Subscription Agreement
|
Dated:
October 19, 2007
|
|
ResponzeTV
PLC
(the
Company)
OmniReliant
Corporation
(the
Investor)
|
1
Dated:
October 19, 2007
Between
|
(1)
|
ResponzeTV
PLC (the
Company)
a
company incorporated in England and Wales with registered number
1512221
having its registered office at Xxx Xxxxx Xxxxx, Xxxxxx XX0X 0XX;
and
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|
(2)
|
OmniReliant
Corporation (the
Investor)
a
company incorporated in Florida, USA having its principal office
at 0000
Xxxx Xxxxxxxxx Xxx, Xxxxx, Xxxxxxx 00000,
XXX.
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Recitals
|
A
|
The
Company is a public company limited by
shares.
|
| B |
The
Company, whose ordinary shares are admitted to trading on AIM, wishes
to
raise new equity capital and to acquire KHL Holdings,
Inc.
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| C |
This
Agreement contains the terms and conditions upon which the Investor
has
agreed with the Company to subscribe for the Subscription Shares
(as
defined below) in accordance with the provisions of this Agreement
and to
subscribe for the Warrants (as defined below) in registered form,
giving
the right to subscribe for one Ordinary Share (as defined below)
per
Warrant, in accordance with the provisions of this Agreement and
on the
terms and conditions of the Warrant Instrument (as defined
below).
|
| D |
In
addition, pursuant to the Acquisition Agreement (as defined below),
the
Investor has agreed to sell to the Company, and the Company has agreed
to
purchase from the Investor, all the issued and to be issued share
capital
of KHL Holdings, Inc.
|
It
is agreed:
|
1
|
Interpretation
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|
1.1
|
The
definitions and rules of interpretation in this clause apply in this
agreement.
|
Accounts:
the
audited financial statements of the Company and the Subsidiaries comprising
the
individual accounts of the Company and the Subsidiaries, and in the case of
the
Company, the consolidated group accounts including in each case the balance
sheet, the profit and loss account together with the notes thereon, the cashflow
statement and the auditors' and directors' reports as at, or for the 12 month
period ended on, the Accounts Date.
Accounts
Date:
31
December 2006.
Acquisition
Agreement:
the
share sale and purchase agreement entered into between the Investor and the
Company dated the date of this agreement relating to the sale of the entire
issued share capital of KHL Holdings, Inc. to the Company.
Admission:
the
admission of the to be issued Subscription Shares and Consideration Shares
to
trading on AIM becoming effective within the meaning of the AIM
Rules.
Aggregate
Subscription Price:
shall
have the meaning set out in Clause 3.1.
AIM:
the AIM
Market of the Exchange.
2
AIM
Rules:
the
rules of the Exchange governing admission to and the operation of
AIM.
Board:
the
board of directors of the Company from time to time or a duly authorised
committee of it.
Business
Day:
a day
(other than a Saturday, Sunday or public holiday) when banks in London and
New
York are open for business.
Companies
Act:
the
Companies Xxx 0000 of Great Britain as amended.
Conditions:
the
conditions set out in clause 2 of this agreement.
Consideration
Shares
shall
have the meaning given in the Acquisition Agreement.
EGM
: the
extraordinary general meeting of the Company to be convened to pass the Relevant
Resolutions.
Encumbrances:
any
interest or equity of any person (including the right to acquire, option or
right of pre-emption) or any mortgage, charge, pledge, lien, assignment,
hypothecation, security, title, retention or any other security agreement or
arrangement.
Exchange:
London
Stock Exchange plc.
Group:
the
Company and its Subsidiaries.
Intellectual
Property Rights:
any and
all trade marks, service marks, registered designs, unregistered design rights,
copyright, rights in confidential information and any other similar intellectual
property rights of any nature whatsoever, whether or not registered or capable
of registration, and all applications and rights to apply for the same, together
with all goodwill relating or attached thereto.
MediaXposure
Debt Conversion Agreement:
the
debt conversion agreement dated on or around the date of this agreement between
MediaXposure Limited (Cayman) and the Company pursuant to which MediaXposure
Limited (Cayman) has agreed to convert the balance of convertible loans owing
by
it to the Company.
Ordinary
Shares:
the
issued Ordinary Shares of 16p par value each in the Company from time to time
(or any shares deriving from such shares).
