Share Purchase Agreement
Xxxxxxxxxxxx 00000 XX
and
Razorfish, Inc.
for the sale and purchase of all of the issued shares of Razorfish AB, org.
no. 556503-3247
THIS AGREEMENT is made on 12 December 2001
BETWEEN:
(1) STARTPLATTAN 71274 AB, org. no. 556619-1523, (the "Buyer"); and
(2) RAZORFISH, INC. with principal offices at 00 Xxxxxx Xxxxxx, Xxx Xxxx, XX
00000 (the "Seller").
THE PARTIES AGREE AS FOLLOWS:
1. INTERPRETATION
1.1 In this agreement the following words and expressions and abbreviations
have the following meanings, unless the context otherwise requires:
"Buyer's Group" means the Buyer and its holding companies from time to time
and the subsidiaries of the Buyer and such holding companies, all of them
and each of them as the context admits;
"Company" means Razorfish AB whose registered office is at Grev Xxxxxxxxx
00, Xxxxxxxxx, Xxxxxx and which is registered under number 556503-3247;
"Subsidiaries" means the subsidiaries of the Company as at the date hereof
including but not limited to those companies listed at Schedule 1. For the
avoidance of doubt Razorfish Oy shall not be included in the term
Subsidiaries and shall, thus, not be regarded as a subsidiary of the
Company
"Encumbrance" means any mortgage, charge (fixed or floating), pledge, lien,
hypothecation, trust, right of set off or other third party right or
interest (legal or equitable) including any right of pre-emption,
assignment by way of security, reservation of title or any other security
interest of any kind however created or arising or any other agreement or
arrangement (including a sale and repurchase arrangement) having similar
effect;
"Related Person" means in relation to any party its holding companies and
the subsidiaries and associated companies from time to time of such holding
companies, all of them and each of them as the context admits;
"Seller's Group" means Razorfish, Inc., its subsidiaries and associated
companies excluding the Company and the Subsidiaries, all of them and each
of them as the context admits as at the date hereof;
"Shares" means the 2815 shares of the Company and which constitute all of
the issued and outstanding shares of the Company.
1.2 In this agreement unless otherwise specified, reference to:
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(a) "includes" and "including" shall mean including without limitation;
(b) a "party" means a party to this agreement and includes its permitted
assignees (if any) and/or the successors in title to that part of its
undertaking which includes this agreement;
(c) words denoting the singular shall include the plural and vice versa
and words denoting any gender shall include all genders;
(d) any statute, statutory instrument, regulation, by-law or other
requirement of Swedish law and to any Swedish legal term for any
action, remedy, method of judicial proceeding, legal document, legal
status, procedure, court, official or any legal concept or doctrine or
other expression shall in respect of any jurisdiction other than
Sweden be deemed to include that which most nearly approximates in
that jurisdiction to the Swedish term;
1.3 The schedules form part of the operative provisions of this agreement
and references to this agreement shall, unless the context otherwise
requires, include references to the schedules.
2. SALE AND PURCHASE ETC.
2.1 The Seller hereby sells and the Buyer hereby purchases the Shares with
effect from 30 November 2001 free from any Encumbrance together with all
accrued benefits and rights attached thereto.
2.2 The Seller waives or agrees to procure the waiver of any rights or
restrictions conferred upon it or any other person which may exist in
relation to the Shares under the articles of association of the Company and
Subsidiaries or otherwise.
2.3 The consideration for the sale and purchase of the Shares and for
warranties, licenses and undertakings etc. given by the Seller under this
agreement shall be the total sum of one (1) USD to be paid to the Seller by
the Buyer immediately after the signing of this agreement.
2.4 The Seller shall immediately after the signing of this agreement deliver to
the Buyer the following documents:
(a) share certificates representing the Shares executed in favour of the
Buyer;
(b) certified copy of the resolution of Seller's board of directors
authorizing the transfer of the Shares to the Buyer.
3. WARRANTIES
3.1 The Seller warrants to the Buyer as follows:-
(a) The Seller is the only legal and beneficial owner of the Shares.
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(b) The Company has not allotted any shares other than the Shares and the
Shares are fully paid or credited as fully paid.
(c) There are no: (i) outstanding subscriptions, warrants, options, calls,
or rights to acquire any shares in the capital or other securities of
the Company; (ii) outstanding securities, instruments or obligations
that are or may become convertible into or exchangeable for any shares
in the capital or other securities of the Company; (iii) contracts
under which the Company is or may become obliged to sell or otherwise
issue any shares of its capital stock or any other securities; (iv)
conditions or circumstances that may directly or indirectly give rise
to or provide a basis for the assertion of a claim by any person to
the effect that such person is entitled to acquire or receive any
shares in the capital, or other securities of the Company.
(d) There is no Encumbrance in relation to any of the Shares or unissued
shares in the capital of the Company.
(e) The Seller has the right, power and authority to enter into and
perform its obligations under this agreement and each of the other
transaction documents to which it is a party and the execution,
delivery and performance by the Seller of this agreement and each such
other transaction has been duly authorized by all necessary action on
the part of the Seller.
(f) The Seller has transferred all its claims on Razorfish AS to the
Company and thereafter converted the transferred claims to
unconditional shareholder contribution in the Company, as per Schedule
2.
(g) The Seller has converted all claims on the Company, including
conditional shareholder contribution, to unconditional shareholder
contribution, as per Schedule 3 and 4.
(h) The Seller warrants, on behalf of itself and its US subsidiaries, that
it has no claim on the Buyer, the Company or the Subsidiaries of
whatever kind and that if any claim of whatever kind would surface in
the future the Seller will waive all such claims.
(i) The Seller and/or the Seller Group has not filed for bankruptcy,
receivership, liquidation or similar proceedings of the Company and
will not on or after the date of this agreement file for bankruptcy
receivership, liquidation or similar proceedings of the Company. The
Seller and/or the Seller's Group has not and will not apply for
bankruptcy with an application signed by the Company or on behalf of
the Company prior to the date of this agreement. The Seller shall
immediately after signing this agreement destroy any application for
bankruptcy signed by the Company or on behalf of the Company before
the date of this agreement.
3.2 The Buyer warrants to the Seller that:-
(a) so far as the Buyer is aware (having made all reasonable due and
careful enquiry) neither the Seller nor any of its US subsidiaries has
given any guarantee or
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underwritten any obligation in connection with any obligation of the
Company which is still outstanding at the date hereof apart from (a)
letter of guarantee issued by the Seller to Den Danske Bank dated
01.11.2000, Schedule 5; (b) letter of guarantee signed by the Seller
to Den Danske Bank dated 08.11.2000 (the Buyer does not know if the
letter of guarantee has been issued to Den Danske Bank), Schedule 6;
and (c) Capital Cover Guarantee dated January 1, 2001 Schedule 7.
(b) The Buyer has the right, power and authority to enter into and perform
its obligations under this agreement and each of the other transaction
documents to which it is a party.
(c) On behalf of itself and on behalf of the Company and its Swedish
subsidiaries, neither the Company nor any of its Swedish subsidiaries
have any claim against the Seller or its US subsidiaries of whatever
kind and that if any claim of whatever kind would surface in the
future the Buyer and the Company and its Swedish subsidiaries will
waive its rights under any such claim. Notwithstanding anything to the
contrary above or elsewhere in this agreement the Seller shall remain
liable to transfer 700 000 SEK to the Company as compensation for tax
liabilities and debts in Qb International Holding AB and its
subsidiaries under a share purchase agreement between the Seller and
the Company of even date. The Buyer and/or the Company has not waived
and shall not be obliged to waive its right to receive the 700 000 SEK
in compensation from the Seller
4. PROTECTION OF GOODWILL
4.1 Subject to clause 4.10, the Seller on behalf of itself and its US
subsidiaries, hereby undertakes (except as otherwise agreed in writing
with the Buyer) not to directly or indirectly and either solely or
jointly with any other person (either on its own account or as the
agent of any other person) and in any capacity whatsoever:
(a) for a period of two years from the date of this agreement carry on or
be engaged or concerned or (except as the holder of shares in a listed
company which confer not more than five per cent of the votes which
can generally be cast at a general meeting of the company) interested
in a business in Sweden or Norway which competes with the type of
business carried on by the Company and/or the Buyer and/or Razorfish
AS as at the date of this agreement; and/or
(b) for a period of two years from the date of this agreement solicit any
customer or employee of the Company and/or the Buyer and/or Razorfish
AS.
4.2 Subject to clause 4.10, the Seller agrees that the undertakings contained
in clause 4.1 are reasonable and are entered into for the purpose of
protecting the goodwill of the business of the Company and Razorfish AS
save that the benefit of the undertakings in clause 4.1 may not be assigned
by the Buyer and its successors in title without the consent of the Seller.
The Buyer agrees that the undertakings contained in clause 4.1 will not
apply in respect of an existing client of the Seller and its US
subsidiaries. An existing client shall be deemed to be a client or customer
of the Seller and/or its US subsidiaries as at the date of this agreement.
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4.3 Subject to clauses 4.4 and 4.10, the Seller hereby grants the Company a non
transferable (other than to a member of the Buyer's Group and/or to
Geelmude Kiesen Gruppen AS (GKG")) royalty free licence to use the
Razorfish name as a trademark, tradename and domain name in Sweden and
Norway for a period of one calendar month from the date of this agreement.
4.4 Subject to clause 4.10, the Seller hereby grants the Company, Razorfish AS
and the Buyer a non transferable (other than to a member of the Buyer's
Group and/or GKG) royalty free licence to use the Razorfish name together
with the word Sweden and/or Stockholm and/or Norway and/or Olso with or
without any suffix thereto and/or Razorfish together with another name
approved by the Seller (such approval only to be refused if the Seller can
reasonably demonstrate that such other name could damage the commercial
interests of the Seller's Group) as a tradename (company name) and domain
name in Sweden and Norway for a period of two years from the date of this
agreement; provided, however that the Company's licence described herein
will be immediately cancelled or revoked in the event that the Company's,
Razorfish AS and the Buyer's core business becomes anything other than
providing digital services. Seller agrees to provide the Buyer, the Buyer's
Group, Razorfish AS and GKG with written consents to ensure that the
Company Registrars and domain name registrars in Sweden and Norway approves
and registers the tradename, trademark and domain name for the Buyer, the
Buyer's Group, Razorfish AS or GKG.
4.5 Subject to clause 4.10, the Seller grants the Company, Razorfish AS and the
Buyer a royalty free non transferable (other than to a member of the
Buyer's Group and/or GKG) licence to refer to Razorfish, Inc.'s website at
xxx.xxxxxxxxx.xxx for marketing purposes only for a period of one calendar
month from the date of this agreement.
4.6 Subject to clause 4.10, the Seller hereby grants the Company and Razorfish
AS a royalty free non transferable licence (other than to a member of the
Buyer's Group and/or GKG) to use the name `Razorfish Europe' within Sweden
and Norway as a trade name (company name) and domain name until the earlier
of
(a) the date which is the second anniversary of the date of this
agreement; or
(b) the date that the Company engages in a core business other than
providing digital services; or
(c) the date the Seller or any of its US subsidiaries establishes a
company in Europe and engages in trading in Europe; or
(d) the date the Company is sold by the Buyer to a company outside the
Buyer's Group (except where the Buyer sells the Company to a company
outside the Buyer's Group which is only interested in buying the
Company to be able to use the deficits in the Company for tax purposes
and/or where the Buyer prior to the sale of the Company changes the
name of the Company so as not to include "Razorfish")
whereupon the licence granted by this clause 4.6 shall immediately
cease and neither the Company nor the Buyer nor any member of the
Buyer's Group shall have any right to use the name `Razorfish Europe'
in any capacity or combination of words whatsoever. For the avoidance
of doubt where the licence granted pursuant to this clause 4.6 is
transferred by the Buyer to another company within the Buyer's Group
the same restrictions regarding the
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Buyer shall apply to such transferee and the licenses shall lapse on
the same date pursuant to this clause 4.6 as if the said licences had
not been transferred by the Buyer to another member of the Buyer's
Group.
4.7 The Seller shall set up a banner on its website at xxx.xxxxxxxxx.xxx
which refers end users to xxx.xxxxxxxxx.xx and to xxx.xxxxxxxxx.xx or
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such other URL to which the Company and/or the Buyer and/or Razorfish
AS and/or another member of the Buyer's Group or GKG changes pursuant
to clause 4.4 for a period of two years from the date of this
agreement. The Buyer shall procure that the Company and Razorfish AS
shall set up a banner on the website of the Company which refers end
users to the website of the Seller at xxx.xxxxxxxxx.xx and at
xxx.xxxxxxxxx.xx. The Seller shall for a period of one (1) month allow
emails to be delivered to the present and future employee's of the
Company and Razorfish AS under the @xxxxxxxxx.xxx email adresses.
4.8 Subject to clause 4.10, the Seller hereby grants the Company and
Razorfish AS such licences to the software used by the Company and
Razorfish AS that may be so transferred and/or granted to the Company
and Razorfish AS pursuant to the terms of such licences or
sub-licences of the software used by the Company or Razorfish AS
provided that such transfer or grant is at no cost of the Seller and
the Seller is legally entitled to sublicense such software. The Seller
undertakes to use its best endeavours to provide the Buyer and GKG
with sufficient information about the software licenses (including
information about any software licenses owned by the Company) to
determine which software the Company needs to purchase. Such
information shall be given to the Buyer no later than December 17,
2001.
4.9 The Seller shall deliver a template format of the Razorfish, Inc.'s
website at xxx.xxxxxxxxx.xxx on a CD within 10 working days after the
-----------------
date of this agreement. The Seller grants the Company, Razorfish AS
and the Buyer a non transferable (other than to a member of the
Buyer's Group and/or GKG) right to use, copy and modify the template
form.
4.10 In the event that
(a) an order is made, petition presented or resolution passed for the
winding up (or equivalent procedure whereby the business is terminated
and the assets of the Company concerned are distributed amongst its
creditors and shareholders) or for the appointment of a provisional
liquidator to the Company or the Buyer; or
(b) administration order has been made and a petition for an
administration order has been presented (or, equivalent process
whereby the affairs of the Company are managed by a person
specifically appointed for the purpose by a court, governmental body
or similar agency) in respect of the Company or the Buyer; or
(c) a receiver, receiver and manager, administrative receiver, custodian
or similar official is appointed of the whole or part of either the
Company or the Buyer's business or assets; or
(d) a voluntary arrangement, compromise or scheme of arrangement of the
affairs of the Company or the Buyer with their respective creditors or
any class of their respective creditors generally has been proposed,
sanctioned or approved; or
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(e) the Shares or a majority of the Shares are sold or an interest in the
Company is acquired by a third party which is not a member of the
Buyer's Group the acquisition of which would give the acquirer of such
Shares a majority shareholding in the Company (except where the Buyer
also after the sale of Shares or an interest in the Company through
agreement or otherwise has a controlling influence on the Company
and/or where the Buyer sells the Company to a company outside the
Buyer's Group which is only interested in buying the Company to be
able to use the deficits in the Company for tax purposes and/or where
the Buyer prior to the sale of the Company changes the name of the
Company so as not to include "Razorfish") ; or
(f) the shares in such member of the Buyer's Group to which company a
licence granted by the Seller pursuant to this clause 4 has been
transferred (the `Transferee') are sold or an interest in the
Transferee is acquired by a third party who is not a member of the
Buyer's Group the acquisition of which would give the acquirer of such
shares a majority shareholding in the Transferee (except where the
Buyer also after the sale of such shares or an interest in the
Transferee through agreement or otherwise has a controlling influence
on the Transferee and/or where the Buyer prior to the sale of the
Transferee changes the name of the Transferee so as not to include
"Razorfish")
then the obligation of the Seller in clauses 4.1 to 4.9 inclusive shall
immediately cease and the rightsand benefits granted by the Seller to the
Buyer and/or the Company (or the rights which have been transferred to any
Transferee by the Buyer) pursuant to clauses 4.1 to 4.8 inclusive shall
immediately cease. Notwithstanding anything to the contrary above, clause
4.10 (a) - (d) shall not apply where the name of the Company has been
changed to not include the name Razorfish before the Company is wound up or
a receiver is appointed.
4.11 For the avoidance of doubt, the Company, the Buyer, the Buyer's Group,
Razorfish AS and/or GKG shall not lose any right under any of the clauses
in this clause 4 only because the Company sells its shares in Razorfish AS
to GKG.
5. INTER COMPANY AMOUNTS OWING
5.1 Should the Company have any inter company debt, management charge,
invoicing owing to the Seller or its US subsidiaries after the transfer in
Section 3 (f) and (g) the Seller, on behalf of itself and its US
subsidiaries, hereby waives any such inter company debt, management charge,
invoice as at the date of this agreement and releases the Company from any
such inter company debt, management charge or invoice so owing.
5.2 The Buyer hereby agrees to procure that the Company and the Subsidiary
shall waive in writing any inter company debt, management charge, invoice
owing by the Company and/or a Subsidiary to the Seller and its US
subsidiaries as at the date of this agreement and shall release the Seller
and each of its US subsidiaries from any such inter company debt,
management charge or invoice so owing.
5.3 In the event that the Buyer sells the Shares or a majority of the Shares
are sold or are agreed to be sold by the Buyer within a period of 3 months
from the date of this agreement to a
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party which is not a member of the Buyer's Group (except where the Buyer
sells the Shares to a company outside the Buyer's Group which buys the
Shares for the sole purpose of being able to use the losses in the Company
for tax purposes and does not intend to carry on the business of a digital
technology consultancy) the Buyer shall pay an amount on the date of such
sale or agreement for sale which is the lower of:
(a) the aggregate amount of any inter company debt, management charge and
invoice which the Seller has waived and released pursuant to clause
5.1; and
(b) 50% of the sale proceeds payable from such sale or agreement for sale.
6. ANNOUNCEMENTS
6.1 No party shall disclose the making of this agreement nor any other
agreement referred to in this agreement, its terms (except those matters
set out in the press release in the agreed terms and subject to clause 6)
and each party shall procure that each of its Related Persons and its
professional advisers shall not make any such disclosure without the prior
consent of the other party unless disclosure is:
(a) to its professional advisers; or
(b) required by law or the rules and requirements of any regulatory body,
including, for the avoidance of doubt, the US Securities laws or
NASDAQ requirements
provided that this clause 6 does not apply to announcements, communications
or circulars made or sent by the Buyer after this agreement to customers,
clients or suppliers of the Company to the extent that it informs them of
the Buyer's acquisition of the Shares or to any announcements containing
only information which has become generally available.
6.2 The restrictions contained in this clause 6 shall apply without limit of
time and whether or not this agreement is terminated.
7. ASSIGNMENT
This agreement is personal to the parties and accordingly neither party
without the prior written consent of the other shall assign, transfer or
declare a trust of the benefit of all or any of any other party's
obligations nor any benefit arising under this agreement.
8. COSTS
Each of the parties shall bear its own legal, accountancy and other costs,
charges and expenses connected with the sale and purchase of the Shares.
9. FURTHER ASSURANCES
The Seller shall after the agreement from time to time forthwith upon
request from the Buyer at the Buyer's expense do or procure the
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doing of all acts and/or execute or procure the execution of all such
documents in a form reasonably satisfactory to the Buyer for the purpose of
vesting in the Buyer the full legal and beneficial title to the Shares. The
Seller agrees to use its reasonable endeavours to assist the Company in its
negotiation with its bankers in the event that the Company decides to
transfer its assets to a third party connected with the Buyer including any
negotiations concerning any guarantee given by the Seller to the bankers to
the Company provided that such assistance is not prejudicial in any way to
the commercial interests of the Seller.
10. ENTIRE AGREEMENT
10.1 Each party on behalf of itself and as agent for each of its Related Persons
acknowledges and agrees with the other party (each such party acting on
behalf of itself and as agent for each of its Related Persons) that:
(a) this agreement together with any other documents referred to in this
agreement (together the "Transaction Documents") constitutes the
entire and only agreement between the parties and their respective
Related Persons relating to the subject matter of the agreement;
(b) neither it nor any of its Related Persons has been induced to enter
into any Transaction Document in reliance upon, nor has any such party
been given, any warranty, representation, statement, assurance,
covenant, agreement, undertaking, indemnity or commitment of any
nature whatsoever other than as are expressly set out in the
Transaction Documents and, to the extent that any of them has been, it
(acting on behalf of itself and as agent on behalf of each of its
Related Persons) unconditionally and irrevocably waives any claims,
rights or remedies which any of them might otherwise have had in
relation thereto;
PROVIDED THAT the provisions of this clause 10 shall not exclude any
liability which any of the parties or, where appropriate, their Related
Persons would otherwise have to any other party or, where appropriate, to
any other party's Related Persons or any right which any of them may have
in respect of any statements made fraudulently by any of them prior to the
execution of this agreement or any rights which any of them may have in
respect of fraudulent concealment by any of them.
11. VARIATIONS
This agreement may be varied only by a document signed by each of the
Seller and the Buyer.
12. WAIVER
12.1 A waiver of any term, provision or condition of, or consent granted under,
this agreement shall be effective only if given in writing and signed by
the waiving or consenting party and then only in the instance and for the
purpose for which it is given.
12.2 No failure or delay on the part of any party in exercising any right, power
or privilege under this agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of
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any such right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
12.3 No breach of any provision of this agreement shall be waived or discharged
except with the express written consent of the Seller and the Buyer.
12.4 The rights and remedies herein provided are cumulative with and not
exclusive of any rights or remedies provided by law.
3. INVALIDITY
13.1 If any provision of this agreement is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction:
(a) the validity, legality and enforceability under the law of that
jurisdiction of any other provision; and
(b) the validity, legality and enforceability under the law of any other
jurisdiction of that or any other provision,
shall not be affected or impaired in any way.
14. COUNTERPARTS
This agreement may be executed in any number of counterparts which together
shall constitute one agreement. Any party may enter into this agreement by
executing a counterpart and this agreement shall not take effect until it
has been executed by both parties.
15. GOVERNING LAW AND JURISDICTION
15.1 This agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this agreement or
its formation) shall be governed by and construed in accordance with
Swedish law.
15.2 Each of the parties to this agreement irrevocably agrees that the courts of
Sweden shall have exclusive jurisdiction to hear and decide any suit,
action or proceedings, and/or to settle any disputes, which may arise out
of or in connection with this agreement (respectively, "Proceedings" and
"Disputes") and, for these purposes, each party irrevocably submits to the
jurisdiction of the courts of Sweden.
15.3 Each party irrevocably waives any objection which it might at any time have
to the courts of Sweden being nominated as the forum to hear and decide any
Proceedings and to settle any Disputes and agrees not to claim that the
courts of Sweden are not a convenient or appropriate forum for any such
Proceedings or Disputes and further irrevocably agrees that a judgment in
any Proceedings or Disputes brought in any court referred to in this clause
14
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shall be conclusive and binding upon the parties and may be enforced in the
courts of any other jurisdiction.
15.4 Without prejudice to any other permitted mode of service the parties agree
that service of any claim form, notice or other document ("Documents") for
the purpose of any Proceedings begun in Sweden shall be duly served upon it
if delivered personally or sent by registered post, in the case of:
(a) the Seller to Razorfish, Inc. at 00 Xxxxxx Xxxxxx Xxx Xxxx XX00000 XXX
(marked for the attention of XX Xxxxx and Xxxxxx Xxxxxx); and
(b) the Buyer to Razorfish AB, Grev Xxxxxxxxx 00, Xxxxxxxxx, Xxxxxx.
or such other person and address as the Seller shall notify the Buyer in
writing or vice versa from time to time.
IN WITNESS whereof this agreement has been executed on the date first above
written.
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Schedule 1
The Subsidiaries
Razorfish AG
Razor AB
Confutera NR 5011 AB
Confutera Learning AB
Confutera Services AB
Spray Network USA, Inc.
Confutera Workgroup Solutions AB
Confutera Media Agency AB
Confutera Research AB
Confutera Interactive Development AB
Confutera Nord AB
Razorfish AS
Signed by ) /S/ PER JAURING
for and on behalf XXXXXXXXXXXX 00000 XX )
)
)
Signed by ) /S/ XXXX-XXXXXXXX XXXXX
for and on behalf of RAZORFISH, INC. )
)
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