FUTUREMEDIA PLC - SUBSCRIPTION AGREEMENT LEGAL DISCLAIMER AND IMPORTANT LEGAL NOTICE
Exhibit
6
LEGAL
DISCLAIMER AND IMPORTANT LEGAL NOTICE
This
document is being solely issued to and directed at:
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(a)
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persons
having professional experience in matters relating to investments
and who
are investment professionals specified in Article 19(5) of the Financial
Services and Markets Xxx 0000 (Financial Promotion) Order 2005 (the
“Order”);
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(b)
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persons
self-certified as “high net worth” individuals within the meaning of
Article 48(2) of the Order;
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(c)
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“high
net worth” companies to which Article 49(2) of the Order
applies;
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(d)
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unincorporated
associations and partnerships which have net assets of not less than
£5
million to which Article 49(e) of the Order
apply;
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(e)
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trustees
of high value trusts within the meaning of Article 49(6) of the
Order;
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(f)
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persons
certified as sophisticated investors within the meaning of Article
50 of
the Order;
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(g)
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persons
self-certified as sophisticated investors within the meaning of Article
50A of the Order;
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(h)
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existing
shareholders of the Company falling within Article 43 of the Order;
and
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(i)
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certain
persons outside of the United Kingdom to which Article 12 of the
Order
applies.
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This
document is exempt from the general restriction on the communication of
invitations or inducements to enter into investment activity as would otherwise
be required by Section 21 of the Financial Services and Markets Xxx
0000.
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Neither
this document, nor its contents, has been approved by an authorised
person
within the meaning of the Financial Services and Markets Xxx 0000.
Reliance on this document for the purpose of engaging in any investment
activity may expose an individual to a significant risk of losing
all of
the property or other assets invested.
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Any
investment activity to which this document relates, is available to, and will
only be engaged with, those persons described in (a) to (i) above.
It
is a
condition of your receiving this document that:-
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(i)
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you
fall within, and you warrant to the Company that you fall within,
one of
the categories of persons described in (a) to (i) above;
and
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(ii)
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if
you fall within category (b), it is an condition of your receiving
this
document that:
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(A)
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you
are a person who has a current certificate of high net worth;
and
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(B)
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that
within the last 12 months you have signed a statement in the terms
set out
at Part 1 of Schedule 5 of the Order;
or
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1
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(iii)
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if
you fall within category (f) above, it is a condition of your receiving
this document that:
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(A)
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you
are a person who has a current sophisticated investor certificate,
signed
by an authorised person and dated no earlier than 36 months proceeding
the
date of receipt of this document, confirming that, in the opinion
of such
person, you are sufficiently knowledgeable to understand the risks
associated with an investment in shares in Nasdaq listed companies;
and
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(B)
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that
within the last 12 months you have signed a statement in the terms
set out
in Article 50(1)(b) of the Order;
or
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(iv) if
you
fall with category (g), it is a condition of your receiving this document
that:
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(A)
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you
are a self-certified sophisticated investor;
and
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(B)
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that
within the last 12 months you have signed a statement in the terms
set out
at Part 2 of Schedule 5 of the
Order.
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If
you do
not fall within any of the above categories you must not rely on this document
and you will not be permitted to invest in the Company. You must return the
document and accompanying documentation to the Company.
If
you
are in any doubt about the content of this document and/or any action you should
take, you are strongly recommended to seek your own independent financial advice
immediately from your stockbroker, solicitor, accountant, independent financial
advisor or other properly qualified and authorised professional advisor who
specialises in investing in investments in shares.
This
document is not intended to be distributed or passed on, directly or indirectly
to any person other than the recipient. It is being supplied to you solely
for
your information and may not be reproduced, forwarded to any other person or
published, in whole or in part, for any other purpose.
Neither
this document nor any copies of it, may be taken or transmitted into the United
States, Canada, Australia, the Republic of Ireland, South Africa or Japan or
into any jurisdiction where it would be unlawful to do so. Any failure to comply
with this restriction, may constitute a violation of relevant local securities
laws.