Press
Announcement:
the
press announcement in the agreed form concerning the Subscription and the
Acquisition Agreement.
Relevant
Resolutions:
all
resolutions of shareholders of the Company as may be necessary to give full
effect to the terms of this agreement and the Acquisition
Agreement.
Securities
Act means
the
United States Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
Subscription:
the
allotment and issue of the Subscription Shares to the Investor and the
subscription for the Warrants, each in accordance with this
agreement.
Subscription
Price:
the
price of 30p per Subscription Share.
Subscription
Shares:
the
8,500,000 new Ordinary Shares to be allotted and issued pursuant to the
Subscription.
Subsidiaries:
a
"subsidiary" as defined in section 736 of the Companies Act and any other
company which is a subsidiary (as so defined) of a company which is itself
a
subsidiary of such holding company. Unless the context otherwise requires,
the
application of the definition of Subsidiary to any company at any time will
apply to the company as it is at that time.
3
Undertakings:
the
undertakings to be given by each of MediaXposure Limited (Cayman), Xxx
Xxxxxxxxxx and Xxxxx Xxxxxxxxxx in the agreed form to vote in favour of the
Relevant Resolutions.
Warranties:
those
warranties set out in Clause 7.1.
Warrant
Instrument:
the
instrument constituting the Warrants dated 11 September 2007.
Warrants:
the
17,000,000 warrants to be issued and granted to the Investor pursuant to the
Warrant Instrument, being as follows:
|
(a)
|
8,500,000
warrants which will be exercisable at
37p;
|
|
(b)
|
4,250,000
warrants which will be exercisable at 50p;
and
|
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(c)
|
4,250,000
warrants which will be exercisable at 100p;
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each
in
accordance with the terms of the Warrant Instrument.
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1.2
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Clause,
schedule and paragraph headings shall not affect the interpretation
of
this agreement.
|
References
to clauses and schedules are to the clauses and schedules of this agreement;
references to paragraphs are to paragraphs of the relevant schedule.
Words in
the singular shall include the plural and vice versa.
A
reference to a particular law is a reference to it as it is in force for the
time being, taking account of any amendment, extension, or re-enactment and
includes any subordinate legislation for the time being in force made under
it.
A
reference to any English legal concept, term, action, remedy, method of judicial
proceeding, legal document, legal status, court or official shall, in respect
of
any jurisdiction other than England and Wales, be deemed to refer to what most
nearly approximates in that jurisdiction to that reference.
A
reference to any English statute, bye-law, regulation, rule, delegated
legislation or order shall, in relation to any assets owned, liabilities
incurred, company incorporated in, or business carried on in any jurisdiction
other than England and Wales, be deemed to include what most nearly approximates
in that jurisdiction to that reference.
A
reference to writing or written includes faxes but not e-mail.
Documents
in agreed form or agreed terms are documents in the form agreed by the parties
and initialled by them for identification.
A
reference to a document is a reference to that document as varied (other than
in
breach of the provisions of this agreement) at any time.
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2
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Conditions
|
|
2.1
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Completion
is subject to and conditional upon:
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|
(a)
|
the
Relevant Resolutions being passed;
|
|
(b)
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the
Acquisition Agreement becoming unconditional in all respects (except
for
completion of this Agreement); and
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(c)
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the
MediaXposure Debt Conversion Agreement becoming unconditional in
all
respects.
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4
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2.2
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Each
party undertakes to the other to use all reasonable endeavours to
fulfil
or procure the fulfilment of the
Conditions.
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2.3
|
If
the conditions referred to above shall not have been satisfied or
shall,
in the opinion of the Company, have become incapable of satisfaction
on or
prior to 31 December 2007, this Agreement shall terminate and no
party
shall have any further liability or obligations under this Agreement
except in respect of claims which arose prior to termination or the
relevant provisions of Clauses 10 -
20.
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|
3
|
Agreement
to subscribe for Ordinary Shares and
Warrants
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| 3.1 |
The
Investor hereby agrees to subscribe for the Subscription Shares on
the
terms of this agreement at the Subscription Price per Subscription
Share
representing an aggregate subscription price of US$5,100,000 (the
Aggregate
Subscription Price).
|
| 3.2 |
The
Investor agrees to subscribe for the Warrants upon payment of the
sum of
US$1. The Warrants shall not be listed on any stock exchange, including
AIM.
