1
Exhibit 2.1
SHARE PURCHASE AGREEMENT
BY AND BETWEEN
EUROPEAN DIGITAL PARTNERS LTD
FOUNDERS
QINO FLAGSHIP LTD
ALPHA VENTURE CAPITAL FUND MANAGEMENT S.A.
AND OTHERS
AND
SIGNALSOFT CORPORATION
2
Share Purchase Agreement - mobilePosition
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT is made and entered into on 25 May 2001 by and
between
(1) The persons set out in Schedule A, hereinafter jointly referred to as
"Founders";
(2) European Digital Partners Ltd, a company duly incorporated and
organised under the laws of Island of Jersey, having its principal
place of business at Xx. Xxxxx Xxxx, Xxx Xxxxxx, Xx. Xxxxxx, Xxxxxx,
XX0 0XX, hereinafter referred to as "EDP";
(3) Qino Flagship Ltd, a company duly incorporated and organised under the
laws of St. Xxxxxxx, having its principal place of business at Trust
House, 112 Bonadie Street, Kingstown, St. Xxxxxxx, hereinafter referred
to as "Qino";
(4) Alpha Venture Capital Fund Management S.A., a company duly incorporated
and organised under the laws of Luxembourg, having its principal place
of business at 00, xxx Xxxxxxxxx Xxxxxxxxx, X-0000 Xxxxxxxxxx,
Xxxxxxxxxx, hereinafter referred to as "Alpha";
(5) The persons and entities, duly incorporated and organised under their
respective laws, set out in Schedule B hereinafter jointly referred to
as "Other Shareholders";
on the one side, and,
(6) SignalSoft Corporation, a Delaware corporation, having its principal
place of business at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxx, XX 00000 XXX,
hereinafter referred to as the "Purchaser", on the other side.
The parties under (1) - (5) above are hereinafter jointly referred to
as the "Sellers" or individually a "Seller".
The Parties under (2) - (4) above are hereinafter jointly referred to
as the "Financial Shareholders" or individually a "Financial
Shareholder".
WHEREAS;
A. The Sellers are the holders of not less than 90.1 per cent of the
issued and outstanding shares, each having a par value of SEK 0.1, in
mobilePosition AB, registration number 556574-9214, a company duly
incorporated and organised under the laws of Sweden, hereinafter
referred to as the "Shares" and the "Company", respectively.
B. The Shares are held by the Sellers as set out in Schedule C.
-2-
3
Share Purchase Agreement - mobilePosition
C. The Company is engaged in the business of developing location based
applications and technical solutions for location positioning services,
hereinafter referred to as the "Business".
D. The Sellers are desirous of selling to the Purchaser and the Purchaser
is desirous of purchasing from the Sellers, subject to the terms and
conditions contained herein, all of the Shares;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings set
forth herein and in the Schedules hereto, the parties agree as follows:
1. DEFINITIONS
In this Agreement, the following terms and expressions shall have the
following meanings and the terms and expressions defined elsewhere in
other sections of this Agreement shall have the meaning ascribed to
them herein:
"Accounting Principles" means the accounting principles
consistently applied by the Company
and in accordance with applicable law
and generally accepted accounting
principles in Sweden (Sw. god
redovisningssed);
"Accounts" means (i) the audited
consolidated balance sheet and
the audited profit and loss
account of the Company for the
financial year ended June 30,
2000, (ii) the consolidated
balance sheet and profit and
loss account of the Company as
of Xxxxx 00, 0000, (xxx) the
consolidated balance sheet and
profit and loss account of the
Company as of May 22, 2001, and
(iv) the balance sheet and
profit and loss account of each
Subsidiary as of May 22, 2001,
all prepared in accordance with
the Accounting Principles;
"Agreement" means this Share Transfer Agreement,
all schedules and exhibits attached
hereto and documents delivered
pursuant hereto, each of which
constitutes an integral part of this
Agreement;
"Business" shall have the meaning set out in the
introductory paragraph (C) above;
"Closing" means the consummation and completion
of the sale and purchase of the Shares
at the Closing Date in accordance with
the provisions of Section 5 hereof;
-3-
4
Share Purchase Agreement - mobilePosition
"Closing Balance Sheet means May 22, 2001;
Date"
"Closing Date" means May 25, 2001, or such other date
as the Parties may agree in writing;
"Company" means mobilePosition AB, registration
number 556574-9214, a company
incorporated in Sweden and having its
registered office at Xxxxxxxxxxxxx 00,
000 00 Xxxxx;
"Company's Payables" means the Company's debts to the
Sellers and the Sellers Group listed
in Schedule 1.1;
"Consideration Shares" shall have the meaning set out in
Section 3.1;
"Directors" means the board members, deputy board
members and managing directors on the
date hereof of the Company;
"Escrow Account" means the escrow account established
with the Escrow Agent pursuant to the
Escrow Agreement as set forth in
Schedule 4(f);
"Escrow Agent" means Bank One Trust Company N.A.;
"Escrow Agreement" means the escrow agreement to be
entered into as of the Closing Date
between the Sellers, the Purchaser and
the Escrow Agent as set out in
Schedule 4 (f);
"Escrow Shares" means the Consideration Shares
described in Section 4;
"Financial Shareholder/s" shall have the meaning set out in the
introductory paragraph above;
"Financial Shareholders' shall mean the knowledge, information,
Knowledge" belief or awareness awareness which
the representatives of the Financial
Shareholders on the board of
directors of the Company
(namely, Xxxx Xxxxxxxxx for EDP,
Gerhald B. Horhan for Qino and
Xxxxxx X. Xxxxxxxxx for Alpha)
actually have or would have at
Closing having reviewed their
files and having made inquiries
in accordance with their
obligations under the Swedish
Companies Act as Directors of
the Company;
-4-
5
Share Purchase Agreement - mobilePosition
"Founders" shall have the meaning set out in the
introductory paragraph above;
"Intellectual Property" means, whether registered or not,
trade secrets, patents, trade marks,
copyrights (including rights in
computer software), source
codes, rights in designs, trade
and business names, database
rights, domain names and all
other intellectual property or
other rights or forms of
protection of a similar nature
(including rights under licenses
and consents in relation to any
of the foregoing), and all
registrations, applications to
register and rights to apply for
registrations for any of the
foregoing in any country;
"Key Management" means Founders and Johan Othelius,
Xxxx Xxxxxxx, Xxxxxxxxxxx Xxxxxxx,
Xxxx Xxxxxxx and Mats Xxxxxxxxx;
"Know-How" means all designs, manufacturing and
production data, specifications,
procedures, customer lists, formulae
and other technical and marketing
information which are used in the
Business by the Company;
"Loss/es" means any claims, losses,
damages, liabilities and
expenses incurred by the
Purchaser and/or the Company
(including, without limitation,
settlement costs and any
reasonable legal, accounting and
other expenses for investigation
or defending any actions or
threatened actions) for which
recovery is able to be sought
from the Sellers pursuant to the
terms of this Agreement;
"Market Value" shall equal the average of the closing
prices for shares of the Purchaser's
Common Stock, as adjusted to reflect
any stock splits, stock dividends,
stock combinations, reclassifications
or recapitalizations after the
Closing Date, on NASDAQ for the thirty
(30) consecutive trading days ending
two (2) trading days prior to the
relevant date;
"Material Agreements" means each agreement and other
undertaking by or to the Company,
which is material to its Business;
"Party" means either any of the Sellers or the
Purchaser;
"Parties" means the Sellers and the Purchaser;
-5-
6
Share Purchase Agreement - mobilePosition
"Purchaser's Common has the meaning set forth in Section
Stock" 12;
"Real Property" means any real property owned or
leased by the Company and listed in
Schedule 6.9.1;
"Other Shareholders" shall have the meaning set out in the
introductory paragraph above;
"Seller/s" shall have the meaning set out in the
introductory paragraph above;
"Sellers Group" means the subsidiaries of the Sellers,
the shareholders of the Sellers and
the subsidiaries of such shareholders
(other than the Company);
"Seller's Representative" shall mean Xxxxxx Ekerborn for the
Founders, Torbjorn Hultsberg for the
Financial Shareholders and Niclas
Johansson for the Other Shareholders;
"Shares" means all issued and outstanding
shares of the Company;
"Subsidiaries" means mobilePosition Incentive AB,
registration number 556590-3746, a
company incorporated in Sweden, and
mobilePosition (UK) Ltd, company
number 4054463, a company incorporated
in England, and "Subsidiary" means any
of them;
"Taxes" means all direct and indirect
taxes and charges, social
security fees, fees, duties and
other assessments (including,
but not limited to, any income
tax (whether actual or deemed),
sales tax, use tax, transfer
tax, transaction tax, investment
tax, capital tax, real property
tax, gift tax, value added tax,
withholding tax, employment tax,
asset holding tax or
registration tax and deferred
taxes) wherever arising,
together with any interest,
penalties, residual tax charges
or addition to tax;
"Warrants" means all outstanding warrants to
subscribe for new shares in the
Company.
-6-
7
Share Purchase Agreement - mobilePosition
2. SALE AND PURCHASE OF SHARES
2.1 Each of the Sellers agrees to sell all of its shares in the
Company to the Purchaser and the Purchaser agrees to purchase
from each of the Sellers on the Closing Date the shares (and
all of the Sellers' respective rights therein) set out
opposite the respective Seller's name in Schedule C, free and
clear of any preferential rights, pledges, liens, security
interests, claims, charges and encumbrances of any type
whatsoever, upon the terms and subject to the conditions, and
in reliance on the representations, warranties and covenants
as set forth in this Agreement.
2.2 The consummation of the purchase and sale of the Shares will
transfer to the Purchaser the Company as a going concern with
all of the assets, properties and rights owned, licensed or
leased by the Company of every type and description, and used
in the operation and conduct of the Business as of the Closing
Date.
