EXHIBIT 4.1
_____________________________________________________________________________
STOCKHOLDERS AGREEMENT
by and among
RAZORFISH, INC.,
COMMUNICADE INC.,
SPRAY VENTURES AB,
XXXXXXX X. XXXXXX
AND
XXXXX X. XXXXXXXX
______________________________________________________________________________
Dated as of October 1, 1998
TABLE OF CONTENTS
ARTICLE I
TERM
Section 1.1 Term.................................................... 1
ARTICLE II
RESTRICTIONS ON TRANSFERS; OPTIONS; RIGHTS OF FIRST OFFER
Section 2.1 Restrictions on Transfers............................... 1
Section 2.2 Third Parties; Legend................................... 2
Section 2.3 Transfers in Violation of Agreement..................... 2
Section 2.4 Communicade Ten Percent Option.......................... 2
2.4.1 Communicade Ten Percent Option........................ 2
2.4.2 Communicade Option Notice............................. 3
2.4.3 Closing............................................... 3
2.4.4 Price Adjustment...................................... 3
2.4.5 Repurchase of Purchased Shares........................ 3
Section 2.5 Right of First Offer.................................... 4
2.5.1 Grant of Option....................................... 4
2.5.2 Exercise of Option.................................... 4
2.5.3 Contract with Proposed Purchaser...................... 4
2.5.4 Non-Impairment of Certain Rights...................... 5
Section 2.6 Financing Right and Call Option......................... 5
2.6.1 Financing Right....................................... 5
2.6.2 Call Option........................................... 5
2.6.3 Call Option Notice.................................... 5
2.6.4 Call Option Purchase Price............................ 6
2.6.5 Closing............................................... 6
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Section 2.7 Pledge of Company Stock by Spray Ventures................ 6
ARTICLE III
COVENANTS OF THE COMPANY AND THE STOCKHOLDERS
Section 3.1 Financial Reporting and Budgeting........................ 6
Section 3.2 Board of Directors....................................... 7
Section 3.3 Management of the Company................................ 7
3.3.1 Board of Directors Action.............................. 7
3.3.2 Stockholder Action..................................... 9
3.3.3 Related Provisions..................................... 9
ARTICLE IV
COVENANTS OF COMMUNICADE
Section 4.1 Line of Credit........................................... 9
Section 4.2 Acquisition Financing.................................... 9
ARTICLE V
MISCELLANEOUS
Section 5.1 Notices.................................................. 10
Section 5.2 Entire Agreement......................................... 12
Section 5.3 Employment............................................... 12
Section 5.4 The Spray Name and Trademark............................. 12
Section 5.5 Waiver................................................... 12
Section 5.6 Severability............................................. 12
Section 5.7 Assignment............................................... 12
Section 5.8 Headings................................................. 12
Section 5.9 Further Assurances....................................... 12
Section 5.10 Specific Performance.................................... 12
Section 5.11 Governing Law........................................... 13
ii
Section 5.12 Counterparts......................... 13
iii
STOCKHOLDERS AGREEMENT
AGREEMENT dated as of October 1, 1998 by and among RAZORFISH, INC., a
New York corporation (the "COMPANY"); COMMUNICADE INC., a Delaware corporation
("COMMUNICADE") and wholly-owned subsidiary of Omnicom Group Inc., a New York
corporation ("OMNICOM"); SPRAY VENTURES AB, a corporation incorporated under the
laws of the Kingdom of Sweden with identification number 556506-7997 ("SPRAY
VENTURES"); XXXXXXX X. XXXXXX ("DACHIS") and XXXXX X. XXXXXXXX ("KANARICK")
(Communicade, Spray, Dachis and Kanarick are sometimes individually referred to
as a "STOCKHOLDER" and collectively as the "STOCKHOLDERS").
W I T N E S S E T H:
WHEREAS, entering into this Agreement is a condition of closing under
the Stock Purchase Agreement of even date herewith (the "PURCHASE AGREEMENT")
among the Company, Spray Ventures and Communicade pursuant to which the Company
purchased 100% of the issued and outstanding shares of capital stock of Spray
Network AB, a corporation incorporated under the laws of the Kingdom of Sweden
with identification number 556503-3247 ("SPRAY NETWORK"); and
WHEREAS, the parties desire to enter into certain agreements with
respect to the purchase and sale of common stock, par value $.01 per share, of
the Company (the "COMPANY STOCK") and the management and operations of the
Company and certain other provisions;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
TERM
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SECTION 1.1 Term. This Agreement shall continue in effect until the
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closing of the Company's first firm commitment underwritten public offering
pursuant to an effective Registration Statement (the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act") covering the
offer and sale of Company Stock to the public (the "Offering") or until the
Stockholders otherwise agree in writing. The period during which this Agreement
is in effect is sometimes referred to herein as the "Term."
