DATED 31 MARCH 2000
MICHAEL JOHN NEAME (1)
and
MARTIN CLARKE (2)
and
24STORE.com LIMITED (3)
and
INFINICOM AB (4)
and
SCOOP, INC. (5)
- --------------------------------------------------------------------------------
DEED OF SUBSCRIPTION, AMENDMENT AND RELEASE
in respect of:
(i) a share sale and purchase agreement
(ii) a loan note instrument; and
(iii) a legal charge over shares
- --------------------------------------------------------------------------------
White & Case
7-11 Moorgate
London
EC2R 6HH
Tel: 020 7726 6361
Fax: 020 7726 4314
Ref: GJH
THIS DEED is made on 31 March 2000.
BETWEEN:
(1) MICHAEL JOHN NEAME of 44 Pyotts Copse, Old Basing, Basingstoke, Hants
RG24 8WE;
(2) MARTIN CLARKE of Kingston, Reading Road North, Fleet, Hants GU13 8HR
(together "the Vendors");
(3) 24STORE.com LIMITED a company incorporated in England with its
registered address at Cyberia House, Church Street, Basingstoke,
Hampshire RG21 7QN and registered number 3605559 ("the Purchaser");
(4) INFINICOM AB a company incorporated in Sweden with registered number
556448-8194 whose registered office is situated at Gustavslundsvagen
151E, S-167 51, Bromma, Sweden ("Infinicom"); and
(5) SCOOP, INC a corporation organised and existing under the laws of the
State of Delaware, USA ("Scoop").
RECITALS:
(A) LapLand U.K. Limited ("Lapland") was incorporated in England on 9 July
1990 under the Companies Act 1985 with registered number 02520180, is a
private company limited by shares and has an authorised share capital
of 50,000 Pounds Sterling divided into 50,000 ordinary shares of 1
Pounds Sterling each, all of which have been issued or allotted and are
fully paid.
(B) Mobile Planet Limited ("Mobile") was incorporated in England on 14
February 1992 under the Companies Act 1985 with registered number
02687500, is a private company limited by shares and has an authorised
share capital of 5,000 Pounds Sterling divided into 5,000 ordinary
shares of 1 Pounds Sterling each, all of which have been issued or
allotted and are fully paid.
(C) Cyberia (UK) Limited ("Cyberia") was incorporated in England on 24
September 1997 under the Companies Act 1985 with registered number
03438944, is a private company limited by shares and has an authorised
share capital of 2,000 Pounds Sterling each divided into 2,000 ordinary
shares of 1 Pounds Sterling each 2 of which have been issued or
allotted and are fully paid.
(D) On 18 September 1998, the Vendors agreed to sell the Sale Shares to
Infinicom, which agreement was rescinded by the Vendors on 1 April
1999, when the Vendors exercised their rights under a legal charge
dated 2 December 1998.
(E) Pursuant to a share sale and purchase amendment agreement between the
parties hereto (except Scoop) dated 6 May 1999 (the "1999 SPA"), the
Vendors subsequently sold and the Purchaser acquired the entire issued
share capital in the Companies in accordance with the terms and
conditions of the 1999 SPA.
(F) On 6 May 1999, Infinicom and the Purchaser also executed as a deed an
instrument constituting up to 1,750,000 Pounds Sterling 10% secured
loan notes issued by the Purchaser (which together with any schedules
and supplemental instruments thereto shall be referred to herein as the
"1999 Loan Note Instrument") under which the Vendors are at the date
hereof the sole Noteholders (as defined in the 1999 Loan Note
Instrument).
(G) On 6 May 1999, each of the Vendors and the Purchaser also entered into
a Legal Charge over Shares (the "1999 Legal Charge"), whereby, inter
alia, certain amounts from time to time owing to the Vendors under the
1999 Loan Note Instrument were agreed to be secured in favour of the
Vendors.