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| 3.3 |
The
Company shall use its best endeavours to maintain the listing of
the
Ordinary Shares on AIM for as long as any Warrant is outstanding
or
remains unexercised.
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| 3.4 |
Completion
of this Agreement shall take place simultaneously with completion
of the
Acquisition Agreement by no later than 3 Business Days following
the date
on which the Relevant Resolutions are
passed.
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|
4
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Documents
to be delivered
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4.1
|
The
Company will, on completion of this Agreement, and following receipt
by it
of the Aggregate Subscription Price, issue and allot the Subscription
Shares to the Investor (or, at the request of the Investor, to the
Investor’s parent company, OmniReliant Holdings, Inc.) and will enter into
the register of holders of warrants in the Company the name of the
Investor (or, at the request of the Investor, the name of the Investor’s
parent company, OmniReliant Holdings, Inc.) as holder of the Warrants.
The
Subscription Shares shall be issued and allotted subject to the memorandum
and articles of association of the Company, credited as fully paid
free
from any Encumbrance and on terms that they will rank pari passu
in all
respects with the existing Ordinary
Shares.
|
|
4.2
|
The
Company shall instruct its registrars to deliver within 3 Business
Days of
the date of completion to the Investor a definitive certificate for
the
Subscription Shares
and the Consideration Shares.
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|
5
|
Application
for admission
|
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5.1
|
The
Company shall, immediately following completion of this Agreement,
apply
to the Exchange for Admission of the Subscription Shares and the
Consideration Shares and for such purpose the Investor will provide
the
Company in a timely fashion on request with all such information
regarding
the Investor as the Company may reasonably and properly require in
order
to apply for Admission
|
| 5.2 |
The
Company undertakes that it shall make an application for any Ordinary
Shares to be issued on exercise of the Warrants to be admitted
to trading
on AIM or on any other market on which the Company's Ordinary Shares
are
then listed or traded.
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|
6
|
Payment
of Aggregate Subscription
Price
|
|
6.1
|
The
Investor shall procure the payment to the Company of the Aggregate
Subscription Price payable in respect of the Subscription Shares
no later
than 3 pm (London time) on the day of completion.
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5
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6.2
|
Payment
of the subscription monies to a bank account notified prior to completion
by the Company for such purpose shall constitute a complete discharge
by
the Investor of its obligations to the Company under Clause
6.1.
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7
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Warranties
|
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7.1
|
Subject
to the provisions of Clause 8 of this agreement, in respect of each
of
this agreement and the Acquisition Agreement, the Company warrants
to the
Investor that:
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|
(a)
|
the
Company is duly incorporated and validly existing under the laws
of
England and Wales, with full power and authority to own its assets
and
conduct its business and is lawfully qualified to do business in
those
jurisdictions in which it conducts
business;
|
|
(b)
|
each
of this agreement and the Acquisition Agreement has been duly authorised,
executed and delivered by the Company and constitutes valid, legally
binding and enforceable obligations of the Company (except as such
enforceability may be limited under applicable bankruptcy, insolvency,
fraudulent transfer, reorganisation, moratorium or similar laws of
general
applicability relating to or affecting creditors’ rights and except as
such enforceability may be limited in accordance with general equitable
principles);
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(c)
|
the
Warrants have been duly authorised by the Company and, when duly
issued
and delivered in accordance with the Warrant Instrument, will constitute
valid, legally binding and enforceable obligations of the Company
(except
as such enforceability may be limited under applicable bankruptcy,
insolvency, fraudulent transfer, reorganisation, moratorium or similar
laws of general applicability relating to or attending creditors’ rights
and except as such enforceability may be limited in accordance with
general equitable principles) and will be entitled to the benefits
provided by the Warrant Instrument;
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|
(d)
|
subject
to the passing of the Relevant Resolutions, no action, step or measure
is
required to be taken, fulfilled or done (including, but not limited
to,
the obtaining of any consent or licence or the making of any filing
or
registration) for the allotment and issue of the Subscription Shares
or
the Consideration Shares and the issue of the Warrants or the Ordinary
Shares upon exercise of the Warrants or the compliance by the Company
with
the terms of the Warrants as the case may
be;
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(e)
|
the
execution and delivery of the Agreement, the Acquisition Agreement
and the
Warrant Instrument, the issue of the Subscription Shares and Consideration