ARTICLE II
RESTRICTIONS ON TRANSFERS; OPTIONS; RIGHTS OF FIRST OFFER
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SECTION 2.1 RESTRICTIONS ON TRANSFERS. No Stockholder shall have the right
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or the power to, and each Stockholder covenants and agrees that he or it will
not, directly or indirectly, by any means and whether or not for consideration,
sell, assign, pledge or otherwise transfer or
dispose any Company Stock or assign any of his or its rights or delegate any
duties or obligations under this Agreement except in compliance with this
Article II or as provided in Section 5.6 below. If a Stockholder who has become
obligated to sell shares of Company Stock hereunder shall fail to deliver the
certificates representing such shares of Company Stock in accordance with the
terms of this Agreement, the purchasing Stockholder(s) shall, at its option and
in addition to all other remedies they may have, send to such selling
Stockholder the purchase price, as provided herein, and shall give notice of
such action to the Company. Thereupon the Company shall cancel on its books the
certificate or certificates representing the shares of Company Stock to be sold,
shall issue, in lieu thereof, a new certificate registered in the name of the
purchasing Stockholder(s) representing such shares of Company Stock and shall
deliver such new certificate to the purchasing Stockholder(s), and thereupon,
such selling Stockholder shall have no further rights whatsoever with respect to
such shares of Company Stock, except to receive payment of any unpaid portion of
the purchase price as provided herein.
SECTION 2.2 THIRD PARTIES; LEGEND. In the event that a Stockholder shall
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sell or otherwise transfer shares of Company Stock to a third party as permitted
by this Agreement, such third party shall be bound by the terms of this
Agreement and shall be required to sign an agreement to such effect prior to the
effectiveness of such transfer. In addition, prior to any such transfer being
effective, such third party shall execute and deliver to the Company an
investment letter in a form customarily given in connection with such private
placement transfers. From and after such transfer, such transferee shall be
deemed to be included with the definition of "STOCKHOLDER" as used herein. The
fact that Company Stock is subject to the restrictions set forth in this
Agreement (including, but not limited to the provision of Article III) shall be
reflected on all stock certificates representing shares of Company Stock.
SECTION 2.3 TRANSFERS IN VIOLATION OF AGREEMENT. Any purported transfer by
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a Stockholder of all or any of his Company Stock, any purported assignment by
any Stockholder of any of his or its rights under this Agreement, and any
purported delegation by a Stockholder of any of his or its duties or obligations
under this Agreement in contravention of any of the provisions of this Article
II will be null and void ab initio and of no force and effect.
SECTION 2.4 COMMUNICADE TEN PERCENT OPTION.
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2.4.1 Communicade Ten Percent Option. In the event that the Company
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shall contemplate effecting an Offering, Communicade shall have the right, but
not the obligation (the "COMMUNICADE TEN PERCENT OPTION"), to purchase from the
Company, up to such number of shares of Company Stock as shall equal 10% of the
then issued and outstanding Company Stock on a fully diluted basis (the "OPTION
SHARES"). For purposes of this Agreement, "fully diluted basis" shall mean all
shares of Company Stock issued and outstanding together with (a) all shares of
Company Stock issuable upon the exercise of all outstanding options, warrants,
rights, subscriptions, calls, commitments, understandings, rights of exchange,
plans or other agreements to acquire shares of Company Stock other than shares
issuable pursuant to the Communicade Ten Percent Option, and (b) all shares of
Company Stock into which any other class of the Company's outstanding securities
are convertible; provided, however, any shares of Company Stock expected to be
issued and sold by the Company in the Offering shall not be included.
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2.4.2 Communicade Option Notice. Communicade shall exercise the
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Communicade Ten Percent Option in whole or in part by sending a written notice
(the "COMMUNICADE OPTION NOTICE") to the Company indicating its desire to
purchase such Option Shares within 10 days following notice to Communicade from
the Company (the "COMPANY OPTION NOTICE") that it is substantially prepared to
make the initial filing of the Registration Statement with the Securities and
Exchange Commission (the "SEC"). If Communicade exercises its Communicade Ten
Percent Option, then Communicade shall be obligated to purchase and the Company
shall be obligated to sell the Option Shares, at a per share price equal to 80%
of the amount stated in the Company Option Notice, such amount to be equal to
the bottom of the range for the per share price to public as estimated by Credit
Suisse First Boston (or such other underwriter then advising the Company) (the
"ESTIMATED IPO PRICE").
