Exhibit 4.15
XXXXXX INFOWAY LIMITED
2nd Floor, Tidel Park Taramani
Chennai 000 000, Xxxxx
The Directors
CricInfo Limited
Hartham Park
Corsham
Wiltshire SN13 0RP
England
17th May 2002
Dear Sirs,
AMENDMENT TO LOAN FACILITY & ARRANGEMENTS FOR FUTURE FINANCING
We, Xxxxxx Infoway Limited ("XXXXXX") refer to the letter between CricInfo
Limited (the "COMPANY", together with Xxxxxx , the "PARTIES") and Xxxxxx dated
March 13, 2002 regarding the Company's need for further finance and the proposed
Additional Subscription (as defined in that letter). Terms and expressions used
in this letter (the "AMENDMENT LETTER") which are defined in the subscription
letter between us dated October 5, 2001 ("SUBSCRIPTION AGREEMENT") shall, where
the context permits, have the same meaning herein as therein.
This letter, which when countersigned by yourselves will form a binding
agreement between us, now records the following matters which have been agreed
for good and valuable consideration to document the Additional Subscription:
1. The terms of the Subscription Agreement be and are hereby amended and
restated in the manner set forth in the amended and restated Subscription
Agreement set out in the Annexure hereto (the "AMENDED AND RESTATED
SUBSCRIPTION AGREEMENT").
2. For the avoidance of doubt, the Company and Xxxxxx (in its capacity as Loan
Noteholder and Subscriber) confirm and agree that all amendments made to
the terms of the Subscription Agreement and the Instrument shall apply
equally to all Loan Notes issued prior to, on and subsequent to the date of
this Amendment Letter.
3. Each of the Parties shall, immediately following execution of this
Amendment Letter, execute and deliver:
(i) two originals of the Amended and Restated Subscription Agreement in
the form set out in the Annexure hereto; and
(ii) an original of the Amended and Restated Warrant in the form set out
in Schedule 6 to the Amended and Restated Subscription Agreement.
1
4. The Company shall, immediately following execution of this Amendment
Letter, execute and deliver:
(i) an original of the Amended and Restated Instrument in the form set
out in Schedule 1 to the Amended and Restated Subscription
Agreement; and
(ii) an original executed loan note certificate substantially in the form
set out in the First Schedule to the Amended and Restated Instrument
issued by the Company to Xxxxxx for a principal amount of [Pound
Sterling335,000], representing the aggregate principal amount
advanced by Xxxxxx by instalments made between March __, 2002 and
May __, 2002 in anticipation of the Additional Subscription being
documented.
5. Xxxxxx hereby confirms and undertakes for the benefit of each of
Xxxxxxxxxxxx Xxxxxxxx, Xxxxxxxxx Xxxxxxx and Xxxxx Xxxxxxxxx (the
"SHAREHOLDERS") that, to the extent that the undertakings given by each of
the Shareholders in the form of Schedule 4B to the Subscription Agreement
(the "4B UNDERTAKINGS") remain in force at the relevant time, it will
release each of the Shareholders from their respective 4B Undertaking on
the date of redemption or Conversion of all of the then outstanding Loan
Notes in full.
For the purpose of Condition 9 of the Conditions (as defined in the Loan Notes)
Xxxxxx, as current holder of all of the outstanding Loan Notes, hereby consents
to the proposed amendments to the Subscription Agreement, the Instrument and the
Conditions. The amendment and restatement of the Subscription Agreement as
contemplated by this Amendment Letter shall not constitute an Event of Default
for the purposes of Condition 2.6.4.
This letter and the rights and obligations of the Parties under it shall be
governed by and construed in accordance with the laws of England and the Parties
submit to the exclusive jurisdiction of the English Courts.
Save for the rights expressly granted to the Shareholders under paragraph 5
above, a person who is not a party to this Amendment Letter shall not have any
right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of
its terms.
This Amendment Letter may be executed by the Parties in separate counterparts
(including facsimile copies), each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall constitute one
and the same instrument. Signature pages may be detached from multiple
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
Please indicate your agreement to the terms of this Amendment Letter by signing
and returning the duplicate letter herewith.
Yours faithfully
.............................................
For and on behalf of
XXXXXX INFOWAY LIMITED
Accepted and agreed
2
.............................................
For and on behalf of
CRICINFO LIMITED
Date: .....................
3
ANNEXURE
(Amended and Restated Subscription Agreement)
XXXXXX INFOWAY LIMITED
2nd Floor, Tidel Park Taramani
Chennai 000 000, Xxxxx
The Directors
CricInfo Limited
Hartham Park
Corsham
Wiltshire SN13 0RP
England
____ May 2002
Dear Sirs,
AMENDED AND RESTATED LOAN FACILITY & ARRANGEMENTS FOR FUTURE FINANCING
This letter ("LETTER") sets out the amended and restated terms upon which we,
Xxxxxx Infoway Limited (the "SUBSCRIBER"), are prepared to subscribe for Loan
Notes to be issued by CricInfo Limited (the "BORROWER" or "COMPANY") in an
aggregate principal amount (including all amounts previously subscribed under
the original subscription agreement dated October 5, 2001 (the "SUBSCRIPTION
AGREEMENT")) of up to Pound Sterling1,600,000 to meet the Company's short to
medium term working capital needs.
The Subscriber and the Borrower hereby agree that this Letter amends and
replaces the Subscription Agreement with effect from the date hereof.
1. DRAWDOWN
1.1 Subject to fulfilment of the conditions precedent detailed in paragraph 2
below, and subject to paragraph 1.2, the Subscriber agrees to subscribe
for Loan Notes in accordance with the terms and conditions set forth
herein, in instalments (each an "INSTALMENT") to be made in such amounts
and on such dates (each an "INSTALMENT FUNDING DATE") as may be agreed in
writing from time to time by the Subscriber and the Borrower. An
Instalment of Pound Sterling100,000.00 was drawn down automatically on
each of 2 August, 2001 and 3 September 2001 (each an "INITIAL
INSTALMENT"). On various dates commencing 25 September 2001 Instalments in
an aggregate amount of Pound Sterling918,500 were drawn down under the
Subscription Agreement (the "INTERIM INSTALMENTS") and Pound
Sterling335,000 was drawn down under an agreement between the Subscriber
and the Borrower dated 13 March 2002 for the advance of monies in
anticipation of the Subscription Agreement being amended (the "ADDITIONAL
SUBSCRIPTION AGREEMENT").
1.2 The Borrower must give written notice to the Subscriber of the amount
requested to be drawn down at least ten business days (or such other
period as the Subscriber and the Borrower may
4
agree) prior to the relevant Instalment Funding Date (a "DRAWDOWN
NOTICE"). The Subscriber shall, on each Instalment Funding Date, following
receipt of the relevant Drawdown Notice (in terms consistent with the
Business Plan or an agreement between the Subscriber and the Borrower in
accordance with paragraph 1.1 above) and upon satisfaction of the
conditions precedent detailed in paragraph 2 below, subscribe for Loan
Notes in the amount to be subscribed on such Instalment Funding Date by
telegraphically transferring the amount set forth in the applicable
Drawdown Notice payable in pounds sterling (Pound Sterling) to the
Borrower's account with Barclays Bank, 00-00 Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxxx XX00 0XX, Xxxxxxx A/C No. 20980994, Sort Code 20-34-60.
