency, authority or department, or any other entity, whether acting
in an
individual, fiduciary or other
capacity;
|
|
(f)
|
any
reference to a party shall mean any party to this
Agreement;
|
|
(g)
|
any
reference to the parties shall include their respective successors
in
title, permitted assigns and personal
representatives;
|
|
(h)
|
any
reference to a document as being "in
the agreed form"
means that document in a form agreed between the parties such agreement
being signified by the signature or initialling of a draft for
the
purposes of identification by or on behalf of each of the
parties;
|
|
(i)
|
where
any statement is qualified by the expression "so
far as the Directors are aware"
or
any similar expression that statement shall be treated as including
an
additional statement that it has been made after due and careful
enquiry
provided that this shall not oblige the Directors to make or to
have made
enquiries of any third parties (other than its professional advisers)
where such enquiries would reasonably be expected to have an adverse
affect on the Group's business;
|
7
|
(j)
|
any
reference to any statute or statutory provision shall include that
statute
or statutory provision as from time to time amended, modified,
replaced or
re-enacted (whether before or after the date of this Agreement)
and any
order, regulation, instrument, bye-law or other subordinate legislation
made under it;
|
|
(k)
|
the
expressions "subsidiary"
and "holding
company"
shall have the meanings given to them by the Act and the expression
"subsidiary"
shall be deemed to include "subsidiary
undertakings"
as
defined by the Act; and
|
|
(l)
|
references
to any time of day are to London
time.
|
|
1.2
|
References
to any of the Directors shall include, and shall bind, the estate
of each
of them.
|
|
2.
|
CONDITIONS
|
|
2.1
|
The
obligations of ZAI under this Agreement are conditional
upon:
|
|
(a)
|
the
Admission Document being approved by a meeting of the board of
Directors;
|
|
(b)
|
the
Company having applied to CRESTCo for admission of its Ordinary
Shares
(issued and to be issued pursuant to the Placing) to the CREST
System as
participating securities and no notification having been received
prior to
Admission from CRESTCo that such admission has been or will be
refused;
|
|
(c)
|
the
Company delivering to ZAI each of the documents specified in Schedule
3
(except as may be otherwise agreed by ZAI) by no later than 3.00
pm on the
date hereof (or such later time as ZAI may agree in relation to
any
particular document);
|
|
(d)
|
without
prejudice to ZAI's rights under Clause 14, any Supplementary Admission
Document which may be required pursuant to the AIM Rules being
published
in accordance with the AIM Rules prior to
Admission;
|
|
(e)
|
the
delivery by the Company and the Directors to ZAI with effect immediately
prior to Admission of the Warranty Certificate, signed by or on
behalf of
each Director and on behalf of the
Company;
|
8
|
(f)
|
the
obligations of ZAI under this Agreement not having been terminated
pursuant to Clause 14; and
|
|
(g)
|
Admission
having occurred on or before 8.00 am on the Admission
Date,
|
and
if
any of the Conditions shall not be so fulfilled by the date and time (if
any)
specified above (subject to Clause 2.3) the obligations of each party hereunder
shall cease and determine provided that until such time as any of the Conditions
shall become incapable of being fulfilled each of the parties hereto shall
comply with the obligations on its part contained in this Agreement for the
purpose of implementing the Placing.
|
2.2
|
If
any of the Conditions are not fulfilled the Company shall (where
relevant)
as soon as practicable give notice to ZAI of the circumstances
of such
non-fulfilment. In the event that the obligations of each party
shall
cease and determine in accordance with Clause 2.1 above, the provisions
set out in Clause 15 shall apply.
|
|
2.3
|
ZAI
may (i) extend the time for fulfilment of all or any part of any
of the
Conditions (in which case references to such Conditions in this
Agreement
shall be to such Condition(s) as so varied); or (ii) waive satisfaction
(in whole or in part) of the
Conditions.
|
|
2.4
|
The
Company and the Directors jointly and severally undertake to ZAI
to use
their respective reasonable endeavours to procure that each of
the
Conditions is fulfilled by the relevant
time.
|
|
2.5
|
The
Company and each Director shall insofar
as each is able, supply such information and documents, give such
undertakings and do all such things (including, in the case of
the
Company, the payment of all fees and expenses) as may be reasonably
required by ZAI and / or by the London Stock Exchange and / or
the FSA in
connection with the Placing and Admission and in order to comply
fully
with all relevant and applicable provisions of the Act, the Irish
Companies Acts, FSMA and the AIM Rules. ZAI shall provide the Company
with
all such assistance as is reasonable in the circumstances to enable
Admission to become effective and the Admission Document to be
published.
|
|
3.
|
DELIVERY
OF DOCUMENTS AND ADMISSION TO AIM AND
CREST
|
|
3.1
|
The
Company shall immediately following the execution of this Agreement
(or
such other time as ZAI may agree in relation to any particular
document)
procure (insofar as it is reasonably able to do so) the delivery
to ZAI of
the documents listed in Schedule 3, in each case in such numbers
and in
such form as is set out in Schedule 3. ZAI may, in its absolute
discretion, waive (in whole or in part) any obligation of the Company
under this Clause 3.1 or may extend the time for delivery of any
document
referred to in Schedule 3. Any waiver or extension may be made
subject to
such terms as ZAI may determine.
|
9
|
3.2
|
The
Company shall procure that the documents stated in the Admission
Document
as being available for inspection shall be made so available from
the date
of the Admission Document.
|
|
3.3
|
The
Company confirms that application has been made to CRESTCo for
its
Ordinary Shares to be admitted to CREST as participating securities,
and
shall use its best endeavours to ensure that the Ordinary Shares
are
admitted as participating securities to CREST on or prior to Admission
and
continue to be participating securities
thereafter.
|
|
4.
|
AUTHORITIES
AND AGREEMENTS
|
|
4.1
|
The
Company hereby irrevocably appoints ZAI as its agent in connection
with
the Placing and the application for Admission, and to do all things
on
behalf of the Company which may be reasonably necessary or desirable
in
connection with the Placing and/or Admission, including the power
to
appoint agents to act on its behalf in connection with its obligations
under this Agreement to seek commitments from Placees by the distribution
of Placing Letters and copies of proofs (including pathfinder and
placing
proofs) of the Admission Document, provided that such appointment
shall
terminate if Admission shall not become effective by the Admission
Date
or, if earlier, on the date of Admission and as security for its
obligations under this Clause 4.1, the Company
hereby:
|
|
(a)
|
irrevocably
appoints any director of ZAI as its attorney to sign, seal, execute
and
deliver, acknowledge and register any document and do any act or
thing
which may be necessary to implement the Placing and Admission,
provided
that such appointment as attorney shall terminate if Admission
shall not
become effective by the Admission Date or, if earlier, on the date
of
Admission; and
|
|
(b)
|
agrees
to ratify and confirm everything that XXX shall lawfully and properly
do
in the exercise of and in accordance with, such appointment as
agent,
appointment as attorney, powers, authorities and
discretions.
|
|
4.2
|
The
Company and each of the Directors acknowledges that neither ZAI
nor any of
its Affiliates or advisers is responsible to the Company or to
any
Directors for verifying the accuracy and/or fairness of any information
published in the Issue Documents or otherwise published by the
Company,
unless ZAI or its Affiliates or advisers has accepted specific
responsibility in writing for such
verification.
|
10
|
4.3
|
ZAI
shall be entitled to receive and/or retain and/or allow its agents
to
retain any commission or brokerages paid to it or its agents in
connection
with the implementation of any such transactions and shall not
be under
any liability to account for any benefit or advantage derived from
such
transaction by it or any company connected with it.
|
|
4.4
|
Pursuant
to the authority granted to it in Clause 4.1, XXX agrees on behalf
of and
as agent for the Company, to arrange the Placing upon and subject
to the
terms and conditions set out in the Issue Documents and the Company
hereby
authorises and directs ZAI to have
sent to Placees the Placing Letters and a copy of the placing proof
of the
Admission Document.
|
|
4.5
|
The
Company hereby authorises and directs ZAI
to:
|
|
(a)
|
release
the Press Announcement on the date hereof;
and
|
|
(b)
|
publish
the Admission Document and make the AIM Application as required
by the AIM
Rules.
|
|
5.
|
PLACING
AND OFFER
|
|
5.1
|
Pursuant
to but without limiting the authority in Clause 4.1, XXX agrees
as agent
of the Company to use reasonable endeavours to procure subscribers
for the
Placing Shares at the Issue Price and otherwise on the terms and
conditions of the Issue Documents.
|
|
5.2
|
In
accordance with the Issue Documents, ZAI shall determine in its
reasonable
discretion after consultation with the
Company:
|
|
(a)
|
the
last time at which Placing Letters may be despatched and acceptances
pursuant thereto may be made amongst those who have made application
for
the Placing Shares under the
Placing;
|
|
(b)
|
the
validity or otherwise of acceptances received for Placing Shares
under the
Placing; and
|
|
(c)
|
the
basis of allocation of Placing Shares under the
Placing.
|
|
5.3
|
The
Placing is not being underwritten by ZAI and nothing in this Agreement
shall impose on ZAI any obligation to
:
|
|
(a)
|
underwrite
any of the Placing Shares;
|
|
(b)
|
subscribe
for any of the Placing Shares;
|
|
(c)
|
make
any payment in respect of the subscription obligations of any
Placee.
|
11
|
6.
|
ALLOTMENT
|
|
6.1
|
As
soon as practicable following the execution of this Agreement and
in any
event not later than 2.00 pm on the Business Day prior to the Admission
Date:
|
|
(a)
|
ZAI
shall provide the Company with the names and addresses of the Placees
acquiring Placing Shares together with details of the number of
Placing
Shares to be taken up by each such person and, where relevant,
the CREST
participant ID and the CREST member account ID (the "Placing
List");
|
|
(b)
|
the
Company shall, conditional upon Admission taking place on or before
8.00
am on the Admission Date and this Agreement not having been terminated
prior to Admission, forthwith on the delivery to the Company of
the
Placing List:
|
|
(i)
|
allot
the Placing Shares to the Placees in accordance with the Placing
List;
|
|
(ii)
|
approve
the registration (without registration fee) of the Placees as members
of
the Company, and the issue of definitive share certificates or
crediting
of the relevant CREST accounts (as the case may be) in accordance
with the
timetable for such matters set out in the Admission Document;
and
|
|
(iii)
|
deliver
to the Nominated Solicitors on XXX's behalf a certified copy of
the
resolutions of the Company's board of directors with regard to
the matters
referred to in sub-clauses (i) and (ii)
above.
|
|
6.2
|
The
Company hereby undertakes to ZAI that it will procure that the
Placing
Shares will upon allotment be fully paid and free from all liens,
charges,
claims, equities and encumbrances and will rank, upon issue, pari
passu in
all respects with the existing issued Ordinary
Shares.
|
|
7.
|
PAYMENT
|
Subject
to the allotment and issue of the Placing Shares by the Company, the Company
and
ZAI shall give instructions to the Registrars for the delivery no later than
5
Business Days after Admission by electronic telegraphic transfer to the bank
account notified to the Registrars by the Company for such purpose of the
aggregate amount received by the Registrars for the Placing Shares at the
Issue
Price pursuant to the Placing less the aggregate of the fees, commissions
and
expenses payable by the Company pursuant to Clause 8 (to the extent not already
paid) ("Fees")
and the
Company shall give instructions to the Registrars for such Fees to be paid
by
the Registrars no later than 5 Business Days after Admission to such accounts
as
are notified to the Company in writing by XXX.
