Exhibit 4.6
SUBSCRIPTION AGREEMENT
between
Futuremedia Public Limited Company
Media House, Arundel Road
Walberton, Arundel
Xxxx Xxxxxx, XX00 0XX
Xxxxxx Xxxxxxx
Tel no: 00-00-0000-000000
Fax no: Fax no: 00-00-0000-000000
Contact person: Xxxxx Xxxxxx, Company Secretary
e-mail: xxxxx.xxxxxx@xxxxxxxxxxx.xx.xx
and
LUVIT AB (Publ)
Xxx 000
000 00 Xxxx
Xxxxxx
Tel no: 00 00 (0)00 00 00 00
Fax no: 00 00 (0)00 00 00 00
Contact person: Xxx Xxxxxxxxxx, President LUVIT AB
e-mail: xxx.xxxxxxxxxx@xxxxx.xxx
THIS SUBSCRIPTION AGREEMENT is made on April 22, 2003, by and
among
(1) Futuremedia Plc, Reg. No: 01616681, hereinafter "Futuremedia, a limited
liability company duly established and registered under the laws of
United Kingdom,
(2) LUVIT AB (Publ), Reg. No: 556561-8641, hereinafter "LUVIT" or "the
Company", a limited liability company duly established and registered
under the laws of Sweden,
Recitals:
Futuremedia Plc will subscribe for the shares to be issued in the
Company (the "New Shares") in accordance with this Subscription
Agreement.
NOW THEREFORE, intending to be legally bound, the Parties have
agreed as follows.
1. DEFINITIONS
When used in this Subscription Agreement the following terms
shall have the meanings set forth below (such meanings to be
equally applicable to the singular and plural forms of such
terms unless otherwise specifically defined):
"Accounts" means the balance sheet and the income
statement of the Company as of the Accounts
Date attached hereto as Exhibit 1.
"Accounts Date" means the audited fiscal year ended
December 31, 2001, and; the non-audited
fiscal year ended December 31, 2002.
"Business Day" shall mean a day on which banks are open for
business in Malmo.
"Company" means the Swedish limited liability company
LUVIT AB (publ) org. no.556561-8641.
"Exchange rate U.S $" means that the exchange rate U.S $ to
Swedish kronor for this contract will be
8,58 kronor as established by the Parties
April 22, 2003.
"New Shares" means the issue of 7.800.000 new shares,
credited as fully paid
"Parties" means the undersigned parties to this
Subscription Agreement.
"Party" mean any of the undersigned parties to this
Subscription Agreement.
"Subscription Agreement" means this Subscription Agreement
by and among the Parties, as it may be
amended from time to time, and all the
exhibits attached hereto, each of which
constitutes an integral part of this
Subscription Agreement.
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"Subscription Date" means April 30,2003, or such other date as
may be agreed by all Parties.
"Subscription Price" means SEK1,10 per share.
"Volito AB" means the main shareholder of LUVIT AB.
2. SUBSCRIPTION AND ISSUE OF NEW SHARES
2.1. The issue to and for the purpose of this subscription by
Futuremedia for the New Shares, together with all other
actions of the Parties necessary for the completion of the
transactions contemplated by this Subscription Agreement shall
be subject to that:
(i) LUVIT shall hold an extraordinary general meeting, to be held within
a period of 40 days from post signing a special agreement regulating
issues of cross ownership between Futuremedia and Volito AB, to pass
a resolution to affect the issue of the New Shares. The New Shares
are to be issued exclusively towards Futuremedia and Futuremedia
shall subscribe the New Shares.
(ii) the Company shall complete the issue of the New Shares, pursuant to
which decision the share capital of the Company shall be increased
as per the following calculation: A nominal value of SEK 0,10 each,
at a subscription price of SEK 1,10 per Share, the "Subscription
Price, comprising a total capital contribution of U.S $ 1.000.000.
The amounts paid in excess of the nominal value of the New Share
shall be attributed to the Company's share premium reserve.
It is understood and agreed that the issue of the New Shares is
subject to the approval of the following events:
a) a signed agreement (LOI) between Futuremedia Plc and Volito AB
and;
b) the LUVIT extraordinary general meeting regarding the issue of
the New Shares.