THE
SECURITIES TO WHICH THIS DOCUMENT RELATES HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”) AND ARE BEING OFFERED ONLY OUTSIDE THE UNITED STATES IN
OFFSHORE TRANSACTIONS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT IN RELIANCE ON REGULATION S THEREUNDER. SUCH SECURITIES MAY
NOT
BE OFFERED OR SOLD IN THE UNITED STATES EXCEPT PURSUANT TO AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR IN A
TRANSACTION NOT SUBJECT TO SUCH REQUIREMENTS.
CONFIDENTIALITY
STATEMENT
By
accepting a copy of this document, the recipient acknowledges and agrees that
it
is receiving confidential information that has not been made available to the
public. It agrees that it will not disclose, reproduce, circulate, or otherwise
make known to any other person the information contained herein, without the
prior written consent of the Company.
2
Xxxx
Xxxxx
Xxxx
Xxxxxx
Xxxxxxxx
XX0 0XX
Gentlemen:
The
undersigned understands that the Company is hereby making an offer (the “Offer”)
of its Ordinary Shares, 1-1/9 xxxxx per share, of the Company (the “Shares”)
at
a
purchase price of $1.12 per ADS (as defined in section 4 below), together with
warrants to purchase 3,000,000 ADSs at an exercise price of $1.12 (the
“Warrants”). The Shares and the Warrants together are referred to herein as the
“Securities”.
The
Offer
will expire on April 27, 2007 unless extended by the Company, in its sole
discretion (the “Expiration Date”).
1. Subscription.
Subject
to the terms and conditions of this Agreement, the undersigned hereby subscribes
for the aggregate number of Securities set forth on the signature page of this
Agreement. Payment of the Aggregate Purchase Price set forth on the signature
page is required at the time of delivery of this Agreement to the Company (or
at
such late time as the Company may agree). The undersigned acknowledges that,
in
order to subscribe, the undersigned must deliver, to the Company, prior to
the
Expiration Date, one executed copy of this Agreement.
2. Risk
Factors.
The
undersigned acknowledges and is aware that an investment in the Company involves
a substantial degree of risk and should be regarded as highly speculative.
As a
result, the subscription for Securities should be considered only if the
undersigned can reasonably afford a loss of its entire investment. The
undersigned should carefully consider, among other things, the risk factors
set
out in (a) the Company’s Annual Report on Form 20-F (the “20-F”) for the
year-ended April 30, 2006 and (b) the prospectus relating to the F-3
Registration Statement (No. 333-141735)
filed
on behalf of Cornell Capital Partners, LP, in each case as filed with the U.S.
Securities and Exchange Commission (“SEC”).
3. Acceptance
of Subscription.
It
is
understood and agreed that this Agreement is subject to the following terms
and
conditions:
(a) Investments
are not binding on the Company until accepted by the Company.
(b) The
undersigned hereby intends that his/her/its signature hereon shall constitute
an
irrevocable subscription to the Company for the aggregate amount of Securities
described herein.
4. American
Depositary Receipts. The
Company's American Depositary Shares ("ADSs") trade on the Nasdaq SmallCap
Market under the symbol FMDA. Each ADS represents the right to receive fifty
Ordinary Shares of the Company. ADSs are evidenced by American Depositary
Receipts ("ADRs"). ADSs evidenced by ADRs are issued by the Bank of New York
as
Depositary (the "Depositary") of the Company's ADR facility in accordance with
the terms of a deposit agreement between the Company and the Depositary. The
Company shall promptly amend the deposit agreement with the Depositary to
include the Shares and Ordinary Shares underlying the Warrants (the “Warrant
Shares”) as ADSs, secure the listing or quotation of ADSs representing the
Shares and the Warrant Shares upon each national securities exchange, automated
quotation system or other market, if any, upon which ADSs or Ordinary Shares
are
listed or quoted (subject to official notice of issuance) and shall use its
commercially reasonable efforts to maintain, so long as any other ADSs or
Ordinary Shares shall be so listed, such listing of all Shares and Warrant
Shares from time to time issuable under the terms of this Agreement and/or
to
take all reasonably necessary action to deliver to the undersigned ADRs
evidencing such ADSs. The Company shall bear all costs and expenses in
connection with the issuance of ADRs to the undersigned in connection with
its
investment in the Securities.