Shares and the issue of the Warrants and compliance with their terms
do
not and will not conflict with or result in a breach of any of the
terms
or provisions of, or constitute a default under, the documents
constituting the Company or any indenture, trust deed, mortgage,
guarantee, loan or other agreement or instrument to which the Company
is a
party or by which the Company or its properties or assets are bound
or
infringe any existing applicable law, rule, regulation, judgment,
order or
decree of any government, governmental body or court, domestic or
foreign,
having jurisdiction over the Company or any of its properties or
assets,
or infringe on the rules of any stock exchange or other regulatory
body on
which the securities of the Company are
listed;
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(f)
|
the
Accounts were prepared in accordance with International Financial
Reporting Standards (IFRS) and pursuant to the relevant laws of England
and Wales consistently applied and are accurate and correct and give
a
true and fair view of the financial position of the Company and the
Group
as at the Accounts Date, and the results of operations and changes
in the
financial position of the Company and the Group for the period, in
respect
of which they have been prepared. The interim accounts of the Group
as of
and for the six months ended 30 June 2007 give a true and fair view
in all
material respects of the financial position of the Company and the
Group
at such date;
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6
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(g)
|
since
30 June 2007, there has been no change (nor any development or event
involving a prospective change) which, when taken as a whole, is
materially adverse to the condition (financial or other), prospects,
results of operations or general affairs of the
Group;
|
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(h)
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the
Company possesses adequate certificates, authorities or permits issued
by
appropriate governmental agencies or bodies necessary to conduct
the
business now operated by it, and has not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit;
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| (i) |
there
are no current or pending litigation or arbitration proceedings against
or
affecting the Company or the Group taken as a whole or any of its
properties or assets which, if determined adversely to any such entity
would individually or in the aggregate have a material adverse effect
on
the condition (financial or other), prospects, results of operations
or
general affairs of the Company or the Group or on the ability of
the
Company to perform its obligations under this agreement, the Acquisition
Agreement or the Warrant Instrument or which are otherwise material
in the
context of the issue of the Subscription Shares, the Consideration
Shares
or the Warrants, and no such actions, suits or proceedings are known
by
the Company to be threatened or contemplated;
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(j)
|
the
Company and each member of its Group has at all times and in all
material
respects and when taken as a whole conducted its business and operations
in accordance with applicable laws and regulations and has all material
licences, consents, permits and authorities required to carry on
its
business in the places and in the manner in which its business is
carried
on and all are valid and subsisting. The Company is not aware of
any
circumstances which would indicate that any of those licences, consents,
permits and authorities are likely to be suspended, cancelled, revoked
or
not renewed on the same terms;
|
|
(k)
|
the
Company and each of the Subsidiaries has been duly incorporated and
have
all requisite power and authority to carry on its business as
currently carried on;
|
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(l)
|
no
material contract or arrangement to which any member of the Group
is a
party or by which its property or assets is bound may be determined
or
breached by reason of the allotment and issue of the Subscription
Shares,
the Consideration Shares or the grant of the Warrants and none of
such
allotment, issue or grant will infringe the laws or regulations of
any
jurisdiction in which the allotment, issue or grant is made;
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(m)
|
the
Company or a member of the Group is the full legal and beneficial
owner
of, has possession and control of and has good and marketable title
to,
all the assets included in the Accounts except for those disposed
of since
the Accounts Date in the normal course of business;
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(n)
|
the
Company is not insolvent or unable to pay its debts within the meaning
of
the Insolvency Act 1986 or any other insolvency legislation
applicable;
|
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(o)
|
in
relation to the Company and any other member of the Group, no
administrator, receiver or administrative receiver has been appointed
over
the business and assets of the Company or the Group (or any part
thereof),
no documents have been filed with the court for the appointment of
an
administrator, receiver or administrative receiver and no notice
of an
intention to appoint an administrator, receiver or administrative
receiver
has been given by the relevant company or its directors;
|
|
(p)
|
no
order has been made or petition presented or resolution passed for
the
winding up of the Company or any member of its Group or for the