2.3 Except as otherwise provided for herein, the obligations of
each of the Founders, the Financial Shareholders and the Other
Shareholders under this Agreement shall be fulfilled as
follows:
(a) the Founders shall be jointly and severally liable
for their obligations;
(b) the Financial Shareholders shall be jointly and
severally liable for their obligations; and
(c) the Other Shareholders shall be severally liable for
their obligations.
2.4 The Sellers hereby waive all rights of pre-emption over the
Shares.
3. PURCHASE PRICE AND CONSIDERATION
3.1 In consideration of the sale of the Sellers' shares in the
Company to the Purchaser and the covenants and agreements made
by the Sellers herein and subject to the terms and conditions
of this Agreement, the Purchaser shall issue to the Sellers
and each Seller shall subscribe for unregistered shares of
Purchaser's Common Stock, hereinafter referred to as the
"Consideration Shares", in the number and to each Seller as
set out in Schedule 3.1. In addition to Consideration Shares,
the Founders will receive the cash amounts set
out in Schedule 3.1.
3.2 The Consideration Shares shall be duly and validly issued,
fully paid and non assessable and issued in accordance with
all applicable legal requirements.
-7-
8
Share Purchase Agreement - mobilePosition
4. ESCROW
4.1 As security for any and all claims in relation to the
representations, warranties and covenants contained in this
Agreement, ten per cent (10%) of the Consideration Shares,
being a total of 133,110 shares of Purchaser's Common Stock
(the "Escrow Shares") shall be deposited with the Escrow Agent
as set forth in the Escrow Agreement, which shall be entered
into at the Closing Date, and in accordance with the
provisions of Section 8.3 hereof.
4.2 In addition, in the event Sellers deliver at least 90.1% of
the issued and outstanding Shares, but less than all of the
issued and outstanding Shares, at Closing, as partial security
for any and all claims in relation to Sellers' liability
pursuant to Section 9.2 below, an additional one percent (1%)
of the Consideration Shares, being a total of 13,310 shares of
the Purchaser's Common Stock shall be deposited with the
Escrow Agent as set forth in the Escrow Agreement, which shall
be entered into at the Closing Date, and in accordance with
the provisions of Section 8.3 hereof.
5. CLOSING
5.1.1 The obligation of the Purchaser to consummate the purchase of
the Shares is subject to the due and satisfactory fulfilment
of all of the Sellers' obligations to (i) transfer at least
90.1% of the issued and outstanding shares of the Company to
the Purchaser and (ii) deliver all Warrants duly endorsed in
favour of the Purchaser, all free and clear of any
preferential rights, pledges, liens, security interests,
claims, charges and encumbrances of any type whatsoever, at
Closing.
5.1.2 The obligation of the Sellers to consummate the sale and
purchase of the Shares is subject to the due and satisfactory
fulfilment of the Purchaser's obligation to issue the
Consideration Shares to the Sellers, free and clear of any
preferential rights, pledges, liens, security interests,
claims, charges and encumbrances of any type whatsoever, other
than transfer restrictions under applicable securities laws
and restrictions contained in the Escrow Agreement or as
otherwise provided in this Agreement, at Closing.
5.2 The Closing shall take place on the Closing Date at the
offices of Advokatfirman Xxxxx in Stockholm. On the Closing
Date the Parties shall, unless waived by the Sellers on the
one side and by the Purchaser on the other side (in each case
in writing), do or procure to be done the following:
(a) the Sellers shall procure duly executed transfers in
favour of the Purchaser or its nominee and shall
deliver such duly executed transfers to the Purchaser
and to each Seller's VP account operating institute
(Sw. kontoforande institut) together with
instructions to such institute to immediately
effectuate the transfer of all Shares, free and clear
of all preferential rights, liens, security
interests, claims,
-8-
9
Share Purchase Agreement - mobilePosition
charges and encumbrances of any type whatsoever, to a
VP account in the Swedish VPC System designated by
the Purchaser;
(b) the Sellers shall deliver to the Purchaser all
certificates evidencing the Warrants duly endorsed in
favour of the Purchaser, free and clear of all
preferential rights, liens, security interests,
claims, charges and encumbrances of any type
whatsoever;
(c) to the extent required by the Purchaser, the Sellers
shall procure that any and all Directors of the
Company and the Subsidiaries resign from such
position and deliver to the Purchaser a certificate
from each such resigning Director stating that he or
she does not have any claims against the Company,
Subsidiaries or the Purchaser;
(d) the Sellers shall deliver general powers of attorneys
duly and validly issued in favour of persons
appointed by the Purchaser, which individuals shall
have unlimited authority to represent the Company in
all matters until a new Board of Directors has been
officially registered;
(e) to the extent required by the Purchaser, the Sellers
shall procure that the auditors of the Company resign
from such position;
(f) an Escrow Agreement between the Escrow Bank, the
Purchaser and the Sellers as set out in Schedule 4(f)
shall be executed;
(g) delivery of a duly executed registration rights
agreement in the form attached hereto as Schedule
4(g).
On the Closing, the Purchaser shall:
(a) issue the Consideration Shares and deliver to the
Sellers duly executed stock certificates in the
relevant Seller's name in the amounts reflected on
Schedule 3.1 hereto for delivery as soon as
practicable following Closing to the Sellers'
Representatives who are irrevocably authorized to
receive the same and whose receipt shall be an
effective discharge of the Purchaser's obligations
under this paragraph; and
(b) deliver to each Seller's Representative a copy of the
minutes and resolutions (certified by a director or
secretary of the Purchaser as true and correct) of
the Purchaser authorising the execution and
performance by the Purchaser of its obligations under
this Agreement and each of the other documents to be
executed by the Purchaser hereunder together with a
facsimile copy of a transfer
-9-
10
Share Purchase Agreement - mobilePosition
journal or similar documentation from the Purchaser's
transfer agent confirming issuance of the
Consideration Shares in accordance with this
Agreement.
6. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the following shareholder groups, in the manner
presented below, warrant and represent to the Purchaser that
each of the following warranties and representations is true,
accurate, complete and not misleading as made by each
shareholder group at the Closing Date (unless otherwise stated
herein or in the Disclosure Letter, a copy of which is
attached hereto as Schedule 6). The Founders make each
representation and warranty jointly and severally, the
Financial Shareholders make each representation and warranty
jointly and severally, and the Other Shareholders make each
representation and warranty severally and not jointly.
6.1 Existence and Corporate Authority
6.1.1 The Company and the Subsidiaries are duly organised and
validly existing under the laws of the jurisdiction of their
respective incorporations and have full corporate power and
all necessary licences, permits and authorisations to carry on
the Business as now conducted and to own, lease and operate
the assets and properties used and necessary to use in
connection therewith.
6.1.2 Except as set out in the Disclosure Letter, the Subsidiaries
have not carried out any business since their respective
incorporation date or entered into any agreements or
arrangements of any kind whatsoever.
6.2 Capitalisation and Title
6.2.1 The schedule of share capital of the Company and the
Subsidiaries, listed in Schedule 6.2.1, is correct and
complete. The Shares constitute all of the issued shares in
capital stock of the Company and are legally and validly
issued and paid in full and non-assessable.
6.2.2 Except as set forth in the Disclosure Letter, there are no
outstanding subscriptions, options (including, but not limited
to, call options granted by any of the Sellers), warrants,
stock appreciation rights, phantom stock rights, preferential
rights, encumbrances or similar rights relating to the Shares
or the shares of the Subsidiaries and no securities giving a
right to conversion into, or any agreement or arrangement
which accords to any person the right to acquire, shares in
the Company or the Subsidiaries. Any outstanding call option
issued by the Founders will not result in any costs,
liabilities or obligations for the Company. The Loan
Agreements between the Financial Shareholders and the Company
dated April 17, 2001, and any other undertakings made in
relation hereto do not constitute any obligations for the
Company to issue any warrants, convertibles or any other
securities.
-10-
11
Share Purchase Agreement - mobilePosition
6.2.3 Each Seller lawfully owns and has good and marketable title to
the Shares as set forth in Schedule 6.2.1 and the Company owns
and has good and marketable title to all shares of the
Subsidiaries, in each case free and clear of all liens,
charges and encumbrances of any type whatsoever and there
exists no agreement to create any encumbrance, charge or lien
over any such shares. Upon the delivery by each Seller of the
Shares owned by him or it, the Purchaser will acquire good and
marketable title to the Shares free of any and all liens,
charges and encumbrances of any type whatsoever.
6.2.4 Neither the Company nor the Subsidiaries have been rendered
any conditional contribution by the Sellers or any other
person, which is outstanding at the date hereof.
6.2.5 The execution, delivery or performance of this Agreement by
the Sellers will not:
(a) result in a breach of the articles of association,
bylaws and other corporate documents of the Company
or the Subsidiaries;
(b) result in a breach or constitute a default (or except
as set forth in the Disclosure Letter, give rise to a
right of termination, cancellation or acceleration of
any obligation or loss of any material benefit) under
any instrument to which the Company or any of the
Subsidiaries or the Sellers or the Sellers Groups is
a party or to which it or any of its properties or
assets might be bound (under change of control
provisions or otherwise);
(c) result in a breach of any law or any order, judgement
or decree of any court or governmental agency to
which the Company or any of the Subsidiaries is a
party;
(d) require the consent of any third party or
governmental authority or agency.
6.3 Records
6.3.1 Those copies of articles of association and extracts from the
relevant trade registers, which are attached as Schedule
6.3.1, are true, accurate, up-to-date and complete, and
reflect the present corporate status of the Company and the
Subsidiaries.
