Exhibit 4.12
Agreement between Futuremedia PLC and Volito AB
AGREEMENT
22 April 2003
Agreement between Futuremedia PLC and Volito AB
TABLE OF CONTENTS
1. BACKGROUND............................................................3
2. AGREEMENT.............................................................3
3. DEFINITIONS...........................................................3
4. INVESTMENTS...........................................................4
4.1. FM's Agreement to Invest in LU..................................4
4.2. VO's Agreement to Invest in FM..................................4
4.3. FM's Commitment to Complete Private Placement...................5
4.4. VO's Agreement to Sell LU Shares to FM..........................5
4.5. VO's Agreement to Support FM Purchase of Remaining LU Shares....5
5. PAYMENT AND SALE OF SHARES............................................5
5.1. FM Bank Account In Sweden.......................................5
5.2. FM Payment Into the Account.....................................6
5.3. VO Payment Into the Account.....................................6
5.4. Payment from the Account to LU..................................6
5.5. VO Sale of LU Shares to FM......................................6
6. STATEMENT FROM THE PARTIES............................................6
7. CONDITIONS............................................................6
8. PRESS RELEASE.........................................................7
9. ASSIGNMENT............................................................7
10. WAIVER OF RIGHTS, COMPROMISES.........................................7
11. NO PARTNERSHIP........................................................7
12. COSTS.................................................................7
13. THIRD PARTY RIGHTS....................................................8
14. NOTICES...............................................................8
15. GOVERNING LAW AND JURISDICTION........................................8
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Agreement between Futuremedia PLC and Volito AB
AGREEMENT
1. BACKGROUND
Futuremedia PLC ("FM") and Volito AB, ("Volito") have on this Tuesday 22nd of
April, 2003 entered into the following agreement.
2. AGREEMENT
This Agreement sets forth the entire agreement and understanding between the
Parties and supersedes and cancels all previous negotiations, agreement,
commitments and writings in respect to the subject matter hereof, and neither
party hereto shall be bound by any term, clause, provision or conditions save as
expressly stated in this Agreement. In the event that the intentions of this
Agreement will not be fulfilled, none of the Parties shall be liable to pay any
other Party any costs or damages for breach of contract. Nothing in this
Agreement shall authorize any Party to incur any expenses on behalf of any other
party subject to what is expressly stated in this Agreement.
3. DEFINITIONS
When used in this 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):
"FM" Means:
Name: Futuremedia Public Limited Company.
Company Registration Number: 01616681.
Registered Office: Media House, Arundel Road,
Walberton, Arundel, Xxxx Xxxxxx, XX00 0XX, Xxxxxx
Xxxxxxx
Tel no: 00-00-0000-000000
Fax no: 00-00-0000-000000
Contact person: Xxxxx Xxxxxx, Company Secretary
E-mail: xxxxx. xxxxxx@xxxxxxxxxxx.xx.xx
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Agreement between Futuremedia PLC and Volito AB
"LU" Means:
Name: LUVIT AB
Public organisation number: 556561-8641
Registered Office: Xxx 000, Xxxxx Xxxxx Xxxxxxxxx 0x,
000 00 Xxxx, Xxxxxx
Tel no: 00-00-00-000000
Fax no: 00-00-00-00 12 99
Contact person: Xxx Xxxxxxxxxx, President
E-mail: xxx.xxxxxxxxxx@xxxxx.xxx
"VO" Means:
Name: Volito AB
Public organisation number: 556457 - 4639
Registered Office: Xxxxxx Xxxxxxxxxxxxx 0, 000 00
Xxxxx,
Xxxxxx
Tel no: 00-00-00-0000000
Fax no: 00-00-00-000000
Contact person : XX Xxxxxxxxx, CFO of Volito AB
E-mail: xx.xxxxxxxxx@xxxxxx.xx
"Agreed Exchange Means:...
Rate" The agreed exchange rate between USD and SEK at USD
1.00 = SEK 8.58.