appointment of a provisional liquidator to any such company;
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7
|
(q)
|
the
Group has, and at all times since 31 December 2006, has had, valid
insurances in respect of its property and other assets and business
against all risks which are normally insured against by other companies
owning or possessing similar properties or assets or carrying on
a similar
business, in the case of any real property owned by the Group, for
its
reinstatement value as notified to its insurers by the Company, in
the
case of other assets, for their replacement value as notified to
its
insurers by the Company and, in the case of its business, for such
amounts
as would be reasonably prudent, and the Group has not done or omitted
to
do or suffered anything to be done or not to be done which has or
might
reasonably be expected to render any policies of insurance taken
out by it
void or voidable;
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(r)
|
so
far as the Company is aware no activities of the Group infringe or
are
likely to infringe any Intellectual Property Rights of any third
party in
any material respect, and no material claim has been made against
any
member of the Group in respect of any such infringement in the three
years
prior to the date of this agreement;
|
|
(s)
|
the
Company has the right to use all Intellectual Property Rights material
to
the business activities of the Group, and all such Intellectual Property
Rights as are owned by the Group are owned free of all encumbrances
and
there are no proceedings, actions or claims pending or threatened
which
infringe the title, validity or subsistence of any Intellectual Property
Rights owned by the Group
in
any material manner;
|
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(t)
|
so
far as the Company is aware, nothing has been done or omitted to
be done
by the Group which would jeopardise the validity or subsistence of
any
Intellectual Property Rights owned by the Group and there has been
no
unauthorised use by any person of any Intellectual Property Rights
or
confidential information of the Group;
|
|
(u)
|
any
provision for taxation contained in the Accounts for the period ended
on
the Accounts Date, is or was sufficient at the time of the signing
of such
accounts to cover all taxation of any nature and in any jurisdiction
for
which the Company or any member of the Group is or was liable;
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|
(v)
|
since
the Accounts Date no member of the Group has incurred any liability
for
taxation which has arisen otherwise than in the ordinary course of
normal
trading;
|
|
(w)
|
no
member of the Group has been party to any contract or arrangement
the
principal purpose of which or one of the principal purposes of which
was
an avoidance or reduction of taxation;
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|
(x)
|
all
tax that has become due and payable from any member of the Group
or for
which any member of the Group has become obliged to account has been
paid
or accounted for in full;
and
|
|
(y)
|
no
claim or dispute involving any member of the Group has been made
by or
arisen with the Inland Revenue or any other tax authority (in the
United
Kingdom or elsewhere) and no such claim or dispute is likely;
|
|
7.2
|
The
representations and warranties referred to in Clause 7.1 are given
subject
to the annual report and accounts of the Company and any member of
the
Group for all financial periods ended on or prior to the Accounts
Date,
the interim results of the Group for the six months ended on 30 June
in
each of the years between 2005 and 2007, the memorandum and articles
of
association of the Company and any public announcements made or publicly
available documents produced by the Company through a regulatory
information service or as a result of its admission to AIM.
|
|
7.3
|
The
Company acknowledges that the Investor is entering into this agreement
and
the Acquisition Agreement in reliance upon the
Warranties.
|
|
7.4
|
Subject
to the provisions of Clause 8, each of the Warranties shall continue
in
full force and effect notwithstanding the completion of all matters
and
arrangements referred to in or contemplated by this agreement or
the
Acquisition Agreement. Each of the Warranties is separate and, unless
otherwise specifically provided, is not limited by reference to any
other
Warranty or any other provision in this
agreement.
|
8
|
7.5
|
Where
any statement is qualified by the expression so far as the Company
is
aware or to the Company's knowledge or any similar expression, that
statement shall be deemed to include an additional statement that
it has
been made after due and careful enquiry of its executive
directors.
|
|
8
|
Limitations
on liability
|
|
8.1
|
The
following shall limit the liability of the Company in respect of
any
breach of the Warranties:
|
|
(a)
|
no
claim may be made for breach of any or all of the Warranties unless
the
aggregate liability of the Company in respect of all such breaches
exceeds
the sum of US$200,000 (when the Company shall become liable for the
full
amount of such liabilities and not merely the excess over
US$200,000);
|
|
(b)
|
the
aggregate liability of the Company in respect of all breaches of
the
Warranties shall not exceed US$3,000,000;
and
|
|
(c)
|
no
claim may be made for breach of any or all of the Warranties unless
notice
in writing specifying full particulars and the amount thereof is
received
by the Company within 9 months of the date of this agreement and
proceedings in respect thereof are commenced by being both issued
and
served on the Company within 3 months of the date of that
notice.