6.3.2 All constitutional documentation of the Company and the
Subsidiaries required by law, such as, but not limited to,
shareholders' register, minutes of board of directors'
meetings and general meetings, annual reports, permits and
licenses, exist and are kept in an organised fashion and are
true, accurate, up-to date and complete (the shareholders'
register shall be true, accurate, up-to date and complete as
regards each Seller's shareholding in the Company) and all
registrations and applications relating thereto have been
fulfilled, and all applicable fees have been paid. Except as
set forth in the Disclosure Letter, there are no
-11-
12
Share Purchase Agreement - mobilePosition
registrations pending with the relevant authorities in the
respective jurisdiction concerning changes filed but not
registered.
6.4 Accounts
6.4.1 Attached hereto as Schedule 6.4.1 are the Accounts. The
Accounts have been prepared in accordance with the Accounting
Principles and give a true and fair view of the financial
position and results of the operations of the Company and the
Subsidiaries as of June 30, 2000, March 31, 2001, and the
Closing Balance Sheet Date, respectively, and have been
prepared from and in accordance with the books and records of
the Company and the Subsidiaries.
6.4.2 The accounting records of the Company and the Subsidiaries are
up-to-date and contain in all material respects all matters
required by law and the Accounting Principles to be entered
therein.
6.4.3 The Company and the Subsidiaries do not as of the Closing
Balance Sheet Date have any obligations, commitments or
liabilities, liquidated or unliquidated, contingent or
otherwise, whether for taxes or otherwise, arising out of
events which occurred prior to the Closing Balance Sheet Date,
which are required by the Accounting Principles to be set
forth or reflected in a balance sheet prepared in accordance
therewith and which are not shown or provided for in the
Accounts as of the Closing Balance Sheet Date.
6.5 Loans and other financial facilities
6.5.1 Summaries of all loans and other financial facilities
available to the Company and copies of any documents relating
thereto are contained in Schedule 6.5.1. Any obligations in
relation to the Loan Agreements between the Financial
Shareholders and the Company dated April 17, 2001, have been
settled and will not result in any costs, liabilities or
obligations for the Company of any type whatsoever.
6.5.2 Except as set forth in the Disclosure Letter, there exists no
event which gives, or after notice or lapse of time, or both,
would give any third party the right to call for repayment
from the Company prior to normal maturity of any loan or other
financial facility.
6.6 Dividends and Loans
6.6.1 The Company has not since the Closing Balance Sheet Date
declared or paid any dividend, group contribution or made any
other distribution (including but not limited to repayment of
conditional contributions) to the Sellers or any other person.
6.6.2 The Company has not made any payment to its shareholders or
any other person in contravention with the Swedish Companies
Act.
-12-
13
Share Purchase Agreement - mobilePosition
6.6.3 Except as set forth in the Disclosure Letter, the Company has
not granted loans or furnished securities in contravention
with the Swedish Companies Act.
6.7 Title to Property and Assets
6.7.1 The Company has full and exclusive title to or right to use
all of the properties and assets, tangible and intangible,
used in the Business, and such properties and assets are not
the subject of any restrictions or preferential rights of
whatever nature.
6.7.2 Except as set forth in the Disclosure Letter, the Company is
the owner of each of the properties and assets, tangible and
intangible, that is reflected in the Accounts as of the
Closing Balance Sheet Date, plus any properties and assets,
tangible and intangible, acquired since the Closing Balance
Sheet Date, and less any properties and assets, tangible and
intangible, disposed of since that date in accordance with
Section 6.10.1, and has good and marketable title to all of
such properties and assets, tangible and intangible, free and
clear of any lien or other encumbrance (other than retention
of title clauses in respect of assets acquired in its ordinary
course of business).
6.7.3 The Company owns or leases all properties and assets, tangible
and intangible, necessary for it to carry on the Business as
presently conducted, and such properties and assets, tangible
and intangible, are, taken as a whole, in good operating
condition, ordinary wear and tear excepted.
6.8 Accounts Receivables and Liquid Assets
6.8.1 All of the accounts receivable of the Company have arisen in
the ordinary course of business.
6.8.2 Provisions for bad debts have been made in accordance with
consistently applied practices throughout the years in the
Company.
6.8.3 Except as set forth in the Disclosure Letter, all liquid
assets of the Company such as, but not limited to, bank
accounts and cash, are available free and clear of any
restriction or condition.
6.9 Leased Premises and Real Property
6.9.1 Schedule 6.9.1 contains a complete and accurate list of all
premises leased by the Company. All lease agreements are
attached as Schedule 6.12.1.
6.9.2 All premises are being leased by the Company under valid and
enforceable leases,, subject only to such encumbrances which
may arise under law, and there exists no default, or event
-13-
14
Share Purchase Agreement - mobilePosition
which after notice or lapse of time, or both, would constitute
a default by any party under any lease agreement.
6.9.3 The Company and the Subsidiaries do not own, and have not ever
owned, any Real Property.
6.9.4 There are no circumstances existing which prevent (or which
could, with the passage of time, prevent) the Company from
using the Real Property in the manner used by the Company in
order to carry on its Business.
6.9.5 There are no orders and regulations which affect the current
use and occupation of the Real Property.
6.10 Absence of Certain Changes or Events
6.10.1 Except as set forth in the Disclosure Letter, there has not
occurred or arisen, since March 31, 2001 with respect to the
Company
(i) any significant adverse change in the financial
condition or in the assets or operations of the
Business of the Company; or
(ii) any obligations, commitments or liabilities
contingent or otherwise, whether for taxes or
otherwise, except obligations, commitments and
liabilities arising in the ordinary course of
business; or
(iii) any amendments to or termination of, or any agreement
to amend or terminate any of the customer agreements
of the Company; or
(iv) any extraordinary event or any extraordinary loss
suffered or any waiver of any debts, claims, or
rights of substantial value which singly or in the
aggregate has an adverse effect on the financial
condition or the operation of the business of the
Company; or
(v) any material damage, destruction, or loss or any
other event or condition, whether covered by
insurance or not, affecting the property or business
of the Company; or
(vi) any sale, assignment, transfer, pledge, lease or
other disposal of any individual asset of the Company
with a value in excess of SEK 50,000 (or the
equivalent thereof in any relevant currency as of the
date hereof according to the selling exchange rates
applied by SE-Banken); or
(vii) any increase in the rates of compensation (including
bonuses) payable or to become payable to any
employee, officer, agent, independent contractor or
consultant, or any acceleration in the rate at which
any such compensation accrues; or
-14-
15
Share Purchase Agreement - mobilePosition
(viii) any change of accounting methods, principles or
practices; or
(ix) any investment in fixed assets that exceed
individually SEK 50,000 (or the equivalent thereof in
any relevant currency as of the date hereof according
to the selling exchange rates applied by SE-Banken);
or
(x) any transactions other than in the ordinary course of
business;
and the Sellers or the Company have not agreed or arranged to
do any of the foregoing.
6.10.2 Since March 31, 2001
(i) the Business of the Company has been conducted in the
ordinary course with a view to maintaining it as a
going concern;
(ii) no contract or commitment has been entered into by or
on behalf of the Company extending beyond the Closing
Date, except normal commitments for the purchase of
materials or supplies, and contracts involving
materials or supplies made in the ordinary course of
business;
(iii) the Company has not borrowed any additional funds
from banks or other external sources (or in order to
repay the Company's Payables), except as set forth in
the Disclosure Letter.
6.11 Powers of Attorney and Bank Accounts
6.11.1 Schedule 6.11.1 lists all employees of the Company authorized
to bind the Company with their signature and lists all
employees of the Company authorized to instruct the movement
of funds from the Company's bank accounts.
6.11.2 The Company has not given any power of attorney or other
authority (expressed or implied) which is still outstanding to
enter into any agreement or obligation or other transaction on
its behalf or to bind it in any way, other than to its
employees to enter into routine contracts in the ordinary and
usual course of business.
6.11.3 Schedule 6.11.3, correctly, completely and up-to-date sets
forth the name of each bank, savings institution or other
person with which the Company has an account.
6.12 Agreements
6.12.1 All Material Agreements of the Company are listed and attached
in Schedule 6.12.1 and are in full force and effect and the
text of such agreements accurately reflects the contents of
such agreements, except as set out in the Disclosure Letter.
-15-
16
Share Purchase Agreement - mobilePosition
6.12.2 Neither any Seller nor the Company has received any notice
that the Company is in default under any provision of any
Material Agreement, and the Company has not received or given
notice of termination of any Material Agreement, and the
Company is not:
(i) in default under any provision of any Material
Agreement, which default would adversely affect its
business, properties or condition, financial or
otherwise, and no event has occurred which, but for
the passage of time or giving of notice, would
constitute such a default;
(ii) a party to any agreement containing provisions for
material price redetermination or price revision
except for compensation for inflation, movements in
exchange rates and discounts for bulk buying;
(iii) a party to any agreement or arrangement which is or
could be contravening applicable laws on competition;
(iv) except as set forth in the Disclosure Letter, a party
to or bound by any agreement, judgement or order
under which the execution or performance of this
Agreement (i) would give any other contracting party
the right to terminate or change adversely the terms
and conditions of such agreement, or (ii) would
constitute a violation or default by the Company, or
(iii) would result in the creation of a lien or
encumbrance on any assets or properties of the
Company.
6.12.3 The Company has not sold any company, business, shares, real
property or other asset where there are outstanding
obligations or warranty undertakings (expressed or implied) on
the part of the Company. Except as set forth in the Disclosure
Letter, the Company has not entered into any agreements for
contingent payment to any person or entity.
6.12.4 The Company has not paid any bribes or kickbacks to
governmental officials, in Sweden or elsewhere, for any
contracts or granting of any permits or licenses.
6.13 Insurance
6.13.1 The Company maintains policies of fire, theft, loss,
disruption, product and general liability and other forms of
insurance with reputable insurers which would reasonably be
judged to be sound, covering its properties and assets to such
extent, and against such losses and risks, as are generally
maintained for comparable business and properties, and valid
policies for such insurance are now and will be outstanding
and duly in force on the Closing Date and for thirty (30) days
thereafter.