3
5. Representations
and Warranties of the Undersigned.
The
undersigned hereby represents and warrants to the Company as
follows:
(a)
The
undersigned (i) has adequate means of providing for its current needs and
possible contingencies, and it has no need for liquidity of its investment
in
the Company; (ii) has such knowledge and experience in financial matters that
the undersigned is capable of evaluating the relative risks and merits of this
investment; and (iii) understands that an investment in the Shares is
highly speculative and is able financially to bear the risk of losing its entire
investment.
(b)
The
address set forth on the signature page of this Agreement is its true and
correct business address, and it has no present intention of changing its
business location or residence (as applicable) to any other
jurisdiction.
(c)
The
undersigned has received and read and represents that it is familiar with this
Agreement.
(d)
The
undersigned, and its representatives, if any, have received and reviewed copies
of the following documents:
(i) the
Company's Annual Report on Form 20-F for the fiscal year ended April 30, 2006;
and
(ii) the
Company’s press releases distributed since April 30, 2006; and
(iii) the
Company’s filings with the SEC since April 30, 2006, including without
limitation all filings on Form 6-k.
The
undersigned acknowledges that it has reviewed the foregoing information. It
further acknowledges that it has had the opportunity to ask representatives
of
the Company questions about the Company's business and financial condition
and
that it has obtained such information as it has requested to the extent it
has
deemed necessary to permit it to fully evaluate the merits and risks of its
investment in the Company. Further, the undersigned has consulted with such
other of its investment and/or accounting and/or legal and/or tax advisors
as it
has deemed necessary and appropriate in making its decision to subscribe for
the
Shares.
(e)
If
the undersigned is a corporation, partnership, trust, or other entity, (i)
it is
authorised and qualified to become a shareholder of, and authorised to make
its
investment in, the Company; (ii) it has not been formed for the purpose of
making an investment in the Company; and (iii) the person signing this Agreement
on behalf of such entity has been duly authorised by such entity to do
so.
(f)
The
undersigned is not relying on the Company or any representation contained herein
or in the documents referred to herein with respect to the tax and economic
effect of its investment in the Company.
(g)
The
undersigned understands (i) that it is the Company’s intent that all
communications and other activities relating to this Agreement and the
transactions contemplated hereby are being carried out in compliance with the
Financial Services and Markets Xxx 0000 (“FSMA”) and related secondary
legislation, including without limitation the Financial Services and Markets
Xxx
0000 (Financial Promotion) Order 2005 (the “FPO”) and (ii) that the Company
is relying certain exemptions in the FPO. The undersigned falls within one
of
the exemptions provided in the FPO and, if either a High Net Worth Individual
or
a Sophisticated Investor, has provided the Company with such certificates as
are
required under the FPO in connection therewith.
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(h)
The
undersigned understands that, except as provided herein, the Shares have not
been and not expected to be registered under the United States Securities Act
of
1933, as amended (the "Act"). The Shares are being offered and sold in an
“offshore transaction” outside the United States in accordance with Rule 903 of
Regulation S ("Regulation S"), promulgated under the Act. The transferability
of
the Shares is restricted as provided herein.
(i)
At
the time the offer to subscribe for the Shares was made, the undersigned and
all
beneficial owners or subscribers for the Shares hereunder were outside of the
United States of America or any other jurisdiction where such offer would be
prohibited. The undersigned further represents that the undersigned and all
such
beneficial owners did not receive any offering documents, with respect to the
Shares, in the United States of America or any other jurisdiction where such
receipt of same would be prohibited.
(j)
The
Shares for which the undersigned hereby subscribes are being acquired solely
for
its own account or for the account of beneficial owners that the undersigned
represents, and are not being purchased with a view to or for distribution.
It
has no present plans to enter into any such contract, undertaking, agreement
or
arrangement. In order to induce the Company to issue the Shares subscribed
for
hereby to the undersigned, it is agreed that the Company will have no obligation
to recognise the ownership, beneficial or otherwise, of such Shares by anyone
but the undersigned and the beneficial owners that the undersigned represents.