(H) The parties hereto have agreed, inter alia, (i) to amend certain
provisions of the 1999 SPA, (ii) to release all rights and obligations
under the 1999 Loan Note Instrument in consideration for new
undertakings set out herein and in the Option Agreements, (iii) to
release the provisions of the 1999 Legal Charge and (iv) to effect the
allotment of certain securities in the capital of the Purchaser and of
Scoop (respectively), in each case in accordance with the terms set out
below.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Terms used in this Deed have the same meanings and construction as set
out in the 1999 SPA, save where otherwise defined herein or where the
context requires otherwise.
1.2 Notwithstanding the above Clause 1.1, in this Deed the following
definitions are used:
"1999 Documents" means the 1999 SPA, the 1999 Loan Note
Instrument and the 1999 Legal Charge,
all of them and each of them as the
context admits.
"Authorisation Documents" means those resolutions and other
documents listed and set out at Exhibit
D (Authorisation Documents).
"Debt Obligations" means the debt obligations of the
Purchaser, details of which are set out
in Exhibit C.
"Effective Date" means such time on the date hereof (and
not later than the date hereof) when all
of the resolutions of the Boards of
Directors, resolutions of Shareholders
and other actions and authorisations of
the respective companies and
corporations set out in the
Authorisation Documents have been
effected.
"Option Agreements" means each of the option agreements set
out at Exhibit B to be entered into
pursuant to Clause 2.3.2(iv).
"Purchaser's Solicitors" means White & Case of Basildon House,
7-11 Moorgate, London EC2R 6HH
"Scoop Subscription
Agreement" means the agreements for the
subscription of shares of common stock
in Scoop, as set out in Exhibit E (Scoop
Subscription Agreements), all of them
and each of them as the context admits.
1.3 The designations adopted in the recitals and introductory statements
preceding this clause apply throughout this Deed and its Exhibits.
1.4 Save as specifically provided in this Agreement, the provisions of Part
I of the Law of Property (Miscellaneous Provisions) Act 1994 shall not
apply to this Agreement.
2. AMENDMENT AND RESTATEMENT
2.1 Agreement and consent to amendments
2.1.1 Each party to each agreement or deed, as the case may be,
referred to in Clause 2.2 (1999 SPA) to Clause 2.4 (1999 Legal
Charge) (inclusive) agrees that the amendments to or release
of the terms under that agreement or deed, as the case may be,
specified in the relevant clause shall be made.
2.1.2 The parties to this Deed agree that, with effect from the
Effective Date, references in a 1999 Document to any 1999
Document amended, modified, waived and/or supplemented by this
Deed shall be deemed to be references to that 1999 Document
(and to any definition contained therein) as amended, modified
and/or supplemented by this Deed.
2.2 1999 SPA
2.2.1 With effect on and from the Effective Date, the 1999 SPA shall
be amended as described in Exhibit A (Amendments to the 1999
SPA).
2.2.2 In addition, the Vendors, the Purchaser and Infinicom hereby
agree and confirm that the Purchaser has previously complied
with all of its duties and obligations set out in Clauses 3.1
and 5.1 of the 1999 SPA (as amended hereby), as required
therein, which accordingly have been satisfied in full.
2.3 1999 Loan Note Instrument
2.3.1 With effect on and from the Effective Date and in
consideration for the undertakings given in Clause 2.3.2
below, all rights, benefits, interests and claims together
with all debts, obligations and liabilities otherwise accruing
to or owing by the parties thereto under the 1999 Loan Note
Instrument shall be released with the result that the 1999
Loan Note Instrument shall be of no further force and effect.
2.3.2 In consideration for the release of the rights and obligations
set out in Clause 2.3.1 above, in each case upon the Effective
Date:
(i) the Purchaser undertakes to pay to the Vendors in
aggregate the sum of 851,506 Pounds Sterling in cash
(which obligation shall be satisfied upon the giving
of confirmation by the Purchaser's Solicitors that
they hold such money to the order of the Vendors);
(ii) the Purchaser undertakes to allot to Scoop 4,200,000
ordinary shares of 10 pence each in the share capital
of the Purchaser, credited as fully paid;
(iii) Scoop undertakes to allot to each of the Vendors
4,953,455 shares of common stock, par value US$0.001
per share, in the capital of Scoop, credited as fully
paid which shall be allotted upon the terms set out
in the Scoop Subscription Agreements marked Annex 1
and Annex 2, each of which has been executed by the
respective parties thereto (but not dated) and which
shall be dated the Effective Date; and
(iv) Infinicom and the Vendors undertake to enter into
their respective Option Agreements in the form set
out at Exhibit B (Option Agreements) in relation to
the shares in Scoop allotted pursuant to Clause
2.3.2(iii) above, each of which has been executed by
the respective parties thereto (but not dated) and
which shall be dated the Effective Date.