12
|
8.
|
COSTS,
EXPENSES, FEES AND COMMISSIONS
|
|
8.1
|
In
consideration of the provision of corporate finance and broking
services
by ZAI in relation to the AIM Application and the Placing , the
Company
shall (save to the extent already paid or fulfilled under the ZAI
Engagement Letter or any other
agreement):
|
|
(a)
|
pay
to ZAI the advisory fee as referred to in and determined in accordance
with the ZAI Engagement Letter;
|
|
(b)
|
in
the event of Admission pay to ZAI a broking commission of an amount
equal
to the aggregate of:
|
|
(i)
|
9
per cent. of the aggregate value of such number of Placing Shares
subscribed under the Placing (except for the Xxxxxxx Shares) and
allotted
and issued to retail investors (for the avoidance of doubt not
including
Institutional Investors) at the Issue Price;
and
|
|
(ii)
|
7
per cent. of the aggregate value of such number of Placing Shares
subscribed under the Placing (except for the Xxxxxxx Shares) and
allotted
and issued to Institutional Investors at the Issue Price;
and
|
|
(c)
|
issue
the ZAI Warrants to ZAI immediately following
Admission.
|
|
8.2
|
The
payments due under clause 8.1 shall be exclusive of any VAT chargeable
on
such commissions, fees and other consideration. Payment of the
commissions, fees and other consideration payable under Clause
8.1
(including any VAT chargeable thereon) shall be made not later
than the
fifth Business Day following Admission in accordance with Clause
7.
|
|
8.3
|
The
Company shall pay the following costs, charges and expenses in
addition to
any other costs, charges and expenses agreed in advance in writing
by the
Company and listed in the expenses schedule in the agreed form
and any
other expenses properly incurred by ZAI in connection with the
Placing
and/ or Admission: all stamp duty, capital tax or other tax arising
on the
allotment of the Placing Shares, the expenses of the Registrars,
printing
and advertising expenses, postage and the fees of the Company’s lawyers
and accountants and other professional advisers (including (without
limitation) the fees of the Nominated Solicitors up to a maximum
of
£60,000 exclusive of VAT). The Company shall forthwith upon request
by ZAI
reimburse to ZAI the amount of any such costs, charges and expenses
which
ZAI may properly have paid. The Company shall instruct the Registrars
(in
accordance with Clauses 8.3 and 8.4) to deduct from the payment
to be made
by the Registrars to the Company pursuant to such Clause and pay
to ZAI an
amount equal to the aggregate of all such costs, charges and expenses
paid
by XXX.
|
13
|
8.4
|
Where
a sum is reimbursed to ZAI, the Company shall in addition pay to
ZAI in
respect of VAT:
|
|
(a)
|
if
any reimbursement constitutes the consideration (or a part thereof)
for
any supply to the Company or ZAI (and as further consideration
for such
supply), such amount as equals any input tax payable by ZAI which
is
irrecoverable together with an amount representing any VAT for
which ZAI
is properly liable to account as output tax in respect of that
supply; and
|
|
(b)
|
if
any costs or expenses constitute disbursements by XXX as an agent
on
behalf of the Company any VAT included in the cost of such
disbursement.
|
|
8.5
|
Notwithstanding
that XXX is acting as agent for the Company in connection with
the Placing
in relation to the issue of the Placing Shares it may retain any
commissions, fees or other amounts payable to it as are referred
to
herein.
|
|
9.
|
UNDERTAKINGS
PRIOR TO ADMISSION
|
|
9.1
|
The
Company and the Directors hereby undertake that any publicity issued
by or
on behalf of the Company in connection with the Placing and/or
Admission,
including any statement to or interview with the media, shall be
consistent with the Issue Documents and shall be agreed with ZAI
in
advance (to the maximum practicable extent and subject to such
conditions
as ZAI
may
impose in the case of interviews or conferences with journalists
or other
representatives of the media).
|
|
9.2
|
Save
as expressly required hereunder by law or by the London Stock Exchange,
no
public announcement or communication concerning the Company, the
Placing
or this Agreement which is or may be material in relation to the
Placing,
the Offer or the issue of the Placing Shares may be made or despatched
between the date hereof and Admission (both days inclusive) or
at any time
in relation to the termination of this Agreement without the consent
of
ZAI
as
to the content, timing and manner of making or despatch
thereof.
|
|
9.3
|
The
Company and the Directors hereby undertake that they will not,
and will
procure that no member of the Wider Group will, prior to Admission,
in any
case without the prior written consent of
ZAI:
|
|
(a)
|
enter
into any commitment or agreement or terminate any commitment or
agreement
referred to in paragraph 9 of Part V of the Admission Document;
or
|
|
(b)
|
put
the Company in a position where it is obliged to announce that
any
commitment or agreement may be entered into or
terminated,
|
which,
in
either case, is material in the context of the Group taken as a whole or
Admission, the Placing or the issue of the Placing Shares.
14
|
9.4
|
If
prior to Admission any significant change occurs affecting any
matter
contained in the Admission Document whose inclusion was required
by the
AIM Rules, or there arises or is noted any material new factor,
mistake or
inaccuracy relating to the information included in the Admission
Document,
each of the Directors undertakes to notify the Company immediately
of
becoming aware of the same (whether or not such change, factor,
mistake or
inaccuracy results in any Warranty becoming untrue or inaccurate),
and the
Company shall, without prejudice to Clauses 11
and 14:
|
|
(a)
|
notify
ZAI
forthwith
in writing, disclosing such change, factor, mistake or inaccuracy;
|
|
(b)
|
in
conjunction with ZAI,
deal with such change, factor, mistake or inaccuracy as ZAI
in
its sole discretion shall reasonably see fit;
and
|
|
(c)
|
in
conjunction with ZAI,
take all such steps and make all such announcements and publish
all such
documents (including without limitation any Supplementary Admission
Document) as may be required by ZAI
in
the circumstances (any such steps or documents to be in a manner
or form
approved by ZAI,
such approval not to be unreasonably withheld or
delayed).
|
|
10.
|
UNDERTAKINGS
FOLLOWING ADMISSION
|
|
10.1
|
The
Company hereby undertakes that it will, and each of the Directors
hereby
severally undertakes that he will use reasonable endeavours to
ensure that
the Company will, apply the net proceeds of the Placing received
by the
Company only for the purposes described in the Admission Document.
|
|
10.2
|
The
Company will comply with all relevant obligations of the AIM Rules
and in
particular (but without limitation) will ensure that each of its
Directors
(including any future appointee) accepts responsibility for the
Company’s
compliance with the AIM Rules, seeks advice from XXX
(while it remains the Company’s nominated adviser) regarding such
compliance whenever appropriate and takes that advice into
account.
|
15
|
10.3
|
Subject
to Clause 10.4,
each of NMLS and Xxxx Xxxxxxxx undertakes not to offer, dispose
or agree
to offer or dispose of any Locked-In Shares or enter into or agree
to
enter into any derivative transaction of any type whatsoever (including,
without limitation, any swap, contract for differences, option,
warrant or
future transaction or arrangement) in respect of any Locked-In
Shares:
|
|
(a)
|
at
any time prior to Admission and during the period of 12 months
commencing
on the Admission Date without the prior written consent of ZAI
(which
consents may be withheld in ZAI's absolute discretion); and
|
|
(b)
|
at
any time during the period of 12 months commencing on the first
anniversary of the Admission Date otherwise than in consultation
with the
Company's brokers from time to time and in such manner as such
broker may
require with a view to maintaining an orderly market in the shares
of the
Company.
|
In
this
Clause 10.3
and
Clause 10.4 "dispose"
includes
mortgaging, pledging, charging, lending, assigning, selling, transferring
(including, without limitation by way of dividend or other distribution or
in
connection with or as a consequence of a capital reorganisation) or otherwise
disposing.
Where
consent is requested under this Clause 10.3,
ZAI
shall
notify the chairman of the Company promptly of the details of the
request.
|
10.4
|
Subject
as provided below, the provisions of Clause 10.3
shall not apply to a disposal or agreement to dispose of shares
made:
|
|
(a)
|
in
acceptance of a general offer for the whole of the issued equity
share
capital of the Company (other than any equity share capital held
by or
committed to the offeror and/or persons acting in concert with
the
offeror) which has either been recommended by the board of directors
of
the Company or has become unconditional as to acceptances;
or
|
|
(b)
|
in
the execution of an irrevocable commitment to accept a general
offer for
the whole of the issued equity share capital of the Company (other
than
any equity share capital held by or committed to the offeror and/or
persons acting in concert with the offeror) which has been or is
recommended by the board of directors of the Company or where the
irrevocable commitment is expressed to be conditional upon such
general
offer being so recommended; or
|
|
(c)
|
pursuant
to an offer by the Company to purchase its own shares which is
made on
identical terms to all holders of shares and otherwise complies
with the
Irish Companies Acts and the AIM Rules;
or
|
16
|
(d)
|
on
arm's length terms by way of a sale for cash which is made with
the prior
written consent of ZAI (to the extent a claim is made by it) for
the
purpose of funding an amount payable by that person in respect
of a claim
under Clause 11
and/or 12
which will be effected on terms or under the arrangements which
secure to
the reasonable satisfaction of ZAI that the proceeds will be available
solely for that purpose; or
|
|
(e)
|
pursuant
to a Court order; or
|
|
(f)
|
by
way of a renunciation of a right to subscribe for shares where
such right
is derived from shares in the Company held by the relevant shareholder
or,
a failure to take up such right.
|
|
10.5
|
Each
of the Directors and the Company undertakes to procure (in so far
as he/it
is reasonably able) that NMLS shall comply at all relevant times
with the
provisions of Clauses 10.3
and 10.4.
|
|
10.6
|
For
so long as XXX remains the company's Nominated Adviser each Director
severally covenants with and undertakes to ZAI that so long as
he holds
the office of director with the Company he will at all times uphold,
comply with and act in accordance with the provisions of the AIM
Rules,
the Model Code, the Irish Takeover Code and the Criminal Justice
Act 1993
(in each case whether or not such provisions would ordinarily apply
to the
Company or a director thereof) and will use all reasonable endeavours
to
procure that the affairs of each Group Company are at all times
conducted
in accordance with the Irish Companies Acts, the AIM Rules and
any other
laws, rules or regulations applicable to such Group Company from
time to
time.
|
|
10.7
|
The
Company undertakes to ZAI
that
it will not, and each of the Directors undertakes to procure (so
far as he
is able to do so) that the Company will not, and will procure that
no
member of the Wider Group will, without first obtaining the written
consent of ZAI,
enter into any commitment or agreement prior to Admission which
would or
might adversely affect the Placing or which is outside the ordinary
course
of business of the Group or which would otherwise give rise to
an
obligation to make an announcement in accordance with the AIM
Rules.
|
|
10.8
|
The
Company shall, and each of the Directors undertakes to procure
that the
Company shall, deliver to ZAI
as
soon as reasonably practicable (and in any event no later than
10 Business
Days) prior to each monthly meeting of the board of directors of
the
Company notice of such board meeting together with an agenda and
all other
documents referred to in such
agenda.
|
|
10.9
|
As
soon as reasonably practicable following Admission the Company
shall, and
each of the Directors shall procure that the Company shall, obtain
insurance at adequate levels against all risks commonly insured
against by
persons carrying on the same or similar businesses as those carried
on by
the Group and against all risks against which the Group might reasonably
be expected to insure in the particular circumstances of the businesses
carried on by each member thereof which shall, for the avoidance
of doubt,
include keyman life insurance in respect of each of Xxxx Xxxxxx
and
Xxxxxxxx Xxxxxxxx (both Directors).
|
17
|
11.