(k)
The
undersigned understands that Shares may be not transferred, sold, assigned,
hypothecated or otherwise disposed of, except: (a)(i) pursuant to a
registration statement, filed with and declared effective by the SEC,
(ii) in an offshore transaction in compliance with Regulation S or
(iii) pursuant to another available exemption from the registration
requirements under the Act upon the delivery of an opinion of counsel,
certification and/or other information satisfactory to the Company and
(b) in compliance with all other applicable laws.
(l)
The
undersigned agrees that, in order to ensure compliance with applicable
securities laws, the certificates or ADRs evidencing any Shares will be held
in
escrow by the Company for a period of 40 days following the date of receipt
by
the Company of payment in full for all Shares purchased hereunder (the
“Restricted Period”). The undersigned agrees not to sell, grant options over,
transfer, charge, pledge, hypothecate or otherwise dispose of the Shares during
the Restricted Period. The undersigned further agrees not to engage in any
hedging transactions or short sales with respect to the Shares during the
Restricted Period.
The
foregoing representations and warranties are true and accurate as of the date
of
delivery of this Agreement to the Company and shall survive such delivery.
If in
any respect such representations and warranties shall not be true and accurate
prior to acceptance of this subscription by the Company, the undersigned shall
give written notice of such fact to the Company, specifying which
representations and warranties are not true and accurate and the reasons
therefor.
6. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the undersigned that, except as set
forth in the SEC Documents (as defined herein):
(a) Organization
and Qualification.
Save as
already disclosed to the undersigned, the Company and its subsidiaries are
corporations duly organized and validly existing in good standing under the
laws
of the jurisdiction in which they are incorporated, and have the requisite
corporate power to own their properties and to carry on their business as now
being conducted. Each of the Company and its subsidiaries is duly qualified
as a
foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted by it makes such qualification
necessary, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
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(b) Authorization,
Enforcement, Compliance with Other Instruments.
(i) The Company has the requisite corporate power and authority to enter
into and perform this Agreement, the Warrants and any related agreements
(collectively the “Transaction Documents”) and to issue the Shares and the
Warrants Shares in accordance with the terms hereof and thereof, (ii) the
execution and delivery of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and thereby,
including, without limitation, the issuance of the Securities and the
reservation for issuance and the issuance of the Warrants Shares issuable upon
exercise of the Warrants, have been duly authorized by the Company’s Board of
Directors and no further consent or authorization is required by the Company,
its Board of Directors or its stockholders, (iii) the Transaction Documents
have
been duly executed and delivered by the Company, (iv) the Transaction Documents
constitute the valid and binding obligations of the Company enforceable against
the Company in accordance with their terms, except as such enforceability may
be
limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors’ rights and remedies.
(c) Capitalization.
As of
the date hereof (and before taking into account the transactions contemplated
by
this Agreement) the authorized capital stock of the Company consists of
2,500,000,000 shares of Ordinary Shares, par value 1- 1/9 xxxxx, and 2,000,000
shares of Preferred Stock, par value 2 xxxxx (“Preferred Stock”) of which
322,627,459 Ordinary Shares (represented by 6,452,549 ADSs)
and
zero shares of Preferred Stock are issued and outstanding. All of such
outstanding shares have been validly issued and are fully paid and
nonassessable. Except as disclosed herein or in the SEC Documents (as defined
in
Section 6(f)), no Ordinary Shares are subject to preemptive rights or any other
similar rights or any liens or encumbrances suffered or permitted by the
Company. As of the date of this Agreement, there are outstanding options to
purchase an aggregate of 155,726 ADSs at
exercise prices ranging from $5.00 to $81.10 under the Company’s employee share
option plans (such options expire on dates ranging from April 2007 to June
2016)
and warrants to purchase an aggregate of 6,175,104 Ordinary
Shares at an exercise price of $0.11 per share (such warrants expire on July
21,
2010) and warrants to purchase an aggregate of 411,692 Ordinary
Shares at an exercise price of $0.610 per share (such warrants expire on July
21, 2010) and warrants to purchase an aggregate of 250,000 Ordinary Shares
at an
exercise price of $0.095 per share (such warrants expire on December 19, 2010)
and warrants to purchase an aggregate of 4,750,000 Ordinary Shares at an
exercise price of $0.095 per share (such warrants expire on April 19, 2011).