2. CONDITIONS PRECEDENT
2.1 The obligations of the Subscriber to subscribe for any Loan Notes in
accordance with paragraph 1 above shall be subject to the Subscriber
receiving from the Borrower:
(a) a duly executed copy of this Letter;
(b) a duly executed copy of an instrument substantially in the form of
Schedule 1 hereto (which includes and is subject to the conditions
set out in the Second Schedule thereto) (the "INSTRUMENT");
(c) duly executed loan note certificates in the form set out in the
First Schedule to the Instrument (the "LOAN NOTES") issued by the
Company to the Subscriber: (i) for a principal amount of Pound
Sterling200,000.00, representing the aggregate principal amount of
the Initial Instalments; (ii) for a principal amount of Pound
Sterling918,500, representing aggregate principal amount of the
Interim Instalments; and (iii) for a principal amount of Pound
Sterling335,000, representing the principal amount drawn down under
the Additional Subscription Agreement;
(d) a certified copy of a written resolution of the board of the
Company, signed by each of the directors, or a certified copy of the
minutes of a meeting of the Board at which a resolution has been
passed, in substantially the form of: (i) the resolution set out in
Part I of Schedule 2; and (ii) the resolution set out in Part II of
Schedule 2;
(e) an original of an irrevocable undertaking in the form set out in
Schedule 4A from members of the Borrower holding between them not
less than 26 per cent. of the Borrower's issued share capital
(including each of Xxxxxxxxxxxx Xxxxxxxx, Xxxxxxxxx Xxxxxxx and
Xxxxx Xxxxxxxxx);
(f) an original of an irrevocable undertaking in the form set out in
Schedule 4B from each of Xxxxxxxxxxxx Xxxxxxxx, Xxxxxxxxx Xxxxxxx
and Xxxxx Xxxxxxxxx;
(g) a certified copy of all necessary consents and approvals (and for
the purposes of the Shareholders Agreement (defined in paragraph
5(b) below) the Subscriber hereby consents to the issue and/or
execution of the Loan Documents);
(h) a copy of an audit report of the Company as at March 31, 2002 from
PricewaterhouseCoopers, the Company's accountants; and
(i) an original executed counterpart warrant in favour of the Subscriber
in the form of Schedule 6 hereto (the "WARRANT").
PROVIDED THAT with regard to items 2.1 (c)(i) & (ii), (d)(ii) and (e) to
(h) only, any documents provided in the form dictated by paragraph 2.1 in
the original Subscription
5
Agreement (to the extent different from the above requirements) shall be
sufficient to satisfy the relevant condition precedent.
This Letter, the Instrument, the Loan Notes, the Warrant and any document
delivered pursuant thereto or in connection therewith are collectively the
"LOAN DOCUMENTS".
2.2 The Subscriber shall be under no obligation to subscribe for Loan Notes
forming all or part of any Instalment (but without prejudice to its
obligations in respect of any other Instalment):
(a) unless the Subscriber has received: (i) at least ten business days
prior to such Instalment Funding Date a duly completed Drawdown
Notice; (ii) on or before the relevant Instalment Funding Date a
Loan Note issued by the Company to the Subscriber in respect of the
amount being subscribed by the Subscriber by it pursuant to the
relevant Drawdown Notice; and
(b) unless the Subscriber, in its discretion, is satisfied that at the
time of the relevant Instalment Funding Date or at any other
relevant time that: (i) implementation of the Business Plan by the
Company remains, or in the reasonable opinion of the Subscriber, is
likely to remain feasible; (ii) no Event of Default (as defined in
the Loan Notes) has occurred, or in the reasonable opinion of the
Subscriber, is likely to occur; (iii) there has been no material
adverse change in the business, financial position or trading
prospects of the Borrower since the date of this Letter or, in the
reasonable opinion of the Subscriber, is expected; and (iv) the
Company has taken all reasonable action to renegotiate the
provisions of the Internet Rights Acquisition Agreement (the "PCB
AGREEMENT") dated February 5, 2001 and made between the Company and
Pakistan Cricket Board ("PCB") relating to the issue of shares by
the Company to PCB with the objective of limiting the number of
shares to be issued by the Company to PCB to 1,754 shares (or 1 per
cent. of the Company's share capital as at the date of the PCB
Agreement).
3. EXPIRY
The obligation of the Subscriber to subscribe for any Loan Notes shall be
terminated upon the earlier to occur of (i) subscription by the Subscriber
for Loan Notes with an aggregate principal amount of Pound
Sterling1,600,000; or (ii) 5 October 2002.
4. REPAYMENT; INTEREST
The Borrower shall repay or purchase the Loan Notes and the Loan Notes
shall bear interest all as set forth in the Loan Notes instrument.
5. UNDERTAKINGS OF THE BORROWER
5.1 The Borrower hereby undertakes with the Subscriber (and the Subscriber
shall at the Borrower's request do all such things as are reasonable and
necessary and within its power to assist the Borrower with such
undertakings) as follows:
(a) as soon as practicable following the date of the original
Subscription Agreement (and in any event not later than 9 October
2001) to deliver to the Subscriber for approval a draft business
plan for the Company (the "DRAFT") with the objective of increasing
revenue and decreasing costs and expenses substantially. To the
extent that the Subscriber disagrees with the Draft so delivered it
shall notify the Borrower within 5 business days of receipt of the
Draft giving details of its disagreement. When the Draft (amended as
necessary to address any material disagreement of the Subscriber)
has been approved in writing by the Subscriber (the "BUSINESS PLAN")
it shall be
6
adopted and implemented by the Company PROVIDED THAT any business
plan provided by the Borrower in accordance with the original
Subscription Agreement (in accordance with its terms) shall be
sufficient to satisfy the undertaking to deliver a business plan in
this paragraph 5.1(a);
(b) it will not, at any time following the date of the original
Subscription Agreement and prior to the adoption of the Business
Plan, (i) incur any material expenditure other than expenditure of a
recurring nature in the ordinary course of business; (ii) incur or
agree to incur or assume any liability of more than Pound
Sterling10,000; and (iii) take any action which would be
inconsistent with the objective of increasing revenue and decreasing
costs and expenses substantially, in each case without the agreement
of a SIL Director (as defined in the shareholders' agreement between
the Subscriber, the Borrower and others and dated July 28, 2000 (the
"SHAREHOLDERS AGREEMENT"));
(c) at all times following adoption of the Business Plan, to observe and
comply with its terms save to the extent as may otherwise be agreed
between the Borrower and the Subscriber;
(d) to ensure that the Subscriber and its authorised representatives
shall be allowed access at all reasonable times to examine the books
and records of the Company and any of its subsidiaries to enable the
Subscriber to determine whether the Conditions Precedent specified
in paragraph 2 have been satisfied;
(e) forthwith to notify the Subscriber of any material litigation,
arbitration or administrative proceedings which have been brought or
(to its knowledge) threatened against the Borrower;
(f) as soon as it becomes aware of the same, to notify the Subscriber of
any occurrence which could materially and adversely affect the
ability of the Borrower to perform its obligations under this
Letter;
(g) not to grant any Security Interest (as defined in sub-paragraph
6.1(b) below) over any of its assets and will ensure that its
obligations under this Letter at all times rank at least pari passu
with all liabilities of the Borrower, save for any statutory
preference applicable on the winding-up of the Borrower;
(h) forthwith to notify the Subscriber of any fact or circumstance
likely to constitute an Event of Default (as defined in the Loan
Notes); and
(i) to maintain at all times sufficient authorised but unissued share
capital to comply in full with its obligations under the Loan Notes.
6. WARRANTIES
6.1 The Borrower warrants to the Subscriber that:
(a) the Borrower has full power, authority and legal right and has taken
all necessary corporate actions and obtained all necessary consents
and statutory approvals in order to borrow money on the terms of
this Letter and the Instrument and to perform its obligations under
the Loan Documents and this Letter and each of the Loan Documents
constitute the legal, valid and enforceable obligations of the
Borrower in accordance with their respective terms;
(b) the Borrower has not created or allowed to exist any mortgage,
charge, pledge, assignment by way of security, hypothecation, lien
or other encumbrance or security
7
interest (each a "SECURITY INTEREST") over any of its assets and
there are no such Security Interests currently in existence;
(c) neither the borrowing under the Instrument nor the performance by
the Borrower of its obligations under this Letter or under any of
the Loan Documents will conflict with any obligation applicable to
the Borrower;
(d) save for an employment tribunal being brought by Xxxxx Xxxx against
the Borrower and the threat of an action by PCB for breach of
contract with regard to the PCB Agreement, there are no current,
pending or (to the best of the knowledge and belief of the Borrower)
threatened actions or proceedings before any court, arbitrator,
administrative tribunal or governmental authority which might
materially and adversely affect the business, assets or condition
(financial or otherwise) or operations of the Borrower or its
ability to perform its obligations under this Letter;
(e) as at July 31, 2001 the Borrower's requirement to discharge
liabilities on its balance sheet at that date did not exceed Pound
Sterling400,000;
(f) save for the liabilities of the Borrower disclosed to the Subscriber
in the financial statements of the Company as at July 31, 2001, the
Borrower did not have any liabilities or indebtedness (including,
but not limited to, all and any bank indebtedness, lease
obligations, hire purchase agreements (however expensed), guarantees
and indemnities) at that date;
(g) save for the PCB Agreement (as defined in paragraph 2.2(b) above),
the TNQ Agreement (as defined in the Warrant), the Loan Notes and
the Warrant, there are no agreements, arrangements or other
commitments of the Company to issue shares or grant any interest or
other right over any shares of the Company; and
(h) the Company owns or has a valid licence to use any computer software
which it uses in its business and the Company is not in breach of
the terms of any computer software licence with third parties.