2.4 1999 Legal Charge
Further to the release of all rights and obligations under the 1999
Loan Note Instrument under Clause 2.3.1 above, the parties to the 1999
Legal Charge shall upon the Effective Date release any and all duties
and obligations which would otherwise be owing to each of them and
relinquish all rights and benefits which would otherwise be accruing to
each of them under the 1999 Legal Charge, which as of the Effective
Date shall be of no further force and effect.
3. TRANSFER OF DEBT OBLIGATIONS BY THE PURCHASER
3.1 In each case upon the Effective Date:
(i) the Purchaser shall give notice to Infinicom to transfer the
Debt Obligations to Scoop;
(ii) Infinicom shall give its full consent to such transfer of
such Debt Obligations; and
(iii) Scoop shall accept such Debt Obligations transferred to it
by the Purchaser, in consideration for the undertaking set
out in Clause 3.2 below.
3.2 In consideration for the transfer to and assumption by Scoop of the
Debt Obligations pursuant to Clause 3.1 above, the Purchaser undertakes
to allot to Scoop on the Effective Date 16,142,972 ordinary shares of
10 pence each in the capital of the Purchaser, credited as fully paid.
3.3 Infinicom hereby agrees to release, upon the Effective Date, all
amounts (including for the avoidance of doubt principal, interest and
otherwise) owing to it by Scoop under the Debt Obligations (which shall
previously have been transferred on the Effective Date to Scoop by the
Purchaser under Clause 3.1 above) in consideration for the allotment by
Scoop to Infinicom of 7,819,217 shares of common stock, par value
US$0.001 per share of Scoop, credited as fully paid, which shares Scoop
undertakes to allot to Infinicom on the Effective Date, which shall be
allotted upon the terms set out in the Scoop Subscription Agreement
marked Annex 3, which has been executed by the parties thereto (but not
dated) and which shall be dated the Effective Date.
4. SUBSCRIPTIONS
4.1 Upon the Effective Date:
(i) Infinicom undertakes to apply to Scoop for the allotment to it
by Scoop of 965,132 shares of common stock, par value US$0.001
per share of Scoop, credited as fully paid, at a subscription
price of US$1.938 per such share in Scoop, which shall be
allotted upon the terms set out in the Scoop Subscription
Agreement marked Annex 3, which has been executed by the
parties thereto (but not dated) and which shall be dated the
Effective Date; and
(ii) Scoop undertakes to allot to Infinicom all the shares in Scoop
referred to in Clause 4.1(i) above upon receipt of the sum of
US$1,870,426 in cash in the Dollar Client Deposit Account of
White & Case at National Westminster Bank plc, City of London
Office, 1 Princes Street, London EC2R 8PA, Sort Code 60-00-01,
Account number 140-1-04038851.
4.2 Upon the Effective Date:
(i) Scoop undertakes to apply to the Purchaser for the allotment
to it by the Purchaser of 4,308,580 ordinary shares of 10
pence each in the capital of the Purchaser, credited as fully
paid, at a subscription price of 25 pence per such share in
the Purchaser; and
(ii) the Purchaser undertakes to allot to Scoop all the shares in
the Purchaser referred to in Clause 4.2(i) above upon receipt
of the sum of US$1,695,426 (sterling equivalent 1,077,145
Pounds Sterling) in cash in the Dollar Client Deposit Account
of White & Case at National Westminster Bank plc at the
address stated above, Sort Code: 60-00-01, Account number:
140-1-04038851 who will hold such monies to the order of the
Purchaser.