|
WARRANTIES
|
|
11.1
|
The
Company, the Warranting Directors and NMLS hereby jointly and severally
warrant to ZAI in the terms of the Warranties in each case as at
the date
of this Agreement and at all times during the period up to and
including
Admission so that the Warranties shall be deemed to be repeated
by
reference to the facts and circumstances from time to time subsisting
during that period.
|
|
11.2
|
Xxxx
Xxxxxxxx hereby severally warrants to ZAI in the terms of the Warranties
contained in paragraphs 1.6 and 2 of Schedule 4 in relation to
himself
only as at the date of this Agreement and at all times during the
period
up to and including Admission so that such Warranties shall be
deemed to
be repeated by reference to the facts and circumstances from time
to time
subsisting during that period.
|
|
11.3
|
The
Warranties shall remain in full force and effect notwithstanding
Offer
Admission.
|
|
11.4
|
The
Company, the Warranting Directors and NMLS accept that ZAI is assuming
its
obligations as Nominated Adviser and Broker to the Company and
its
obligations contained in this Agreement in reliance upon each of
the
Warranties.
|
|
11.5
|
Each
of the Warrantors hereby severally undertakes to
ZAI:
|
|
(a)
|
that
it/he shall not knowingly do, allow or procure any act or omission
before
Admission which would constitute a breach of any of the Warranties
or
would make any of them untrue or inaccurate or misleading if repeated
by
reference to the facts and circumstances in existence at any time
prior to
Admission; and
|
|
(b)
|
to
notify ZAI forthwith if it comes to its or his knowledge at any
time prior
to Admission that any of the Warranties is or may be untrue or
inaccurate
or misleading when made and/or that any of the Warranties has ceased
or
may have ceased to be true or accurate or has become or may have
become
misleading by reference to the facts and circumstances from time
to time
subsisting during that period prior to
Admission.
|
|
11.6
|
Without
prejudice to the Warranties contained in Schedule 4, each Director
severally warrants ZAI that all information in respect of himself
(including, without limitation, any information relating to his
past
employment and past or present activities or business interests)
with
which XXX has been furnished by him (or on his behalf) in writing
(including, without limitation, the contents of his director's
questionnaire) given in connection with Admission and which is
set out or
referred to in the Admission Document is true and accurate and
is not
misleading and does not omit anything likely to affect the import
of such
information.
|
18
|
11.7
|
The
Warranties (other than those in paragraphs 1.1 to 1.5 inclusive,
2.1 to
2.5, 6 and 9 of Schedule 4) are given subject to any matter disclosed
in
the Admission Document. Where any Warranty is qualified by the
phrases "in
all material respects" or "materially" or any similar phrase, materiality
shall be assessed by reference to the general duty of disclosure
for the
Admission Document as set out in paragraph (k) of schedule two
to the AIM
Rules.
|
|
11.8
|
If,
at any time up to Admission, ZAI shall receive notification pursuant
to
Clause 11.5(b)
or
otherwise become aware that any of the Warranties is or has become
or is
likely to become untrue, inaccurate or misleading (or would be
untrue,
inaccurate or misleading if then repeated), ZAI may (without prejudice
to
its rights to terminate its obligations under this Agreement pursuant
to
Clause 13)
acting reasonably require the Company at its own expense to make
or cause
to be made such announcements and/or despatch such communications
(including without limitation a Supplementary Admission Document)
as ZAI
shall determine.
|
|
11.9
|
Each
of the Directors hereby severally waives all and any rights which
he may
have or claim to have against the Company (including without limitation
any rights of contribution) arising out of or in connection with
any
breach of warranty, representation, undertaking, indemnity or obligation
under or pursuant to this
Agreement.
|
|
11.10
|
Any
release, waiver or compromise or any other arrangement of any kind
whatsoever which XXX may agree to or effect as regards one or more
of the
Company or the Warrantors shall not affect the right of ZAI as
regards any
other person liable hereunder.
|
|
11.11
|
Notwithstanding
anything herein contained, save in the event of fraud or wilful
non-disclosure, ZAI shall not be entitled to make any claim under
the
Warranties against the Warrantors unless it shall have given written
notice thereof to the Warrantors specifying in reasonable detail
the basis
of such claim and the amount thereof on or before the date falling
three
months after the publication of the audited consolidated accounts
to 30
April 2007. Any such claim shall (if has not been previously satisfied,
settled or withdrawn) be deemed to have been withdrawn on the date
that is
twelve months from the date of receipt by the relevant Warrantor
of the
notice of claim (and such Warrantor shall have no further liability
in
respect of it) unless proceedings in respect of it have commenced
prior to
such date by both being issued and served on the relevant
Warrantor.
|
19
|
11.12
|
Without
prejudice to their joint and several liability (unless otherwise
stated)
up to any such individual aggregate amount, the aggregate liability
under
Clause 11.1
and/or 11.2
and any other provision of this Agreement of
:
|
|
(a)
|
each
of the Directors shall not exceed the amount set out opposite his/her
name
in Schedule 1; and
|
|
(b)
|
each
of the Company and NMLS (save in respect of Clause 13 (Indemnities))
shall
not exceed the aggregate value of the Placing Shares (excluding
the
Xxxxxxx Shares) at the Issue Price
|
save
in
the case of claims which are the consequence of fraud or wilful concealment
by
any such Warrantor, in which case there shall be no maximum in relation to
that
Warrantor.
|
11.13
|
ZAI
shall, to the extent that it suffers any loss in respect thereof,
be
entitled to the same remedies and rights of action against the
Warrantors
as any person acquiring any Placing Shares on the basis of the
Admission
Document and the Warranties shall be in addition to and shall not
be
construed as limiting or prejudicing those or any other rights
or remedies
available to ZAI provided that ZAI shall not be entitled to recover
under
any provision of this Agreement, damages, reimbursement, compensation,
restitution and/or indemnity payments in respect of any loss or
liability
more than once in respect of the same loss or
liability.
|
|
11.14
|
If
any Warranty claim arises because of a liability which in any such
case is
contingent when that claim is notified, a Warrantor will not be
obliged to
make any payment thereunder until such time as the contingent liability
ceases to be contingent and becomes an actual liability and the
period
within which any claim must be commenced pursuant to Clause 11.2
shall be extended accordingly.
|
|
12.
|
INDEMNITIES
|
|
12.1
|
No
claim shall be made against any Indemnified Person to recover any
loss,
damage, cost, charge or expense which the Company or any subsidiary,
director, officer or agent of the Company, or any subscriber for
or
purchaser of the Placing Shares or any subsequent purchaser or
transferee
thereof may suffer or incur by reason of or arising out of the
carrying
out by ZAI (or such other Indemnified Person on either of their
behalf) of
their obligations and services under this Agreement unless and
to the
extent that such loss, damage, cost, charge or expense arises from
a
material breach of its obligations under this Agreement, or from
the
fraud, negligence or wilful default of, such Indemnified Person
or is of
such nature that liability may not be excluded pursuant to the
conduct of
business provisions of the FSMA, or the rules of the
FSA.
|
20
|
12.2
|
The
Company, the Warranting Directors and NMLS jointly and severally
undertake
to keep each and every Indemnified Person indemnified to the fullest
extent legally possible (on or after tax basis) against all proceedings,
losses, claims, liabilities, costs, charges, damages, expenses,
actions or
demands whatever or howsoever incurred which any of the Indemnified
Persons may suffer or incur (including, but without limitation,
all such
reasonable costs, charges and expenses of ZAI in investigating,
evaluating, responding to, or disputing or settling for itself
or on
behalf of any other Indemnified Person any such actual or potential
actions, claims or demands or in enforcing its rights under this
Clause)
or which may be made against any Indemnified Person in each case
by reason
of, or resulting from, or attributable to, or in connection with
the
services rendered and/or duties performed by ZAI under this Agreement
or
otherwise in connection with the making or implementation of the
Placing
and/or Admission including without
limitation:
|
|
(a)
|
the
issue or despatch of the Issue Documents (or any of
them);
|
|
(b)
|
any
failure or alleged failure by the Company, or the Directors or
their
agents, employees or professional advisers to comply with the Act,
the
Irish Companies Acts, FSMA, or the AIM Rules or any other applicable
requirement of statute or statutory regulation in relation to the
issue or
distribution of the Issue Documents, the entering into or completion
of
this Agreement and/or the Placing;
|
|
(c)
|
the
Issue Documents not containing, or being alleged not to contain,
all
information required to be stated therein by FSMA, the Irish Companies
Acts, or the AIM Rules, or any statement therein being, or being
alleged
to be, untrue, inaccurate, incomplete or misleading or not based
on
reasonable grounds;
|
|
(d)
|
any
misrepresentation or alleged misrepresentation by the Company or
any
Director contained in any of the Issue
Documents;
|
|
(e)
|
any
breach, or alleged breach, by the Directors, or the Company of
any of
their/its respective obligations, representations or undertakings
hereunder or any breach, or alleged breach, of any of the Warranties;
or
|
|
(f)
|
the
allotment and issue of the Placing Shares,
|
unless
and to the extent that any of them arises from a material breach of any
obligations of this Agreement by or from the fraud, negligence or wilful
default
of any Indemnified Person or is of such nature that liability may not be
excluded pursuant to the conduct of business provisions of the FSMA or the
rules
of the FSA and provided that the liability of the Warranting Directors under
the
indemnity set out in this Clause 12.2
shall
not exceed the amount set out opposite such Warranting Directors' name in
Schedule 1.
21
|
12.3
|
Any
transaction or step carried out by ZAI or any other Indemnified
Person
pursuant to this Agreement will be carried out at the request of
and as
agent for the Company and not for ZAI itself (as the case may be).
Neither
ZAI nor any other Indemnified Person will be responsible for any
loss or
damage to any person arising from any such transaction or step,
or for any
insufficiency or alleged insufficiency of the Issue Price or of
the terms
on which subscribers for of any of the Placing Shares may be procured
by
ZAI, or for the timing of any such subscription unless and to the
extent
that any of them arises as a result of a material breach of the
terms of
this Agreement by ZAI or the fraud, negligence or wilful default
on the
part of ZAI or its Affiliates.
|
|
12.4
|
Except
in respect of statements specifically attributed to ZAI in the
Issue
Documents as expressly agreed in writing by XXX or to the extent
required
of it by the FSMA or the rules of the FSA neither ZAI nor any other
Indemnified Person will be responsible to the Company or to the
Directors
or to any other person responsible for the Admission Document for
verifying the accuracy, completeness or fairness of the information
published in the Issue Documents, or otherwise published by the
Company in
connection with the Placing.
|
|
12.5
|
The
provisions of Schedule 5 (Tax Indemnity) shall
apply.
|
|
12.6
|
ZAI
shall, on becoming aware of any matter which may fall within the
indemnity
given under this Clause 12
or
a breach of Warranty or potential breach of Warranty arising from
a claim
made by a third party against the Company, NMLS and/or the Directors
and/or ZAI in relation to the Placing, Admission, the Admission
Document
or the Placing Shares (a “Relevant
Matter”),
give notice thereof to the Company as soon as is reasonably practicable
providing such reasonable details as are then available and shall
enter
into and thereafter maintain reasonable consultation with the Company
on
all material aspects of the Relevant Matter. ZAI shall, subject
to:
|
|
(a)
|
being
indemnified (and secured) to its reasonable satisfaction by the
Company
against any additional or increased losses it may suffer or incur
as a
result of so doing; and
|
|
(b)
|
the
requirements (if any) of the insurers ZAI;
|
consult
with the Company regarding the conduct of the Relevant Matter and provide
the
Company with all relevant information and copies of such documents as the
Company may reasonably require relating to the Relevant Matter. For the
avoidance of doubt, ZAI shall not be under any obligation to provide the
Company
with a copy of any document which is or may be otherwise privileged in the
context of the Relevant Matter or to the extent that it is subject to a bona
fide duty of confidentiality or it would prejudice any insurance cover to
which
any Indemnified Person may from time to time be entitled.