|
|
8.2
|
Nothing
in Clause 8
applies to exclude or limit the liability for any claim under the
Warranties that arises or is delayed as a result of dishonesty, fraud,
wilful misconduct or wilful concealment by the Company, its agents
or
advisers.
|
|
9
|
Investor
Warranties
|
| 9.1 |
The
Investor warrants to the Company that, in relation to this agreement
and
the Acquisition Agreement:
|
|
(a)
|
the
Investor has the right, power and authority to enter into and perform
its
obligations under this agreement and the Acquisition
Agreement;
|
|
(b)
|
the
Investor has complied with all securities and other relevant laws
and
regulations of all relevant territories, obtained all requisite government
or other consents which may be required in connection with the
Subscription or the Acquisition Agreement, complied with all requisite
formalities and that the Investor has not taken any action or omitted
to
take any action which will or may result in the Company or any of
its
respective directors, officers, agents, employees or advisers acting
in
breach of the legal or regulatory requirements of any territory in
connection with the Subscription or the Acquisition
Agreement;
|
| (c) |
it
is an accredited investor within the meaning of Rule 501(a) of Regulation
D under the Securities Act, it has substantial experience in evaluating
and investing in the securities of companies similar to the Company
and is
capable of evaluating the merits and risks of its investment in the
Company and that, by reason of its business or financial experience,
it
has the capacity to protect its own interests in connection with
the
transactions contemplated in this Agreement and the Acquisition Agreement;
|
| (d) |
the
Investor is acquiring the Subscription Shares and the Consideration
Shares
for its own account for investment only, and not with a view towards
their
distribution and that no one other than the Investor will have any
interest in, or any right to acquire, all or any portion of the
Subscription Shares or the Consideration
Shares.
|
9
|
(e)
|
the
Investor understands that the Subscription Shares and the Consideration
Shares have not been and will not be registered under the Securities
Act
or under the securities laws of any state or other jurisdiction of
the
United States, and also understands that the Subscription Shares
and the
Consideration Shares are being offered and sold pursuant to an exemption
from registration contained in the Securities Act based upon the
Investor’s representations contained herein.
|
|
(f)
|
the
Investor acknowledges that an investment in the Company involves
significant risks and that the investor must bear the economic risk
of
this investment indefinitely. The investor may not sell, offer to
sell,
transfer or assign all or any portion of the Subscription Shares
or the
Consideration Shares unless those shares are registered pursuant
to the
Securities Act, or an exemption from registration is available, and
that
the Investor understands that the Company does not intend to register
those shares under the Securities Act. The Investor also understands
that
there is no assurance that any exemption from registration under
the
Securities Act will be available and that, even if available, such
exemption may not allow the Investor to transfer all or any portion
of the
Subscription Shares or the Consideration Shares in the amounts or
at the
times the Investor might propose.
|
|
(g)
|
the
Investor acknowledges and agrees that the Subscription Shares and
the
Consideration Shares are “restricted securities” within the meaning of
Rule 144 promulgated under the Securities Act. The
provisions of Rule 144 under the Securities Act may not be available
to
permit resales by the Investor and the Company has not covenanted
to take
any action necessary or appropriate to make any exemption for resales
of
those shares available.
|
|
(h)
|
the
Investor has not been offered the Subscription Shares or the Consideration
Shares by any form of general solicitation or general advertising,
including, but not limited to, any advertisement, article, notice
or other
communication published in any newspaper, magazine or similar media
or
broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by and general solicitation or general
advertising.
|
|
(i)
|
the
Investor is acquiring the Subscription Shares and the Consideration
Shares
without being furnished any offering literature or memorandum or
other
materials other than this Agreement and the Acquisition Agreement,
the
schedules and exhibits hereto and thereto, the publicly available
announcements and documents of the Company, each of which the Investor
has
carefully reviewed. The Investor has had the opportunity to ask questions
of, and receive answers from, the Company and its management regarding
the
Company and the terms and conditions of an investment in the Subscription
Shares and the Consideration Shares. In evaluating the suitability
of an
investment in the Company, the Investor has not relied on any
representations or other information (oral or written) other than
as set
forth in this Agreement or the Acquisition Agreement, the schedules
and
exhibits hereto and thereto, or the publicly available announcements
and
documents of the Company.