-16-
17
Share Purchase Agreement - mobilePosition
6.13.2 The Company is in compliance with all terms and conditions
contained in the insurance policies and nothing has been done
or omitted to be done which would make any policy or insurance
void or voidable.
6.14 Environmental Matters
6.14.1 The Company is not and has not been in breach of any
legislation, regulation, order or instructions applicable to
environmental matters.
6.14.2 The Company has obtained all requisite permits or licences
required by any relevant environmental laws for the Business
and has complied in all respects with the conditions of those
permits or licences. All current permits and licences are in
full force and effect, copies of which are kept with the
Company and attached as Schedule 6.14.2.
6.14.3 The Company has not, other than as permitted under applicable
permits or licences held from time to time, disposed of,
discharged, released, placed, dumped or emitted any solid or
hazardous wastes, pollutants, contaminants, hazardous
substances, petroleum substances or other dangerous substances
on or from the land and premises on which it operates or has
operated.
6.14.4 The Sellers or the Company have not received any formal or
informal notice or other communication from which it appears
that the Company may be or have been in violation of any
environmental law or permit or licence, nor is there any
actual or contingent obligation on the part of the Company to
pay money (including damages and fines) or carry out any work
(including clean-up) in relation to any hazardous substances,
pollutants, contaminants on any onsite or offsite location
(including air, ground, buildings and water), or to pay any
such money or carry out any such work in order to be granted
an extension or renewal of any existing permit or licence.
6.15 Intellectual Property
6.15.1 The Intellectual Property and Know-How of the Company is
listed on Schedule 6.15.1. The Intellectual Property and
Know-How listed on Schedule 6.15.1 are owned by or licensed to
the Company, as described in Schedule 6.15.1 (indicating
ownership or license rights) and not subject to any liens or
encumbrances or the Company has the right to use the
Intellectual Property and Know-How without payment of a
licence fee or other obligation or liability to a third party.
The Intellectual Property and Know-How used by the Company and
which is listed on Schedule 6.15.1 is the Intellectual
Property and Know-How required for the Business as presently
conducted.
6.15.2 Neither any Sellers nor the Company have received any notice
of any infringement by any third party of any Intellectual
Property or Know-How owned by or licensed to the Company.
-17-
18
Share Purchase Agreement - mobilePosition
6.15.3 The registrations of all registered Intellectual Property used
in the Business of the Company are in force and the renewal
fees for all such registrations have heretofore been paid.
6.15.4 There has not been presented to any Seller or the Company any
claim, whether for infringement, damages or otherwise, made by
any third party which relates to the use of Intellectual
Property or Know-How by the Company.
6.15.5 The Company is not in breach of any licence or other agreement
relating to Intellectual Property or Know-How.
6.15.6 Except as set forth in the Disclosure Letter, the Company has
not granted, and is not obliged to grant, any licence or
assignment in respect of any Intellectual Property or Know-How
owned or used by it, and is not obliged to disclose any
Intellectual Property or Know-How to any person.
6.15.7 All material computer software used by the Company in the
Business operates substantially as intended and no defect or
flaw interferes in any material respect with the operation
thereof.
6.16 Employment and Pension Agreements and Labour Controversies
6.16.1 Schedule 6.16.1 lists all
(i) collective bargaining agreements of the Company;
(ii) employment agreements with any employee at the
Company with a basic salary in excess of SEK 750,000
per year (or the equivalent thereof in any relevant
currency as of the date hereof according to the
selling exchange rates applied by SEB);
(iii) compensation plans, bonus plans, profit-sharing
plans, employee pension or retirement plans, group
life insurance or other plans or liabilities except
for statutory plans or arrangements providing for
benefits to employees or former employees of the
Company;
(iv) loans to employees, guarantees for liabilities of
employees and payments or liabilities to any present
or former employees of the Company.
6.16.2 No member of the management of the Company has given or
received notice of termination of his employment in such
capacity, and each person in the Key Management represents
that he has no current intention of giving such notice.
6.16.3 Except as set out in Schedule 6.16.3, no employee of the
Company is entitled to severance pay or similar termination
indemnities in excess of three (3) months of salary.
-18-
19
Share Purchase Agreement - mobilePosition
6.16.4 Except as may be required by law, the Company has not
undertaken to have any future obligation (whether current or
contingent) to contribute to, and haves no liability with
respect to any plan, agreement or arrangement which is an
employment, consulting (in respect of a former employee) or
deferred compensation agreement, or an executive compensation,
incentive bonus or other bonus, employee pension,
profit-sharing, savings, retirements, stock option, stock
purchase, severance pay, life, health, disability or accident
insurance plan, or vacation, or other employee benefit plan.
6.16.5 There are no controversies between the Company, and any of its
employees, or any unresolved labour union grievances or unfair
labour practices or labour arbitration proceedings pending or
threatened relating to the business of the Company.
6.16.6 There have been no labour stoppages or labour walkouts which
have occurred at the Company during the last twenty-four (24)
months.
6.16.7 The Company has not received notice of any claim that it has
not complied with any laws relating to the employment of
labour, including any provisions thereof relating to wages,
hours, collective bargaining, the payment of social security
and similar taxes, equal employment opportunity, employment
discrimination and employment safety, or that the Company is
liable for any arrears of wages or any taxes or penalties for
failure to comply with any of the foregoing.
6.16.8 The consummation of the transactions contemplated by this
Agreement will not (i) entitle any employee of the Company to
severance pay, unemployment compensation or any other payment,
or (ii) accelerate the time of payment or vesting of, or
increase the amount of, compensation due to any such employee,
or (iii) entitle any employee of the Company to terminate or
shorten his employment.
6.16.9 Except as set forth in the Disclosure Letter, the Company is
not liable to make any outstanding payment to a director,
officer or employee or former director, officer or employee by
way of damages or compensation for loss of office or
employment or for redundancy or unfair or wrongful dismissal.
6.16.10 Except as set forth in the Disclosure Letter, there exists no
agreement or arrangement between the Sellers or the Sellers
Group and an employee or a director of the Company, under
which such employee or director is entitled to a bonus or any
other remuneration (monetary or non-monetary) which is
conditional upon the consummation of the transactions
contemplated by this Agreement.
-19-
20
Share Purchase Agreement - mobilePosition
6.17 Compliance with Law
6.17.1 The Company has conducted its Business at all times in
accordance with and has complied with applicable national and
local laws relating to its operations and business except
where failure to do so would not and does not have a material
adverse effect on the Company.
6.17.2 The Company has not ever been subject to any liquidation or
bankruptcy proceedings.
6.17.3 All necessary licenses, consents, permits and authorisations
have been obtained by the Company to enable the Company to
carry on the Business in the places and in the manner in which
the Business is now conducted and all such licences, consents,
permits and authorisations are valid and subsisting and have
been complied with in all respects.
6.18 Litigation
6.18.1 There is no suit, administrative, arbitration or other legal
proceedings (including but not limited to tax proceedings)
pending or threatened against the Company, its business,
properties or assets, and there is no such suit or proceedings
pending or threatened by the Company against any other person.
6.18.2 No investigation or enquiry is being or has been conducted by
any governmental, fiscal, regulatory or other body in respect
of the affairs of the Company, and no Seller has received
notice that such investigation is pending, threatened or
expected.
6.19 Taxes
6.19.1 The Company has properly and timely filed with the appropriate
tax authorities all tax returns and reports required to be
filed for all tax periods ending prior to the Closing Date and
such filings are true, correct and complete and all
information required for a correct assessment of tax has been
provided, and are not in default with payment of any Taxes due
to any tax authority.
6.19.2 The income tax returns of the Company have been assessed and
approved by the tax authorities through the taxable years up
to and including those years required to be done and the
Company is not subject to any dispute with any such authority.
6.19.3 All Taxes for the periods prior to the Closing Balance Sheet
Date have been fully paid or fully provided for in the
Accounts, and all Taxes for the periods after the Closing
Balance Sheet Date and through the Closing Date have been
fully paid or provided for on the books of the Company.
-20-
21
Share Purchase Agreement - mobilePosition
6.19.4 There are no tax audits, disputes or litigation currently
pending with respect to the Company, and there is no basis for
assessment of any deficiency in any Taxes against the Company
which have not been provisioned for in the Accounts or which
have not been paid.
6.19.5 The Company has not been involved in any transactions which
could be considered as a tax evasion.
6.19.6 All transactions and agreements entered into by the Company
with the Sellers or the Sellers Group have been made on terms
and conditions which do not in any way deviate from what would
have been agreed between independent parties (on an arm's
length basis).
6.19.7 All losses for tax purposes incurred by the Company are
trading losses and are available to be carried forward and set
off against income in succeeding periods without limitation
and are accepted by the relevant tax authorities, except as
set forth in the Disclosure Letter.
6.19.8 The Company is not and has not been subject to any taxation
outside Sweden.
6.20 The Business
6.20.1 Other than the transactions contemplated by this Agreement
there are no transactions required in order for the Purchaser
to acquire the Business of the Company, and the Purchaser will
by the consummation of the transactions hereunder acquire such
Business.
6.20.2 Except as set forth in the Disclosure Letter, the Company is
not a party to or bound by any contract or agreement which
limits the freedom of the Company to compete in any line of
business or with any person or to transact business with any
person or to freely use any information in its possession.
6.20.3 Except as set forth in the Disclosure Letter, the Company has
not any interest in any other business entity or association
or carries on, or has agreed to carry on, business in
partnership or as an equity participant in a joint venture
with any other person.
6.20.4 The Company is not a party to any transaction or arrangement
which is not of an arm's length nature or not made in
connection with its business.
6.20.5 Except as set forth in the Disclosure Letter, no encumbrance,
charge or lien on the whole or any part of the business or
assets of the Company is outstanding and there exists no
agreement to create any such encumbrance, charge or lien.
6.20.6 The Company has not any outstanding offers which are capable
of binding acceptance by any third party, except in the
ordinary course of business.