22
|
12.7
|
Where
ZAI or any Indemnified Person recovers from some other person any
sum
which compensates it for any loss in respect of any matter giving
rise to
a claim under Clause 11
or
12,
then either:
|
|
(a)
|
the
amount payable by the Company, NMLS and/or any of the Directors
in respect
of that claim shall be reduced by an amount equal to the sum so
recovered
(less the reasonable costs and expenses of recovering it and any
taxation
payable by XXX as a result of its receipt);
or
|
|
(b)
|
if
an amount shall already have been paid by the Company, NMLS and/or
any of
the Directors in respect of that claim, there shall be repaid to
the
Company, NMLS and/or any of the Directors an amount equal to aggregate
of
the amount so recovered (less the reasonable costs and expenses
of its
recovery and any taxation payable by ZAI as a result of its receipt)
or
(if less) the amount of such
payment.
|
|
13.
|
SUPPLEMENTARY
PROVISION
|
Each
of
the undertakings (in so far as they are continuing obligations) set out or
referred to in Clause 10,
each of
the warranties set out or referred to in Clause 11
and each
of the indemnities set out or referred to in Clause 12
shall
remain in full force and effect notwithstanding the completion of the
subscription of the Placing Shares, the Placing and any other matters and
arrangements referred to in or contemplated by this Agreement and shall be
in
addition to and shall not be construed to limit, affect or prejudice any
other
right or remedy available to ZAI.
|
14.
|
TERMINATION
AND CHANGE IN
CIRCUMSTANCES
|
|
14.1
|
If
at any time prior to Admission:
|
|
(a)
|
any
statement contained in the Admission Document or any other Issue
Document
is or has become or been discovered to be materially untrue, incorrect
or
misleading or there is a material mistake or inaccuracy in the
Admission
Document or there arises any material new factor, mistake or inaccuracy
relating to the information in the Admission Document;
or
|
23
|
(b)
|
any
of the Warranties is materially untrue, inaccurate or misleading
when made
or a matter has arisen which gives rise to a claim under the indemnities
set out in Clause 12;
or
|
|
(c)
|
any
of the Directors or the Company has failed or will be unable to
comply
with any of their respective obligations under this Agreement or
otherwise
relating to the Placing; or
|
|
(d)
|
any
of the Conditions shall have become incapable of fulfilment before
the
latest time provided in Clause 2.1 and has not been waived as provided
in
such Clause; or
|
|
(e)
|
any
member of the Group shall have sustained any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether
or not covered by insurance, or from any dispute or court or governmental
action, order or decree or there shall have been any material adverse
change in, or adverse development which affects or could reasonably
be
expected to affect, the business, properties, condition (financial
or
otherwise), results of operations or prospects of the Company and
its
subsidiaries taken as a whole the effect of which, in any such
case is, in
the reasonable opinion of ZAI, so material and adverse as to have,
or will
be likely to have, a material adverse effect on the offering of,
or market
for, the Placing Shares; or
|
|
(f)
|
there
has occurred any international crisis, any act of terrorism, outbreak
of
hostilities, change in national or international financial, monetary,
economic, political or market conditions including fluctuations
in
exchange rates which is in the reasonable opinion of ZAI, has had
or will
be likely to have, a material adverse effect on the offering of,
or market
for, the Placing Shares,
|
then
ZAI
may in its absolute discretion, (but after having consulted, as far as
reasonably practicable with the Company) by notice in writing to the Company
(for itself and on behalf of the other parties to this Agreement), terminate
this Agreement.
|
14.2
|
If
any notice is given to the Company pursuant to the provisions of
Clause
14.1,
ZAI shall forthwith on behalf of the Company withdraw any application
to
the London Stock Exchange for
Admission.
|
|
15.
|
EFFECT
OF TERMINATION
|
If
the
obligations of the parties under this Agreement (save to the extent specified
in
this Clause 15)
shall
cease and determine pursuant to Clause 2 or if this Agreement shall be
terminated pursuant to Clause 14
no party
shall have any claim against any other party hereto for compensation, costs,
damages or otherwise except in respect of any breach of the provisions of
this
Agreement which has occurred before then, save that:
24
|
(a)
|
the
provisions of Clauses 1, 12
and 14
to
25
(inclusive) shall continue to apply notwithstanding such
termination;
|
|
(b)
|
the
Company shall forthwith pay to ZAI the fees and expenses specified
as
payable by it in accordance with the terms of Clause 8.1(a)
(save to the extent already paid under the ZAI Engagement Letter
or any
other agreement);
|
|
(c)
|
the
Company shall forthwith pay to ZAI all expenses payable by it in
accordance with the terms of Clause
8.3;
|
|
(d)
|
ZAI
and/or the Company on the instruction of XXX shall return to applicants
all monies received from such applicants pursuant to the Placing
(without
interest); and
|
|
(e)
|
such
termination shall, for the avoidance of doubt, be without prejudice
to any
accrued rights or obligations of any party under this
Agreement.
|
|
16.
|
WITHHOLDING
AND GROSSING UP
|
|
16.1
|
All
sums payable to ZAI (in whatever capacity) by any party under this
Agreement shall be paid free and clear of all deductions or withholdings
unless the deduction or withholding is required by law, in which
event the
relevant party shall pay such additional amount as shall be required
to
ensure that the net amount received by ZAI will be the same amount
which
would have been received by it had no such deduction or withholding
been
made. If ZAI receives the benefit of a tax credit or an allowance
resulting from a payment which includes an additional amount paid
by the
relevant person under this Clause 16,
it shall pay to the relevant party such part of that benefit as
will leave
ZAI (after such payment) in no more and no less favourable a position
than
it would have been in if no additional amount had been required
to be
paid.
|
|
16.2
|
If
the United Kingdom HM Revenue & Customs (or any other Taxation
Authority) brings into charge to tax (or into a computation of
income,
profit or gains for the purposes of any charge to tax) any sum
payable to
ZAI under this Agreement (other than the amounts due under Clause
8) then
(except where the amount payable relates to an expense incurred
by ZAI
which is deductible as a trading expense for corporation tax purposes)
the
amount so payable shall be grossed up by such amount as will ensure
that
after deduction of the tax so chargeable there shall remain a sum
equal to
the amount that would otherwise be payable under this Agreement
(additional payments being made on written demand of ZAI accompanied
by
reasonable evidence of the relevant sum or sums being brought into
charge
for tax (or into such computation) by the United Kingdom HM Revenue
&
Customs or such other Taxation Authority (as the case may
be)).
|
25
|
17.
|
REMEDIES
AND ENFORCEMENT
|
|
17.1
|
Each
of the Warranties, other representations, warranties and undertakings
and
indemnities contained in this Agreement shall remain in full force
and
effect notwithstanding the completion of the Placing, and the purchase
or
subscription of the Placing Shares pursuant
thereto.
|
|
17.2
|
The
Warranties and the indemnities contained in Clauses 11
and 12
respectively shall be in addition to, and shall not be construed
to limit,
affect or prejudice, any other right or remedy available to ZAI
or any
other Indemnified Person.
|
|
17.3
|
Subject
to Clause 15,
all the provisions of this Agreement shall (except for any obligation
fully performed prior to or on the date hereof) continue in full
force and
effect after the date of this
Agreement.
|
|
17.4
|
Any
liability to ZAI under this Agreement may in whole or in part be
released,
compounded or compromised and time or indulgence may be given by
ZAI as
regards any person under such liability without prejudicing ZAI's
rights
against any other person under the same or a similar
liability.
|
|
18.
|
INVALIDITY
|
If
any
provision of this Agreement is or becomes (whether or not pursuant to any
judgment or otherwise) invalid, illegal or unenforceable in any respect under
the law of any jurisdiction:
|
(a)
|
the
validity, legality and enforceability under the law of that jurisdiction
of any other provision; and
|
|
(b)
|
the
validity, legality and enforceability under the law of any other
jurisdiction of that or any other
provision,
|
shall
not
be affected or impaired in any way thereby.
|
19.
|
ASSIGNMENT
|
|
19.1
|
This
Agreement shall be binding upon and endure for the benefit of the
successors in title of the parties but, except as set out in Clauses
19.2
and 19.3, shall not be assignable by any party without the prior
written
consent of the others.
|
26
|
19.2
|
ZAI
may assign the benefit of this Agreement to any undertaking which
is,
whether on or at any time after the date hereof, its subsidiary
undertaking or its parent undertaking ("relevant
ZAI group")
but only on the condition that the assignee agrees in writing prior
to
such assignment to be bound by the terms of this Agreement and
to assign
the Agreement (subject to such condition) prior to such assignee
ceasing
for any reason to be a member of the relevant ZAI
group.
|
|
20.
|
WAIVER
|
|
20.1
|
A
waiver of any term, provision or condition of, or consent granted
under,
this Agreement shall be effective only if given in writing and
signed by
the waiving or consenting party and then only in the instance and
for the
purpose for which it is given.
|
|
20.2
|
No
failure or delay on the part of any party in exercising any right,
power
or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any such right, power or
privilege
preclude any other or further exercise thereof or the exercise
of any
other right, power or privilege.
|
|
20.3
|
Save
as otherwise expressly provided herein, no breach of any provision
of this
Agreement shall be waived or discharged except with the express
written
consent of the parties.
|
|
20.4
|
The
rights and remedies herein provided are cumulative with and not
exclusive
of any rights or remedies provided by
law.
|
|
21.
|
TIME
OF THE ESSENCE
|
Save
as
otherwise expressly provided, time is of the essence to every obligation
of this
Agreement and any agreement amending or substituting its terms.
|
22.
|
ENTIRE
AGREEMENT
|
|
22.1
|
Each
party acknowledges and agrees with the other parties
that:
|
|
(a)
|
this
Agreement, the ZAI Engagement Letter and any other documents referred
to
in this Agreement (together the "Transaction
Documents")
constitute the entire and only agreement between the parties relating
to
the subject matter of the Transaction Documents save that to the
extent of
any conflict between the terms of this Agreement and the ZAI Engagement
Letter, the terms of this Agreement shall prevail;
and
|
|
(b)
|
it
has not been induced to enter into any Transaction Document in
reliance
upon, nor has it been given, any warranty, representation, statement,
assurance, covenant, Agreement, undertaking, indemnity or commitment
of
any nature whatsoever other than as are expressly set out in the
Transaction Documents and, to the extent that it has been, it
unconditionally and irrevocably waives any claims, rights or remedies
which it might otherwise have had in relation
thereto;
|
provided
that the provisions of this Clause 22.1
shall
not exclude any liability which any of the parties would otherwise have to
any
other party or any right which any of them may have to rescind this Agreement
in
respect of any statements made fraudulently by any of them prior to the
execution of this Agreement or any rights which any of them may have in respect
of fraudulent concealment by any of them.