|
|
(j)
|
the
Investor acknowledges and agrees that each certificate representing
the
Subscription Shares and the Consideration Shares
issued to it will be endorsed with the following legend, in addition
to
any other legends required by applicable federal, state, local or
foreign
law:
|
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED OR THE APPLICABLE SECURITIES
ACT OF ANY STATE BUT HAVE BEEN ISSUED IN RELIANCE UPON EXEMPTIONS FROM
REGISTRATION CONTAINED IN SAID ACTS. NO SALE, OFFER TO SELL OR OTHER TRANSFER
OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE UNLESS A REGISTRATION
STATEMENT UNDER SAID ACTS IS IN EFFECT WITH RESPECT TO THE SECURITIES, OR AN
EXEMPTION FROM THE REGISTRATION PROVISIONS OF SUCH ACTS IS THEN IN
EFFECT.
10
| (k) |
no
United States or other agency of the United States or any state or
local
jurisdiction therein has reviewed or made any findings or determination
as
to the fairness of an investment in the Subscription Shares or the
Consideration Shares, nor recommended or endorsed an investment in
any of
those shares.
|
|
10
|
Assignment
|
This
Agreement shall be binding upon and shall enure for the benefit of the
successors of the parties hereto but, subject as may be otherwise expressly
provided in this agreement, shall not be assignable.
|
11
|
Whole
Agreement
|
This
agreement and any documents referred to in it, constitute the whole agreement
between the parties and supersede any arrangements, understandings or previous
agreements between them relating to the subject matter they cover.
|
12
|
Variation
and Waiver
|
|
12.1
|
Any
variation of this agreement shall be in writing and signed by or
on behalf
of the parties.
|
|
12.2
|
Any
waiver of any right under this agreement is only effective if it
is in
writing and it applies only to the party to whom the waiver is addressed
and to the circumstances for which it is given, and shall not prevent
the
party who has given the waiver from subsequently relying on the provision
it has waived.
|
|
12.3
|
A
party that waives a right in relation to one party, or takes or fails
to
take any action against that party, does not affect its rights in
relation
to any other party.
|
|
12.4
|
No
failure to exercise or delay in exercising any right or remedy provided
under this agreement or by law constitutes a waiver of such right
or
remedy or shall prevent any future exercise in whole or in part
thereof.
|
|
12.5
|
No
single or partial exercise of any right or remedy under this agreement
shall preclude or restrict the further exercise of any such right
or
remedy.
|
|
12.6
|
Unless
specifically provided otherwise, rights arising under this agreement
are
cumulative and do not exclude rights provided by
law.
|
|
13
|
Notice
|
|
13.1
|
A
notice given under this agreement:
|
|
(a)
|
shall
be in writing in the English language (or be accompanied by a properly
prepared translation into English);
|
|
(b)
|
shall
be sent for the attention of the person, and to the address or fax
number,
specified in Clause 13 (or such other address, fax number or person
as
each party may notify to the others in accordance with the provisions
of
Clause 13); and
|
|
(c)
|
shall
be:
|
|
(i)
|
delivered
personally; or
|
|
(ii)
|
sent
by fax; or
|
|
(iii)
|
sent
by pre-paid first-class post or recorded delivery;
or
|
11
|
(iv)
|
(if
the notice is to be served by post outside the country from which
it is
sent) sent by international
courier.
|
|
13.2
|
The
addresses for service of notice
are:
|
|
(a)
|
Company
|
|
(i)
|
address:
Xxx Xxxxx Xxxxx, Xxxxxx XX0X 0XX; with a copy to Suite 0000, Xxxxxxx
Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, Xxxx Xxxx,
|
|
(xx)
|
for
the attention of: Xxxx Xxxxxx/Xxxxx Xxx/Xxxxxx
Xxxxxxx
|
|
(iii)
|
fax
number: x00 000 000 0000 and x000 0000
0000
|
|
(b)
|
the
Investor
|
|
(i)
|
address:
0000 Xxxx Xxxxxxxxx Xxx, Xxxxx, Xxxxxxx 00000, XXX (attention Xxxxx
Xxxxxxx)
|
|
(ii)
|
fax
number: x0 000 000 0000
|
|
13.3
|
A
notice is deemed to have been
received:
|
|
(a)
|
if
delivered personally, at the time of delivery;
or
|
|
(b)
|
in
the case of fax, at the time of transmission;
or
|
|
(c)
|
in
the case of pre-paid first class post or recorded delivery, two Business
Days from the date of posting; or
|
|
(d)
|
in
the case of international courier, five Business Days from the date
of
posting; or
|
|
(e)
|
if
deemed receipt is not within business hours (meaning 9.00 am to 5.30
pm
Monday to Friday on a day that is not a public holiday in the place
of
receipt), when business next starts in the place of
receipt.