The warranties at sub-paragraphs 6.1(a) to 6.1(d) and 6.1(h) shall be
repeated daily with reference to the facts and circumstances at the time
of repetition until all monies due under Loan Notes have been discharged
and/or paid in full and the Borrower hereby covenants that such warranties
shall be true, correct and accurate when so repeated by reference to the
facts existing at that time.
6.2 If the warranty at sub-paragraph 6.1(f) is not correct then, without
prejudice to any other right or remedy of the Subscriber, the value of "V"
used to determine the Issue Price (as defined in the Loan Notes) shall be
re-calculated in accordance with the following formula:
V(1) = Pound Sterling320,000 -- D
where, "V(1)" represents the adjusted value to be substituted for "V" used
to determine the Issue Price; and "D" represents an amount equal to the
aggregate amount of liabilities and indebtedness (including, but not
limited to, all and any bank indebtedness, lease obligations, hire
purchase agreements (however expensed), guarantees and indemnities) which
were not disclosed in the financial statements of the Company as at March
31, 2002.
8
7. SUBSCRIBER'S RIGHTS
Until the later to occur of (i) redemption or Conversion (as defined in
the Loan Notes) of any outstanding Loan Notes in full; or (ii) expiry of
the obligation of the Subscriber to subscribe for any Loan Notes pursuant
to paragraph 3 above, the Borrower:
(a) agrees to take all such action within its power and control to
procure that the Subscriber's nominee (from time to time) shall be
appointed and remain appointed as managing director of the Company;
(b) shall require the agreement of the Subscriber before materially
amending the Business Plan or budgets of the Company or adopting a
business plan to extend or replace the Business Plan, in which case
no such amendment, extension or replacement shall be made or adopted
in a form which has not been agreed by the Subscriber; and
(c) agrees to give the Subscriber: (i) at least 10 business days notice
in writing of any proposed issue of shares by the Company (other
than an issue of shares pursuant to the Warrant, an employee share
scheme adopted by the Company or Conversion of the Loan Notes (as
defined in the Loan Notes)); and (ii) at least 5 business days
notice in writing of any proposed issue of shares by the Company to
anyone other than the Subscriber pursuant to the Warrant or
Conversion of the Loan Notes, in each case such notice to identify
the proposed allottee, the number of shares proposed to be issued
and the issue price per share.
8. ASSIGNMENT AND TRANSFER BY THE SUBSCRIBER
8.1 The Subscriber may at any time assign, transfer or novate any or all of
its rights and/or obligations under the Loan Documents, or any of them, to
any third party (a "THIRD PARTY").
8.2 A transfer of obligations will be effective only if the obligations are
novated in accordance with sub-paragraph 8.4 below.
8.3 The Borrower hereby consents to any such novation and transfer of
obligations to a Third Party.
8.4 A novation shall be effected upon:
(a) the Subscriber and the Third Party delivering to the Borrower a duly
completed deed of novation, in substantially the form of Schedule 5
but subject to such variation as the Subscriber and the Third Party
consider desirable in the context, executed by the Subscriber and
the Third Party (the "DEED OF NOVATION"); and
(b) the Borrower executing the Deed of Novation (which the Borrower
shall promptly do).
8.5 For the purpose of effecting a novation as aforesaid, the Borrower hereby
irrevocably appoints the Subscriber to be its attorney to execute, sign
and deliver any Deed of Novation on its behalf.
8.6 Other than as provided in paragraph 8.1 of this Letter, neither the
Subscriber, the Borrower nor any Third Party may assign, transfer or
novate any or all of its rights and/or obligations under this Letter or
any of the Loan Documents.
9. NOTICES
9
9.1 Any notice or demand given or made in connection with this letter shall be
sent to the representative of the Subscriber and to the Borrower
respectively in accordance with the details given in Schedule 7 hereto or
such other address as the relevant party may from time to time notify to
the other. Notices shall be in writing and either delivered by hand
(including by courier) or by fax. A communication shall be deemed to have
been served: (i) if delivered by hand at the address referred to in
Schedule 7, at the time of delivery; and (ii) if sent by facsimile to the
number referred to in Schedule 7, at the time of completion of successful
transmission by the sender.
9.2 If a communication would otherwise be deemed to have been delivered
outside normal business hours (being 9:30 a.m. to 5:30 p.m. on a business
day) in the time zone of the territory of the recipient under the
preceding provisions of this paragraph, it shall be deemed to have been
delivered at the next opening of such business hours in the territory of
the recipient.
9.3 In proving service of the communication, it shall be sufficient to show
that delivery by hand was made or that the facsimile was despatched and a
confirmatory transmission report received.
10. COUNTERPARTS
This letter may be executed by the different parties hereto in separate
counterparts (including facsimile copies), each of which when so executed
and delivered shall be deemed an original, but all such counterparts
together shall constitute one and the same instrument. Signature pages may
be detached from multiple counterparts and attached to a single
counterpart so that all signature pages are physically attached to the
same document.
11. THIRD PARTY RIGHTS
With the exception of any Third Party, a person who is not a party to this
Letter shall have no right under the Contracts (Rights of Third Parties)
Act 1999 to enforce any of its terms. This provision shall not affect any
right or remedy of any third party which exists or is available otherwise
than by reason of that Act and shall prevail over any other provision of
this Letter which is inconsistent with it.
12. DISCLOSURE
The parties agree that the terms of this letter and related documents may
be disclosed by the Subscriber to any potential Third Party or to
potential investors in or lenders to the Company and, with the prior
written consent of the Subscriber, by the Borrower to potential investors
in or lenders to the Company but not otherwise by the Subscriber or the
Borrower, unless so required by law or the rules of any relevant
regulatory authority.
13. COSTS
The Borrower and the Subscriber shall bear their own costs in connection
with the preparation and entering into of the Loan Documents.
14. FURTHER ASSURANCE
Each party to this Letter shall execute such further documents and perform
and do such further acts and things following its execution as the other
party may reasonably request in writing in order to carry the provisions
of this Letter into full effect. The Borrower and the Subscriber shall
bear their own costs and expenses in carrying out any such request.
10
15. ENTIRE AGREEMENT
This Letter and the documents referred to herein set out the entire
agreement and understanding between the parties relating to the subject
matter hereof and to the extent that any other agreement or arrangement
between the parties conflicts with the provision of this Letter, the
provisions of this Letter shall prevail.
16. GOVERNING LAW AND JURISDICTION
This letter and the rights and obligations of the parties under it shall
be governed by and construed in accordance with the laws of England and
the parties hereto submit to the exclusive jurisdiction of the English
Courts.
Please confirm your acceptance of the foregoing terms and conditions by signing
and returning to us the duplicate of this letter. In consideration of you
signing and returning the duplicate of this letter the Subscriber will subscribe
for Loan Notes upon the terms set out in this Letter.
EXECUTED AND DELIVERED by the parties hereto or by their duly authorised
representatives as a deed the day and year first before written
EXECUTED as a DEED by )
XXXXXX INFOWAY LIMITED )
acting by: )
....................................
Authorised Signatory
Name:
Title:
....................................
Authorised Signatory
Name:
Title:
EXECUTED as a DEED by )
CRICINFO LIMITED )
acting by: )
....................................
Director
....................................