2.2. The Parties shall take all measures (insofar as each Party is able)
necessary to carry out the terms and conditions under this Subscription
Agreement without any delay.
3. CLOSING
3.1. Futuremedia Plc shall by signing this Agreement or nor later than on
the Subscription Date pay, to the advised Company's bank account or/and
according to the payments logistics mutually agreed between the
Parties, the total Subscription Price to the for all the New Shares of
U.S $ 1.000.000 (SEK 8.580.000).
3.2. Futuremedia Plc hereby undertakes that its signature hereon shall
constitute an irrevocable subscription to LUVIT for the number of New
Shares described herein.
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4. RISK FACTORS
Futuremedia acknowledges and is aware that an investment in the Company involves
a substantial degree of risk and should be regarded as highly speculative. As a
result, the subscription for the New Shares should be considered only if the
undersigned can reasonably afford a loss of its entire investment. The
undersigned should carefully consider, among other things, the risk factors set
out in the list of documents that is to be followed and attached hereto as
Exhibit 2.
5. REPRESENTATION AND WARRANTIES
The undersigned hereby represents and warrants to the Company as follows:
(a) The undersigned (i) has adequate means of providing for its current needs
and possible contingencies, and it has no need for liquidity of its investment
in the Company; (ii) has such knowledge and experience in financial matters that
the undersigned is capable of evaluating the relative risks and merits of this
investment; and (iii) understands that an investment in the Shares is highly
speculative and is able financially to bear the risk of losing its entire
investment.
(b) The address set forth on the signature page of this Agreement is its true
and correct business address, and it has no present intention of changing its
business location to any other jurisdiction.
(c) The undersigned has received and read and represents that it is familiar
with this Agreement.
(d) The undersigned, and its representatives, if any, have received copies of
the following documents: (i) the Company's Annual Report for the fiscal year
ended December 31 2001, and the non audited Annual Report for the fiscal year
ended December 31, 2002 attached hereto in Exhibit 1; the Company's Press
Releases distributed since December 31, 2002, attached hereto as composite in
Exhibit 2. The undersigned acknowledges that it has reviewed the information
contained therein. It further acknowledges that it has had the opportunity to
ask representatives of the Company questions about the Company's business and
financial condition and that it has obtained such information as it has
requested to the extent it has deemed necessary to permit it to fully evaluate
the merits and risks of its investment in the Company. Further, the undersigned
has consulted with such other of its investment and/or accounting and/or legal
and/or tax advisors as it has deemed necessary and appropriate in making its
decision to acquire the Shares.
(e) If the undersigned is a corporation, partnership, trust, or other entity,
(i) it is authorised and qualified to become a shareholder of, and authorised to
make its investment in, the Company; (ii) it has not been formed for the purpose
of making an investment in the Company; and (iii) the person signing this
Agreement on behalf of such entity has been duly authorised by such entity to do
so.
(f) The undersigned is not relying on the Company or any representation
contained herein or in the documents referred to herein with respect to the tax
and economic effect of its investment in the Company.
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(g) At the time the offer to buy the Shares was made, the undersigned and all
beneficial owners of the Shares purchased hereunder by the undersigned on behalf
of such persons were outside of the United States of America, Canada, Japan, the
Republic of Ireland and Australia. The undersigned further represents that the
undersigned and all such beneficial owners did not receive any offering
documents, with respect to the purchase of the Shares, in the United States of
America, Canada, Japan, the Republic of Ireland or Australia.
(h) The Shares for which the undersigned hereby subscribes are being acquired
solely for its own account or for the account of beneficial owners that the
undersigned represents, and are not being purchased with a view to or for
distribution. It has no present plans to enter into any such contract,
undertaking, agreement or arrangement. In order to induce the Company to sell
and issue the Shares subscribed for hereby to the undersigned, it is agreed that
the Company will have no obligation to recognise the ownership, beneficial or
otherwise, of such Shares by anyone but the undersigned and the beneficial
owners that the undersigned represents.