Headings in this Agreement are for convenience only and shall not affect its
interpretation
4. INVESTMENTS
4.1. FM's Agreement to Invest in LU
FM agrees to invest an amount of USD 1,000,000 in LU by signing the agreed LU
subscription agreement within the time limit stated in Clause 7 of this
Agreement. The investment is carried out by FM taking a USD 1,000,000 stake in a
specific directed share issue, at a share price of 1,10 SEK, at the Agreed
Exchange Rate of USD 1.00 = SEK 8.58, for a total of 7,800,000 new shares
credited as fully paid in LU. Such investment being subject to approval at the
LU Extraordinary Shareholders meeting to be held within a period of 40 days post
signing this document. As a result FM will own 20.8% of LU post completion. of
USD 1,000,000 FM investment.
4.2. VO's Agreement to Invest in XX
XX agrees to invest an amount of USD850,000 in FM by signing the agreed FM
subscription agreement within the time limit stated in Clause 7 of this
Agreement. The investment is carried out by VO taking a USD 850,000 stake in a
specific private placement, at a share price of 0,10 USD for a total of
8,500,000 new shares in FM credited as fully paid. As a result VO will own 10.9%
of FM post completion of expected USD 1,700,000 private placement.
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Agreement between Futuremedia PLC and Volito AB
4.3. FM's Commitment to Complete Private Placement
FM agrees and commits to complete a private placement with a minimum amount of
USD 850,000 raised through a specific private placement, where a minimum of USD
670,000 will be under the same conditions as what has been agreed upon for VO,
meaning 0,10 USD/share.
4.4. VO's Agreement to Sell LU Shares to XX
XX agrees to sell 3,350,000 of existing shares credited as fully paid in Luvit
to FM. FM will pay VO with 4,685,315 of new shares credited as fully paid in FM.
4.5. VO's Agreement to Support FM Purchase of Remaining LU Shares
If FM makes an offer (the Offer) for the outstanding issued shares in LU within
a period of 18 months from the date of this Agreement, VO shall support the
Offer provided that the Offer;
4.4.1. Includes a minimum 25% premium over an average 30 day trading price
within the 40 day period prior to the date of the Offer, and;
4.4.2. Is at a price SEK 1.50 or higher per LU share;
4.4.3. The above premium to be increased by a further 10% to 35% if the
consideration for the Offer includes a payment in FM shares
comprising more than 50% of the total Offer;
4.4.4. Is higher than any other offer open to LU at the same time as FM's
Offer.
The obligations of VO to support the Offer shall include, but not be limited to:
4.4.5. Accepting the Offer in respect of all the shares in LU owned or
controlled by VO;
4.4.6. Recommending to the other shareholders in LU that they accept the
Offer; and
4.5.6. Voting in favour of any resolution of the shareholders of LU which
is necessary or desirable to enable the Offer to proceed.
5. PAYMENT AND SALE OF SHARES
The payments by the respective parties shall be carried out in the following
way:
5.1. FM Bank Account In Sweden
FM will open up an SEK denominated bank account (the Account) with Nordea in
Sweden. FM will complete a written payment instruction for the SEK sum
equivalent to USD1,000,000 to be transferred to LU, pending completion of FM and
VO payments detailed in 5.2 and 5.3 below.
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Agreement between Futuremedia PLC and Volito AB
5.2. FM Payment Into the Account
FM will transfer a sum of USD 150,000 into the Account This transfer to take
place simultaneously as VO's transfer detailed in 5.3 below.
5.3. VO Payment Into the Account
Volito will transfer a sum in SEK equivalent to USD 850,000 into the Account.
5.4. Payment from the Account to LU
As per written payment instruction detailed in 5.1, a payment for a total sum
equivalent to USD 1,000,000 will be made to LU, simultaneously as the payments
detailed in 5.2 and 5.3 above.
5.5. VO Sale of LU Shares to XX
XX will sell 3,350,000 of LU shares owned by VO to FM at SEK 1.20 per share no
later than April 30, 2003. FM will pay VO with 4,685,315 new shares in FM.
6. STATEMENT FROM THE PARTIES
The Board of FM and VO agree to, as a follow-up from the cross-ownership agreed
upon in this Agreement, to use reasonable efforts to maximize mutual operational
business benefits between FM and LU. Any operational business collaboration
between FM and LU will be mutually agreed in a separate collaboration agreement.
Such a collaboration agreement to be completed and signed by both parties no
later than the 31" May 2003.
VO will undertake necessary actions in order to provide FM with a seat on the
board of directors at LU, subject to annual approval by the shareholders of LU.
The Board of FM will undertake necessary actions in order to provide VO with a
seat on the board of directors at FPM, subject to annual approval by the
shareholders of FM.