27
|
22.2
|
This
Agreement may be varied only by a document signed by all of the
parties
and expressly incorporating the terms of this Agreement as varied
into
that document.
|
|
23.
|
COUNTERPARTS
|
This
Agreement may be executed in any number of counterparts which together shall
constitute one agreement. Any party may enter into this Agreement by executing
a
counterpart and this Agreement shall not take effect until it has been executed
by all parties.
|
24.
|
THIRD
PARTY RIGHTS
|
Save
in
the case of any Indemnified Person, nothing in this Agreement is intended
to
confer on any person any right to enforce any term of this Agreement which
that
person would not have had but for the Contracts (Rights of Third Parties)
Act
1999. ZAI shall have the sole conduct and exclusive rights in respect of
any
action to enforce any rights on behalf of any of Indemnified
Person.
|
25.
|
NOTICES
|
|
25.1
|
Any
notice, demand or other communication given or made under or in
connection
with the matters contemplated by this Agreement shall be in writing
and
shall be delivered personally or sent by fax or prepaid first class
post:
|
in
the case of the Company and/or the Directors to:
New
Media
Lottery Services PLC
00/00
Xxxxxxxxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx
Fax:
Attention:
Xxxxxxxx Xxxxxxxx
in
the case of ZAI to:
Xxxxxxxxx
Xxxxx International Limited, New Broad Street House, 00 Xxx Xxxxx Xxxxxx,
Xxxxxx
XX0X 0XX
Fax:
x00
(0)00 0000 0000
Attention:
Xxx Xxxxxxxxx
28
and
shall
be deemed to have been duly given or made as follows:
|
(a)
|
if
personally delivered, upon delivery at the address of the relevant
party;
|
|
(b)
|
if
sent by domestic first class post (for domestic delivery only),
two
Business Days after the date of posting;
|
|
(c)
|
if
sent by airmail four Business Days after the date of posting;
and
|
|
(d)
|
if
sent by fax, when despatched;
|
provided
that if, in accordance with the above provision, any such notice, demand
or
other communication would otherwise be deemed to be given or made after 5.00
pm
such notice, demand or other communication shall be deemed to be given or
made
at 7.00 am on the next Business Day.
|
25.2
|
A
party may notify the other parties to this Agreement of a change
to its
name, relevant addressee, address or fax number for the purposes
of Clause
25.1
provided that such notification shall only be effective
on:
|
|
(a)
|
the
date specified in the notification as the date on which the change
is to
take place; or
|
|
(b)
|
if
no date is specified or the date specified is less than five Business
Days
after the date on which the notice is given, the date falling five
Business Days after notice of any such change has been
given.
|
|
26.
|
GOVERNING
LAW AND JURISDICTION
|
|
26.1
|
Any
dispute, controversy or claim of whatever nature arising out of
or
relating to this Agreement or breach of this Agreement shall be
governed
by and this Agreement shall be construed in all respects in accordance
with English law.
|
|
26.2
|
Each
of the parties to this Agreement irrevocably agrees for the exclusive
benefit of the others that the courts in England are to have exclusive
jurisdiction to hear and decide any action or proceedings and/or
to settle
any disputes which arise out of or in connection with this Agreement
and
for the purpose of enforcement of any judgment against any of their
respective assets ("Proceedings").
|
29
|
26.3
|
The
parties agree that service of any claim form, notice or other document
for
the purpose of any proceedings begun in England shall be duly served
upon
it if delivered in accordance with Clause 25
and 26.4. Nothing contained in this Clause 26.3 affects the right
to serve
process in another manner permitted by
law.
|
|
26.4
|
Each
of the Company, the Directors and NMLS hereby authorises and appoints
Halliwells LLP of 0 Xxxxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (or such
other
person being a firm of solicitors in England as each such person
may from
time to time substitute by notice to ZAI) to accept service of
all legal
process arising out of or connected with this Agreement and service
on
such person (or substitute) shall be deemed to be service on such
party.
Except upon such a substitution, each such party shall not revoke
any such
authority or appointment, shall at all times 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, shall forthwith appoint another agent
and
advise ZAI accordingly.
|
IN
WITNESS
whereof
this Agreement has been executed as a deed on the date first above
written.
30
SCHEDULE
1
Directors
|
Name
|
Address
|
Maximum
Individual Liability
|
|
Xxxx
Xxxxxx
|
Such
sum as shall be equal to the higher of :
(i)
4.14% of the value of NMLS' aggregate holding of Ordinary Shares
at the
Issue Price at Admission; and
(ii)
an amount equal to three times the aggregate of his annual salary
during
the period of one year following Admission
|
|
|
Xxxxxxxx
X Xxxxxxxx XXX
|
Such
sum as shall be equal to the higher of :
(i)
1.28% of the value of NMLS' aggregate holding of Ordinary Shares
at the
Issue Price at Admission; and
(ii)
an amount equal to three times the aggregate of his annual salary
during
the period of one year following Admission
|
|
|
Xxxxx
Xxxxx
|
an
amount equal to two times the aggregate of her annual salary during
the
period of one year following
Admission
|
31
|
Xxxxxx
Xxxxxxx
|
Such
sum as shall be equal to the higher of :
(i)
32.65% of the value of NMLS' aggregate holding of Ordinary Shares
at the
Issue Price at Admission; and
(ii)
an amount equal to three times the aggregate of his annual salary
during
the period of one year following Admission
|
|
|
Xxxxxx
Xxxxxxx
|
Such
sum as shall be equal to the higher of :
(i)
32.65% of the value of NMLS' aggregate holding of Ordinary Shares
at the
Issue Price at Admission; and
(ii)
an amount equal to three times the aggregate of his annual salary
during
the period of one year following Admission
|
|
|
Xxxx
Xxxxxxxx
|
an
amount equal to two times the aggregate of his annual salary during
the
period of one year following
Admission
|
32
SCHEDULE
2
Directors
Certificate
The
Directors
Xxxxxxxxx
Xxxxx International Limited
0
Xxxxxxxxxxxx Xxxxxx
London
EC2R
8AW
l20l
Dear
Sirs
This
letter is the Warranty Certificate referred to in the placing agreement
dated l
2006
between New Media Lottery Services PLC (1), Xxxx Xxxxxx and others (2), New
Media Lottery Services, Inc. (3) and Xxxxxxxxx Xxxxx International Limited
(4)(the "Placing
Agreement").
Words
and expressions defined in the Placing Agreement have the same meanings in
this
letter.
We
severally represent and warrant to you that:
| (a) | each condition at Clauses 2.1(a) to 2.1(e) (inclusive) of the Placing Agreement has been satisfied in accordance with its terms; |
| (b) | none of the Warranties which each of us respectively gives under Clause 11 of the Placing Agreement was breached or untrue or inaccurate at the date of the Placing Agreement and no Warranty would be breached or untrue or inaccurate if it were repeated at the date of this letter by reference to the facts and circumstances now subsisting; and |
|
(c)
|
there
are no matters which we should bring to your attention, bearing
in mind
Clause 9.4
of
the Placing Agreement.
|
Yours
faithfully
|
......................................................
|
......................................................
|
|
Director,
duly authorised
|
Xxxx
Xxxxxx
|
|
for
and on behalf of
|
|
|
New
Media Lottery Services PLC
|
|
|
......................................................
|
....................................................
|
|
Xxxxxxxx
X Xxxxxxxx III
|
Xxxxx
Xxxxx
|
33
|
......................................................
|
....................................................
|
|
Xxxxxx
Xxxxxxx
|
Xxxxxx
Xxxxxxx
|
|
......................................................
|
|
|
Xxxx
Xxxxxxxx
|
34
SCHEDULE
3
Documents
to be delivered by the Company
|
Document
|
Aggregate
No. of copies required by ZAI
|
Execution
requirements
|
||
|
1.
|
Application
for Admission
|
1
|
Signed
original
|
|
|
2.
|
Admission
Document
|
3
|
Each
signed by each Director (or his duly authorised agent of
attorney)
|
|
|
3.
|
Directors'
Powers of Attorney and Responsibility Letters
|
1
from each Director
|
Originals
signed by appropriate Director (or in the case of Responsibility
Letters
by his duly authorised attorney)
|
|
|
4.
|
Verification
Notes
|
2
|
Signed
by Directors (and any other signatories thereto or his duly
authorised
attorney)
|
|
|
5.
|
Directors'
Questionnaire
|
1
from each Director
|
Originals
signed by appropriate Director
|
|
|
6.
|
Resolutions
passed by the board of directors approving the Issue Documents
and
authorising their issue, approving the Placing and authorising
execution
of this Agreement, authorising the application for admission
to trading of
the Ordinary Shares, approving the execution of the ZAI Warrant
Instrument
and the issue of the ZAI Warrants
|
1
|
Certified
copy
|
|
|
7.
|
Working
Capital Report
|
2
|
Signed
Originals
|
|
|
8.
|
Short
Form Report
|
2
|
Signed
Originals
|
|
|
9.
|
Letter
from the Reporting Accountant with regard to accuracy of
financial
information in the Admission Document and commenting on the
Working
Capital Report
|
2
|
Signed
Originals
|
|
|
10.
|
Letter
from the Reporting Accountant with regard to the accuracy
of the
"Taxation" paragraphs in the Admission Document
|
2
|
Signed
Originals
|
|
35
|
11.
|
Accountants'
Report
|
2
|
Signed
Originals
|
|
|
12.
|
Placing
Letter
|
1
|
Copy
|
|
|
13.
|
Press
Announcement
|
2
|
Copies
|
|
|
14.
|
Certificate
of Incorporation of the Company
|
1
|
Certified
copy
|
|
|
15.
|
Memorandum
and Articles of Association of the Company
|
2
|
Certified
copies
|
|
|
16.
|
||||
|
17.
|
CREST
security application in respect of the Ordinary Shares
|
1
|
Certified
Copy
|
|
|
18.
|
All
other documents stated in the Admission Document as being
available for
inspection (if not already referred to in this Schedule)
|
1
|
Certified
copy
|
|
|
19.
|
Investor
Presentation
|
1
|
Copy
|
|
|
20.
|
The
Nominated Adviser and Broker Agreement duly executed by the
Company
|
1
|
Signed
Original
|
|
|
21.
|
Letter
from the Reporting Accountants consenting to the inclusion
in the
Admission Document of references to them in the form and
context in which
they appear
|
1
|
Signed
Original
|
|
|
22.
|
Due
Diligence Report addressed to the Directors and ZAI
|
2
|
Signed
Originals
|
|
|
23.
|
Letter
from the Company's solicitors to ZAI in such form as has
previously been
approved by XXX in respect of the matters to be confirmed
pursuant to rule
39 of the AIM Rules
|
1
|
Signed
Original
|
|
|
24.
|
Registrar's
Agreement
|
1
|
Certified
copy
|
|
|
25.
|
ZAI
Warrant Instrument
|
1
|
Certified
copy
|
36
SCHEDULE
4
Warranties
|
1.
|
ISSUE
DOCUMENTS
|
|
1.1
|
The
information contained in the Issue Documents is in accordance with
the
facts in all material respects and does not omit anything likely
to affect
the import of such information and all statements of fact contained
in the
Issue Documents are true and accurate in all material respects
and are not
misleading in any respect to a prospective subscriber or purchaser
of
Placing Shares.
|
|
1.2
|
All
statements, forecasts, estimates and expressions of opinion, intention
or
expectation contained in the Issue Documents are fairly and honestly
given, expressed or held and have been the subject of due care
and
attention and are fairly based upon facts within the knowledge
of the
Company or any of the Directors and are made on reasonable grounds
after
due and proper consideration of all the information currently available
to
the Company and the Directors.
|
|
1.3
|
There
are no facts or considerations known or which could on reasonable
and
proper enquiry have been known to the Company or any of the Directors
which are not disclosed in the Issue Documents and which by their
omission
would or might reasonably be considered
to:
|
|
(a)
|
be
likely to affect the import of the information contained therein;
or
|
|
(b)
|
make
any statement therein (whether of fact or opinion) inaccurate or
misleading; or
|
|
(c)
|
invalidate
or qualify any assumption made in support of any statement therein
(whether of fact or opinion); or
|
|
(d)
|
be
material for disclosure to ZAI or a potential subscriber or purchaser
of
Placing Shares.
