SHARE PURCHASE AGREEMENT
DATED 8TH MAY, 2000
XXXXXXX INTERNATIONAL PLC
and
ING BARINGS LLC
---------------------------------------
CONTINGENT PURCHASE CONTRACT
FOR THE PURCHASE OF UP TO 1,111,395
SHARES OF US$0.01 EACH IN THE
CAPITAL OF XXXXXXX INTERNATIONAL plc
----------------------------------------
XXXXX & XXXXX
LONDON
CO:703948.1
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THIS AGREEMENT is made on May 8, 2000
BETWEEN:
(1) XXXXXXX INTERNATIONAL PLC (registered number 2798239) whose registered
office is at Masters House, 107 Hammersmith Road, London W14 OQH (the
"COMPANY"); and
(2) ING BARINGS LLC whose US offices are located at 00 X. 00xx Xxxxxx, Xxx Xxxx,
XX 00000 (the "VENDOR").
WHEREAS:
(A) The Company is a public company limited by shares having an authorized share
capital of (pound)57,000 divided into 7,125 "A" Ordinary Shares of (pound)8
each ("Ordinary Shares") and US$150,000 divided into 15,000,000 Ordinary
Shares of US$0.01 each ("$ Shares") of which 7,015 Ordinary Shares and
11,113,950 $ Shares have been issued fully paid or credited as fully paid.
(B) Pursuant to and in accordance with the terms of the Amended and Restated
Restricted Deposit Agreement dated 4th August 1997 between inter alia the
Company and Bankers Trust Company, a bank organized under the laws of the
State of New York (the "Deposit Agreement" and "Depositary" respectively),
the 11,113,950 issued $ Shares (such shares being referred to in the Deposit
Agreement as "Restricted American Depositary Shares ("ADS's")) are held by
the Depositary in the form of share warrants to bearer, the beneficial
ownership of which being evidenced by the issue by the Depositary of
American Depositary Receipts ("ADR's") on the basis of one ADR for every one
ADS held.
(C) Subject to the conditions in clause 1 below, the Company wishes to purchase,
and the Vendor wishes to sell up to 1,111,395 of such $ Shares on the terms
and conditions set out below.
(D) The Company is authorized to purchase its own shares pursuant to article 11
of the Company's articles of association.
(E) A copy of this agreement has been available for inspection by the members of
the Company at its registered office for not less than 15 days ending with
8th May, 2000 and was similarly available at the annual general meeting of
the Company held on that date at which the terms of this agreement were
authorized by special resolution of the Company in accordance with section
164 of the Companies Xxx 0000 (the "Act").
(F) The consideration for the purchase of any of the $ Shares is proposed to be
provided out of the distributable profits of the Company.
IT IS AGREED as follows:
1. CONDITIONS PRECEDENT
Each sale and purchase of any of the $ Shares is conditional on:
(a) the Company having notified the Vendor at any time prior to 31st
October, 2001 by one or more notices (in the form set out in Appendix
1) that it wishes to purchase up to a specified number of $ Shares and
the price or the range of prices and a maximum price at or within which
the Vendor shall acquire the ADRs representing such shares; and
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(b) following receipt by the Vendor of any notice pursuant to paragraph (a)
above, the Vendor having notified the Company at any time prior to 7th
November, 2001 by one or more notices (in the form set out in Appendix
2) ("Vendor's Notice") that it has acquired a specified number of ADRs
(the "Sale ADRs") in accordance with paragraph (a) above and that
pursuant to and in accordance with the relevant provisions of the
Deposit Agreement, such ADRs have been surrendered to the Depositary
and that the Vendor is the holder of share warrants to bearer in
respect of a specified number of $ Shares (the "Sale Shares").
2. SALE AND PURCHASE
Subject to the satisfaction of the conditions in clause 1, the Vendor shall
acquire as an agent for the Company, and the Company shall be obligated to
purchase, the Sale Shares at an aggregate price, payable in cash in US
dollars, equal to the aggregate of (i) the consideration paid by the Vendor
for the Sale ADRs, (ii) an commission-equivalent markup of US $.03 per share
and (iii) a conversion fee of US $.05 per share (together, the "Purchase
Price").
3. WARRANTIES AND COVENANTS
(1) The Vendor warrants that as at completion of each purchase of Sale Shares
(as referred to in clause 4 below) the Company will be the beneficial owner
of the number of Sale Shares specified in the relevant Vendor's Notice and
that such Sale Shares will be free from any lien, charge or encumbrance.
(2) The Vendor covenants that all purchases of Sale ADRs by it hereunder shall
be made in accordance with all applicable US securities laws, including but
not limited to Regulation M and the safe harbor afforded by Rule 10b-18
under the US Securities Exchange Act of 1934, as amended.
(3) Each party warrants to the other that this Agreement has been duly
authorized, executed and delivered by such Party, and constitutes the legal,
valid and binding obligation of such Party, enforceable against it in
accordance with its terms. The Company warrants that it will notify the
Vendor immediately of any "blackout" periods during which the Company would
be precluded, for any reason, from purchasing shares under this agreement.
Such notice shall be sent as provided for in clause 6 below.
4. COMPLETION
(1) Completion of each sale and purchase of the Sale Shares shall be effected on
the business day next following receipt by the Company of the relevant
Vendor's Notice, by:
(a) the Company paying to the Vendor the Purchase Price.
(2) At a place and time to be agreed between the Company and the Vendor, Vendor
shall deliver to the Company the share warrants to bearer representing the
Sale Shares referred to in the Vendor Notice.
(3) As soon as is reasonably practicable after completion the Company shall (if
applicable) alter its register of members so as to show that the relevant
Sale Shares have been cancelled in accordance with section 160(4) of the
Act.
5. COSTS
Each of the Company and the Vendor shall bear all professional costs and
charges relating to this agreement respectively incurred by them and the
Company shall also pay all stamp duties, custodial charges and delivery
charges falling due in respect of the completion of the purchase of the Sale
Shares in accordance with this agreement.
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6. SERVICE OF NOTICES
Any notice to be served under this agreement shall be validly served if
delivered or if sent by first class post, recorded delivery post or
facsimile process if addressed to the Company at its US Executive Offices
located at 00000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention:
Chief Financial Officer (facsimile number 937-644-0827) or, if addressed to
the vendor to ING Barings LLC at 00 X. 00xx Xxxxxx, Xxx Xxxx, XX
10055,Aattention Xxxxxxx X. Xxxxx, Managing Director (facsimile number
212-409-5059) with a copy to Xxxxx Xxxxxxxx, Director (facsimile number
404-364-5255) . Any notice shall be deemed to have been served:
(a) if delivered, at the time of delivery;
(b) if posted, on the third business day after it was put in the post; or
(c) if sent by facsimile process at the expiration of two hours after the
time of dispatch.
7. TERMINATION
This agreement shall terminate on 7th November, 2001 (the "Termination
Date") as from which date neither of the parties will have any rights,
liabilities or obligations under this agreement save in respect of any
Vendor's Notice received or deemed received by the Company prior to the
Termination Date.
8. GENERAL
(1) The headings in this agreement are for convenience only and shall not affect
its construction.
(2) This agreement is governed by and shall be construed in accordance with the
laws of England and Wales.
AS WITNESS the hands of the duly authorized representatives of the parties on
the date, which appears first on page 1.
SIGNED by J. Xxxxx Xxxxx, Chairman /s/ J. Xxxxx Xxxxx
For and on behalf of -------------------------------
XXXXXXX INTERNATIONAL plc
SIGNED by Xxxxxxx X. Xxxxx, Managing Director /s/ Xxxxxxx X. Xxxxx
for and on behalf of -------------------------------
ING BARINGS LLC
APPENDIX 1
To: ING Barings LLC
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Managing Director
Pursuant to clause 1(a) of the Contingent Purchase Contract made between us and
dated 8th May, 2000 (the "Contract"), we hereby notify you that:
1. We wish to purchase up to [ ] $ Shares as defined in, and on
the terms and subject to the conditions of, the Contract;
2. All purchases of $ Shares shall be made in accordance with all applicable US
securities laws, including but not limited to Regulation M and the safe
harbor afforded by Rule 10b-18 under the US Securities Exchange Act of 1934,
as amended; and
3. The maximum price which you may purchase ADRs representing $ Shares shall be
US$[ ] per ADR.
Dated:
Signed: .....................................
A duly authorized director
for and on behalf of
Xxxxxxx International plc
APPENDIX 2
To: The Directors
Xxxxxxx International plc
Masters House
000 Xxxxxxxxxxx Xxxx
Xxxxxx X00 0XX
Xxxxxxx
Pursuant to clause 1(b) of the Contingent Purchase Contract made between us and
dated 8th May, 2000 (the "Contract"), we hereby notify you as follows:
1. We have acquired [ ] ADRs representing [ ] Sale Shares,
as defined in the Contract at a price or prices and on the dates specified
below.
Date(s) ADR(s) Price paid No. of ADRs Total purchase price
Purchased per ADR $ purchased
[ ] [ ] [ ] [ ]
2. Pursuant to and in accordance with the relevant provisions of the Deposit
Agreement (as so defined) we have surrendered the above-mentioned ADRs to
the Depositary and that we are the holder of a share warrant to bearer in
respect of [ ] $ Shares.
Dated:
Signed: ....................................
A duly authorized signatory
for and on behalf of ING Barings LLC