The foregoing representations and warranties are true and accurate as of the
date of delivery of this Agreement to the Company and shall survive such
delivery. If in any respect such representations and warranties shall not be
true and accurate prior to acceptance of this subscription by the Company, the
undersigned shall give written notice of such fact to the Company, specifying
which representations and warranties are not true and accurate and the reasons
therefore.
6. INDEMNIFICATION
Futuremedia acknowledges that it understands the meaning and legal consequences
of the representations and warranties contained herein, and hereby agrees to
indemnify and hold harmless the Company, the Company's officers and directors,
and their respective agents, employees and affiliates, from and against any and
all losses, claims, damages or liabilities, including reasonable solicitors' or
attorneys' fees, due to or arising out of a breach of any representation (s) or
warranty(s) of the undersigned contained in this Agreement.
7. WAIVERS
If any Party should at any time waive its rights due to breach or default by the
other Party, or Parties, as the case may be, of any of the provisions of this
Subscription Agreement, such waiver shall not be construed as a continuing
waiver regarding other breaches or defaults of the same or other provisions of
this Subscription Agreement.
8. ENTIRE AGREEMENT
This Subscription Agreement supersedes all prior agreements between the Parties
with respect to its subject matter and constitutes, together with the documents
referred to in this Subscription Agreement, a complete and exclusive statement
of the terms of the agreement between the Parties with respect to its subject
matter.
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9. VARIATION
Any amendment, alteration or variation to this Subscription Agreement shall not
be valid or enforceable unless it is recorded in writing and signed by a duly
authorised representative of each Party.
10. SEVERABILITY
If any term or provision in this Subscription Agreement shall be held to be
illegal or unenforceable, in whole or in part, under any enactment or rule of
law, such term or provision or part shall to that extent be deemed not to form a
part of this Subscription Agreement but the enforceability of the remainder of
this Subscription Agreement shall not be affected.
11. NOTICES
Notices pursuant to this Subscription Agreement shall be made in writing by post
or by facsimile to the other Parties under the addresses and to the facsimile
numbers, respectively, set forth in this Agreement, or to such other addresses
or facsimile numbers which, in accordance with the terms of this Section 11, has
been notified to the other Parties. Where the notice is sent by mail, it shall
be deemed to have been received by the addressees four Business Days after its
posting. Notices sent by facsimile shall be deemed to have been received by the
addressees at the time of transmission, provided that the sender's facsimile
machine returns a receipt indicating that all the transmitted pages have been
properly received by the addressees' respective facsimile machines.
12. GOVERNING LAW AND JURISDICTION
12.1. This Subscription Agreement shall be governed by and construed in
accordance with the laws of Sweden.
12.2. Any dispute, controversy or claim arising out of or in connection with
this Subscription Agreement, or the breach, termination or invalidity
thereof, shall be settled by arbitration in accordance with the Rules
of the Arbitration Institute of the Stockholm Chamber of Commerce. The
arbitration tribunal shall be composed of one arbitrator to be
appointed by the Stockholm Chamber of Commerce. The place of
arbitration shall be Malmo and the language to be used in the arbitral
proceedings shall be English.
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SIGNATURES
EXECUTED this 23 day of April, 2003
Number of Shares subscribed for: 7.800.000 Shares at SEK 1,10 per Share.
Payable: One installment of U.S S 1.000.000.
/s/ Xxxx Xxxxxxxxx on behalf of Futuremedia Plc
----------------------------------------------- ---------------------------
(Signature of Subscriber) (Signature of Spouse, or or
other joint tenant, if any)
Xxxx Xxxxxxxxx - CEO
--------------------------------------------- ---------------------------
(Printed Name of Subscriber) (Printed Name of Spouse, or
other joint tenant, if any)
ACCEPTANCE
APPROVED AND ACCEPTED in accordance with the terms of this Agreement on this 23
day of April, 2003.
LUVIT AB (publ)
By: /s/ Xxx Xxxxxxxxxx
----------------------------------------
Xxx Xxxxxxxxxx, President LUVIT AD
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List of Exhibits:
Exhibit 1 - LUVIT Accounts (in the Swedish language)
Exhibit 2 - Press releases and other documents relevant to Section 4. (partly in
the Swedish language
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