|
|
1.4
|
The
Admission Document contains all such information, having regard
to the
matters referred to in paragraph (k) of schedule two of the AIM
Rules, the
Company considers reasonably necessary to enable investors to form
a full
understanding of:
|
|
(a)
|
the
assets and liabilities, financial position, profits and losses
and
prospects of the Group and the Ordinary Shares;
|
|
(b)
|
the
rights attaching to the Ordinary Shares;
and
|
|
(c)
|
any
other matter contained in the Admission
Document.
|
37
|
1.5
|
The
Admission Document contain all items of information required to
be
included by the AIM Rules.
|
|
1.6
|
The
contents of the Due Diligence Reports are true and accurate in
all
material respects and are not by themselves or by omission misleading
in
any material respect.
|
|
2.
|
DIRECTORS
|
|
2.1
|
The
Company's Solicitors have set out in a memorandum to the Directors
the
nature of the responsibilities and obligations of directors of
a company
whose securities are traded under the AIM Rules and each Director
has
received and read a copy of such memorandum prepared by the Company's
Solicitors summarising such responsibilities and
obligations.
|
|
2.2
|
None
of the Directors has:
|
|
(a)
|
at
any time been adjudged bankrupt or entered into an individual voluntary
arrangement in the United Kingdom or
elsewhere;
|
|
(b)
|
at
any time been party to a deed of arrangement or made any other
form of
composition with his creditors, or suffered a receivership of any
asset in
which he had any interest;
|
|
(c)
|
any
unsatisfied judgement outstanding against
him;
|
|
(d)
|
been
a director of any company or other body corporate which went into
receivership, compulsory liquidation, creditors’ voluntary liquidation,
administration, company voluntary arrangement or any composition
or
arrangement with its creditors generally or any class of its creditors
while he was a director or within 12 months after he ceased to
be
one;
|
|
(e)
|
been
a partner of any partnership which went into compulsory liquidation,
administration or partnership voluntary arrangement or suffered
a
receivership of any asset while he was a partner or within 12 months
after
he ceased to be one;
|
|
(f)
|
ever
been publicly censured or criticised by or refused admission by
any
professional, statutory or regulatory authority (including recognised
professional bodies); or
|
|
(g)
|
any
unspent convictions for any indictable criminal
offence.
|
38
|
2.3
|
The
Admission Document contains true, accurate and complete information
at the
date of this Agreement and immediately following Admission
concerning:
|
|
(a)
|
the
interests of each Director in any contracts entered into by any
Group
company; and
|
|
(b)
|
the
interests of each Director in the share capital of the
Company.
|
|
2.4
|
All
relevant details in the Admission Document concerning the respective
business interests, qualifications and experience of each Director
are
accurate.
|
|
2.5
|
The
Admission Document contains all information concerning any actual
or
potential conflicts of interest between the Company and any Director
or
any company of which any Director is a director or in which he
has a
material interest and all statements contained in the Admission
Document
concerning such conflict or concerning the future relationship
between
such Director or any of such companies are truly and honestly made
and are
not misleading and there are no other facts concerning the same
the
omission of which makes any statement therein false or misleading
in any
respect.
|
|
2.6
|
The
Directors are all the directors of the Company and there is no
other
person who is or could be deemed to be a shadow director of the
Company
within the meaning of section 741 of the
Act.
|
|
2.7
|
No
member of the Wider Group owes any money to and is not owed any
money by
any of the Directors or any of their respective
Associates.
|
|
3.
|
FINANCIAL
STATEMENTS
|
|
3.1
|
The
consolidated financial statements of NMLS as at and for the three
financial years ended on the Accounts
Date:
|
|
(a)
|
have
been prepared in accordance with the historical cost convention
and
generally accepted accounting principles, practices and standards
(in the
jurisdiction in which such financial statements were prepared),
consistently applied and without limitation comply with all applicable
legislation;
|
|
(b)
|
give
a true and fair view of the state of affairs of the Accounts Group
as at
the end of each of the relevant financial periods and of the profit
and
loss for each such period; and
|
|
(c)
|
fairly
set out the assets (including, without limitation to the foregoing,
intangible assets), liabilities and reserves of the Accounts Group
and
either make proper provision for or, where appropriate in accordance
with
generally accepted accounting principles, practices and standards
(in the
jurisdiction in which such financial statements were prepared),
include a
note in respect of all liabilities or commitments, whether actual,
deferred or contingent of the Accounts Group as at the relevant
dates and
in particular, provide for, or where appropriate in accordance
with
generally accepted accounting principles (in the jurisdiction in
which
such financial statements were prepared), practices and standards,
make
proper disclosure of, all liabilities, whether actual, deferred,
contingent or disputed, of the Accounts Group for income tax or
corporation tax measured by reference to actual or deemed taxable
profits
(including both income and chargeable gains) made or deemed to
have been
made during the relevant financial periods, and for any other taxes,
duties or other fiscal impositions of any kind whatsoever (including
any
interest on any amounts and any penalties or charges imposed in
relation
to such amounts (whether arising under the laws of the Republic
of
Ireland, the United Kingdom, the United States of America or otherwise)
in
relation to or in consequence of any event occurring on or before
the
relevant balance sheet date).
|
39
|
3.2
|
The
pro forma financial information set out in Part IV of the Admission
Document comprises extracted financial information from Part III
of the
Admission Document and the adjustments described in Part IV of
the
Admission Document and has been accurately presented without any
other
adjustment.
|
|
4.
|
CURRENT
FINANCIAL PERIOD
|
Since
the
Accounts Date (in relation to the Accounts Group) and since incorporation
(in
the case of the Company):
|
(a)
|
each
member of the Accounts Group and the Company has carried on its
respective
business in the ordinary and usual
course;
|
|
(b)
|
there
has been no material depletion in the net assets of the Accounts
Group or
the Company and there has been no material adverse change, nor
any
development likely to give rise to a material adverse change, in
the
assets, liabilities or financial or trading position or prospects
of the
Accounts Group or the Company;
|
|
(c)
|
no
member of the Accounts Group or the Company has otherwise than
in the
ordinary and usual course of trading entered into any contract
or
commitment of a long term or unusual nature or which could involve
an
obligation of a material nature or magnitude which is material
for
disclosure;
|
|
(d)
|
no
member of the Accounts Group or the Company has otherwise than
in the
ordinary and usual course of trading acquired or disposed of or
agreed to
acquire or to dispose of any material business, company or asset
or
assumed or acquired any material liability (including any contingent
liability);
|
40
|
(e)
|
no
dividends or other distributions have been, or have been treated
as having
been, declared, made or paid by any member of the Accounts Group
or the
Company; and
|
|
(f)
|
no
member of the Accounts Group or the Company has been involved in
any
transaction which has resulted, or could result, in any liability
for
taxation otherwise than in the ordinary and usual course of
trading.
|
|
5.
|
FINANCIAL
PROCEDURES
|
The
Company has established procedures which provide a reasonable basis for the
Directors to make proper judgments of the assets and liabilities, financial
position, profits losses and prospects of the Group.
|
6.
|
WORKING
CAPITAL REPORT
|
|
6.1
|
The
cashflow and working capital projections the subject of the Working
Capital Report have been prepared with all due care and attention
by the
Company and the Directors on the basis of the assumptions set out
in such
projections and such assumptions are fair and reasonable and there
are no
facts known or which could on reasonable enquiry have been known
to the
Company or the Directors which have not been taken into account
in the
preparation of such projections and which could reasonably be expected
to
have an effect thereon and all written information supplied to
the
Reporting Accountants for the purpose of its examination and review
of the
working capital projections the subject of the Working Capital
Report was
when give and remains true and accurate in all material respects
and not
misleading in any material respect.
|
|
6.2
|
Having
regard to the proceeds of the Placing receivable by the Company,
the Group
will have sufficient working capital for its present and reasonably
foreseeable future requirements which will, for the avoidance of
doubt, be
until at least the first anniversary of
Admission.
|
|
7.
|
INDEBTEDNESS
|
All
of
the Group's term loans and overdraft facilities are in full force and effect.
No
event or circumstance has occurred or arisen or is likely to occur or arise
which entitles any person, or would (with the giving of notice or the lapse
of
time or both or the making of any relevant determination by any person) entitle
any person to require payment of any such term loan in whole or in part prior
to
its stated date of maturity or to require security therefor or which would
cause
the lender's commitment thereunder to be cancelled or reduced. All undrawn
amounts under such term loans are capable of drawdown and all conditions
precedent to such drawdown have been met. In relation to overdraft facilities
the continued availability of which has been assumed for the purposes of
the
Working Capital Report, the Company has obtained appropriate comfort from
the
lenders providing such overdraft facilities as to the continued availability
of
such facilities over the period of the Working Capital Report and copies
of such
comfort letters have been provided to ZAI. There is nothing known to the
Company
or the Directors that might give cause to believe that repayment might be
demanded under such facilities or that any undrawn amount thereof might not
be
available for drawing. So far as the Company and the Directors are aware
(not
having made enquiry of such persons), no person to whom any indebtedness
for
borrowed money of the Group is payable on demand presently proposes to demand
payment of, or security for, the same.
41
|
8.
|
ACCOUNTANTS'
REPORT AND SHORT FORM
REPORT
|
All
statements of fact set out in the Accountants' Report and the Short Form
Report
are true and accurate in all material respects, no fact has been omitted
therefrom (or information withheld) which is material for disclosure to ZAI
and
no fact has been omitted the omission of which would make any statement of
fact
therein misleading in any material respect and the expressions of opinion,
expectation and intention therein are honestly held and either fairly based
upon
facts which are within the knowledge of the Directors (having made all
reasonable enquiries) or made on reasonable grounds after due and proper
consideration of all of the information currently available to the Company
and
the Directors.
|
9.
|
VERIFICATION
NOTES
|
The
information contained in the replies to the Verification Notes is true and
accurate in all material respects and not misleading in any material respect
and
all expressions of opinion and expectation therein contained are honestly
held
and fairly based; such replies have been prepared or approved by persons
having
appropriate knowledge and responsibility to enable them properly to provide
such
replies and all such replies given by the Directors have been given in good
faith.
|
10.
|
EVENTS
OF DEFAULT
|
No
event
or circumstance has occurred or arisen or, so far as the Directors are aware
is
about to occur which constitutes or results in, or would with the giving
of
notice and/or lapse of time and/or the making of a relevant determination,
constitute, or result in, a default or the acceleration or breach of any
obligation under any agreement, instrument, licence or arrangement to which
any
member of the Group is a party or by which any such company or any of its
properties, revenues or assets are bound, and which would in any such case
have
a material adverse effect on the businesses, assets or prospects of the Group
taken as a whole.