2.4.3 Closing. The closing for the purchase and sale of the Option
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Shares under the provisions of this Section 2.4 shall be held within 5 days
following delivery of the Communicade Option Notice. At such closing, (i)
Communicade shall pay in cash the purchase price in full, (ii) the Company shall
issue and deliver to Communicade the certificate or certificates evidencing the
Option Shares to be purchased by Communicade at such closing free and clear of
all claims, liens, encumbrances, mortgages, security interests, charges and
restrictions of any kind or character, except for the restrictions set forth
herein and such other restrictions as may otherwise be required or imposed by
applicable law and (iii) Communicade shall execute and deliver to the Company an
investment letter in a form customarily given in connection with the private
placement issuance of securities. Any cash payment shall be by certified check
or wire transfer in accordance with instructions from the Company.
2.4.4 Price Adjustment. Subject to Section 2.4.5, upon the closing
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of the Offering, the Company shall adjust the total purchase price paid by
Communicade for the Option Shares, as follows:
(i) If the Estimated IPO Price is less than the per share price to
public set forth on the final prospectus filed by the Company with the SEC
in connection with the Offering (the "IPO PRICE"), then Communicade shall
pay to the Company 80% of the product of (x) the number of Option Shares
and (y) the difference between the IPO Price and the Estimated IPO Price;
(ii) If the Estimated IPO Price is greater than the IPO Price, then
the Company shall pay Communicade 80% of the product of (x) the number of
Option Shares and (y) the difference between the Estimated IPO Price and
the IPO Price.
Any payments required under this Section 2.4.4 shall be made simultaneously
with the closing of the Offering.
2.4.5 Repurchase of Purchased Shares. If the Offering does not close
------------------------------
within nine months after the Communicade Option Notice is delivered, (x)
Communicade can cause the Company and the Company agrees to repurchase the
Option Shares and (y) upon the affirmative vote of a majority of the
Stockholders, the Company can cause Communicade and Communicade agrees to sell
the Option Shares to the Company, in each instance at a price per share equal to
the
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Estimated IPO Price. The Company shall repurchase such shares within 10 days
following written notice to the Company, which notice must be given within 12
months after the Communicade Option Notice is delivered. If the Company
repurchases the Option Shares in accordance with this Section 2.4.5, the parties
agree that the Communicade Ten Percent Option shall be automatically reinstated
and that the provisions of this Section 2.4 shall be interpreted as if no
Communicade Option Notice shall have been delivered nor an initial filing of a
Registration Statement made.
SECTION 2.5 RIGHT OF FIRST OFFER.
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2.5.1 Grant of Option. If any Stockholder desires to sell, assign,
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transfer, encumber or otherwise dispose ("DISPOSE") of shares of Company Stock
then owned by such Stockholder (the "SELLING STOCKHOLDER"), the Selling
Stockholder shall deliver a written notice (a "NOTICE OF FIRST OFFER") to each
other Stockholder (an "OFFEREE STOCKHOLDER"). The Notice of First Offer shall
describe in reasonable detail the shares of Company Stock being offered (the
"OFFERED STOCK"), the purchase price (which, if not in cash, may be reduced, at
the option of any Offeree Stockholder, to its cash equivalent as reasonably
determined by the Company and its accountants) requested for each share of
Offered Stock (the "TARGET PRICE") and all other material terms and conditions
of the offer.
2.5.2 Exercise of Option. If the Selling Stockholder delivers a
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Notice of First Offer, each Offeree Stockholder shall have the option to
purchase all, but not less than all, of his pro-rata share of the Offered Stock
at the Target Price and on the other terms contained in the Notice of First
Offer by notifying the Selling Stockholder in writing within 30 days after
receipt of a Notice of First Offer (the "OFFER PERIOD") that such Offeree
Stockholder elects to purchase his pro-rata share of the Offered Stock
("EXERCISE NOTICE"). Each Offeree Stockholder may also elect to purchase all,
but not less than all, of the Offered Stock not elected to be purchased by any
other Offeree Stockholders (the "REMAINING OFFERED STOCK"), by so indicating in
his Exercise Notice. If only one Offeree Stockholder makes such an election,
such Offeree Stockholder shall purchase all of the Remaining Offered Stock. If
more than one Offeree Stockholder makes such an election, such Offeree
Stockholders shall purchase a pro rata portion of the Remaining Offered Stock.