Director/Secretary
11
SCHEDULE 1
Loan Note Instrument
DATED_____________________________________________May 2002
CRICINFO LIMITED
-------------------------------------
AMENDED AND RESTATED INSTRUMENT
Constituting Pound Sterling1,600,000
Unsecured Convertible Loan Notes 2004
-------------------------------------
12
THIS INSTRUMENT is entered into the ____ day of May 2002 by CricInfo Limited a
company registered in England under number 3215055 and whose registered office
is at Hartham Park, Corsham, Wiltshire SN13 0RP (the "COMPANY") for the purposes
of constituting the Loan Notes, as defined in the conditions in the form set out
in the Second Schedule hereto (the "CONDITIONS"), and created pursuant to
Resolutions of its Board of Directors (being duly empowered and authorised by
the Memorandum and Articles of Association of the Company) passed on 7 September
2001 and __ May 2002.
Without prejudice to the rights of Loan Noteholders (as defined in the
Conditions) under existing issued Loan Notes, this instrument amends and
replaces the Instrument entered into by the Company and dated 5 October 2001.
NOW THIS INSTRUMENT WITNESSETH and the Company HEREBY DECLARES AS FOLLOWS:-
1. The aggregate principal amount of the Loan Notes is limited to a maximum
nominal aggregate amount of Pound Sterling1,600,000, being the maximum sum
available to the Company from Xxxxxx Infoway Limited or any third party
entitled to subscribe (the "SUBSCRIBER") in accordance with the terms and
conditions of a subscription letter dated the date of this Instrument (the
"LETTER").
2. The Loan Notes shall be designated Unsecured Convertible Loan Notes 2004
of the Company and shall rank as unsecured obligations of the Company.
3. The certificates for the Loan Notes (the "CERTIFICATES") shall be issued
to the Subscriber in accordance with the terms of the Letter upon drawdown
of their respective amounts made available pursuant to the Letter and in
the form or substantially in the form set out in the First Schedule hereto
and each Certificate shall have endorsed thereon or attached thereto the
Conditions.
4. The Company shall execute every Certificate as a deed. The Company hereby
covenants with each Loan Noteholder that it shall comply with the terms of
this Instrument, the Certificates and the Letter and shall perform and
observe the Conditions endorsed on the Certificates and the Loan Notes
shall be held subject to the Conditions, all of which Conditions shall be
deemed to be incorporated in this Instrument and shall be binding on the
Company and the Loan Noteholders (as defined in the Conditions) and all
persons claiming through or under them respectively. In particular the
Company shall in all respects comply with the provisions as to redemption
and repayment of the Loan Notes and payment of interest thereon. Words and
expressions defined in and the provisions as to interpretation set out in
the Conditions shall apply for the purposes of this Instrument.
5. The provisions of the Second Schedule relating to the giving of Notices
shall also apply for the purposes of any notices to be given under or
pursuant to this Instrument.
6. Any reference to this Instrument means this Instrument and all its
schedules (including the conditions in the form set out in the Second
Schedule hereto) as from time to time modified in accordance with the
provisions herein contained.
7. This Instrument shall be governed by and construed in accordance with
English Law and the Company hereby irrevocably submits to the exclusive
jurisdiction of the English Courts for all purposes in connection
therewith.
IN WITNESS whereof this Instrument has been duly executed by the Company on the
day and year first above written
13
EXECUTED as a Deed and DELIVERED )
by CRICINFO LIMITED )
acting by: )
Director ..............................
Director/Secretary ....................
14
THE FIRST SCHEDULE
CERTIFICATE
No ...............
Nominal amount of Unsecured Convertible Loan Notes 2004
in a maximum aggregate amount of Pound Sterling1,600,000 (the "LOAN NOTES")
CRICINFO LIMITED
(Incorporated in England & Wales with number 3215055)
(the "COMPANY")
-----------------------------
created and issued pursuant to the Memorandum and
Articles of Association of the Company and
resolutions of the Directors of the Company
passed on 7 September 2001 and __ May 2002
THIS IS TO CERTIFY that:
Name: ............................................
Address: ........................................
.........................................
.........................................
is/are the registered holder(s) of Pound Sterling __ of the Loan Notes, which
Loan Notes are constituted by an amended and restated instrument dated __ May
2002 entered into by the Company and is issued with the benefit of and subject
to the provisions contained therein and in the Conditions set out in the Second
Schedule thereto which are endorsed hereon or attached hereto (the
"INSTRUMENT").
The Company covenants duly to perform and observe the obligations imposed on it
in the Instrument.
Words and expressions defined in the Instrument shall bear the same meaning on
this certificate.
The Loan Notes and the Instrument are governed by, and construed in accordance
with, English law.
IN WITNESS WHEREOF this certificate has been executed as a Deed this __ day of
__ 200_ by the Company pursuant to the terms of the Instrument.
EXECUTED as a Deed and DELIVERED )
by CRICINFO LIMITED )
acting by: )
Director ...............................
Director/Secretary .....................
15
THE SECOND SCHEDULE
CONDITIONS
1. RANKING AND DEFINITIONS
1.1 The Loan Notes to be issued by the Company are limited in maximum nominal
amount to Pound Sterling1,600,000. Each of the Loan Notes rank pari passu
without any discrimination or preference.
1.2 In these Conditions and in the Instrument (as hereinafter defined) unless
the context otherwise specifically provides the following expressions
shall have the following meanings:-
"Business Day" any day (other than a Saturday) on which banks are
open for business in the City of London;
"Company" CricInfo Limited;
"Conversion" the conversion of some or all of a Loan
Noteholder's Loan Notes into New Shares pursuant
to Condition 4;
"Letter" the amended and restated subscription letter
signed on behalf of Xxxxxx Infoway Limited
("XXXXXX") and the Company dated __ May 2002;
"Instrument" the amended and restated instrument of the Company
constituting the Loan Notes and dated __ May 2002;
"Issue Price" the amount per New Share equal to the product of
dividing V by S, where:
(i) "V" shall equal Pound Sterling320,000, or
such other amount as determined in
accordance with paragraph 6.2 of the
Letter; and
(ii) "S" shall be the number of shares in the
Company's equity share capital (as defined
in S.744 Companies Act 1985) then in issue
or over which the Company has granted any
option or other right or interest (save
for options granted pursuant to any
employee share option scheme adopted by
the Company or shares issued upon
Conversion),
PROVIDED THAT (a) notwithstanding the Company's
arrangements for the issue of shares to PCB or to
TNQ pursuant to the PCB Agreement and the TNQ
Agreement respectively (as such terms are defined
in the Warrant) only such number of shares
actually issued by the Company to PCB and/or TNQ
pursuant to or in connection with the PCB
Agreement and/or the TNQ Agreement shall be taken
into account when determining the value of "S";
and (b) the Issue Price shall be deemed to be
Pound Sterling0.001 to the extent that the above
calculation would, save for this proviso, result
in an Issue Price of less than that amount.
"Loan Noteholder(s)" the person(s) for the time being entered in the
Register which the Company under these Conditions
is required to maintain as holders of the Loan
Notes;
16
"Loan Notes" the Unsecured Convertible Loan Notes 2004 or, as
the case may require, any part thereof for the
time being issued and outstanding;
"New Shares" new ordinary shares of Pound Sterling0.001 each in
the capital of the Company;
"Security Interest" means, in any jurisdiction, any mortgage, pledge,
lien, charge, assignment, hypothecation or
security interest or any other agreement or
arrangement having the effect of conferring
security; and
"Warrant" the warrant issued by the Company to Xxxxxx and
dated __ May 2002.
2. REDEMPTION AND THE PAYMENT OF PRINCIPAL AND INTEREST
2.1 Subject as otherwise provided in these Conditions, the Company shall
redeem the Loan Notes in full at par together with any interest
outstanding on 5 October 2004.
2.2 Upon redemption, the Company shall pay to the Loan Noteholder or Loan
Noteholders concerned the principal monies on the Loan Notes held by them
together with interest accrued thereon but unpaid at the rate referred to
in Condition 2.3 up to and including the date of repayment.