42
|
11.
|
INSOLVENCY
|
No
member
of the Group has taken any action nor, to the best of the knowledge, information
and belief of the Directors, have any other steps been taken or legal
proceedings started or threatened against any member of the Group for its
administration winding-up or dissolution or for it to enter into any arrangement
or composition for the benefit of creditors or for the appointment of an
administrative receiver, an administrator or a receiver, trustee or similar
officer of it or any of its properties, revenues or assets nor have any orders
been made for any of the foregoing.
|
12.
|
EFFECT
OF THE PLACING AND THE
OFFER
|
|
12.1
|
Neither
the creation, allotment or issue of the Placing Shares nor their
admission
to AIM nor the performance of this Agreement by the Company will
infringe
any borrowing limits, powers or restrictions of, or the terms of
any
contract, indenture, security, obligation, commitment or arrangement
to
which the Company or any member of the Group is a party or by which
any of
its or their respective properties, revenues or assets are bound
or result
in any right of pre-emption or termination being
triggered.
|
|
12.2
|
The
issue of the Placing Shares and Admission will comply with all
agreements,
licences and other arrangements to which any member of the Group
is a
party or by which any of them are bound and will not exceed or
infringe
any restrictions or the terms of any contract, obligation or commitment
by
or binding upon the board of directors of any member of the Group,
or
result in the imposition or variation of any rights or obligations
of the
Group other than in respect of the Placing Shares
themselves.
|
|
13.
|
LICENCES
|
|
13.1
|
Each
member of the Group has obtained and taken all steps reasonably
necessary
to protect all licences, permissions, authorisations and consents
required
for the carrying on of its business as presently conducted and
such
licences, permissions, authorisations and consents are in full
force and
effect and all fees due thereunder have been paid and there are
no
circumstances of which the Directors are aware which indicate that
any of
such licences, permissions, authorisations or consents may be revoked
or
not renewed or withdrawn or (except to an immaterial or beneficial
extent)
amended, in whole or in part, in the ordinary course of events
and each
member of the Group has complied in all material respects with
all legal
and other requirements applicable to its
business.
|
43
|
13.2
|
No
member of the Group is a party to any agreement or arrangement
which
infringes Article 81 or 82 of the Treaty establishing the European
Economic Community or which infringes chapters I or II of the Competition
Act 1998.
|
|
14.
|
LITIGATION
|
Save
as
disclosed in the Issue Documents no member of the Group nor any Director
nor any
person for whom any member of the Group is or may be vicariously liable has
any
claim outstanding against them or is engaged in or has been engaged in any
legal
or arbitration or similar proceedings which, individually or collectively,
are
of material importance and no such legal or arbitration or similar proceedings
are threatened or pending nor, to the best of the knowledge, information
and
belief of the Directors, are there any circumstances which are likely to
give
rise to any such legal or arbitration or similar proceedings; for this purpose
"similar
proceedings"
includes
any civil or criminal proceedings and any action by any governmental, public
or
regulatory authority (including any investment exchange and any authority
or
body which regulates investment business or takeovers or which is concerned
with
mergers or taxation matters) which did or could result in public
censure.
|
15.
|
PENSION
SCHEMES
|
No
member
of the Group is paying, or is under any liability (actual or contingent)
to pay
or secure or otherwise make any contribution in respect of (other than by
payment of employers' contributions under national insurance or social security
legislation), any pension (whether or not in respect of a particular scheme)
or
other benefit on retirement, death or disability or on the attainment of
a
specified age or on the completion of a specified number of years of
service.
|
16.
|
OPTIONS
|
Save
as
disclosed in the Issue Documents there are in force no options or other
agreements which call for the issue of or accord to any person the right
to call
for or may call for the issue of any shares or other securities in the capital
of the Company or any of its subsidiary undertakings now or at any time
hereafter.
|
17.
|
RIGHTS
OF EXISTING SHAREHOLDERS
|
None
of
the shareholders of the Company has any rights, in their capacity as such,
in
relation to any member of the Group other than as set out in the articles
of
association of the Company.
44
|
18.
|
CONFLICTS
OF INTEREST
|
The
Issue
Documents contain all information concerning any foreseeable actual or potential
conflicts of interest between any Group Company and any Director or any company
of which any Director is a director or in which he has a material
interest.
|
19.
|
CAPACITY
|
The
Company has the power and has taken all corporate action required to create,
allot and issue the Placing Shares in the manner proposed and to enter into
and
perform this Agreement and all authorisations, approvals, consents and licences
required for the allotment and issue of the Placing Shares and the entering
into
of this Agreement by the Company have been obtained and remain in full force
and
effect.
|
20.
|
COMPLIANCE
WITH LAWS
|
|
20.1
|
The
Issue Documents contain all information required by, and the allotment
and
issue of the Placing Shares and the issue of the Press Announcement
and
the issue and distribution of the Issue Documents in the manner
proposed
will comply with the Act, the Irish Companies Acts, the FSMA, the
AIM
Rules, the rules and regulations of the London Stock Exchange (each
as
applicable) and all other applicable laws, rules and regulations
of the
United Kingdom.
|
|
20.2
|
The
Group has at all times compiled with all applicable laws of the
United
Kingdom, the United States, Brazil, Canada, the Republic of Ireland
and
any other jurisdiction in which it operates or has at any time
operated.
|
|
21.
|
PLACING
SHARES AND OFFER SHARES
|
The
Placing Shares and the Offer Shares will, upon allotment, be free from all
claims, charges, liens, encumbrances and equities whatsoever and will save
as
provided in the Issue Documents rank pari passu in all respects with the
Ordinary Shares in the issued share capital of the Company.
|
22.
|
TAX
|
|
22.1
|
Each
member of the Group has, within any applicable time limit, paid
all tax
which it has become liable to pay, duly made all returns, given
all
notices and supplied all other information required to be made,
given or
supplied to any tax authority, and all such returns, notices and
information were and remain true and accurate in all material respects
and
were made on a proper basis and no member of the Group is involved
in any
dispute with, or subject to any investigation by, any tax authority
and,
so far as the Directors are aware, there are no facts or circumstances
which are likely to give rise to any such dispute or
investigation.
|
45
|
22.2
|
All
payments made by any member of the Group to any person which ought
to have
been made under deduction of tax have been so made and the Group
has,
where appropriate, duly accounted to the relevant tax authority
for such
tax.
|
|
22.3
|
Each
member of the Group is, to the extent required, registered for
the
purposes of VAT (or any equivalent tax in any foreign jurisdiction
in
which it operates) and has complied with the terms of value added
tax
legislation (or any equivalent legislation in any foreign jurisdiction
in
which it operates) in all material
respects.
|
|
22.4
|
All
national insurance contributions and sums payable to any Taxation
Authority under the PAYE system (or equivalent in any jurisdiction
outside
the United Kingdom), due and payable by any member of the Group,
have been
paid.
|
|
22.5
|
No
member of the Group is, nor at any time has been, a close company
for the
purposes of UK tax.
|
|
23.
|
INTELLECTUAL
PROPERTY
|
|
23.1
|
The
Group’s business is not dependent on any Intellectual Property (other
than
office administration software) or particular contracts of fundamental
importance which are not in the ordinary course of its
business.
|
|
23.2
|
A
member of the Group:
|
|
(a)
|
is
the registered proprietor (where appropriate), and the beneficial
owner
of, or otherwise is entitled to use each of or has agreed to acquire
on or
before Admission the right to use or ownership of the Intellectual
Property Rights material to the Group's business as currently carried
on
and as it will be carried on immediately following Admission, free
from
all charges, liens, and any security interests;
|
|
(b)
|
does
not use any material Intellectual Property other than the Intellectual
Property Rights (other than commercially available software);
and
|
|
(c)
|
or
of the Wider Group has taken all steps reasonably necessary to
protect all
of the material Intellectual Property owned by any member of the
Group.
|
|
23.3
|
All
Intellectual Property Rights of a material nature are disclosed
in the
Admission Document.
|
46
|
23.4
|
All
material Intellectual Property in respect of products and services
or
potential products and services referred to in the Admission
Document:
|
|
(a)
|
are
in full force and effect or have the status otherwise fairly disclosed
in
the Admission Document;
|
|
(b)
|
are
legally and beneficially owned by the Group or are held by or licensed
to
the Group (other than commercially available software) under licences,
the
terms of which have been complied with in all material respects
by a
member of the Wider Group (including, without limitation, the payment
of
all fees and royalties due thereunder) or a member of the Group
has agreed
to acquire
on
or before Admission
a
licence to use or ownership of such Intellectual Property and so
far as
the Warrantors are aware no grounds exist which would or could
entitle any
third party to terminate such licences prematurely;
and
|
|
(c)
|
are
free from any mortgage, charge or other security
interest.
|
|
23.5
|
No
member of the Group has assigned or granted an option or agreed
to assign
the ownership of any Intellectual Property Rights created by any
member of
the Wider Group other than in the ordinary course of
business.
|
|
23.6
|
None
of the Warrantors is aware of anything which has been done or omitted
to
be done which:
|
|
(a)
|
has
affected or might actually be expected to affect the validity of;
or
|
|
(b)
|
constitutes
knowing acquiescence in infringement
of,
|
any
of
the registered Intellectual Property Rights, which in any case either
individually or collectively is or may be material in the context of the
Placing
and/or Admission.
|
23.7
|
No
circumstances exist whereby any of the Intellectual Property Rights
could
be subject to cancellation or
revocation.
|
|
23.8
|
No
proceedings, actions or claims are pending or impugning the title,
validity or enforceability of any of the Intellectual Property
Rights.
|
|
23.9
|
So
far as the Warrantors are aware, the carrying on of the business
of the
Group does not infringe, and the Group has not authorised the infringement
of, the Intellectual Property of any third party and no event has
occurred
or is subsisting which constitutes or results in the infringement
by any
member of the Group of any Intellectual Property held by third
parties and
which would have a material adverse effect on the business, assets
or
prospects of the Group taken as a
whole.
|
47
|
23.10
|
There
has been no infringement of any of the Intellectual Property Rights
owned
by the Group by any third party so as to have a material adverse
effect on
the business of the Group.
|
|
23.11
|
There
are currently no restrictions over any Intellectual Property Rights
which
prevent or would prevent such Intellectual Property Rights being
used now
or in the future for their present use, the consequences of which
would be
material in the context of the Placing and/or
Admission.
|
|
23.12
|
All
persons retained or employed by any member of the Group who, in
the course
of their work for any member of the Group have brought, will or
might
reasonably be expected to bring into existence Intellectual Property
are
individually bound by written agreements with a member of the Group
whereby all Intellectual Property which such persons bring or which
may be
brought into existence during their work for the Group vests (to
the
extent permissible by law) in a member of the Group and all such
agreements contain terms which prohibit such persons divulging
any
information which is considered by the Group to be
confidential.
|
|
24.
|
INFORMATION
TECHNOLOGY
|
No
member
of the Group has nor, so far as the Directors are aware, has any other person,
suffered, any failures or bugs in or breakdowns of any computer hardware
or
software used in connection with the business of the Group which have caused
any
material disruption or interruption in or to its use having a material adverse
effect on the Group taken as a whole.
|
25.
|
LICENSING
AND GAMING
|
For
the
purposes of this paragraph 28, "Lottery
Services"
means
the development, installation, adaptation, management and/or provision of
lottery games, applications and services to the extent carried on at Admission
by the Wider Group.
|
25.1
|
The
Group has obtained or has agreed to obtain on or before Admission
all
licences, authorisations, consents and permits required in all
jurisdictions in which any member of the Wider Group provides or
has
provided any Lottery Services.
|
|
25.2
|
No
member of the Wider Group is or has at any time been in breach
of any law,
regulation or licence requirement in connection with its provision
of the
Lottery Services in any jurisdiction in which it operates or has
operated.
|
|
25.3
|
A
member of the Wider Group has at all times complied with and is
currently
in compliance with all applicable laws, regulations and licence
requirements in all jurisdictions in which the Wider Group operates
in
relation to its storage of any information obtained by any member
of the
Wider Group from the use by any third party of the Lottery
Services.
|
48
|
26.
|
ASSETS
AND CONTRACTS
|
|
26.1
|
A
member of the Group is either the sole legal and beneficial owner
of or
has agreed to acquire or has the right to use all assets used in
the
business of the Wider Group which are necessary for the effective
operation of the business as it is currently carried on by the
Wider Group
or contemplated to be carried on by the Group for the next 12
months.
|
|
26.2
|
Either
a member of the Group is a party to all agreements which are material
to
the business of the Wider Group or, in respect of all such agreements
to
which a member of the Group is not a party, a member of the Group
has
agreed to acquire the benefit of such agreements on or prior to
Admission.