-21-
22
Share Purchase Agreement - mobilePosition
6.20.7 The Company is not bound by any agreement which the Company
has acknowledged, in official company records or to third
parties, cannot readily be fulfilled or performed by the
Company on time, which could give rise to a claim on the
Company in excess of SEK 100,000.
6.21 Relationship with the Sellers and its the Sellers Group
6.21.1 Except as set forth in the Disclosure Letter, the Sellers and
the Sellers Group hereby release the Company and the
Subsidiaries from any claims of any kind by, through and under
the Sellers and the Sellers Group against the Company or the
Subsidiaries, except for the Company's Payables.
6.21.2 In particular (and not in limitation of the generality of
Section 6.21.1 above), the Sellers and the Sellers Group
hereby release the Company and the Subsidiaries of any
obligations under any agreements or arrangements between the
Company or the Subsidiaries and the Sellers or the Sellers
Group, any liabilities and obligations (contingent or
otherwise) owed by the Company or the Subsidiaries to the
Sellers or the Sellers Group, and any guarantees or similar
commitments issued by the Company or the Subsidiaries for
obligations owed by the Sellers or the Sellers Group, except
as set forth in the Disclosure Letter.
6.21.3 No services which have heretofore been provided by the Sellers
or the Sellers Group to the Company (except for the services
provided by the Founders under their employment contracts with
the Company) are necessary for the conduct of the Company's
Business in the ordinary course.
6.21.4 No payments of any kind, including but not limited to
management charges, have been made by the Company or the
Subsidiaries to the Sellers or the Sellers Group, except for
payments under contracts or arrangements made on an arm's
length basis.
6.22 Information
6.22.1 Neither this Agreement nor any other document heretofore or
hereafter provided to the Purchaser by or on behalf of the
Sellers or the Company, contained or will contain any untrue
statement of a material fact or omitted or will omit to state
a material fact necessary to make the statements contained
therein not misleading.
6.22.2 All original copies and other relevant documentation relating
to agreements entered into by the Company, and other
information which is material in relation to the activities of
the Company and the Subsidiaries, including historical
records, are true, accurate and complete in all material
respects and kept in good order and are in the possession of
the Company and have been made available to the Purchaser.
-22-
23
Share Purchase Agreement - mobilePosition
6.23 Due Authority
6.23.1 Each Seller has all requisite power and authority and legal
capacity to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. This Agreement
has been duly executed and delivered by each Seller. This
Agreement constitutes a valid and binding obligation of each
Seller enforceable against each Seller in accordance with its
terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization
or other laws affecting the enforcement of creditors' rights
generally or by general equitable principles.
6.24 Guarantees
The Company is not a guarantor or otherwise liable for any
liability or obligation of any other person or entity
(including indebtedness for borrowed money), nor has the
Company agreed to enter into such arrangement. No person or
entity is a guarantor or otherwise liable for any liability or
obligation (including indebtedness for borrowed money) of the
Company.
6.25 Export Countries
6.25.1 The Company has not, at any time during the five years ending
on the date of this Agreement, exported goods or services,
except as set forth in the Disclosure Letter.
6.26 Each Seller severally represents and warrants to Purchaser as
follows, except as otherwise set forth in the relevant section
of the Disclosure Letter:
6.26.1 Foreign Nature of Seller. Such Seller is not a "U.S. Person"
(a such term is defined in Regulation S), nor is Seller
acquiring his, her or its Consideration Shares for the account
or benefit of any U. S. Person (as so defined). The offer and
sale of such Consideration Shares to such Seller has taken
place outside of the United States of America or any of its
territories or possessions (collectively, the "United
States"), and such Seller has executed this Agreement outside
of the United States. Such Seller represents and warrants that
he, she or it has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits
and risks of his, her or its investment in the Consideration
Shares being issued to him, her or it pursuant to this
Agreement. He, she or it has had the opportunity, personally
or through representatives, to obtain from Purchaser all
information, to the extent possessed by Purchaser or
reasonably obtainable by Purchaser, believed by such Seller to
be necessary to evaluate the merits and risks of an investment
in such Consideration Shares.
6.26.2 Absence of Market. Such Seller acknowledges that his, her or
its Consideration Shares lack liquidity as compared with other
private investments since they are subject to restrictions on
transfer under applicable securities laws. Such Seller
acknowledges that he, she or it must bear the economic risk of
his, her or its investment in such Consideration Shares for an
indefinite period of time since none of the Consideration
Shares has been registered under
-23-
24
Share Purchase Agreement - mobilePosition
the Securities Act and therefore cannot be sold (and such
Seller covenants that he, she or it will not sell, or engage
in hedging activities prohibited by the Securities Act
regarding, his, her or its Consideration Shares) unless such
sale or hedging with respect to the Consideration Shares is
subsequently registered or such Consideration Shares are sold
in accordance with the resale limitations of Regulation S
under the U. S. Securities Act of 1933, as amended (the
"Securities Act"), or an exemption from registration is
available. In order to effectuate the foregoing restrictions
on resales and other transfers of the Consideration Shares, if
any resale or other transfer is proposed to be made (other
than pursuant to an effective registration statement under the
Securities Act) prior to one year after the Closing Date, (1)
in the case of a transfer made in reliance upon Regulation S
(a) Seller shall deliver to Purchaser a Transferor
Representation Statement substantially in the form of Annex A
hereto and (b) the transferee shall deliver to Purchaser a
Transferee Representation Statement substantially in the form
of Annex B hereto, or (2) in the case of any other transfer
Seller shall provide Purchaser with an opinion of counsel
reasonably satisfactory to Purchaser to the effect that
registration of such sale or transfer is not required under
the Securities Act.
6.26.3 Legend. It is understood and agreed that any certificate
evidencing the Consideration Shares will bear the following
legend:
"The Securities represented by this certificate (the
"Securities") have not been registered under the United States
Securities Act of 1933, as amended (the "Securities Act"), or
any other securities laws, and may not be transferred except
in accordance with the provisions of Regulation S
(Section230,901 through Section230,905, and Preliminary
Notes), pursuant to registration under the Securities Act or
pursuant to an available exemption from registration. Hedging
transactions involving the Securities may not be conducted
other than in compliance with the Securities Act."
6.26.4 Investment Purposes. Such Seller hereby represents and
warrants that he, she or it is acquiring his, her or its
Consideration Shares for investment purposes only, for his,
her or its own account, and not as nominee or agent for any
other person or entity, and not with a view to, or for resale
in connection with, any distribution thereof within the
meaning of the Securities Act. He, she or it has no agreement
or other arrangement with any person or entity to sell,
transfer or pledge any part of such Consideration Shares and
has no present intention to enter into any such agreement or
arrangement.
6.26.5 Restricted Securities. Such Seller acknowledges that Purchaser
is issuing the Consideration Shares to the Sellers without
registration under the Securities Act. He, she or it further
acknowledges that representatives of Purchaser have advised
him, her or it that no state or federal agency or
instrumentality has made any finding or determination as to
the investment in such Consideration Shares, nor has any state
or federal agency or instrumentality made any recommendation
with respect to any purchase or investment in such
Consideration Shares.
-24-
25
Share Purchase Agreement - mobilePosition
6.27 Representations and Warranties as of the Closing Date
The representations and warranties given above shall be
separate and independent.
All representations and warranties made by the Financial
Shareholders, except for the representations and warranties in
Section 6.1 and 6.2, are qualified by Financial Shareholder's
Knowledge, provided that Section 6.2.3 and Section 6.2.5 are
qualified to each Financial Shareholder's Knowledge as it
relates to a statement concerning another Seller.
7. COVENANTS
Each of the Parties agree, in relation to the other Parties,
if applicable, as follows:
7.1 PUBLICITY
Except in the case of announcements or disclosures made by
Purchaser in the course of Purchaser's business development,
which shall be done in Purchaser's sole discretion, for which
the required consents are hereby given, no announcement
concerning the transaction contemplated by this Agreement or
any matter ancillary thereto shall be made by a Party, without
the prior written consent of the Purchaser, EDP and the
Founders, provided that nothing herein shall prevent either
Party from making any announcement or filing required by law,
regulations or by the rules and regulations of Nasdaq or any
stock exchange to which it must adhere.
7.2 SECRECY
With the exception provided for the Purchaser pursuant to
Section 7.1 above, the Parties undertake not to, without the
prior written consent of the other Parties, disclose the
content or existence of this Agreement or any other agreement
or information, whether written or oral, related to the
negotiation, preparation and execution of this Agreement and
the transactions contemplated hereby, provided that nothing
herein shall prevent either Party from making any announcement
or filing required by law, regulations or by the rules and
regulations of Nasdaq or any stock exchange to which it must
adhere.
7.3 LABOUR NOTIFICATION
The Sellers shall fulfil their respective information and
negotiation obligations pursuant to applicable labour laws.
-25-
26
Share Purchase Agreement - mobilePosition
7.4 FURTHER ASSURANCES
Each Party will provide such other information, and execute
and deliver all such other and additional instruments,
notices, releases, undertakings, consents and other documents,
and will do all such other acts and things, as may be
reasonably requested as necessary to assure all the rights and
interest granted or intended to be granted under this
Agreement.
7.5 COVENANTS OF THE SELLERS
7.5.1 Each Founder covenants to the Purchaser, its successors and
assigns, that for a period of twelve (12) months from the
Closing Date:
(a) he shall not, as principal, employer, shareholder,
partner, employee or in any other or individual or
representative capacity whatsoever, enter into, carry
out or support, directly or indirectly, any activity
which in any way may compete with any activity which
is carried out by the Company;
(b) he shall not, directly or indirectly (with the
exception of customary investments in mutual
funds/unit trusts), acquire or own or become a
partner or shareholder in any business, similar in
nature and competitive to that of the Company,
provided, however, that he may own less than five (5)
percent in any company listed on any stock exchange;
(c) he shall neither personally or by agent or by
letters, circulars or advertisements and whether
himself or on behalf of any other person, firm or
company induce or seek to induce a person who is an
employee of the Company leave his employment with the
Company nor knowingly employ or aid or assist in the
employment of such an employee or a person employed
by Company at any time during the month prior to the
Closing Date.