If the Offeree Stockholders do not collectively elect to purchase all of the
Offered Stock pursuant to this Section, the Offeree Stockholders will not have
the right to purchase any of the Offered Stock hereunder. Any purchase and sale
pursuant to the provisions of this Section 2.5.2 shall occur not later than 60
days after the date of the delivery of the Notice of First Offer to the Offeree
Stockholders, subject to the satisfaction of any regulatory requirements.
2.5.3 Contract with Proposed Purchaser. If any Selling Stockholder
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has given the Offeree Stockholders a Notice of First Offer and the Offeree
Stockholders have failed to exercise their right to purchase all, but not less
than all, of the Offered Stock under Section 2.5.3, the Selling Stockholder may
within 90 days after the end of the Offer Period, execute a contract with a
third party (the "PROPOSED PURCHASER") providing for the bona fide sale of the
Offered Stock at the Target Price or any amount in excess of the Target Price
and on the other terms contained in the Notice of First Offer (the "PURCHASE
CONTRACT"). Within 10 days after the
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execution of the Purchase Contract, the Selling Stockholder shall deliver a
written notice of such Purchase Contract (a "NOTICE OF PROPOSED TRANSFER") to
each Offeree Stockholder together with a copy of the Purchase Contract. Such
Notice of Proposed Transfer will also include the name of the Proposed Purchaser
and a statement of the material relationships, if any, between each Selling
Stockholder and the Proposed Purchaser. If the Proposed Purchaser is not an
individual, the Notice of Proposed Transfer shall also include a brief
description of the business of the Proposed Purchaser and copies of the Proposed
Purchaser's financial statements (audited, to the extent available) for the
preceding three fiscal years.
2.5.4 Non-Impairment of Certain Rights. The failure by an Offeree
--------------------------------
Stockholder to exercise his right to purchase his pro-rata share of Company
Stock under this Section 2.5 in connection with any one proposed sale will not,
in any manner, waive or otherwise impair the rights of such Offeree Stockholder
to purchase shares of Company Stock in connection with any other proposed sale.
SECTION 2.6 FINANCING RIGHT AND CALL OPTION
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2.6.1 Financing Right. In the event that prior to the Offering, the
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Company desires to raise capital solely for the purpose of financing operations
in the ordinary course of business through a private placement of its securities
(the "PRIVATE PLACEMENT"), prior to requesting the Board of Directors of the
Company to authorize and approve such matter, the Company shall negotiate and
obtain a bona fide term sheet with respect to the private placement of such
securities and shall give notice of such offer to Communicade (the "PLACEMENT
NOTICE"), which Placement Notice shall be accompanied by a detailed written
description of the terms and conditions of the proposed Private Placement.
Communicade shall then have the right (the "FINANCING RIGHT"), but not the
obligation, to provide such financing in whole or in part on the terms and
conditions specified in the Placement Notice; such right to be exercisable by
Communicade giving the Company notice of such election within 30 days after the
giving of the Placement Notice. In the event that Communicade elects to exercise
its Financing Right, the Company and Communicade (or another company within the
Omnicom Group designated by Communicade) shall enter into such agreements and
take such actions as are reasonable and customary under the circumstances to
carry out such financing within a reasonable time period.
2.6.2 Call Option. In the event that Communicade does not exercise
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its Financing Right and votes against the Private Placement, the Stockholders
other than Communicade (the "CALLING STOCKHOLDERS") shall have the option (the
"CALL OPTION"), but not the obligation, exercisable for 30 days following such
negative vote by Communicade to purchase all, but not less than all, of the
Company Stock then owned by Communicade.
2.6.3 Call Option Notice. The Call Option may be exercised by the
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Calling Stockholders by giving written notice of exercise to Communicade. If the
Calling Stockholders exercise the Call Option, then the Calling Stockholders
shall be obligated to purchase and Communicade shall be obligated to sell all
the shares of Company Stock then owned by it at the purchase price and on the
terms as provided in Section 2.6.4. Each Calling Stockholder shall purchase from
Communicade his pro rata share of Communicade's Company Stock in
5
accordance with his or its then respective ownership of Company Stock, unless
otherwise agreed among the Calling Stockholders, and Communicade shall sell such
Company Stock to each such Calling Stockholder in accordance with the foregoing.