|
49
SCHEDULE
5
Tax
Indemnity
|
1.
|
DEFINITIONS
|
In
this
Schedule 6, unless the context otherwise requires:
|
1.1
|
Words
and expressions defined in or for the purposes of this agreement
shall,
except where expressly defined herein, have the same meanings in
this
schedule.
|
|
1.2
|
An
"associate"
of
a Covenantor means:
|
|
(a)
|
such
persons as fall within the definition of associate in section 417(3)
of
the Taxes Act if references therein to "a participator" are construed
as
references to the Covenantor concerned;
and
|
|
(b)
|
any
company which is under the control of the Covenantor concerned
and/or any
of the persons referred to in (a) above in relation to that Covenantor,
and "control"
for this purpose has the meaning in section 416(2)to (6) of the
Taxes
Act.
|
|
1.3
|
"Covenantor"
means each and every Director (but excluding Xxxx Xxxxxxxx) and
NMLS.
|
|
1.4
|
"Event"
includes (without limitation) the death of any person, any payment,
transaction, act or omission (including a change in residence of
any
person or a failure to make sufficient dividend payments to avoid
an
apportionment or deemed distribution of
income);
|
|
1.5
|
"Liability
for Taxation"
means:
|
|
(a)
|
any
liability of the Company to make a payment or increased payment
of
Taxation;
|
|
(b)
|
the
loss to the Company for whatever reason of any Relief, taken into
account
in computing the amount of the consolidated assets or liabilities
or any
provision for Taxation in the
Accounts;
|
|
(c)
|
the
loss to the Company of a right to repayment of Taxation which was
shown or
taken into account in the Accountants Reports as an asset;
and
|
50
|
(d)
|
the
use or set-off by the Company against income, profits or gains
of the
Company or any other member of the Wider Group earned, accrued
or
received, or against a liability of the Company to make a payment
or
increased payment of Taxation, in each case in respect of any period
up to
and including Admission of any Relief arising in respect of an
Event
occurring after Admission in circumstances where, but for such
use or
set-off, the Company would have had a liability to make a payment
or
increased payment of Taxation for which ZAI or the Company would
have been
able to make a claim against any Covenantor under this
Schedule,
|
and
in a
case within paragraph 1.5(b) above the amount of the Liability for Taxation
shall be deemed to be the amount of Taxation which is or becomes payable
and
would have been saved thereby but for such loss and in a case within paragraph
1.5(c) above the amount of the Liability for Taxation shall be deemed to
be the
amount of the repayment which would otherwise have been obtained and in a
case
within paragraph 1.5(d) above the amount of the Liability for Taxation shall
be
the amount of Taxation which would have been payable but for the use or set-off
of such Relief.
|
1.6
|
"Relief"
includes any loss, allowance, credit, exemption, set-off or deduction
relevant to the computation of any liability to
Taxation.
|
|
1.7
|
"Taxation"
means any form of taxation, and any form of levy or charge of any
fiscal
nature whatsoever, whether of the United Kingdom or elsewhere,
and whether
or not chargeable directly or primarily against or attributable
directly
or primarily to the Company, including (without limitation) corporation
tax (and any amount assessed, or assessable, or payable, as if
it were
corporation tax), advance corporation tax, amounts equivalent to
corporation tax payable under Section 419 of the Taxes Act, income
tax,
capital gains tax, value added tax, customs and other import duties,
payroll taxes, national insurance and other social security contributions,
amounts required to be deducted or withheld on account of taxation
from
any payment, capital duty, stamp duty, stamp duty reserve tax,
inheritance
tax and all penalties, fines, surcharges and interest relating
to any
taxation or to any failure or delay in reporting any matter or
making any
return or payment required to be reported or made (or any failure
to do so
accurately and completely) to any Taxation Authority and any reference
to
"taxation"
or
"tax"
shall be interpreted as though it were a reference to
Taxation.
|
|
1.8
|
"Taxes
Act"
means the Income and Corporation Taxes Act
1988.
|
|
1.9
|
Any
reference to a paragraph is a reference to a paragraph in this
Schedule.
|
|
1.10
|
References
to income profits or gains earned, accrued or received on or before
a
particular date or in respect of a particular period shall include
income
profits or gains deemed for taxation purposes to have been earned,
accrued
or received on or before the date or in respect of that
period.
|
51
|
1.11
|
References
to any Event on or before a particular date shall include any Event
which
is or has been deemed for taxation purposes to have occurred on
or before
such date.
|
|
2.
|
COVENANT
|
Each
of
the Covenantors for himself and his legal and personal representatives hereby
undertakes severally to ZAI and (as a separate covenant) the Company to pay
to
the Company an amount equal to any Liability for Taxation to the extent that
it
arises by reason of a failure by that Covenantor to discharge a liability
to pay
Taxation for which he was primarily liable or chargeable or on or in consequence
of a chargeable transfer made by the Covenantor for the purposes of Inheritance
Tax or the death of the Covenantor in all cases being a Liability for Taxation
arising by reason of any Event occurring on or before Admission.
|
3.
|
PAYMENT
|
Where
any
Covenantor becomes liable to make a payment to the Company under this Schedule,
the date upon which payment shall be made in cleared funds (the "Payment
Date")
shall
be determined as follows:
|
3.1
|
Where
the Liability for Taxation in respect of which any Covenantor is
liable to
make a payment under paragraph 2 is a liability to make an actual
payment
or increased payment of Taxation, the Payment Date shall be five
Business
Days after the date upon which ZAI or the Company demands payment
of the
same.
|
|
3.2
|
Where
the Liability for Taxation in respect of which any Covenantor is
liable to
make a payment under paragraph 2 is the loss, use or set-off of
a right to
a repayment of Taxation or of any Relief, the Payment Date shall
be the
date which is the later of:
|
|
(a)
|
the
date five Business Days after demand is made therefor;
and
|
|
(b)
|
the
date when, in the case of a right to repayment, such repayment
would have
been made to the Company but for such loss or, in the case of the
loss or
set-off of any Relief, the date when Taxation becomes payable which
would
not have been payable but for such loss, use or
set-off.
|
|
4.
|
INTEREST
|
Any
sums
not paid by a Covenantor on the Payment Date shall bear interest (which shall
accrue from day to day after as well as before any judgment for the same)
at the
rate of three per cent. per annum over the base rate for the time being of
Barclays Bank PLC (or in the absence thereof at such similar rate as ZAI
shall
select) from the Payment Date to the date of actual payment of such sums
compounded annually.
52
|
5.
|
LIMITATIONS
ON LIABILITY
|
The
liability of the Covenantors in respect of the covenant set out in this Schedule
shall, except in relation to any matter in respect of which notice of a claim
under this Schedule shall have been given to a Covenantor by ZAI or by the
Company on or before such date, terminate on the seventh anniversary of the
date
hereof.
|
6.
|
DEDUCTIONS
|
|
6.1
|
All
sums payable by a Covenantor to the Company under this Schedule
shall be
paid free and clear of all deductions or withholdings whatsoever,
save
only as may be required by law.
|
|
6.2
|
If
any deduction or withholding is required to be made by law from
any sum
payable under this Schedule, the Covenantor shall be obliged to
pay to the
Company such greater sum as will, after such deduction or withholding
as
is required to be made has been made, leave the Company with the
same
amount as it would have been entitled to receive in the absence
of any
such requirement to make a deduction or
withholding.
|
|
6.3
|
If
any sum (the "first
sum")
payable by a Covenantor under this Schedule shall be subject to
Taxation
in the hands of the recipient then the Covenantor making such payment
shall pay to the recipient (as often as may be necessary) such
additional
sum or sums as will after such Taxation (and any Taxation on such
additional sum or sums) leave the recipient with such amount as
the
recipient would have been left with had the first sum not been
subject to
Tax in the hands of the recipient.
|
53
SIGNED
AND DELIVERED AS A DEED
by
NEW
MEDIA LOTTERY SERVICES PLC
acting
by:
|
Signature
of Director
|
.....................................................
|
|
Print
name of Director
|
.....................................................
|
|
Signature
of Director/Secretary
|
.....................................................
|
|
Print
name of Director/Secretary
|
.....................................................
|
|
SIGNED
AND DELIVERED AS A DEED
|
.....................................................
|
|
by
XXXX
XXXXXX
|
|
|
in
the presence of:
|
|
Witness:
|
|
|
Signature
|
.....................................................
|
|
Name
|
.....................................................
|
|
Address
|
.....................................................
|
|
.....................................................
|
|
|
.....................................................
|
|
|
Occupation
|
.....................................................
|
|
SIGNED
AND DELIVERED AS A DEED
|
.....................................................
|
|
by
XXXXXXXX
X XXXXXXXX
|
|
|
in
the presence of:
|
|
Witness:
|
|
|
Signature
|
.....................................................
|
|
Name
|
.....................................................
|
|
Address
|
.....................................................
|
|
.....................................................
|
|
|
.....................................................
|
|
|
Occupation
|
.....................................................
|
54
|
SIGNED
AND DELIVERED AS A DEED
|
.....................................................
|
|
by
XXXXX
XXXXX
|
|
|
in
the presence of:
|
|
Witness:
|
|
|
Signature
|
.....................................................
|
|
Name
|
.....................................................
|
|
Address
|
.....................................................
|
|
.....................................................
|
|
|
.....................................................
|
|
|
Occupation
|
.....................................................
|
|
SIGNED
AND DELIVERED AS A DEED
|
.....................................................
|
|
by
XXXXXX
XXXXXXX
|
|
|
in
the presence of:
|
|
Witness:
|
|
|
Signature
|
.....................................................
|
|
Name
|
.....................................................
|
|
Address
|
.....................................................
|
|
.....................................................
|
|
|
.....................................................
|
|
|
Occupation
|
.....................................................
|
|
SIGNED
AND DELIVERED AS A DEED
|
.....................................................
|
|
by
XXXXXX
XXXXXXX
|
|
|
in
the presence of:
|
|
Witness:
|
|
|
Signature
|
.....................................................
|
|
Name
|
.....................................................
|
|
Address
|
.....................................................
|
|
.....................................................
|
|
|
.....................................................
|
|
|
Occupation
|
.....................................................
|
55
|
SIGNED
AND DELIVERED AS A DEED
|
.....................................................
|
|
by
XXXX
XXXXXXXX
|
|
|
in
the presence of:
|
|
Witness:
|
|
|
Signature
|
.....................................................
|
|
Name
|
.....................................................
|
|
Address
|
.....................................................
|
|
.....................................................
|
|
|
.....................................................
|
|
|
Occupation
|
.....................................................
|
|
SIGNED
AND DELIVERED AS A DEED by
NEW
MEDIA LOTTERY SERVICES, INC,
a
company incorporated under the laws of Delaware, United States,
acting by
[FULL
NAME(S) OF PERSON(S) SIGNING]
(being [a
person] [persons]
who, in accordance with the laws of that territory, [is/are]
acting under the authority of the company) in the presence
of:
|
Sign
here
.....................................................
[.....................................................]
Authorised
signatory (or
signatories)
|
|
Witness:
|
|
|
Signature
|
.....................................................
|
|
Name
|
.....................................................
|
|
Address
|
.....................................................
|
|
.....................................................
|
|
|
.....................................................
|
|
|
Occupation
|
.....................................................
|
56
SIGNED
AND DELIVERED AS A DEED
by
XXXXXXXXX
XXXXX INTERNATIONAL LIMITED
acting
by:
|
Signature
of Director
|
.....................................................
|
|
Print
name of Director
|
.....................................................
|
|
Signature
of Director/Secretary
|
.....................................................
|
|
Print
name of Director/Secretary
|
.....................................................
|
57