7.5.2 The Sellers undertake not to make any unauthorized disclosure
of any confidential information regarding the Company or its
Business which pose the risk of causing damage to the
competitive position of the Company. The Sellers shall ensure
that their respective employees, consultants and Directors are
made aware of this undertaking. "Confidential information"
shall mean any information, technical, commercial or of any
other kind, whether written or oral, except such information
which is or will be publicly known or which has come to the
public knowledge in any way other than through any of the
Sellers breach of this undertaking.
7.5.3 As of the Closing Date, the Key Management shall enter into
new employment agreements as set out in Schedule 7.5.3. The
Founders agree that for a period extending from the Closing
Date until the one year anniversary thereof, they will not
make any transfer of the Consideration Shares, whether public
or private, without the prior written consent of the
-26-
27
Share Purchase Agreement - mobilePosition
Purchaser. However, so long as the transferee agrees in
writing to be bound by the provisions of this Agreement in the
same manner as the transferring party is bound, each Founder
and any permitted individual transferee of the Founder
(collectively, the "Family Transferors") shall have the right
to transfer any or all of such stockholders' respective
Consideration Shares at any time during the restrictive period
of this Section 7.5.3 to such Family Transferors' (a) spouse
or (b) any of such Family Transferors' direct lineal
descendants (including stepchildren), parents or siblings
(collectively, the "Permitted Relatives").
7.6 PENALTY
Each time any Seller breaches any of the covenants in Sections
7.5.1 and 7.5.2 above, such Seller shall be liable to pay
liquidated damages to the Purchaser amounting to SEK
1,500,000, provided always, however, that the Purchaser may
claim larger damages upon proof that the actual injury
corresponds to a greater amount than such agreed damages and
without prejudice to the Purchaser's right to other remedies
than damages. The ability to make a claim for liquidated
damages under this Section 7.6 shall terminate twelve (12)
months following the Closing Date.
8. INDEMNIFICATION
8.1 INDEMNIFICATION BY THE SELLERS
8.1.1 Subject to the provisions of clause 8, each Seller shall be
liable and shall indemnify and hold the Purchaser harmless in
respect of all Losses (whether as a result of third party
claims or otherwise) resulting from or incurred in connection
with any breach of any representation or warranty made by any
Seller in this Agreement. Any payment by any Seller pursuant
to any claim shall be considered to be a reduction of the
purchase price.
8.1.2 For purposes of this Section 8, notification of any claim
shall only be valid if in writing and if it specifies in
reasonable detail the nature of the breach and incorporates an
estimate (based on all the facts known to the Purchaser as at
that date) as to the potential liability of the Sellers.
8.2 TIME AND AMOUNT LIMITS FOR CLAIMS BY THE PURCHASER; RECOVERY
8.2.1 The liability of each Seller under this Agreement shall remain
valid for a period of twelve (12) months following the Closing
Date after which date no claims for Losses shall be made and
no liability shall accrue to the Sellers under this Section 8.
Notwithstanding the foregoing, the claim period and the
Sellers' liability hereunder shall continue until all pending
claims have been resolved. If a Loss has occurred before such
date but the amount thereof cannot be quantified, the
Purchaser may claim compensation, provided that the claim
-27-
28
Share Purchase Agreement - mobilePosition
is made at any time within the aforementioned period and a
quantified claim is made as soon as information is available
of the amount.
8.2.2 Notwithstanding Section 8.2.1 above,
(i) the liability of the Sellers with respect to any
breach of warranty in Section 6.20 (Taxes) shall
remain valid until all assessments relating to events
prior to the Closing Date are legally barred from
being reviewed, or, if later, ninety (90) days after
the date when the Taxes in issue have been finally
determined by the relevant authorities; and
(ii) the liability of the Sellers with respect to any
breach of warranty due to fraud or wilful
misrepresentation on the part of Seller shall survive
without termination.
8.2.3 The Sellers shall not be liable for a Loss unless and until
the aggregate amount of liability for all such Losses shall
exceed SEK 500,000 in which event the Sellers shall be liable
for the full amount and not just the excess.
8.2.4 The maximum aggregate liability of each Seller in respect of
all Losses (other than Losses caused by fraud or wilful
misrepresentation on the part of Sellers) in connection with
breach of representations and/or warranties made by each
Seller under this Agreement shall be as follows:
(a) The Founders' joint and several liability shall not
exceed one million U.S. dollars (US$1,000,000).
(b) The Financial Shareholders' joint and several
liability shall, for a period of six (6) months
following the Closing Date, not exceed two million
eight hundred thirty-eight thousand one hundred
seventy-three U.S. dollars (US$2,838,173); and for
the period thereafter up to the first anniversary of
the Closing Date shall not exceed five hundred
sixty-seven thousand six hundred thirty-five U.S.
dollars (US$567,635). Notwithstanding the foregoing,
in no event shall Qino's aggregate liability exceed
seven hundred seventy thousand three hundred
twenty-seven U.S. dollars (US$770,327).
(c) The Other Shareholders' several liability shall not
exceed forty-eight thousand five hundred twenty-eight
U.S. dollars (US$48,528).
8.2.5 If a Loss is a tax-deductible cost (which deduction is
actually utilised by the Company in the following taxation
year), then the deductible Loss shall be reduced by the tax
rate applicable in Sweden at the time of the reimbursement.
8.2.6 A Loss shall be reduced by the amount, if any, which the
Company recovers regarding the Loss under a policy of
insurance in force at the Closing Date or from a third party.
-28-
29
Share Purchase Agreement - mobilePosition
8.2.7 The maximum aggregate liability of the Sellers in respect of
all Losses caused by fraud or wilful misrepresentation on the
part of Sellers in connection with breach of representations
and/or warranties made by the Sellers under this Agreement
shall be ten million U.S. dollars (US$10,000,000).
8.3 CERTAIN ESCROW ACCOUNT PROVISIONS
8.3.1 Each Seller shall, in the proportions set out in Schedule 3.1,
deposit its respective Escrow Shares with the Escrow Agent.
8.3.2 In the event that Purchaser is entitled to recover from the
Sellers for a claim for Loss in accordance with the terms of
this Agreement, the Purchaser shall have as its first right of
recovery for such claim for Loss the ability to receive that
number of Escrow Shares equal to the amount of the Loss. In
determining the number of Escrowed Shares to be released in
such an instance, the value of one (1) Escrowed Share shall
equal the Market Value of a share of the Purchaser's Common
Stock at the time of final settlement and determination of the
obligation of the Sellers to compensate the Purchaser for the
Loss in question; provided, however, that the Market Value of
a share of the Purchaser's Common Stock shall in no event ever
be deemed to be less than US$5.88. The amount of the Loss
shall be divided by the resultant value of one (1) Escrow
Share to determine the number of Escrow Shares that should be
released by the Escrow Agent. Upon final determination that a
claim for Loss should be paid by the Sellers, the Purchaser
and the Sellers shall deliver a joint written notice to the
Escrow Agent that identifies the number of Escrow Shares that
should be released in favour of the Purchaser as calculated in
accordance with the foregoing provisions. Upon the expiration
of the claim period allowed under Section 8.2 hereof together
with any period needed to adjudicate claims, the Purchaser and
the Sellers shall deliver a joint written notice to the Escrow
Agent instructing the Escrow Agent to release the remaining
Escrow Shares in accordance with the terms and conditions set
forth in the Escrow Agreement.
8.4 CALCULATION AND PAYMENT OF AMOUNTS IN EXCESS OF ESCROW
8.4.1 In the event that Purchaser is entitled to recover from the
Founders or the Financial Investors for a claim for Loss in
accordance with this Agreement that is not covered by the
amount of the Founders' or the Financial Investors' (as the
case may be) Escrow Shares in the Escrow Account, the
Purchaser shall make a claim in accordance with Section 8.1.2
hereof. Upon final settlement and determination of the
Founders' or Financial Investors' obligation to compensate the
Purchaser for the Loss in question, the Founders or Financial
Investors shall have the option, subject to the limitation
expressed in the Section 8, to pay to Purchaser:
(a) an amount in cash equal to the amount of the Loss; or
(b) a number of Consideration Shares equal to the amount
of the Loss.
-29-
30
Share Purchase Agreement - mobilePosition
8.4.2 For purposes of calculating the number of Consideration Shares
equal to the amount of the Loss as required under Section
8.4.1 (b) hereof, the value of one (1) Consideration Share
shall equal the greater of (a) the Market Value of a share of
Purchaser's Common Stock at the time of final settlement and
determination of the obligation of the Founders or Financial
Investors to compensate the Purchaser for the Loss in question
or (b) US$5.88. The amount of the Loss shall be divided by the
resultant value of one (1) Consideration Share to determine
the number of Consideration Shares that should be delivered
pursuant to section 8.4.1 (b) hereof.
8.5 INDEMNIFICATION BY THE PURCHASER
8.5.1 The Purchaser shall be liable and shall indemnify and hold the
Sellers harmless in respect of all Losses (whether as a result
of third party claims or otherwise) resulting from or incurred
in connection with any breach of any representation or
warranty made by Purchaser in Section 12 hereof.
8.5.2 For purposes of this Section 8, notification of any claim
shall only be valid if in writing and if it specifies in
reasonable detail the nature of the breach and incorporates an
estimate (based on all the facts known to the Sellers as at
that date) as to the potential liability of the Purchaser and
is made as soon as reasonably practicable after the Seller
becomes aware of such claim.