VO undertakes to pay to FM USD1,000,000 no later than June 15, 2003, in case of
that LU shareholders meeting and/or Extra shareholders meeting does not adopt a
resolution no later than 40 days past signing this document to issue shares to
FM pursuant to this Agreement. If VO pays to FM under this payment undertaking
FM, when FM has received the payment of USD1,000,000 shall, in writing, declare
to VO and LLU that FM has no further claims on VO or LU whatsoever in relation
to this Agreement.
7. CONDITIONS
It is understood and agreed that this Agreement is subject to the approval of
the respective board meetings to be held at the parties involved.
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Agreement between Futuremedia PLC and Volito AB
It is the intention of the parties that Subscription Agreements for the
investments in LU and FM, a Share Sale Agreement for the sale of LU shares by VO
to FM, and other necessary documents with detailed conditions shall be signed no
later than 30th of April 2003. The parties shall use their reasonable endeavours
to negotiate and execute those documents earlier than April 30, 2003, but under
no circumstances later than by that date. If the documents mentioned in the
second paragraph of this Clause are not signed within the time limit set out
above, the parties are not bound by this Agreement, which shall be of no.
further force or effect, other than clauses 2 and 8 , which shall remain in
force.
FM shall, prior to or simultaneously with VO's payment to the Account, evidence
in writing to VO that the condition in Clause 4.3 is fulfilled and that the
written payment instruction in Clause 5.1 has been given to Nordea.
8. PRESS RELEASE
The Parties hereby agree that the substance of this Agreement might be used for
press releases by their respective Parties. Each party shall give the other a
reasonable opportunity to renew and comment on any proposed press release prior
to its issue.
Except for press releases issued in accordance with this clause, and for
announcements required by law or by any applicable regulatory authority, each
party shall keep this Agreement and its contents confidential.
9. ASSIGNMENT
None of the parties may assign this Agreement or any of its rights and
obligations under it without the written consent by the other party.
10. WAIVER OF RIGHTS, COMPROMISES
No exercise or failure to exercise or delay by either party in exercising any
right, power or remedy under this Agreement shall constitute a waiver by that
party of any such other right power or remedy.
Any party may release or compromise the liability of any other or grant to such
party time or other indulgence without affecting its rights in relation to the
other party.
11. NO PARTNERSHIP
The parties are not in partnership with each other nor are they agents of each
other.
12. COSTS
Each party shall bear its own costs in connection with the preparation and
execution of this Agreement.
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Agreement between Futuremedia PLC and Volito AB
13. THIRD PARTY RIGHTS
No term of this Agreement shall be enforceable under the Contracts (Rights of
Third Parties) Xxx 0000 by a person who is not a party, but this does not affect
any right or remedy of a third party which exists or is available apart from
under that Act.
14. NOTICES
Any notice to be given by a party to this Agreement shall be in writing and may
be given personally or sent by fax, electronic. mail or by prepaid registered
post (airmail in the case of an address for service outside the United Kingdom)
to the addressee at the address set opposite its name in clause 3, or at such
other address as the party to be served may have notified as its address for
service.
Any notice if given personally shall be deemed served when delivered; if sent by
fax or e-mail shall be deemed served when despatched, and if served by
registered post shall be deemed served 48 hours after posting to an address in
the United Kingdom or five days after posting to an address outside the United
Kingdom. In proving the service of any notice it will be sufficient to prove, in
the case of a letter, that such letter was delivered to the address given for
notice; or properly stamped, addressed and placed in the post, in the case of a
fax, that such fax was duly despatched to a current fax number of the addressee,
and in the case of electronic mail, that it was duly despatched to a current
e-mail address of the addressee.
All communications shall be in the English language.
15. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by English law, and each of the parties hereby
submits to the non-exclu jurisdiction of the High Court of Justice in, England
and Wales.
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Agreement between Futuremedia PLC and Volito AB
ACCEPTANCE
APPROVED AND ACCEPTED in accordance with the terms of this Agreement on this
22nd day of April, 2003.
On the behalf of Futuremedia PLC Board of Directors
Signature: /s/ Xxxx Xxxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxxx
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Title: CEO
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Date: 22 April 2003
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On the behalf of Volito AB
Signature: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Title: VD/Managing Director
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Date: April 22, 2003
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