Except as disclosed herein or in the SEC Documents, as of the date of this
Agreement, (i) there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to,
or
securities or rights convertible into, any shares of capital stock of the
Company or any of its subsidiaries, or contracts, commitments, understandings
or
arrangements by which the Company or any of its subsidiaries is or may become
bound to issue additional shares of capital stock of the Company or any of
its
subsidiaries or options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company or any of its
subsidiaries, (ii) there are no outstanding debt securities and (iii) there
are
no agreements or arrangements under which the Company or any of its subsidiaries
is obligated to register the sale of any of their securities under the
Securities Act and (iv) there are no outstanding registration statements and
there are no outstanding comment letters from the SEC or any other regulatory
agency. The Company has furnished to the undersigned
true and
correct copies of the Company’s Articles of Incorporation, as amended and as in
effect on the date hereof (the “Articles of Association”), and the terms of all
securities convertible into or exercisable for Ordinary Shares and the material
rights of the holders thereof in respect thereto other than stock options issued
to employees and consultants.
(d) Issuance
of Securities.
The
Securities are duly authorized and, upon issuance in accordance with the terms
hereof, shall be duly issued, fully paid and nonassessable, are free from all
taxes, liens and charges with respect to the issue thereof. The Warrant Shares
issuable upon exercise of the Warrants have been duly authorized and reserved
for issuance. Upon exercise in accordance with the Warrants the Warrant Shares
will be duly issued, fully paid and nonassessable.
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(e) No
Conflicts.
Except
as disclosed in the SEC Documents, the execution, delivery and performance
of
the Transaction Documents by the Company and the consummation by the Company
of
the transactions contemplated hereby will not (i) result in a violation of
the
Articles of Association or (ii) conflict with or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company
or
any of its subsidiaries is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree applicable to the Company or any of its
subsidiaries or by which any property or asset of the Company or any of its
subsidiaries is bound or affected. Except as disclosed in the SEC Documents,
neither the Company nor its subsidiaries is in violation of any term of or
in
default under its Articles of Incorporation or By-laws or their organizational
charter or by-laws, respectively, or any material contract, agreement, mortgage,
indebtedness, indenture, instrument, judgment, decree or order or any statute,
rule or regulation applicable to the Company or its subsidiaries. The business
of the Company and its subsidiaries is not being conducted, and shall not be
conducted in violation of any material law, ordinance, or regulation of any
governmental entity. The Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court
or
governmental agency in order for it to execute, deliver or perform any of its
obligations under or contemplated by this Agreement in accordance with the
terms
hereof. The Company and its subsidiaries are unaware of any facts or
circumstance, which might give rise to any of the foregoing.
(f) SEC
Documents: Financial Statements.
Since
January 1, 2003, the Company has filed all reports, schedules, forms, statements
and other documents required to be filed by it with the SEC under of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) and all
registration statements required under the Securities Act (all of the foregoing
filed prior to the date hereof or amended after the date hereof and all exhibits
included therein and financial statements and schedules thereto and documents
incorporated by reference therein, being hereinafter referred to as the “SEC
Documents”). The Company has delivered to the undersigned or their
representatives, or made available through the SEC’s website at
xxxx://xxx.xxx.xxx., true and complete copies of the SEC Documents. As of their
respective dates, the financial statements of the Company disclosed in the
SEC
Documents (the “Financial Statements”) complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial statements have
been
prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such Financial Statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and, fairly present in
all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). No other information provided by or on behalf of the Company
to
the undersigned
which is
not included in the SEC Documents, including, without limitation, information
referred to in this Agreement, contains any untrue statement of a material
fact
or omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(g) 10(b)-5.
As of
their respective dates, the SEC Documents did not include any untrue statements
of material fact, nor did they omit to state any material fact required to
be
stated therein necessary to make the statements made, in light of the
circumstances under which they were made, not misleading.
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7. Delivery
of Certificates; Transfer Agent Instructions.
The
Company will hold in escrow, as described herein, either certificates or ADRs
evidencing the Shares without any restrictive legends affixed thereon (except
to
the extent that any such restrictive legends may be required by The Bank of
New
York or any successor depositary of the Company’s ADR facility). The
certificates or ADRs will be issued in the name of the undersigned and will
be
held in escrow by the Company during the Restricted Period. Upon the expiration
of the Restricted Period, the Company will deliver the certificates representing
the Shares or the ADRs to the undersigned.
8. Costs
and Expenses Incident to the Purchase.
The
Company shall bear all costs and expenses incident to the issuance, sale and
delivery of the Shares, including, but not limited to, all legal fees; the
preparation, printing and delivery of shares certificates; and any cost and
expense in connection with the conversion of any of the Shares into ADRs. The
Company shall not be obligated to pay any commissions to any third parties
or
the undersigned in connection with the issuance of the Shares pursuant to this
Agreement except as otherwise expressly agreed in writing by the
Company.
9. Indemnification.
(a) The
undersigned acknowledges that it understands the meaning and legal consequences
of the representations and warranties contained herein, and hereby agrees to
indemnify and hold harmless the Company, the Company's officers and directors,
and their respective agents, employees and affiliates, from and against any
and
all losses, claims, damages or liabilities, including reasonable solicitors’ or
attorneys’ fees, due to or arising out of a breach of any representation(s) or
warranty(s) or covenants of the undersigned contained in this
Agreement.
(b) The
Company acknowledges that it understands the meaning and legal consequences
of
the representations and warranties contained herein, and hereby agrees to
indemnify and hold harmless the undersigned, the officers and directors of
the
undersigned, and their respective agents, employees and affiliates, from and
against any and all losses, claims, damages or liabilities, including reasonable
solicitors’ or attorneys’ fees, due to or arising out of a breach of any
representation(s) or warranty(s) or covenants of the Company contained in this
Agreement.
10. Further
Assurances.
The
undersigned hereby agrees to execute or sign any and all other documents and/or
take any and all such further actions as the Company may reasonably request
or
require in connection with the transactions contemplated by this
Agreement.
11. No
Waiver.
Notwithstanding any of the representations, warranties, acknowledgments or
agreements made herein by the undersigned, the undersigned does not thereby
or
in any other manner waive any rights granted to it under U.S. federal or state
securities laws, the laws of England and Wales or any other
jurisdiction.
12. Revocation.
The
undersigned acknowledges and agrees that its subscription for the Shares made
by
the execution and delivery of this Agreement by the undersigned is
irrevocable.
13. Registration.
(a) Subject
to the terms and conditions of this Agreement, in the event the Company does
not
deliver certificates or ADRs evidencing (i) the Shares without any restrictive
legends upon the expiration of the Restricted Period as set forth in Section
7
of this Agreement, or (ii) the Warrant Shares without any restrictive legends
upon the expiration of the Restricted Period as set forth in Section 2 of the
Warrant, the Company shall prepare and file, no later than seventy five (75)
days from the date hereof (the “Filing Deadline”), with the SEC a registration
statement on Form F-3 under the Securities Act (the “Registration Statement”)
for the resale by the undersigned of the Shares and the Warrant Shares (the
“Registrable Securities”). Prior to the filing of the Registration Statement
with the SEC, the Company shall furnish a copy of the Registration Statement
to
the undersigned for its review and comment. The undersigned shall furnish
comments on the Registration Statement to the Company within twenty-four (24)
hours of the receipt thereof from the Company. Notwithstanding any other
provision hereof, any reduction in the number of Ordinary Shares registered
for
resale under the Registration Statement as a result of comments received in
writing from the SEC with respect to the Initial Registration Statement shall
not constitute a breach or default by the Company under this Agreement or any
other agreement between the undersigned
and the
Company.
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(b) The
Company shall use its commercially reasonable efforts to have the Registration
Statement declared effective by the SEC no later than forty five (45) days
after
the date on which it is filed with SEC (the “Scheduled Effective
Deadline”).
(c) The
Company shall keep the Registration Statement effective pursuant to
Rule 415 at all times until the earlier of (i) the date on which the
undersigned
shall
have sold all the Registrable Securities covered by such Registration Statement
or (ii) the date that all of the Registrable Securities may be freely traded
without registration under the Securities Act (the “Registration Period”), which
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein,
or
necessary to make the statements therein, in light of the circumstances in
which
they were made, not misleading.
(d) The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and
the
prospectus used in connection with such Registration Statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the Securities Act, as
may
be necessary to keep such Registration Statement effective at all times during
the Registration Period, and, during such period, comply with the provisions
of
the Securities Act with respect to the disposition of all Registrable Securities
of the Company covered by such Registration Statement until such time as all
of
such Registrable Securities shall have been disposed of in accordance with
the
intended methods of disposition by the seller or sellers thereof as set forth
in
such Registration Statement or as provided herein.
(e) All
expenses incurred in connection with registrations, filings or qualifications
pursuant to Section 13, including, without limitation, all registration, listing
and qualifications fees, printers, legal and accounting fees shall be paid
by
the Company.
(f) Until
the
earlier of (i) the date as of which the undersigned may sell all of the
Registrable Securities without restriction under the Securities Act, or (ii)
the
date on which the undersigned shall have sold all of the Registrable Securities,
the Company shall file with the SEC in a timely manner all reports and other
documents required of the Company under the Exchange Act and the regulations
of
the SEC thereunder, and the Company shall not terminate its status as an issuer
required to file reports under the Exchange Act even if the Exchange Act or
the
rules and regulations thereunder would otherwise permit such
termination.
14. Miscellaneous.
(a) All
notices or other communications given or made hereunder shall be in writing
and
shall be delivered or mailed by registered or certified mail, return receipt
requested, postage prepaid, to the undersigned at its address set forth below
and to Futuremedia Public Limited Company at Xxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx
XX0 0XX, Attention: Xxxxxx Xxxxx.
(b) Notwithstanding
the place where this Agreement may be executed by any of the parties hereto,
the
parties expressly agree that all the terms and provisions hereof shall be
construed in accordance with and shall be governed by the laws of England and
Wales.
9
(c) This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and may be amended only by a writing executed
by
all parties.
(d) This
Agreement shall be binding upon the legal representatives, successors and
assigns of all parties hereto.
(e) All
terms
used herein shall be deemed to include the masculine and the Feminine and the
singular and the plural as the context requires.
(f) The
representations and warranties of the Company and the undersigned contained
herein and the agreements and covenants set forth herein, shall survive for
a
period of two (2) years from the date hereof.
[Signature
Page to Follow]
10
SIGNATURE
PAGE
EXECUTED
this 2nd
day of
May, 2007
Number
of
Securities subscribed for: 446,428
446,428
ADSs at $1.12 per ADS; and
Warrants
to purchase 3,000,000 ADSs at an exercise price of $1.12 per ADS (as such price
may be amended according to the terms of the warrant therefore).
Aggregate
Purchase Price: $500,000.00
NATIONAL
AIR CARGO, MIDDLE EAST, FZE
| By: /s/ Xxxxx Xxxxxxx | |||
|
Xxxxx
Xxxxxxx
|
|||
|
Country
Director
|
Address:
X.X.
Xxx
00000, X000, Xxxx Xxxx Xxxxx
Airport
Free Zone
Dubai
U.A.E.
Check
Appropriate Space:
o
Individual
Ownership
o
Joint
Tenants with Right of
Survivorship
o
Tenants
in Common
x
Other: United Arab Emirates Company
ACCEPTANCE
APPROVED
AND ACCEPTED
in
accordance with the terms of this
Agreement
on May 2, 2007.
| By: /s/ Xxxxxxx X Xxxxxx | |||
|
Name:
Xxxxxxx X Xxxxxx
|
|||
|
Title:
CEO
|
11