8.5.3 The liability of the Purchaser under this Agreement shall
remain valid for a period of twelve (12) months following the
Closing Date after which date no claim for Losses shall be
made and no liability shall accrue to the Purchaser under this
Section 8. If a Loss has occurred before such date but the
amount thereof cannot be quantified, the Sellers may claim
compensation, provided that the claim is made at any time
within the aforementioned period and a quantified claim is
made as soon as information is available of the amount.
8.5.4 The Purchaser shall not be liable for a Loss unless and until
the aggregate amount of liability for all such Losses shall
exceed SEK 500,000 in which event the Purchaser shall be
liable for the full amount and not just the excess.
8.5.5 The maximum aggregate liability of the Purchaser in respect of
all Losses in connection with breach of representations and/or
warranties made by the Purchaser under Section 12 under this
Agreement, except in the event of fraud or wilful
misrepresentation, shall, for a period of six (6) months
following the Closing Date be limited to three million nine
hundred thousand U.S. dollars (US$3,900,000), and for the
period thereafter up to the first anniversary of the Closing
Date not exceed one million five hundred sixty-four thousand
two hundred twenty-two U.S. dollars (US$1,564,222).
8.5.6 The maximum aggregate liability of the Purchaser in respect of
all Losses caused by fraud or wilful misrepresentation on the
part of Purchaser in connection with breach of
-30-
31
Share Purchase Agreement - mobilePosition
representations and/or warranties made by the Purchaser under
this Agreement shall be ten million U.S. dollars
($10,000,000).
9. INDEMNITIES
9.1 The Sellers shall, jointly and severally, be liable and shall indemnify
and hold the Purchaser harmless in respect of all claims, losses,
damages, liabilities and expenses incurred by the Purchaser, the
Company or the Subsidiaries (including, without limitation, settlement
costs and any reasonable legal, accounting and other expenses for
investigation or defending any actions or threatened actions) resulting
from or in connection with (i) claims in relation to any and all loans
granted by the Company to any employee in connection with his or her
acquisition of warrants or other securities in the Company, and/or (ii)
claims in relation to the Company's application for registration of a
trademark in Brazil.
9.2 In the event the Sellers deliver at least 90.1 %, but less than all, of
the issued and outstanding Shares at Closing, the Founders and the
Financial Shareholders agree, jointly and severally, to pay any and all
claims, losses, damages, liabilities and expenses incurred by the
Purchaser, the Company or the Subsidiaries (including, without
limitation, settlement costs and any reasonable legal, accounting and
other expenses for investigation or defending any actions or threatened
actions) including any amounts for consideration in excess of the per
share consideration amount as set out in Schedule 9.2 or other actions
taken to effectuate the acquisition (compulsory or otherwise) of all of
the remaining issued and outstanding Shares and all rights therein.
9.3 The Sellers shall, jointly and severally, be liable and shall indemnify
and hold the Purchaser harmless in respect of all claims, losses,
damages, liabilities and expenses incurred by the Purchaser, the
Company or the Subsidiaries (including, without limitation, settlement
costs and any reasonable legal, accounting and other expenses for
investigation or defending any actions or threatened actions) resulting
from or in connection with any claims regarding the Company's failure
to pay pension contributions in accordance with the Company's pension
scheme as set out in Schedule 9.3.
9.4 Any time, amount or threshold amount limitations agreed regarding the
Sellers' obligations to indemnify the Purchaser in Section 8 of this
Agreement is not applicable to the indemnifications in this Section 9.
-31-
32
Share Purchase Agreement - mobilePosition
10. MISCELLANEOUS
10.1 AMENDMENTS
No amendment to this Agreement shall be effective against any
Party to this Agreement unless made in writing and signed by
all Parties to the Agreement.
10.2 WAIVER
The failure of any Party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be
considered a waiver of any right hereunder, nor shall it
deprive that Party of the right thereafter to insist upon the
strict adherence to that term or any other terms of this
Agreement.
10.3 PARTIES IN INTEREST
This Agreement shall be binding upon and inure to the benefit
of the Parties hereto and may not be assigned to any other
party, without the prior written consent of the other Parties.
10.4 COSTS
The Sellers and the Purchaser will each bear its own fees and
expenses, including but not limited to legal fees, brokerage,
bank or other fees and expenses, incurred in connection with
the negotiation, preparation and execution of this Agreement
and the transaction contemplated hereby; provided, however,
that the Sellers shall bear all costs of the services provided
by Xxxxxxxxxx Xxxxxxxx LLP except for an amount of US$40,000
to be paid by the Company (the Company will not be invoiced
for more than US$40,000 inclusive of VAT) and the Purchaser
shall bear the costs associated with any stamp duty to be paid
as a consequence of this transaction and the establishment and
administration of the Escrow Accounts, including any costs and
fees owed to the Escrow Agent.
10.5 SCHEDULES AND HEADINGS
All of the Schedules attached hereto are a part of this
Agreement and all of the matters contained therein are
incorporated herein by reference. The descriptive headings of
the Articles and Sections of this Agreement are inserted for
convenience only and do not constitute part of this Agreement.
10.6 COUNTERPARTS
This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall
constitute one and the same instrument.
-32-
33
Share Purchase Agreement - mobilePosition
10.7 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All Representations, Warranties and Covenants contained in, or
obligations imposed by, this Agreement, shall survive Closing
and continue in full force and effect notwithstanding Closing,
except those obligations to be performed on or prior to
Closing but only to the extent that they have been so
performed and in any event only for the claim periods
specified in Section 7 and 8 hereof, where applicable.
Notwithstanding the foregoing, the Sellers' obligations under
Section 9 shall survive Closing indefinitely.
10.8 SEVERABILITY
Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms
and provisions hereof or the validity or enforceability of the
offending term or provision in any other situation or in any
other jurisdiction.
10.9 NOTICES
All notices, requests, demands and other communications under
this Agreement shall be made in writing and sent to a Party at
its address and for the attention of the individual set out
below:
If to the Sellers:
On behalf of the Founders:
Name: Xxxxxx Ekerborn
Address: Xxxxxxxxxxxxxx 00, 0xx
000 00 Xxxxxxxx Xxxxx
Xxxxxx
On behalf of the Financial Investors:
Name: Xxxxxxxxxx Xxxxxxxx LLP
Attn: Torbjorn Hultsberg
Address: 00 Xxxx Xxxx
Xxxxxx XX0X 0XX
On behalf of the Other Shareholders:
Name: Niclas Johansson
Address: c/o IdeKapital AB
Xxxxxxxxxxxxxxx 00, 0 xx
000 00 Xxxxxxxxx
-33-
34
Share Purchase Agreement - mobilePosition
If to the Purchaser:
-------------------
Company: SignalSoft Corporation
Att: Director, Legal Counsel
Address: 0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000 XXX
or to such other address or to such other person as a Party
hereto shall have last designated by notice to the other Party
in accordance with the terms in this Section 9.9. Notice shall
be sent by overnight courier or facsimile and shall be deemed
to have been received on the date reflected in the records of
the overnight courier or on the date indicated in the
facsimile confirmation, respectively.
11. GOVERNING LAW AND ARBITRATION
11.1 GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of Sweden without giving effect to
the conflicts of law principles thereof; provided, however,
that the rights and obligations of the Parties under Section
12 of the Agreement, the Sellers' representations and
warranties under Sections 6.26 of the Agreement, the Escrow
Agreement and the issuance of the Consideration Shares shall
be governed by and construed in accordance with the laws of
the State of Colorado, USA and the United States federal law
without giving effect to conflicts of law principles.
11.2 ARBITRATION
11.2.1 Any dispute, controversy or claim arising out of or in
connection with this Agreement, or the breach, termination or
invalidity thereof, which is brought by Purchaser against the
Sellers shall, with the exclusion of the ordinary courts, be
referred to and finally settled by arbitration in accordance
with the Rules of the Arbitration Institute of the Stockholm
Chamber of Commerce and applying the governing law provisions
set forth in Section 11.1 hereof. The arbitral tribunal shall
be composed of three arbitrators, one appointed by the
Purchaser, one by the Sellers and the third by the Arbitration
Institute in accordance with said rules.
11.2.2 Any dispute, controversy or claim arising out of or in
connection with this Agreement, or the breach, termination or
invalidity thereof, which is brought by the Sellers against
the Purchaser shall, with the exclusion of the ordinary
courts, be referred to and finally settled by arbitration in
accordance with the Rules of Arbitration of the American
Arbitration Association applying the governing law provisions
set forth in Section 11.1 hereof. The arbitral tribunal shall
be composed of three arbitrators, one appointed by the
Purchaser, one
-34-
35
Share Purchase Agreement - mobilePosition
by the Sellers and the third by the American Arbitration
Association in accordance with said rules.
11.2.3 The proceedings and award shall be in the English language.
11.2.4 The place of arbitration in the event of arbitration brought
under Section 11.2.1 shall be Stockholm, Sweden, and the place
of arbitration in the event of arbitration brought under
Section 11.2.2 shall be Boulder, Colorado.
12. PURCHASER'S WARRANTIES
12. PURCHASER'S WARRANTIES
12.1 The Purchaser warrants and represents to each Seller that each
of the following warranties and representations is true,
accurate and not misleading at the Closing Date (unless
otherwise stated herein). The representations and warranties
given below shall be separate and independent.