2.3 So long as principal moneys shall be outstanding on any Loan Notes the
Company shall pay to each of the Loan Noteholders interest on the
principal amount of the Loan Notes held by it at the rate of eight per
cent per annum. Such interest shall be deemed to accrue on a daily basis
and will be calculated on the basis of a 365 day year and is payable every
six months on 5 April and 5 October in each year and upon redemption of
the Loan Notes.
2.4 In the event the Company fails to redeem the Loan Notes in accordance with
Condition 2.1 or convert the Loan Notes when due for conversion in
accordance with these Conditions, interest on the principal amount shall
be payable at the rate of ten per cent per annum.
2.5 All sums becoming payable by the Company under the Loan Notes shall be
made in full without set-off or counterclaim or any deduction or
withholding for or on account of any present or future taxes, duties,
charges or fees of any kind save as required by law. The Company shall not
be obliged to increase its payments to the Loan Noteholders when tax is
deducted from any interest.
2.6 Upon the occurrence of any of the following events (each an "EVENT OF
DEFAULT") a Loan Noteholder may declare the Loan Notes to be due and
payable whereupon the same shall become so due and payable together with
any accrued but unpaid interest and any other sums owed by the Company
under these Conditions:
2.6.1 the Company does not pay upon the due date any amount payable by it
under these Conditions in the manner in which it is expressed to be
payable in these Conditions;
2.6.2 any action is taken in any jurisdiction for the suspension of
payments by, or dissolution, winding-up, termination of existence,
liquidation, insolvency administration, or bankruptcy of the
Company, or a liquidator, trustee, administrator, receiver,
administrative receiver, manager or similar officer is appointed in
respect of the Company or in respect of any part of its respective
assets;
2.6.3 the Company is or is deemed unable or admits in writing its
inability to pay its debts as they fall due (provided always that
the issue by the Company of a Drawdown
17
Notice shall not constitute such deemed or admitted inability) or
any distress, execution, attachment or other process affects any
assets of the Company;
2.6.4 any material legal or regulatory authorisation, approval, consent,
licence, exemption, filing registration or notarisation or other
legal or regulatory requirement necessary to enable the Company to
comply with its obligations under these Conditions, or the Letter
is modified, revoked or withheld or does not remain or proves not
to have been in full force and effect;
2.6.5 the Company fails to comply and remains in non-compliance with any
other provision of these Conditions, the Instrument or the Letter
in any material respect;
2.6.6 at any time it is unlawful for the Company to perform any of its
obligations under these Conditions, the Instrument or the Letter;
or
2.6.7 any material adverse change occurs in the business, financial
position or trading prospects of the Company since the date of
issue of the relevant Loan Notes which might reasonably have or has
a material adverse affect on the Borrower's ability to perform any
of its obligations under these conditions, the Instrument or the
Letter.
3. REPAYMENT, PURCHASE AND CANCELLATION
3.1 The Company may not redeem the Loan Notes or any of them in whole or in
part except as may be expressly agreed with the relevant Loan Noteholder.
3.2 Any Loan Notes redeemed by the Company shall be cancelled and the Company
shall not be entitled to keep the same alive for the purposes of re-issue
or to re-issue the same.
3.3 On any partial repayment or partial Conversion the relevant Certificate
shall be endorsed by the Company with a Memorandum thereof.
3.4 On or before the due date for redemption by the Company of any Loan Notes,
the Loan Noteholder whose Loan Notes are to be redeemed shall be bound to
deliver to the Company's registered office a certificate or certificates
for the Loan Notes registered in his name and, upon the later of such
delivery and the due date for redemption aforesaid, the Company shall pay
to such Loan Noteholder the amount payable to him in respect of the
redemption.
4. CONVERSION
4.1 Subject as provided in Condition 4.5 below, a Loan Noteholder shall be
entitled at any time on giving five Business Days' written notice to the
Company (the "CONVERSION NOTICE"), to convert some or all of the principal
amount outstanding under the Loan Noteholder's respective Loan Notes plus
accrued but unpaid interest thereon into such number of New Shares
calculated by dividing the amount of principal and interest then being
converted (the "RELEVANT PRINCIPAL AND INTEREST") by the Issue Price. The
Conversion Notice should be signed on behalf of the relevant Loan
Noteholder, should state the amount of Relevant Principal and Interest and
should be accompanied by the original Certificate.
4.2 As soon as practicable following receipt of a Conversion Notice from a
Loan Noteholder (a "CONVERTING LOAN NOTEHOLDER") but in any event within
five Business Days of such receipt, the Company shall allot and issue New
Shares to the Converting Loan Noteholder in satisfaction of the Relevant
Principal and Interest.
4.3 New Shares allotted on conversion shall be credited as fully paid and
shall rank pari passu and form one class with the ordinary shares of the
Company in issue on such date.
18
4.4 For the purposes of calculating the number of shares arising on conversion
of all or part of any Loan Notes, fractional entitlement to New Shares on
conversion shall be rounded down to the nearest whole number and any
amount representing the fractional entitlement shall be repaid to the
Converting Loan Noteholder or, in the event of a partial conversion, shall
be added to the then outstanding principal amount of such Converting Loan
Noteholder's Loan Notes.
4.5 Save with the prior written consent of Xxxxxx, prior to serving a
Conversion Notice any non Xxxxxx Loan Noteholder shall provide Xxxxxx
(with a copy to the Company for information) with an executed original of
an irrevocable undertaking in substantially the form set out in each of
Schedule 4A and Schedule 4B of the Letter.
5. COMPANY COVENANTS
5.1 The Company shall ensure that, at all times whilst any Loan Notes remain
outstanding, the Company shall have sufficient authorised but unissued
share capital to comply with its obligations hereunder.
5.2 The Company shall not except with the consent of Loan Noteholders holding
individually or together more than fifty per cent (50%) in nominal value
of all outstanding Loan Notes:
5.2.1 recommend or declare or pay any dividend or make any distribution
of a capital nature or repurchase or redeem any shares or options
or warrants for shares;
5.2.2 create or permit to subsist any Security Interest (as defined in
sub-paragraph 6.1(b) of the Letter);
5.2.3 incur any indebtedness in excess of Pound Sterling100,000;
5.2.4 incur any capital expenditure on any one item or series of related
items in excess of Pound Sterling10,000; or
5.2.5 sell, transfer, loan or otherwise dispose of all or any of any of
its assets, revenues or undertaking other than sales in the
ordinary course of trading consistent with the Business Plan (as
defined in paragraph 5(a) of the Letter).
5.3 Save to the extent required to comply with the conditions of any Loan
Note, the Company shall not, except with the consent of Loan Noteholders
holding individually or together more than fifty per cent (50%) in nominal
value of all outstanding Loan Notes, increase the amount of its authorised
or issued share capital, issue and allot shares, grant any option (save
for options granted pursuant to any employee share option scheme adopted
by the Company) or other interest (in the form of convertible securities
or in any other form) over or in its share capital, redeem or purchase any
of its own shares or effect any other reorganisation of its share capital.
6. THE REGISTER AND CERTIFICATES
6.1 The Company shall at all times keep at its principal office an accurate
register of the Loan Noteholders (the "REGISTER"). The Loan Noteholders
and any persons entitled to any of the Loan Notes or any of them and any
person authorised in writing by any of them shall be at liberty at all
reasonable times during office hours to inspect the Register and (upon
payment of the cost of copying the same, if appropriate) to take copies
thereof and extracts therefrom or any part thereof.
19
6.2 Every Loan Noteholder shall be entitled free of charge to a certificate
for the Loan Notes held by it and, entitled upon surrender of the relevant
original certificates or an appropriate indemnity for lost certificate, to
sub-divide or consolidate a holding of Loan Notes and be issued free of
charge with an appropriate number of certificates in respect thereof.
6.3 If this Certificate is worn out, defaced, lost or destroyed it may be
renewed on such terms as to evidence, identity, indemnity and
reimbursement of expenses incurred by the Company in investigating or
verifying title as the Directors of the Company reasonably require
provided that in the case of defacement this Certificate must be
surrendered before a new Certificate is issued.