4.3 Upon the Effective Date, the Purchaser undertakes to apply to its
wholly owned subsidiary 24 IT AS, a company incorporated under the laws
of Norway ("24 IT"), for the allotment to it by 24 IT of 4,500 ordinary
shares of 100 NOK each in the capital of 24 IT, credited as fully paid,
at a subscription price of 250 NOK per such share in 24 IT and the
Purchaser further undertakes on the Effective Date or as soon as
required thereafter to make payment to 24 IT in cash, as above, for the
allotment to it of such shares on the Effective Date, upon completion
of such allotment.
5. LIABILITY
Where in this Deed any liability is undertaken by two or more persons
together, the liability of each of them will be joint and several.
6. PROVISIONS RELATING TO THIS DEED
In relation to its subject-matter, this Deed together with the agreed
drafts represents the entire understanding, and supersedes any previous
agreement, between the parties.
7. COSTS
The Purchaser shall bear the reasonable professional expenses of each
of the Vendors incurred in agreeing and documenting this Deed.
8. MISCELLANEOUS
8.1 The provisions of Clauses 12 (Notices) and 13 (Counterparts) of the
1999 SPA shall apply to this Deed as if set out herein in full, mutatis
mutandis, except that any reference in any such clauses to "this
Agreement" shall be deemed instead to be a reference to "this Deed".
8.2 In addition, the provisions for notices in relation to Scoop shall be
as follows:
Scoop, Inc.
c/o Cyberia House,
Church Street,
Basingstoke,
Hampshire RG21 7QN
FAO: Chairman of the Board of Directors
Tel: +44 (0) 1256 867 800
Fax: +44 (0) 1256 867 734
and the provisions for notices in relation to Infinicom shall be as
follows:
InfiniCom AB
Gustavslundsvagen 151E,
S-167 51,
Bromma,
Sweden
FAO: Chairman of the Board of Directors
Tel: + 46 (0)8 634 1570
Fax: + 46 (0)8 634 1583
8.3 The terms of this Deed shall insofar as not performed on the Effective
Date and subject as specifically otherwise provided in this Deed
continue in force after and notwithstanding the occurrence of the
Effective Date.
8.4 If at any time any one or more of the provisions hereof is or becomes
invalid, illegal or unenforceable in any respect under any law, the
validity, legality and enforceability of the remaining provisions
hereof shall not be in any way affected or impaired thereby.
9. EXECUTION AS A DEED
Each of the parties to this Deed intends it to be a deed and confirms
that it is executed and delivered as a deed, in each case
notwithstanding the fact that any one or more of the parties may only
execute this Deed under hand.
10. FURTHER ASSURANCES
Each party to this Deed agrees to execute all such documents and do all
such other acts and things as may reasonably be considered necessary or
desirable to give full effect to this Deed.
11. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law. The parties hereto submit to the non-exclusive
jurisdiction of the English courts.
IN WITNESS of which the parties have executed this Deed the day and year
written above.