12.2 The Purchaser hereby warrants, represents and undertakes to
each of the Sellers as of the Closing Date as follows:
12.2.1 it has all requisite power and authority to execute deliver
and perform this Agreement. This Agreement has been duly
authorized, executed and delivered by the Purchaser and
constitutes a legal, valid and binding obligation of the
Purchaser and is enforceable in accordance with its terms
subject to bankruptcy, insolvency, reorganisation, moratorium
or other similar laws in effect relating to creditors' rights
generally and that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject
to general principles of equity;
12.2.3 the execution, delivery or performance of this Agreement by
the Purchaser will not:
(a) result in a breach of the articles of association,
bylaws and other corporate documents of the
Purchaser;
(b) result in a breach or constitute a default under any
instrument to which the Purchaser is a party or to
which it might be bound;
(c) result in a breach of any order judgement or decree
of any court or governmental agency to which the
Purchaser is a party; and
(d) require the consent of any third party;
12.2.4 the Purchaser is acting as principal and not as agent or
broker for any other person and following Closing no person
other than the Purchaser will be interested in the Shares;
-35-
36
Share Purchase Agreement - mobilePosition
12.2.5 The authorized capital stock of the Purchaser consists of
65,000,000 shares of common stock, par value $0.001 per share,
of which 23,597,045 shares are issued and outstanding at close
of business on May 22, 2001 (exclusive of the shares to be
issued to the Sellers) and constitute the Purchaser's Common
Stock.
12.2.6 The Consideration Shares, when issued, shall be duly
authorized, validly issued, fully paid and non-assessable,
free of any pre-emptive rights and issued in accordance with
applicable law.
12.2.7 The Purchaser has filed all forms, reports and documents
required to be filed by the Purchaser with the US Securities
and Exchange Commission ("SEC") since the effective date of
the registration statement of the Purchaser's initial public
offering and has made available to the Sellers such forms,
reports and documents in the form filed with the SEC. All such
required forms, reports and documents are referred to herein
as the "SEC DOCUMENTS". As of their respective dates, the SEC
Documents (i) were prepared in accordance with the
requirements of the US Securities Act of 1933, or the US
Securities Exchange Act of 1934, as the case may be, and the
rules and regulations of the SEC thereunder applicable to such
SEC Documents and (ii) did not at the time they were filed (or
if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading, except to the
extent corrected prior to the date of this Agreement by a
subsequently filed Purchaser SEC Document. None of the
Purchaser's subsidiaries is required to file any forms,
reports or other documents with the SEC. The Purchaser has
heretofore furnished to the Sellers a complete and correct
copy of any amendments or modifications, which have not yet
been filed with the SEC but which are required to be filed, to
agreements, documents or other instruments that previously had
been filed by the Purchaser with the SEC pursuant to the US
Securities Act of 1933 or the US Securities Exchange Act of
1934, as applicable.
12.2.8 Each of the consolidated financial statements (including, in
each case, any related notes thereto) contained in the SEC
Documents (the "PURCHASER FINANCIALS") (i) complied as to form
in all material respects with the published rules and
regulations of the SEC with respect thereto, (ii) was prepared
in accordance with United States generally accepted accounting
principles ("US GAAP") applied on a consistent basis
throughout the periods involved (except as may be indicated in
the notes thereto or, in the case of unaudited interim
financial statements, as may be permitted by the SEC on Form
10-Q or 8-K or any successor form under the US Securities
Exchange Act of 1934) and (iii) fairly presented the
consolidated financial position of the Purchaser and its
subsidiaries as at the respective dates thereof and the
consolidated results of the Purchaser's operations and cash
flows for the periods indicated, except that the unaudited
interim financial statements may not contain footnotes and
were or are subject to normal and recurring year-end
adjustments. The balance sheet of the Purchaser contained in
the SEC Documents as of March 31, 2001 is hereinafter referred
-36-
37
Share Purchase Agreement - mobilePosition
to as the "PURCHASER BALANCE SHEET." Except as disclosed in
the Purchaser Financials, since the date of the Purchaser
Balance Sheet, neither the Purchaser nor any of its
subsidiaries has any known liabilities required under US GAAP
to be set forth on a balance sheet (absolute, accrued,
contingent or otherwise) that are, individually or in the
aggregate, material to the business, results of operations or
financial condition of the Purchaser and its subsidiaries
taken as a whole, except for such liabilities that have been
incurred (i) since the date of the Purchaser Balance Sheet in
the ordinary course of business consistent with past practices
and (i) in connection with this Agreement.
12.2.9 Taking into account the information contained in the SEC
Documents, no representation or warranty by the Purchaser in
this Agreement or in any written statement or certificate
furnished to Purchasers at the Closing in connection with the
transactions contemplated by this Agreement contains any
untrue statement of a material fact or omits to state a
material fact necessary to make the statements made not
misleading in light of the circumstances under which they were
made.
---------------
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
Date: 25 May 2001
FOUNDERS SIGNALSOFT CORPORATION
----------------------- -----------------------
Xxxxx Rilegard Xxxxx Hose
President and Chief Executive Officer
-----------------------
Xxxxxx Ekenborn
-----------------------
Xxxx Xxxxxxx
-37-
38
Share Purchase Agreement - mobilePosition
EUROPEAN DIGITAL PARTNERS LTD
-----------------------
Xxxxx Xxxxxxx
QINO FLAGSHIP LTD
-----------------------
Xxxxxx Xxxxxx
ALPHA VENTURE CAPITAL FUND MANAGEMENT S.A.
-----------------------
Xxxxxx X. Xxxxxxxxxxx
DELPHI PRIVATE PLACEMENT SWEDEN AB
-----------------------
Hagge Rilegard by proxy
DELPHI PRIVATE PLACEMENT GROUP AB
-----------------------
Hagge Rilegard by proxy
-38-
39
Share Purchase Agreement - mobilePosition
EUROPEAN MEDIA VENTURES AS
-----------------------
Xxxxxx xxx Xxxxxx
-39-
40
Annex A
TRANSFEROR REPRESENTATION STATEMENT
Transferor: ______________________________
Transferee: ______________________________
The Company: ______________________________
Securities: ______________________________
Amount: ______________________________ (the "Securities")
Date: ______________________________
In connection with the transfer of the Securities, the undersigned Transferor
hereby represents and warrants to SignalSoft Corporation (the "Company") that:
1. The Transferor understands that the transfer of the Securities
contemplated hereby is being made in reliance upon Regulation S
("Regulation S") under the United States Securities Act of 1933, as
amended (the "Securities Act").
2. The Transferor has not engaged in any "directed selling efforts" (as
such term is defined in Regulation S) in connection with this transfer
of the Securities.
3. If the Transferor is a "distributor" (as such term is defined in
Regulation S), a "dealer" (as such term is defined in Section 2(a)(12)
of the Securities Act), or a person receiving a selling concession, fee
or other remuneration in respect of the Securities or the transfer of
the Securities contemplated hereby is made to a known dealer or other
person receiving a selling concession, fee or other remuneration in
respect of the Securities , then the Transferor has sent to the
Transferee a notice to the effect that (a) the Securities can be
offered and sold only in accordance with Regulation S, pursuant to a
registration statement which has been declared effective under the
Securities Act or pursuant to an available exemption from the
registration requirements of the Securities Act and (b) the Transferee
shall not engage in hedging transactions with respect to the Securities
other than in compliance with the Securities Act.
4. If the Transferor is a director or officer of the Company or a
distributor (as such term is defined in Regulation S), the Transferor
affirms that the Transferor is an affiliate of the Company or such
distributor, as the case may be, solely by virtue of such position and
that no selling concession, fee or other remuneration , other than the
usual or customary broker's commission, has been paid in connection
with the offer or sale of the Securities.
TRANSFEROR
By ______________________________
Name:
Title:
-40-
41
Annex B
TRANSFEREE REPRESENTATION STATEMENT
Transferor: ______________________________
Transferee: ______________________________
The Company: ______________________________
Securities: ______________________________
Amount: ______________________________ (the "Securities")
Date: ______________________________
In connection with the transfer of the above-referenced Securities, the
undersigned Transferee hereby represents and warrants to, and agrees with,
SignalSoft Corporation (the "Company") that:
1. The Transferee understands that the transfer of the Securities
contemplated hereby is being made in reliance upon Regulation S
("Regulation S") under the United States Securities Act of 1933, as
amended (the "Securities Act").
2. The Transferee understands that the Securities have not been registered
under the Securities Act or any other applicable securities law, and
may not be offered, sold, transferred, pledged, hypothecated or
otherwise disposed of other than pursuant to a registration statement
which has been declared effective under the Securities Act or an
exemption from the registration requirements of the Securities Act or
in accordance with the provisions of Regulation S.
3. The Transferee understands that such exemption afforded by Regulation S
is only available for offers and sales of securities outside of the
United States of America and its territories and possessions (the "US")
and affirms that the offer and sale of the Securities has taken place
outside of the US. The Transferee further agrees that it will not (a)
resell the Securities other than pursuant to a registration statement
which has been declared effective under the Securities Act or pursuant
to an available exemption from the registration requirements of the
Securities Act or in accordance with the provisions of Rules 904 and
905 of Regulation S or (b) engage in any hedging transactions with
respect to the Securities other than in compliance with the Securities
Act.
4. The Transferee is not a "U.S. person" (as such term is defined in
Regulation S), nor is the Transferee acquiring the Securities for the
account or benefit of a "U.S. person" (as so defined).
5. The Transferor, not the Company, is transferring the Securities and any
information the Transferee may have received in connection with the
transfer contemplated hereby was provided to the Transferee by the
Transferor, for the benefit of the Transferor, and not by or for the
benefit of the Company. The sale of the Securities was negotiated
between the Transferor and the Transferee, without any assistance from
the Company.
6. The Transferee authorizes the Company and its agents to place on any
certificate evidencing the Security a legend in the form specified
below:
42
Share Purchase Agreement - mobilePosition
"The Securities represented by this certificate (the "Securities") have
not been registered under the United States Securities Act of 1933, as
amended (the "Securities Act"), or any other securities laws, and may
not be transferred except in accordance with the provisions of
Regulation S (Section230,901 through Section230,905, and Preliminary
Notes), pursuant to registration under the Securities Act or pursuant
to an available exemption from registration. Hedging transactions
involving the Securities may not be conducted other than in compliance
with the Securities Act."
TRANSFEREE
By ___________________________
Name:
Title:
