Exhibit 2.6 Agreement for the Acquisition of The Whole of the
Issued Share Capital of Media Ventures Group plc,
dated as of December 17, 1999 by and among
Xx0xxx.xxx Limited, Xx0xxx.xxx Inc., and Those
People Whose Names are set out in Schedule 1.
THIS AGREEMENT is dated the 17th day of December 1999 and
made BETWEEN:
(1) Those Several people whose names and addresses are set out
in Schedule 1 (the `Vendors'); and
(2) Xx0xxx.xxx Inc of Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 0000 Xxx Xxxx
Xxx Xxxx 00000 a corporation incorporated with limited liability
in the state of Delaware USA (the `Parent')
(3) CI4NET.comlimited of Xxx Xxx Xxxxxx, Xxxxx Xxxxx, Xxxxx
Xxxxxxxx Xxxxxx XX0 **a company incorporated under the law of
Jersey (the "Purchaser").
Whereas
The Vendors wish to sell and the Purchaser wishes to acquire the
entire issued share capital of Media Ventures Group plc on and
subject to the terms of this Agreement.
NOW IT IS HEREBY AGREED as follows:
1 Interpretation
1.1 Definitions
In this Agreement where the context admits:
`Business Day' means a day (other than a Saturday or Sunday)
on which banks are open for ordinary banking business in London;
`Company' means Media Ventures Group plc a company
registered in England under number 1493434 and incorporated on
25th April 1980 as a private company limited by shares under the
Companies Xxx 0000
`Companies Acts' means statutes from time to time in force
concerning companies including (without limitation) the Companies
Xxx 0000, the Companies Xxx 0000, Part V of the Criminal Justice
Xxx 0000 and the Companies Consolidation (Consequential
Provisions) Xxx 0000;
`Completion' means completion of the sale and purchase of
the Sale Shares in accordance with Clause 5 (Completion);
`Completion Date' means the date hereof
`Consideration Shares' means ordinary shares of 1,200,000
shares of common stock of each in the Parent credited as fully
paid;
`Directors' means the persons named in Part II of Schedule 1
(The Vendors and the Company) and in Schedule 2 (The
Subsidiaries) as directors of the Company and the Subsidiaries
and `The Continuing Directors' means the persons named in those
Schedules as continuing directors following Completion;
`Properties' means those properties details of which are set
out in Schedule 3
`Purchaser's Solicitors means XxXxxxxx Xxxxxxxxxx & Xxxx of
City Tower 00 Xxxxxxxxxx Xxxxxx Xxxxxx XX0X 0XX
`Restricted Business' has the meaning given in Sub-Clause
7.1 (Restricted Business);
`Sale Shares' means the shares to be bought and sold
pursuant to Clause 2.1 (Sale of Shares) being all the issued
shares in the capital of the Company;
`Subsidiaries' means the bodies corporate, details of which
are set out in Schedule 2 (The Subsidiaries);
` Vendor's Group' means the Vendor and each of its
Affiliates other than the Company and the Subsidiaries; and
`Vendors' Solicitors' Xxxxxxx Xxxxx & Co of
1.2 Construction of Certain References
In this Agreement, where the context admits:
(A) words and phrases the definitions of which are contained or
referred to in Part XXVI of the Companies Xxx 0000 shall be
construed as having the meanings thereby attributed to them;
(B) references to statutory provisions shall be construed as
references to those provisions as amended or re-enacted or as
their application is modified by other provisions from time to
time and shall include references to any provisions of which they
are re-enactments (whether with or without modification);
(C) references to Clauses and Schedules are references to
Clauses and schedules of and to this Agreement, references to
Sub-Clauses or Paragraphs are, unless otherwise stated,
references to Sub-Clauses of the Clause or paragraphs of the
Schedule in which the reference appears, and references to this
Agreement include the Schedules;
(E) references to any document being in `agreed terms' or in
`agreed form' are to that document in the form signed or
initialled by or on behalf of the parties for identification; and
(F) references to the Vendors include a reference to each of
them.
1.3 Joint and Several Liabilities
All covenants, agreements and obligations given or entered into
by more than one person in this Agreement are given or entered
into jointly and severally.
1.4 Headings
The headings and sub-headings are inserted for convenience only
and shall not affect the construction of this Agreement.
1.5 Schedules
Each of the Schedules shall have effect as if set out herein.
2 Sale of Shares
2.1 Sale and Purchase
Subject to the terms of this Agreement, the Vendors with full
title guarantee shall sell and the Purchaser shall purchase, free
from all encumbrances and together with all rights now or
hereafter attaching thereto the entire issued share capital of
the Company comprising 50,000 ordinary shares of GBP1 each and in
respect of each individual Vendor the number of Sale Shares set
opposite his name in the second column of Part I of Schedule 1.
2.2 No Sale of Part Only
Neither the Purchaser nor the Vendors shall be obliged to
complete the purchase of any of the Sale Shares unless the
purchase of all the Sale Shares is completed simultaneously.
2.3 Waiver of Pre-emption Rights
Each of the Vendors hereby waives any pre-emption rights he may
have relating to the Sale Shares, whether conferred by the
Company's Articles of Association or otherwise.
3 Consideration
3.1 Amount Consideration Shares
The total consideration for the Sale Shares shall be the
allotment to the Vendors of the Consideration Shares.
4. Completion
4.1 Completion shall take place on the Completion Date at the
offices of the Purchaser's Solicitors.
4.2 Vendor's Obligations
On Completion the Vendors shall:
(A) deliver to the Purchaser:
(1) duly executed transfers of the Sale Shares by the registered
holders thereof in favour of the Purchaser or its nominees
together with the relative share certificates;
(2) such waivers or consents as the Purchaser may require to
enable the Purchaser or its nominees to be registered as holders
of the Sale Shares; and
(3) powers of attorney in an agreed form;
(B) procure that the Directors (other than the Continuing
Directors) and the secretary or secretaries of the Company and
the Subsidiaries retire from all their offices and employments
with the Company and the Subsidiaries, each delivering to the
Purchaser a deed (in the agreed terms) made out in favour of the
Company and/or the Subsidiaries acknowledging that he has no
claim outstanding for compensation or otherwise and without any
payment under the Employment Rights Xxx 0000;
(C) procure the resignation of the auditors of the Company and
the Subsidiaries in accordance with s 293 of the Companies Xxx
0000, accompanied by a written statement pursuant to s 394 of
that Act that there are no circumstances connected with their
resignation which should be brought to the notice of the members
or creditors of each such company and that no fees are due to
them and deliver such resignation and statement to the Purchaser;
(D) deliver to the Purchaser as agent for the Company and the
Subsidiaries:
(1) all the statutory and other books (duly written up to date)
of the Company and each of the Subsidiaries and its/their
certificate(s) of incorporation, any certificates of
incorporation on change of name and common seal(s);
(2) certificates in respect of all issued shares in the capital
of each of the Subsidiaries and transfers of all shares in any
Subsidiary not held by the Company in favour of such persons as
the Purchaser shall direct;
(3) the title deeds to the Properties
(4) (or procure the delivery of) service agreements, in the
agreed terms, between [ ] and the Company, [each] executed
by [ ];
(E) procure a board meeting of the Company and of each of the
Subsidiaries to be held at which there shall be:
(1) passed a resolution to register, in the case of the Company,
the transfers of the Sale Shares and, in the case of the
Subsidiaries, the share transfers referred to in Sub-Clause
(D)(2) and (subject only to due stamping) to register, in the
register of members, each transferee as the holder of the shares
concerned;
(2) appointed as directors and/or secretary such persons as the
Purchaser may nominate
(3) tendered and accepted the resignations and acknowledgements
of the directors and secretary referred to in Sub-Clause (B) each
such acceptance to take effect at the close of the meeting;
(4) revoked all existing authorities to banks and new
authorities shall be given to such banks and on such terms as the
Purchaser may direct;
(5) changed the situation of the registered office and (subject
to the Companies Acts) the accounting reference date, each as the
Purchaser may direct; and
(6) tendered and accepted the resignation of the auditors and
appointing [ ] as new auditors of each of the Company and
the Subsidiaries; and
(7) [approved and entered into service agreements, in the agreed
terms, between [ ] and the Company];
(G) deliver to the Purchaser, certified as correct by the
secretary of the relevant company, the minutes of each such board
meeting;
(H) procure the discharge of all guarantees and like obligations
given by the Company or any of the Subsidiaries in respect of the
obligations of [any other person]
4.3 Purchaser's Obligations
On Completion the Parent shall issue the Consideration
Shares to the Vendors
5. Post Completion Obligations
5.1 Price Adjustment
In the event of that the average closing mid market price of the
ordinary shares of common stock of the Parent on the date hereof
US$10 per share, the Parent shall forthwith issue such additional
ordinary shares of common stock of the Parent so that the total
mid market value of the shares of common stock of the Parent
issued by the Parent to the Vendors pursuant hereto shall be
US$12,000,000.
5.3 Compliance by Parent
The Parent shall comply with its obligation under clause 5.1
forthwith within 14 days of today.
6. Restriction of Vendors [this may need to be varied depending
upon X Xxxxx'x existing service agreement
6.1 Restricted Business
In this Clause, `Restricted Business' means the business
activities within [country or area] and which directly or
indirectly competes with the business of the Company or any of
the Subsidiaries carried on at the date of this Agreement.
6.2 Covenants
The Vendor undertakes with the Purchaser (as trustee for itself
and the Company) and its successors in title that it will not and
that it will procure that none of its Affiliates will:
(A) for the period of [ ] after the date of this Agreement,
either on its own account or in conjunction with or on behalf of
any person, firm or company, carry on or be engaged, concerned or
interested (directly or indirectly and whether as principal,
shareholder, director, employee, agent, consultant, partner or
otherwise) in carrying on any Restricted Business (other than as
a holder of less than 5 per cent of any class of shares or
debentures listed on the London Stock Exchange or any other
recognised stock exchange);
(B) for the period of ] after the date of this Agreement,
either on its own account or in conjunction with or on behalf of
any person, firm or company, solicit or endeavour to entice away
from the Company or any of the Subsidiaries any person who at the
date of this Agreement is (or who within a period of one year
prior to the date of this Agreement has been) a director,
officer, manager, employee or servant of the Company or any of
the Subsidiaries whether or not such person would commit a breach
of contract by reason of leaving service or office;
(C) for the period of [ ] after the date of this Agreement,
either on its own account or in conjunction with or on behalf of
any person, firm or company, in connection with any Restricted
Business deal with, solicit the custom of or endeavour to entice
away from the Company or any of the Subsidiaries any person who
at the date of this Agreement is (or who within a period of one
year prior to the date of this Agreement has been) a customer of
the Company or any of the Subsidiaries whether or not such person
would commit a breach of contract by reason of transferring
business;
(D) for the period of [ ] after the date of this Agreement,
either on its own account or in conjunction with or on behalf of
any person, firm or company, in connection with any Restricted
Business endeavour to entice away from the Company or any of the
Subsidiaries any person who at the date of this Agreement is (or
who within a period of one year prior to the date of this
Agreement has been) a supplier of the Company or any of the
Subsidiaries whether or not such person would commit a breach of
contract by reason of transferring business; and
(E) at any time after the date of this Agreement, directly or
indirectly use or attempt to use in the course of any business on
its own account or in conjunction with or on behalf of any
person, firm or company, any trade or service xxxx, trade name,
design or logo used in the business of the Company or any of the
Subsidiaries or any other name, logo, trade or service xxxx or
design which is or might be confusingly similar thereto
6.3 Vendors to Procure Compliance
The Vendors undertakes to take all such steps as shall from time
to time be necessary to ensure compliance with the terms of
Sub-Clause 6.2 above by employees and agents of the Vendors or
any of its Affiliates.
6.4 Separate Covenants
Each of the undertakings in Sub-Clauses 6.2 and 6.3 shall be
construed as a separate and independent undertaking and if one or
more of the undertakings is held to be void or unenforceable, the
validity of the remaining undertakings shall not be affected.
6.5 Reasonableness
The Vendors agree that the restrictions and undertakings
contained in Sub-Clauses 6.2 and 6.3 are reasonable and necessary
for the protection of the Purchaser's legitimate interests in the
goodwill of the Company and the Subsidiaries, but if any such
restriction or undertaking shall be found to be void or voidable
but would be valid and enforceable if some part or parts of the
restriction or undertaking were deleted, such restriction or
undertaking shall apply with such modification as may be
necessary to make it valid and enforceable.
6.6 Void or Unenforceable Restrictions
Without prejudice to Sub-Clause 6.5, if any restriction or
undertaking is found by any court or other competent authority to
be void or unenforceable the parties shall negotiate in good
faith to replace such void or unenforceable restriction or
undertaking with a valid provision which, as far as possible, has
the same legal and commercial effect as that which it replaces.
6.7 Registration
Any provision of this Agreement, or of any agreement or
arrangement of which it forms part, by virtue of which such
agreement or arrangement is subject to registration under the
Restrictive Trade Practices Act 1976 shall take effect only the
day after particulars of such agreement or arrangement have been
duly furnished to the Director General of Fair Trading pursuant
to s 24 of that Act.
6.8 Confidential Information Concerning the Company
The Vendors shall not and shall procure that no other member of
the Vendor's Group nor any officer or employee of any of the
Vendors or any member of the Vendor's Group shall make use of or
divulge to any third party (other than to the Vendors'
professional advisers for the purpose of this Agreement in which
case the Vendors shall use all reasonable endeavours to procure
that such advisers keep such information confidential on terms
equivalent to this Clause) any confidential information relating
to the Company and the Subsidiaries save only:
(A) insofar as the same has become public knowledge otherwise
than, directly or indirectly, through the Vendor's breach of this
Sub-Clause 6.8 or the failure of the officers, employees or
professional advisers referred to above to keep the same
confidential; or
(B) to the extent required by law or by any supervisory or
regulatory body.
7 Confidentiality
7.1 Confidentiality
Subject to Sub-Clause 7.2 (Permitted Disclosures) and to Clause
10 (Announcements) and without prejudice to Sub-Clause 6.8
(Confidential Information Concerning the Company), each party:
(A) shall treat as strictly confidential information obtained or
received by it as a result of entering into or performing its
obligations under this Agreement and relating to the negotiations
concerning, or the provisions or subject matter of, this
Agreement or the other party (`confidential information'); and
(B) shall not, except with the prior written consent of the
other party (which shall not be unreasonably withheld or
delayed), publish or otherwise disclose to any person any
confidential information.
7.2-Clause 7.1 (Confidentiality) shall not apply if and to the
extent that [the party proposing to make such disclosure can
demonstrate that:
(A) such disclosure is required by law or by any securities
exchange or regulatory or governmental body having jurisdiction
over it and whether or not the requirement has the force of law;
(B) the confidential information was lawfully in its possession
prior to its disclosure by the other party (as evidenced by
written records) and had not been obtained from that other party;
or
(C) the confidential information has come into the public domain
other than through its fault or the fault of any person to whom
the confidential information has been disclosed.
8. Continuance of Restrictions
The restrictions contained in this Clause on the part of the
Vendors shall survive Completion.
9 Announcements
9.1 Restriction
Subject to Sub-Clause 9.2 (Permitted Announcements), neither the
Vendors nor the Purchaser shall make any announcement, whether to
the public, to the customers or suppliers of the Company, or to
all or any of the employees of the Company, concerning the
subject matter of this Agreement without the prior written
approval of the other (which shall not be unreasonably withheld
or delayed)
9.2 Permitted Announcements
Sub-Clause 9.1 (Restriction) shall not apply if and to the extent
that such announcement is required by law or by any securities
exchange or regulatory or governmental body having jurisdiction
over it and whether or not the requirement has the force of law
and provided that any such announcement shall be made only after
consultation with the other party.
9.3Continuance of Restrictions
The restrictions contained in this Clause on the part of the
Vendors shall survive Completion.
10 Provisions Relating to this Agreement
10.1 Assignment
This Agreement shall be binding upon and inure for the benefit of
the successors of the parties but shall not be assignable, save
that the Parent and /or the Purchaser may at any time assign all
or any part of its rights and benefits under this Agreement, to
any transferee of the share capital of the Company or of any of
the Subsidiaries, or to any Affiliate of the Purchaser who may
enforce them as if he had also been named in this Agreement as
the Purchaser.
10.2 Whole Agreement
(A) This Agreement, together with any documents referred to in
it, constitutes the whole agreement between the parties relating
to its subject matter and supersedes and extinguishes any prior
drafts, agreements, undertakings, representations, warranties,
assurances and arrangements of any nature, whether in writing or
oral, relating to such subject matter.
(B) No variation of this Agreement shall be effective unless
made in writing and signed by each of the parties.
10.3 Agreement Survives Completion
The provisions of this Agreement in so far as the same shall not
have been performed at Completion, shall remain in full force and
effect notwithstanding Completion.
10.4 Rights etc Cumulative and Other Matters
(A) The rights, powers, privileges and remedies provided in this
Agreement are cumulative and are not exclusive of any rights,
powers, privileges or remedies provided by law or otherwise.
(B) No failure to exercise nor any delay in exercising any
right, power, privilege or remedy under this Agreement shall in
any way impair or affect the exercise thereof or operate as a
waiver thereof in whole or in part.
(C) No single or partial exercise of any right, power, privilege
or remedy under this Agreement shall prevent any further or other
exercise thereof or the exercise of any other right, power,
privilege or remedy.
10.5 Release of One Vendor
The Purchaser may release or compromise the liability of any of
the Vendors hereunder without affecting the liability of the
other Vendor.
10.6 Further Assurance
At any time after the date hereof the Vendors shall, at the
request and cost of the Purchaser, execute or procure the
execution of such documents and do or procure the doing of such
acts and things as the Purchaser may reasonably require for the
purpose of vesting the Sale Shares in the Purchaser or its
nominees and giving to the Purchaser the full benefit of all the
provisions of this Agreement.
10.7 Invalidity
If any provision of this Agreement shall be held to be illegal,
void, invalid or unenforceable under the laws of any
jurisdiction, the legality, validity and enforceability of the
remainder of this Agreement in that jurisdiction shall not be
affected, and the legality, validity and enforceability of the
whole of this Agreement in any other jurisdiction shall not be
affected.
10.8 Payment to the Vendors
Any payment falling to be made to the Vendors under any provision
of this Agreement may be made to the Vendors solicitors, Xxxxxxx
Xxxxx & Co, whose receipt shall be an absolute discharge.
10.9 Counterparts
This Agreement may be executed in any number of counterparts,
which shall together constitute one Agreement. Any party may
enter into this Agreement by signing any such counterpart.
10.10 Costs
Each party shall bear its own costs arising out of or in
connection with the preparation, negotiation and implementation
of this Agreement
10.11 Notices
(A) Any notice or other communication required to be given under
this Agreement or in connection with the matters contemplated by
it shall, except where otherwise specifically provided, be in
writing in the English language and shall be addressed as
provided in Sub-Clause (B) and may be:
(1) personally delivered, in which case it shall be deemed to
have been given upon delivery at the relevant address; or
(2) if within the United Kingdom, sent by first class pre-paid
post, in which case it shall be deemed to have been given two
Business Days after the date of posting; or
(3) if from or to any place outside the United Kingdom, sent by
pre-paid priority airmail, in which case it shall be deemed to
have been given seven Business Days after the date of posting; or
(4) sent by fax, in which case it shall be deemed to have been
given when despatched, subject to confirmation of uninterrupted
transmission by a transmission report in which case it shall be
deemed to have been given when despatched, provided that any
notice despatched by fax after 17.00 hours (at the place where
such fax is to be received) on any day shall be deemed to have
been received at 08.00 on the next Business Day.
(B) The addresses and other details of the parties referred to
in Sub-Clause (A) are, subject to Sub-Clause (C):
Name: The Vendors care of the Vendors' Solicitors
For the Attention of Xxxxxxx Xxxxx
Address:
Fax Number 0000 000 0000
Name:CI4NET.comlimited
For the attention of: The Managing Director
Address: as above
Fax number:
Name: XX0XXX.xxx Inc
For the attention of the Chief Executive officer
Address: as above
Fax number:
Copies in the case of each of the Purchaser and the Parent to
XxXxxxxx Xxxxxxxxxx & Xxxx
City Tower
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax number 000-0000 0000
Attention: CJW Stenning
(C)Any party to this Agreement may notify the other parties of
any change to its address or other details specified in
Sub-Clause (B), provided that such notification shall be
effective only on the date specified in such notice or five
Business Days after the notice is given, whichever is later, and
provided also that any new address shall be in the United
Kingdom.
11 Law and Jurisdiction
11.1 English Law
This Agreement shall be governed by, and construed in accordance
with, English law.
11.2 Jurisdiction
In relation to any legal action or proceedings to enforce this
Agreement or arising out of or in connection with this Agreement
(`proceedings') each of the parties irrevocably submits to the
jurisdiction of the English courts and waives any objection to
proceedings in such courts on the grounds of venue or on the
grounds that the proceedings have been brought in an inconvenient
forum.
AS WITNESS the hands of the duly authorised representatives of
the parties on the date first before written.
SCHEDULE 1
THE VENDORS AND THE COMPANY
PART I:
Vendor No Sale Shares
XXXX UK HOLDINGS LIMITED 37,501
000x Xxxxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxxx X00 0XX
XXXXXX XXXXX 7,500
Xxx Xxx Xxxxxxxx
Xxxxxxxxxxx
Xxxxxx
Xxxxxxx XX0 0XX
XXXXX XXXX XXXXX 4,999
00 Xxxxxxxx Xxxx
Xxxx, Xxxxxxxxxx
Xxxxxxxx XX00 0XX
PART II:
The Company
Name: Media Ventures Group plc
Number:1493434
Registered Office: Xxxxxxxxxx Xxxxx,000x Wilmslow Road, Didsbury
ManchesterM206WF
Authorised Capital:GBP50,000
Issued Capital: GBP50,000
Directors: Xxxxx Xxxx Xxxxx
Xxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx
Secretary: Xxxxxxx Xxxxx
Accounting Reference Date: 31 March
Auditors: Xxxxx Xxxxx
Continuing Directors:
SIGNED by )
For and on behalf of Xxxx UK )
Holdings Limited )
SIGNED by Xxxxxxx Xxxxx )
SIGNED by Xxxxx Xxxx Xxxxx )
Signed by )
For and on behalf of XX0Xxx.xxx)
limited )
Signed by )
For and on behalf of XX0XXX.xxx)
Inc )