|
|
13.4
|
To
prove service, it is sufficient to prove that the notice was transmitted
by fax to the fax number of the party or, in the case of post, that
the
envelope containing the notice was properly addressed and
posted.
|
|
14
|
Counterparts
|
This
agreement may be executed in any number of counterparts, each of which is an
original and which together have the same effect as if each party had signed
the
same document.
|
15
|
Survival
of the Agreement
|
This
agreement (other than obligations that have already been fully performed)
remains in full force after the date of this agreement.
|
16
|
Successors
|
The
rights and obligations of the parties under this agreement shall continue for
the benefit of, and shall be binding on, their respective successors and
assigns.
|
17
|
Third
party rights
|
Except
as
expressly provided in this agreement a person who is not a party to this
agreement has no right under the Contracts (Rights of Third Parties) Xxx 0000
to
rely upon or enforce any term of this agreement but this does not affect any
right or remedy of a third party which exists or is available apart from that
Act.
12
|
18
|
Severance
|
|
18.1
|
If
at any time any provision of this agreement is or becomes illegal,
invalid
or unenforceable in any respect under the law of any jurisdiction
that
shall not affect or impair:
|
|
(a)
|
the
legality, validity or enforceability in that jurisdiction of any
other
provision of this agreement; or
|
|
(b)
|
the
legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this
agreement
|
|
18.2
|
Each
of the covenants and undertakings given by the parties in this agreement
is considered fair and reasonable by the parties. If any restriction
is
found to be unenforceable, but would be valid if any part of it were
deleted or the period or area of application reduced, the restriction
shall apply with such modifications as may be necessary to make it
valid
and enforceable.
|
|
19
|
Confidentiality
|
Each
of
the parties undertakes with each of the other parties to keep confidential
any
confidential information concerning the other parties which comes into its
possession during the term of this agreement and not to use any such information
for any purpose other than that for which it was provided or which is consistent
with the provisions of this agreement. The foregoing restrictions shall not
apply to the extent such information:
|
(a)
|
is
not, or could not reasonably be expected to be, confidential;
or
|
|
(b)
|
is
already in the public domain other than by reason of a breach of
this
Clause 19 (Confidentiality);
or
|
|
(c)
|
is
a bona fide disclosure of such
information:
|
|
(i)
|
to
the extent required by law or regulation to a court, governmental,
official or regulatory authority or to inspectors or others authorised
by
such an authority or by or under any legislation to carry out any
enquiries or investigation; or
|
|
(ii)
|
to
the employees or professional advisers of any party if it appears
necessary or reasonable for such persons to obtain the same for the
purposes of discharging their responsibilities under this agreement;
or
|
|
(iii)
|
in
connection with any proceedings arising out of or in connection with
this
agreement or otherwise between the parties, providing always that
the
disclosing party shall use all reasonable endeavours to procure that
any
information so disclosed is kept confidential by the person to whom
it is
disclosed.
|
|
20
|
Governing
law and jurisdiction
|
|
20.1
|
This
agreement and any dispute or claim arising out of or in connection
with it
or its subject matter shall be governed by and construed in accordance
with the law of England and Wales.
|
|
20.2
|
The
parties irrevocably agree that the courts of England and Wales shall
have
exclusive jurisdiction to settle any dispute or claim that arises
out of
or in connection with this agreement or its subject
matter.
|
This
agreement has been entered into on the date stated at the beginning of
it.
13
|
Signed by
For and on behalf of RESPONZETV
PLC
|
)
)
|
|
___________________________
Director
|
|
|
Signed by
For and on behalf of
OMNIRELIANT CORPORATION
|
)
)
)
|
|
___________________________
Xxxxx X. Xxxxxxx,
CEO
|
14