7. RECOGNITION OF NOTEHOLDERS
7.1 The Company shall recognise the registered Loan Noteholder as the absolute
owner of a Loan Note and (except as required by law) shall not be bound to
take notice or see to the execution of any trust whether express, implied
or constructive to which any Loan Note may be subject and the receipt of
the registered holder for the time being of any Loan Note or in the case
of joint registered holders the receipt of any of them for any money
payable in respect of the Loan Note shall be a good discharge to the
Company notwithstanding any notice it may have whether express or
otherwise to the right, title or claim of any other person to or in the
Loan Note or money. No notice of any trust, express, implied or
constructive shall be entered on the Register in respect of any Loan Note.
8. PROCEDURE FOR PAYMENT
8.1 Any principal interest or other monies repayable or payable hereunder on
or in respect of any Loan Notes shall be paid, upon becoming due, to the
account of the Loan Noteholder notified to the Company for such purpose.
9. MODIFICATION OF RIGHTS/MEETINGS OF LOAN NOTEHOLDERS
9.1 Any amendment to the Instrument or these Conditions may only be made by
the Company with the sanction of a written resolution of all the Loan
Noteholders.
9.2 The Company or Loan Noteholders holding not less than ten per cent. (10%)
in nominal value of the Loan Notes for the time being outstanding may at
any time convene a meeting of the Loan Noteholders and the provisions of
the Company's articles of association with regard to general meetings
shall mutatis mutandis apply to any such meeting except that the necessary
quorum shall be one Loan Noteholder at least holding or representing by
proxy not less than fifty per cent. (50%) in nominal value of the Loan
Notes for the time being outstanding.
10. TRANSFER OF NOTES
10.1 The Loan Notes may be transferred, assigned or pledged as security in
whole or in part by the Subscriber (as defined under the Letter).
11. NOTICES
11.1 Any notice or document (other than any remittance) required or permitted
to be given to or served on one party hereto by another party shall be in
writing and shall be given or served by delivering or despatching the same
by one of the methods set out in the Letter to the addresses set out in
the Letter.
13. CHOICE OF LAW AND SUBMISSION TO JURISDICTION
20
13.1 The terms and conditions of the Loan Notes shall be governed by and
construed in accordance with English law.
13.2 The Company and each Loan Noteholder each irrevocably submit for all
purposes of or in connection with the Loan Notes or the certificates
therefor to the exclusive jurisdiction of the English Courts.
21
SCHEDULE 2
Form of Board Resolution
PART I
"THAT the amended and restated loan note subscription letter proposed to be
entered into between CricInfo Limited and Xxxxxx Infoway Limited [and tabled to
the meeting][attached hereto] (including the documents in the Schedules thereto)
(the "LETTER") be and is hereby approved and that:
(i) any two directors or any one director and the Secretary be and are
hereby authorised to execute and deliver the Letter as a deed on behalf
of the Company;
(ii) any two directors or any one director and the Secretary be and are
hereby authorised to execute and deliver an instrument as a deed (in
substantially the form set out in Schedule 1 to the Letter) constituting
the Loan Notes (as defined in the conditions set out in Schedule 1 to
the Letter);
(iii) any two directors or any one director and the Secretary be and are
hereby authorised to execute and deliver certificates as deeds, from
time to time as required by the Letter and the Loan Notes, in
substantially the form set out in the First Schedule to Schedule 1 of
the Letter; and
(iv) the issue by the Company of New Shares (as defined in the conditions set
out in Schedule 1 to the Letter) upon conversion of the Loan Notes or
any of them be and is hereby approved for the purpose of Clause 9.1 of
the shareholders' agreement (as defined in paragraph 5 of the Letter)
and the Company's Articles of Association."
PART II
"THAT pursuant to article 18 of the Company's articles of association, X.
Xxxxxxxxxxxxxxxx and X. Xxxxxxxxx and/or any other SIL Director appointed from
time to time (two of whom shall be required for a quorum) be appointed a
committee of the board of directors to solicit, in compliance with all
applicable law and regulation, investors or lenders to invest in or lend money
to the Company and to do all such things and execute and approve all such
documents as may be necessary to implement and complete any such investment or
loan on such terms and subject to such conditions as the committee shall think
fit and to carry such transaction(s) into full force and such committee shall
remain in existence, and shall be entitled to exercise such power, only during
the period from the date of this resolution until such time as Xxxxxx Infoway
Limited (together with any of its subsidiary or holding companies) holds in
excess of 75% of the total issued equity share capital of the Company. In
respect of the proceedings of the committee constituted hereunder, the following
provisions shall apply:
(i) any actions taken by the committee shall not result in a breach of any
provision of the Loan Documents (as defined in paragraph 2.1 of the
letter) or the Shareholders Agreement;
(ii) any actions proposed to be taken by the committee which are material to
the Company will be referred back to the full Board for its prior
authorisation; and
(iii) the committee shall provide regular reports to the full Board of all
things done or contemplated to be done by it."
22
SCHEDULE 3
[schedule deleted]
23
SCHEDULE 4A
Form of Irrevocable Undertaking
Xxxxxx Infoway Limited
2nd Floor
Tidel Park
Taramani
Chennai 000 000
Xxxxx
[date]
Dear Sirs
IRREVOCABLE UNDERTAKING
I refer to the loan note subscription letter between Cricinfo Limited (the
"Company") and Xxxxxx Infoway Limited (the "Subscriber") dated 5 October, 2001
(the "LETTER"). Save where the contrary is expressed to be the case, terms and
expressions used in this letter which are defined in the Letter shall have the
same meaning herein as therein.
The Letter contemplates, inter alia, the appointment of the Subscriber's nominee
to the office of managing director of the Company until the later to occur of
(i) redemption or Conversion of all of the outstanding Loan Notes in full; or
(ii) expiry of the obligation of the Subscriber to subscribe for any Loan Notes
pursuant to paragraph 3 of the Letter (paragraph 7(a) of the Letter refers) (the
"APPOINTMENT").
In order to facilitate the Appointment and until such time as the Subscriber
shall no longer be entitled under the terms of the Letter to make the
Appointment, I hereby warrant to and irrevocably undertake to you that:-
1. I am the beneficial owner of _____ ordinary shares of Pound Sterling0.001p
each in the capital of the Company (the "SHARES") free from all
encumbrances and third party rights;
2. Save to the extent that to do so would constitute a deemed transfer under
Article 8.2 of the Company's articles of association, I will exercise all
of the voting rights attaching to the Shares in voting in favour of any
resolution proposed to make or facilitate the making of the Appointment;
and
3. I will not dispose of any interest (including a security interest) in any
of the Shares without first procuring the assignee, transferee or third
party encumbrancer (i) to enter into an undertaking with you in like form
to this Undertaking in respect of the interest disposed of and (ii) to
deliver the same to you.
The restrictions in this paragraph 3 shall not apply:
(a) on the admission to listing of shares in the Company or in a holding
company on the Official List of the UKLA (and the admission of such
shares to trading on the London Stock Exchange) or other
internationally recognised securities exchange;
(b) to the sale or other transfer of shares in the Company pursuant to
an acceptance of any general offer made by any third party for the
share capital of the Company (other than any share capital owned by
the offeror or any person acting in concert with the offeror);
24
(c) to a compromise or arrangement under Section 425 of the Companies
Act 1985 providing for the acquisition of fifty per cent. or more of
the equity share capital of the Company;
(d) to an offer by the Company to purchase shares in the capital of the
Company which is made in identical terms to all holders of shares;
or
(e) to any disposal in connection with any sale or arrangement pursuant
to Section 110 of the Insolvency Act 1986
and, for the purposes of this paragraph 3, "holding company" shall mean a
company holding shares representing at least 75 per cent of the issued
share capital of the Company on a fully diluted basis.
This Undertaking shall be governed by English law.
--------------------------------------------------------------------------------
EXECUTED and DELIVERED as a deed by | )
[ ] | )
in the presence of:- | )
|
Signature of Witness: |
|
Name of Witness: |
|
Address of Witness: |
|
Occupation of Witness: |
--------------------------------------------------------------------------------
25
SCHEDULE 4B
Form of Irrevocable Undertaking
Xxxxxx Infoway Limited
2nd Floor
Tidel Park
Taramani
Chennai 000 000
Xxxxx
[date]
Dear Sirs
IRREVOCABLE UNDERTAKING
I refer to the loan note subscription letter between Cricinfo Limited (the
"Company") and Xxxxxx Infoway Limited (the "Subscriber") dated 5 October, 2001
(the "LETTER"). Save where the contrary is expressed to be the case, terms and
expressions used in this letter which are defined in the Letter shall have the
same meaning herein as therein.
Resolution (v) in Schedule 2 to the Letter contemplates, inter alia, the
delegation to a committee of the board (the "COMMITTEE") comprising each of the
SIL Directors (from time to time appointed) of the board's power to solicit
investors or lenders to invest in or lend money to the Company on terms which
the committee shall think fit.
In order to facilitate such delegation and for such time as any such delegation
shall be capable of being made, I hereby warrant to and irrevocably undertake to
you that:-
1. I am the beneficial owner of _____ ordinary shares of Pound Sterling0.001p
each in the capital of the Company (the "SHARES") free from all
encumbrances and third party rights;
2. Save to the extent that to do so would constitute a deemed transfer under
Article 8.2 of the Company's articles of association, I will exercise all
of the voting rights attaching to the Shares in voting in favour of an
issue of the Company's shares to investors on terms considered by the
Committee to be in the best interests of the Company and to use all
reasonable endeavours to facilitate any such issue; and
3. I will not dispose of any interest (including a security interest) in any
of the Shares without first procuring the assignee, transferee or third
party encumbrancer (i) to enter into an undertaking with you in like form
to this Undertaking in respect of the interest disposed of and (ii) to
deliver the same to you.
The restrictions in this paragraph 3 shall not apply:
(a) on the admission to listing of shares in the Company or in a holding
company on the Official List of the UKLA (and the admission of such
shares to trading on the London Stock Exchange) or other
internationally recognised securities exchange;
(b) to the sale or other transfer of shares in the Company pursuant to
an acceptance of any general offer made by any third party for the
share capital of the Company (other than any share capital owned by
the offeror or any person acting in concert with the offeror);
26
(c) to a compromise or arrangement under Section 425 of the Companies
Act 1985 providing for the acquisition of fifty per cent. or more of
the equity share capital of the Company;
(d) to an offer by the Company to purchase shares in the capital of the
Company which is made in identical terms to all holders of shares;
or
(e) to any disposal in connection with any sale or arrangement pursuant
to Section 110 of the Insolvency Act 1986
and, for the purposes of this paragraph 3, "holding company" shall mean a
company holding shares representing at least 75 per cent of the issued
share capital of the Company on a fully diluted basis.
This Undertaking shall be governed by English law.
--------------------------------------------------------------------------------
EXECUTED and DELIVERED as a deed by | )
[ ] | )
in the presence of:- | )
|
Signature of Witness: |
|
Name of Witness: |
|
Address of Witness: |
|
Occupation of Witness: |
--------------------------------------------------------------------------------
27
SCHEDULE 5
Form of Deed of Novation
DATED 200_
CRICINFO LIMITED
and
XXXXXX INFOWAY LIMITED
and
[NAME OF THIRD PARTY]
DEED OF NOVATION
28
THIS DEED is made on 200_
BETWEEN:
(1) CRICINFO LIMITED a company registered in England under Number 3215055
whose registered office is at Hartham Park, Corsham, Wiltshire SN13 0RP
("BORROWER");
(2) XXXXXX INFOWAY LIMITED whose registered office is at 2nd Floor, Xxxxx
Xxxx Xxxxxxxx, Xxxxxxx 000 000, Xxxxx ("SUBSCRIBER"); and
(3) [NAME OF THIRD PARTY] [of] [a company registered in England under Number
[ ] whose registered office is at] [ ] ("THIRD PARTY").
WHEREAS:
(A) This Deed is supplemental to an amended and restated loan note
subscription agreement made between (1) Borrower and (2) Subscriber and
dated __ May 2002 (the "AGREEMENT").
(B) The parties hereto have agreed to novate [all][part of] the Agreement so
that [to the extent specified in this Deed] Third Party replaces
Subscriber as a party thereto and the benefit and burden thereof shall
be deemed to be vested in Third Party in place of Subscriber.
IT IS AGREED as follows:-
1. Save where the contrary is expressed to be the case, terms and
expressions used in this Deed which are defined in the Agreement shall
have the same meaning herein as therein.
2. The [Agreement is][rights and obligations of Subscriber under the
Agreement with respect only to [specify rights and obligations to be
transferred] are] hereby novated by the substitution of Third Party for
Subscriber as a party to the Agreement [to the extent required].
3. Notwithstanding any provision to the contrary contained in the
Agreement, Borrower and the Subscriber hereby confirm their consent and
agreement to the novation effected by Clause 2 above.
4. Third Party undertakes, and shall be deemed to have so undertaken with
effect from the date hereof, to observe and perform [all the terms and
conditions of the Agreement][specify relevant terms and conditions to be
transferred] as if Third Party had been a party thereto and named
therein instead of Subscriber but Third Party shall not be liable for
any antecedent breach of the Agreement.
5. Borrower hereby releases and discharges Subscriber with effect from the
date hereof from all claims, demands, duties, obligations,
responsibilities and liabilities whatsoever in respect of [all the terms
and conditions of the Agreement][specify relevant terms and conditions
to be transferred] provided that any such release shall not affect the
rights of the Borrower in respect of any antecedent breach of the
Agreement.
6. Borrower hereby undertakes, and shall be deemed to have undertaken with
effect from the date hereof, to observe and perform [all the terms and
conditions of the Agreement][specify relevant terms and conditions to be
transferred] as if Third Party were a party thereto and named therein
instead of Subscriber.
7. Subscriber will not be responsible to Third Party for:
29
(a) the execution, genuineness, validity, enforceability or sufficiency
of any of the Loan Documents or any other document;
(b) the collectability of amounts payable under the Agreement or the
Loan Notes or the financial condition of or the performance of its
obligations under the Loan Documents by the Borrower; or
(c) the accuracy of any statements or information (whether written or
oral) made in or in connection with or supplied in connection with
any Loan Documents or in connection with a transfer of obligations.
8. Third Party confirms to Subscriber that it:
(a) has made its own independent investigation and assessment of the
financial condition and affairs of the Borrower in connection with
its participation in the subscription contemplated by this Deed and
has not relied exclusively on any information provided to it by the
Subscriber or Subscriber's affiliates or advisors in connection
with any of the Loan Documents or in connection with this transfer
of obligations; and
(b) will continue to make its own independent appraisal of the
creditworthiness of the Borrower while any amount is or may be
outstanding under the Agreement or any Loan Notes.
9. Nothing in this Deed or in any of the Loan Documents obliges the
Subscriber to:
(a) accept a re-transfer from Third Party of any of the rights and/or
obligations assigned, transferred or novated under this Deed; or
(b) support any losses incurred by Third Party by reason of the
non-performance by the Borrower of its obligations under the Loan
Documents or otherwise.
10. [Nothing in this Deed shall affect the [obligations ][specify relevant
rights of Subscriber/obligations of Borrower not being transferred]of
the Borrower to the Subscriber under the Agreement or any of the Loan
Documents (including under any Loan Notes held by the Subscriber at the
date hereof or at any time in the future) which obligations shall remain
in full force and effect.]
11. The Agreement, as amended by this Deed, shall remain in full force and
effect.
12. The parties hereto shall execute and do and/or procure the execution and
doing of all such further deeds, documents and acts as may be necessary
to carry the provisions of this Deed into full force and effect.
13. This Deed shall be governed by and construed in accordance with English
law.
EXECUTED as a deed in three originals the day and year first before written.
30
--------------------------------------------------------------------------------
EXECUTED AND DELIVERED as a DEED | ) Director
by CRICINFO LIMITED acting by: | )
| )
| ) Director/Secretary
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXECUTED AND DELIVERED as a DEED | ) Authorised Signatory
by XXXXXX INFOWAY LIMITED and signed | )
by two duly authorised signatories on its behalf | ) Authorised Signatory
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXECUTED AND DELIVERED as a DEED | ) Director
by [NAME OF THIRD PARTY ] acting by: | )
| ) Director/Secretary
--------------------------------------------------------------------------------
31
SCHEDULE 6
Warrant
DATED___________________________________May 2002
CRICINFO LIMITED
and
XXXXXX INFOWAY LIMITED
-------------------------------------
AMENDED AND RESTATED WARRANT
for the subscription of shares
of
CRICINFO LIMITED
-------------------------------------
32
WARRANT
THIS DEED is made on 200_
BETWEEN:
(1) CRICINFO LIMITED a company registered in England under Number 3215055
whose registered office is at Hartham Park, Corsham, Wiltshire SN13 0RP
(the "COMPANY"); and
(2) XXXXXX INFOWAY LIMITED whose registered office is at 2nd Floor, Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 000 000, Xxxxx (the "WARRANTHOLDER").
IT IS AGREED as follows:-
1. INTERPRETATION
1.1 In this Warrant, unless the context otherwise requires:
"Conversion" the conversion of some or all of a Loan
Noteholder's Loan Notes into New Shares
pursuant to Condition 4 of the Loan Note
Conditions, with "Loan Noteholder" and
"New Shares" having the meanings ascribed
thereto in the Loan Notes;
"Existing Shares" such number of Shares held by the
Warrantholder at the Subscription Date
(whether acquired pursuant to Conversion
or otherwise);
"Letter" the amended and restated subscription
letter signed on behalf of the
Warrantholder and the Company dated __ May
2002;
"Loan Notes" the Unsecured Convertible Loan Notes 2004
or, as the case may require, any part
thereof for the time being issued and
outstanding;
"Loan Note Conditions" the Conditions attached to the Loan Notes;
"New Shares" new ordinary shares of Pound
Sterling0.001 each in the capital of the
Company;
"Option Shares" such number of New Shares which, when
aggregated with the Existing Shares,
shall, following any issue of PCB Shares
or TNQ Shares, represent the same
proportion of the Company's issued equity
share capital (as defined in S.744
Companies Act 1985) as the Existing Shares
represented immediately prior to such
issue;
"PCB" the Pakistan Cricket Board, its assigns or
successors in title and any transferee of
PCB's rights and obligations under the PCB
Agreement;
"PCB Agreement" the internet rights acquisition agreement
between the Company and PCB dated 5
February 2001 and any amendment,
variation, replacement or supplement
thereto from time to time;
"PCB Shares" any Shares issued by the Company to PCB
pursuant to or in connection with the PCB
Agreement;
33
"Shares" the ordinary shares of Pound Sterling0.001
each in the capital of the Company;
"Subscription Date" any date upon which the Company proposes
to issue Shares to: (i) PCB pursuant to or
in connection with the PCB Agreement; or
(ii) TNQ pursuant to or in connection with
the TNQ Agreement;
"Subscription Price" Pound Sterling0.001 per New Share;
"TNQ" TNQ Sponsorship (India)(Pvt.) Ltd, its
assigns or successors in title and any
transferee of TNQ's rights and obligations
under the TNQ Agreement;
"TNQ Agreement" the agreement between TNQ and the Company
dated 20 February 2001;
"TNQ Shares" any Shares issued by the Company to TNQ
pursuant to or in connection with the TNQ
Agreement;
"Warrant" the option granted under Clause 2 below.
1.2 The clause headings in this Warrant are for convenience only and are of no
legal effect.
1.3 In the event of a sub-division or consolidation of the Company's share
capital following the date of this Warrant, the number of Shares referred
to in the definitions of "Option Shares" and "Subscription Date" and the
definition of "Shares" shall be adjusted accordingly.
1.4 For the avoidance of doubt Company and the Warrantholder hereby confirm to
each other that the Warrant shall be capable of exercise on multiple
occasions.
2. GRANT OF THE WARRANT
2.1 In consideration of the Warrantholder agreeing to subscribe for Loan Notes
on the terms and conditions set out in the Letter, the Company hereby
grants to the Warrantholder an option to subscribe at the Subscription
Price for the Option Shares on each Subscription Date.
3. EXERCISE OF THE WARRANT
3.1 The Warrant shall be automatically exercised on each Subscription Date.
3.2 Completion of the exercise of the Warrant shall take place on each
Subscription Date immediately prior to the allotment and issue of the
Shares proposed to be issued to PCB and/or TNQ. On completion, the Company
shall: (i) duly allot and issue the Option Shares to the Warrantholder
and/or at the Warrantholder's direction to its nominees or to any Third
Party (as defined in the Letter) to whom the Warrantholder may have
assigned or transferred any Loan Notes or rights and/or obligations under
the Loan Documents (as defined in the Letter) or any of them (together the
"ALLOTTEES"); (ii) enter the Allottees in the register of members of the
Company; and (iii) deliver definitive share certificates therefor to such
Allottees.
3.3 The Warrantholder hereby undertakes to the Company to pay the Subscription
Price in full within 5 business days following the relevant Subscription
Date (such payment to be made to the Company's account with Barclays Bank,
00-00 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxx XX00 0XX Xxxxxxx, A/C No.
20980994, Sort Code 20-34-60 or in such other manner as may be agreed
between the Company and the Warrantholder).
34
4. UNDERTAKINGS OF THE COMPANY
4.1 The Company hereby undertakes that, until the Warrant has been exercised
in full, the Company will have sufficient amount of authorised but
unissued share capital to cover any exercise of the Warrant and that the
Company will at all times be duly authorised to allot the Option Shares
pursuant to exercise of the Warrant without any pre-emption rights
applying and will have all requisite shareholder or other authorities
necessary to enable the Company to discharge its obligations under this
Warrant.
5. RANKING OF THE OPTION SHARES
5.1 Option Shares issued pursuant to exercise of the Warrant shall rank pari
passu and form one class with the ordinary shares of Pound Sterling0.001
each in the capital of the Company in issue on the Subscription Date.
6. TRANSFER OF THE WARRANT
6.1 The Warrant may be transferred, assigned or pledged as security in whole
or in part by the Subscriber (as defined under the Letter).
7. NOTICES
7.1 Any notice or document (other than any remittance) required or permitted
to be given to or served on one party hereto by another party shall be in
writing and shall be given or served by delivering or despatching the same
by one of the methods set out in the Letter to the addresses set out in
the Letter.
8. TERM
8.1 This Warrant shall be exercisable on more than one occasion, shall remain
capable of exercise notwithstanding termination or redemption of any of
the other Loan Documents (as defined in the Letter) and shall only be
terminable with the prior written agreement of the Company and the
Warrantholder.
9. CHOICE OF LAW AND SUBMISSION TO JURISDICTION
9.1 The terms and conditions of the Warrant shall be governed by and construed
in accordance with English law.
9.2 The Company and the Warrantholder each irrevocably submit for all purposes
of or in connection with the Warrant or the certificates therefor to the
exclusive jurisdiction of the English Courts.
EXECUTED as a deed in three originals the day and year first before written.
--------------------------------------------------------------------------------
EXECUTED AND DELIVERED as a DEED | ) Director
by CRICINFO LIMITED acting by: | ) Director/Secretary
--------------------------------------------------------------------------------
35
--------------------------------------------------------------------------------
EXECUTED AND DELIVERED as a DEED | ) Authorised Signatory
by XXXXXX INFOWAY LIMITED and signed | )
by two duly authorised singatories on its behalf | ) Authorised Signatory
--------------------------------------------------------------------------------
36
SCHEDULE 7
Notice Details of the Borrower
Name: CRICINFO LIMITED
Address: CricInfo Limited
Hartham Park
Corsham
Wiltshire SN13 0RP
Fax: 00 (00) 0000 000000
Attention: Mr Xxxxx Xxxxxxxxx
Notice Details of the Subscriber
Name: XXXXXX INFOWAY LIMITED
Address: 2nd Floor, Tidel Park Taramani, Chennai
600 113, India
Fax: x00 00 000 0000
Attention: X X Xxxxxxxxxxxxxxxx
37
