Exhibit 10
CONFORMED COPY
SUBSCRIPTION
AGREEMENT
DATED 14 April, 2003
XXXXXX X. XXXXX
and
OHSEA HOLDINGS LIMITED
XXXXX & OVERY
London
CONTENTS
Clause Page
----
1. Interpretation..........................................................1
2. Subscription............................................................1
3. Completion..............................................................1
4. Notices.................................................................2
5. Further Assurances......................................................2
6. Assignments.............................................................2
7. General.................................................................2
8. Withholding for Tax.....................................................3
9. Whole Agreement.........................................................3
10. Governing Law...........................................................4
Schedules
1. The Subscription Shares.................................................5
2. Interpretation..........................................................6
THIS AGREEMENT is made on 14 April, 2003
BETWEEN:
(1) XXXXXX X. XXXXX of Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx, XX00 0XX (Xx Xxxxx);
and
(2) OHSEA HOLDINGS LIMITED (registered number 4493380) whose registered office
is at Marine Court, Xxx Xxxxxx, Xxxxx, Xxxx xx Xxxxx, XX00 0XX (the
Issuer).
BACKGROUND:
Xx Xxxxx proposes to subscribe for share capital of the Issuer on the terms and
subject to the conditions set out in this agreement.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 In addition to terms defined elsewhere in this agreement, the definitions
and other provisions in the schedule headed "Interpretation" apply
throughout this agreement unless the contrary intention appears.
1.2 In this agreement, unless the contrary intention appears, a reference to a
clause, subclause or schedule is a reference to a clause, subclause or
schedule of this agreement. The schedules form part of this agreement.
1.3 The headings in this agreement do not affect its interpretation.
2. SUBSCRIPTION
Xx Xxxxx shall subscribe for and the Issuer shall allot to him:
(a) those of the C Shares set out opposite his name in column (B) of the
schedule headed "The Subscription Shares" for the total subscription
price set out opposite his name in column (C) of that schedule; and
(b) those of the D Shares set out opposite his name in column (D) of the
schedule headed "The Subscription Shares" for the total subscription
price set out opposite his name in column (E) of that schedule,
in each case having the rights set out in the new articles of association
of the Issuer adopted on the date of this agreement.
3. COMPLETION
3.1 Completion shall take place at the offices of the Issuer's Solicitors
immediately after the signature of this agreement or at such other time and
on such other date as the parties may agree.
3.2 On Completion, Xx Xxxxx shall deliver to the Company the subscription
monies referred to in clause 2 in immediately available funds.
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3.3 Upon receipt of the subscription monies referred to in clause 3.2, a
meeting of the directors of the Issuer shall be held at or immediately
following which:
(a) the Subscription Shares shall be allotted to the Xx Xxxxx in
accordance with the provisions of the clause headed "Subscription";
(b) Xx Xxxxx'x name shall be entered in the register of members of the
Purchaser as the holders of the Subscription Shares allotted to him;
and
(c) the share certificates representing the Subscription Shares shall be
delivered to Xx Xxxxx or as he may nominate.
3.4 If for any reason Xx Xxxxx does not do or procure to be done all those
things set out in clause 3.2 to be done by him, the Issuer may elect (in
addition and without prejudice to all other rights or remedies available to
it) to rescind this agreement or to fix a new date for Completion.
4. NOTICES
4.1 Any notice or other formal communication given under this agreement must be
in writing and may be delivered or sent by post to the party to be served
at the address stated in this document or at such other address as it may
have notified to the other parties in accordance with this clause. Any
notice or other document sent by post shall be sent by prepaid first class
recorded delivery (if within the United Kingdom) or by prepaid airmail (if
elsewhere).
4.2 Any notice or other formal communication shall be deemed to have been
given:
(a) if delivered, at the time of delivery; or
(b) if posted, at 10.00 a.m. on the second Business Day after it was put
into the post.
4.3 In proving service of a notice or other formal communication, it shall be
sufficient to prove that delivery was made or that the envelope containing
the communication was properly addressed and posted, either by prepaid
first class recorded delivery post or by prepaid airmail.
5. FURTHER ASSURANCES
5.1 On or after Completion the parties shall, at their own cost and expense,
execute and do (or procure to be executed and done by any other necessary
party) all such deeds, documents, acts and things as may from time to time
be required in order to give full effect to this agreement.
6. ASSIGNMENTS
6.1 Except as permitted by this clause, none of the rights or obligations under
this agreement may be assigned or transferred without the consent of all
the parties.
7. GENERAL
7.1 The receipt of the Subscriber's Solicitors for any document to be delivered
to Xx Xxxxx shall discharge the Issuer's obligation to deliver it to Xx
Xxxxx.
7.2 Each of the obligations and undertakings set out in this agreement
(excluding any obligation which is fully performed at Completion) shall
continue in force after Completion.
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7.3 Time is not of the essence in relation to any obligation under this
agreement unless:
(a) time is expressly stated to be of the essence in relation to that
obligation; or
(b) one party fails to perform an obligation by the time specified in this
agreement and the other party serves a notice on the defaulting party
requiring it to perform the obligation by a specified time and stating
that time is of the essence in relation to that obligation.