EXECUTED AND DELIVERED AS A DEED ) /s/ Michael John Neame
by MICHAEL JOHN NEAME ) ----------------------
in the presence of: ) Director
Witness signature: /s/ Alexander G. Preshaw
------------------------
Address: Wolverton Court
Basingstoke
Hampshire
Occupation: Solicitor
EXECUTED AND DELIVERED AS A DEED ) /s/ Martin Clarke
by MARTIN CLARKE ) -----------------
in the presence of: )
Witness signature: /s/ Alexander G. Preshaw
------------------------
Address: Wolverton Court
Basingstoke
Hampshire
Occupation: Solicitor
EXECUTED AND DELIVERED AS A DEED ) /s/ Larsake Sandin
for and on behalf of INFINICOM AB ) ----------------------
in the presence of: ) Director
Witness signature: /s/ Angela Yvonne Turner
------------------------
Address: Nerja Villas
C. Comercial Local 3A "El Capistrano Villaje"
29780 Nerja (Malaga)
Spain
Occupation: Company Director
EXECUTED AND DELIVERED AS A DEED )
for and on behalf of 24STORE.com LIMITED )
in the presence of: ) /s/ Larsake Sandin
------------------
Director
Witness signature: /s/ Angela Yvonne Turner
------------------------
Address: Nerja Villas
C. Comercial Local 3A "El Capistrano Villaje"
29780 Nerja (Malaga)
Spain
Occupation: Company Director
/s/ Michael John Neame
----------------------
Director
Witness signature: /s/ R Woodward
--------------
Address: Zennor,
Cherry Tree Walk,
Rowledge,
Surrey
Occupation: Finance Director
EXECUTED AND DELIVERED AS A DEED )
for and on behalf of SCOOP, INC. )
in the presence of: ) /s/ Larsake Sandin
------------------
Director
Witness signature: /s/ Angela Yvonne Turner
------------------------
Address: Nerja Villas
C. Comercial Local 3A "El Capistrano Villaje"
29780 Nerja (Malaga)
Spain
Occupation: Company Director
Exhibit A to the Deed of Subscription, Amendment and Release
Amendments to 1999 SPA
Clause 5.1 (Purchaser's Obligations) shall be amended to read as follows:
"5. PURCHASER'S OBLIGATIONS
5.1 Forthwith upon execution of this Agreement the Purchaser shall apply
for the issue of the total 475,000 Consideration Shares referred to in
Clause 3.1(c) to the Vendors on Completion and, in exchange for the
documents listed in Clause 4, the Purchaser shall deliver to the
Vendors:
(a) evidence, satisfactory to the Vendors, that the
above-mentioned 475,000 in aggregate Infinicom B Shares, have
been issued to them by Infinicom fully paid and are being held
by Fischer Partners Fondkommission AB to their order (it being
acknowledged by the parties hereto that the 225,000 Infinicom
B Shares referred to in Clause 3.1(b) have previously been
allotted and issued in satisfaction of Clause 3.1(b)).
(b) secured convertible loan notes in the sum of L1,750,000
in the agreed form;
(c) a legal charge in the agreed form duly executed by it."
Exhibit C to the Deed of Subscription, Amendment and Release
Debt Obligations
All amounts owing (by way of principal, interest and otherwise) under:
1. Loan Note issued by the Purchaser in favour of Infinicom dated 9 April 1999
in the principal amount of US$2,368,000.
2. Loan Note issued by the Purchaser in favour of Infinicom dated 9 April 1999
in the principal amount of US$1,581,000.
3. Loan Note issued by the Purchaser in favour of Infinicom dated 6 May 1999
in the principal amount of SEK 16,300,000 (equivalent to US$1,870,425).
4. Intercompany transactions, not documented by a Loan Note
funds from E. Bakke -$25,000.00
funds from Zygo Corp -$10,000.00
funds from Ronald Rotter -$25,000.00
funds from Robert Antin -$100,000.00
funds from James Folin -$49,975.00
payment of $1998.45 to InfiniCom AB $1,998.45
payment of 32178.21 Pounds Sterling to
InfiniCom AB $32,178.21
payment of 4805.23SEK/599.15 USD to
CIS Credit Insurance Services $599.15
payment of 4609.13 SEK/574.70 USD to Tele2 $574.70
payment of 154412.00SEK/19253.36 USD to
Krono $19,253.36
payment of 190000.00SEK/23690.77 USD to
Michelson and Werner $23,690.77 (equivalent to
creditor per 24STORE.com Limited $131,680.36 $131,680 83,835 Pounds Sterling)
5. Interest due on Loan Notes
$2,368,000 Loan Note of 9th April 1999 US$ 164,592
$1,581,000 Loan Note of 9th April 1999 US$ 109,890 (equivalent to
16,300,000 SEK Loan Note of 6th May 1999 SEK 987,825 $387,835 246,919 Pounds Sterling)
TOTAL AMOUNTS PAYABLE TO INFINICOM AB, (equivalent to
BY 24STORE.COM LTD 15TH MARCH 2000 $6,338,941 4,035,743 Pounds Sterling)
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