7.4 Save as otherwise provided in this agreement each party shall pay the costs
and expenses incurred by it in connection with the entering into and
completion of this agreement.
7.5 This agreement may be executed in any number of counterparts. This has the
same effect as if the signatures on the counterparts were on a single copy
of this agreement.
7.6 The rights of each party under this agreement:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of rights and remedies provided by
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
7.7 A person who is not a party to this agreement may not enforce any of its
terms under the Contracts (Rights of Third Parties) Xxx 0000.
8. WITHHOLDING FOR TAX
8.1 The Issuer or Xx Xxxxx'x employing company may withhold any amount and make
the arrangements it reasonably considers necessary to meet any liability of
Xx Xxxxx to taxation or social security contributions in connection with
the rights of the Subscription Shares under article 6.3 or 6.5 of the
Issuer's articles of association as amended from time to time.
8.2 The arrangements referred to in clause 8.1 above may include the sale, on
behalf of Xx Xxxxx, of any Subscription Shares subscribed for by Xx Xxxxx
under this Agreement provided that:
(a) Xx Xxxxx has consented in writing to the sale (such consent not to be
unreasonably withheld); or
(b) the Issuer reasonably believes that the sale is necessary in order to
enable the Issuer or Xx Xxxxx'x employing company to comply with its
obligations to account for such taxation or social security
contributions to a taxation authority.
9. WHOLE AGREEMENT
9.1 This agreement and the Shareholders Agreement contain the whole agreement
between the parties relating to the transactions contemplated by this
agreement and supersede all previous agreements, whether oral or in
writing, between the parties relating to these transactions.
9.2 Each party acknowledges that in agreeing to enter into this agreement it
has not relied on any representation, warranty, collateral contract or
other assurance (except those set out in this agreement and the
Shareholders Agreement) made by or on behalf of any other party before
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the signature of this agreement. Each party waives all rights and remedies
which, but for this subclause, might otherwise be available to it in
respect of any such representation, warranty, collateral contract or other
assurance.
9.3 Nothing in the preceding subclause limits or excludes any liability for
fraud.
10. GOVERNING LAW
10.1 This agreement is governed by English law.
10.2 The English courts have exclusive jurisdiction to settle any dispute
arising out of or in connection with this agreement and the parties submit
to the exclusive jurisdiction of the English courts.
AS WITNESS this agreement has been signed by the parties (or their duly
authorised representatives) on the date stated at the beginning of this
agreement.
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SCHEDULE 1
THE SUBSCRIPTION SHARES
(C) (E)
(A) (B) Total (D) Total
Name and Number of C subscription Number of D subscription
address of Shares to be price for C Shares to be price for D
Subscriber subscribed Shares subscribed Shares
--------------- ------------ ------------ ------------ -------------
Xxxxxx X. Xxxxx 70,350 (pound)70.35 140,700 (pound)140.70
Xxxx Xxxxx,
Xxxxxxx,
Xxxxxxxxxxx,
XX00 0XX
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SCHEDULE 2
INTERPRETATION
1. In this agreement:
Business Day means a day (other than a Saturday or Sunday) on which banks
are generally open in London for normal business;
Completion means the implementation of the matters described in clauses 3.2
and 3.3;
C Shares means C ordinary shares of 0.1 xxxxx each in the capital of the
Purchaser;
D Shares means D ordinary shares of 0.1 xxxxx each in the capital of the
Purchaser;
Issuer's Solicitors means Xxxxx & Overy of Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX;
Shareholders Agreement means the shareholders agreement relating to the
Purchaser dated the same date as this agreement among, inter alia, CS
Services Limited and the Purchaser;
Subscriber's Solicitors means Xxxxxxx Xxxxxx of 2 Temple Xxxx Xxxx, Xxxxxx
Xxxx, Xxxxxxx XX0 0XX;
Subscription Shares means those C Shares and D Shares to be subscribed by
Xx Xxxxx in accordance with the clause headed "Subscription"; and
subsidiary means a subsidiary for the purposes of the Companies Xxx 0000.
2. Any express or implied reference to an enactment (which includes any
legislation in any jurisdiction) includes references to:
(a) that enactment as amended, extended or applied by or under any other
enactment before or after the date of this agreement;
(b) any enactment which that enactment re-enacts (with or without
modification); and
(c) any subordinate legislation (including regulations) made (before or
after signature of this agreement) under that enactment, as
re-enacted, amended, extended or applied as described in paragraph (a)
above, or under any enactment referred to in paragraph (b) above.
3. In this agreement:
(a) words denoting persons shall include bodies corporate and
unincorporated associations of persons;
(b) references to an individual include his estate and personal
representatives.
(c) subject to the clause headed "Assignments", references to a party to
this agreement include references to the successors or assigns
(immediate or otherwise) of that party.
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Signed by XXXXXX X. XXXXX ) /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
Signed by Xxxxxx Xxxxxx ) /s/ Xxxxxx Xxxxxx
for and on behalf of ) -----------------------------------
OHSEA HOLDINGS LIMITED ) Name: Xxxxxx Xxxxxx
Title: Director
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