2.6.4 Call Option Purchase Price. The aggregate purchase price to
--------------------------
be paid by the Calling Stockholders upon their exercise of the Call Option shall
be such amount and on such terms to be negotiated between Communicade and the
Calling Stockholders in good faith, such aggregate purchase price to be
allocated among the Calling Stockholders in accordance with the number of shares
of Company Stock purchased by each such Calling Stockholder.
2.6.5 Closing. The closing for the purchase and sale of shares of
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Company Stock under the provisions of this Section 2.6 shall be held at the
offices of the Company within 30 days after the exercise of the Call Option. At
such closing, (i) the Calling Stockholders shall pay the purchase price in full
by certified check or wire transfer in accordance with instructions from
Communicade, (ii) the Company shall repay in full any indebtedness owed by it to
Communicade and/or any of its affiliates, including, but not limited to, the
Line of Credit and the acquisition financing referred to in Sections 4.1 and 4.2
respectively hereto, and (iii) Communicade shall execute and deliver to the
Calling Stockholders the certificate or certificates evidencing the shares of
Company Stock to be sold by Communicade at such closing, duly endorsed for
transfer to the Calling Stockholders (or accompanied by a stock power duly
endorsed for transfer to the Calling Stockholders), free and clear of all
claims, liens and encumbrances.
SECTION 2.7 PLEDGE OF COMPANY STOCK BY SPRAY VENTURES. Notwithstanding
-----------------------------------------
anything in this Article II to the contrary, Spray Ventures shall be entitled to
pledge the shares of Company Stock held by it (the "Pledged Shares") in
connection with the Pledge Agreement (the "Pledge Agreement") dated as of the
date hereof between Spray Ventures and Omnicom Finance Inc., a Delaware
corporation ("OFI"), and OFI shall be permitted to have ownership of such shares
of Company Stock transferred to it in accordance with such Pledge Agreement. In
the event that OFI shall take ownership of the Pledged Shares in accordance with
this Section 2.7, OFI shall be deemed to be included within the definition of
"Stockholder" as used herein.
ARTICLE III
COVENANTS OF THE COMPANY AND THE STOCKHOLDERS
SECTION 3.1 FINANCIAL REPORTING AND BUDGETING. The Stockholders agree to
---------------------------------
abide by, and to cause the Company to comply on a timely basis with the
Communicade financial reporting and budgeting process as from time to time in
effect, which procedures require the approval by Communicade of annual profit
and capital expenditure plans. The financial reporting and budgeting procedures
for companies which are not majority-owned by Communicade require the completion
of the following items: (i) a monthly abbreviated profit and loss statement,
(ii) a quarterly balance sheet and income statement, (iii) a year-end balance
sheet and income statement, together with supporting schedules and (iv) annual
profit and capital expenditure budgets and quarterly reforecasts thereof.
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SECTION 3.2 BOARD OF DIRECTORS. The Stockholders agree that during the
------------------
Term and as long as Communicade shall own less than 51% of the Company Stock,
the Board of Directors of the Company shall consist of seven directors.
Communicade shall be entitled to designate one director, Dachis and Kanarick
shall be entitled to designate a total of three directors and Spray Ventures
shall be entitled to designate three directors for as long as they own any
shares of Company Stock. The Stockholders agree to vote their shares to elect
directors in accordance with the provisions of this paragraph.
SECTION 3.3 MANAGEMENT OF THE COMPANY.
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3.3.1 Board of Directors Action. The parties agree that during the
-------------------------
Term, the taking of any of the actions listed below by the Company shall require
the unanimous vote of all of the directors of the Company:
(i) the sale, lease or other disposition of all or substantially
all of the Company's assets or business;
(ii) the creation of, or the modification of any of the terms of,
any of the following financial arrangements: any security interest on any
of the Company's material assets or properties other than in the ordinary
course of the Company's business; any guarantee by the Company of the
obligations of any third party, whether a Stockholder, a director or
employee of the Company or otherwise; or any indebtedness for borrowed
money, except for (x) indebtedness for borrowed money incurred in the
ordinary course of the Company's business not in excess of $100,000 and (y)
indebtedness for borrowed money to Omnicom or any subsidiary thereof;
(iii) entering into any business other than, or any transaction
outside, the normal business activities of the Company and related
activities;
(iv) the amendment of the Company's Certificate of Incorporation or
By-Laws;
(v) any increase or decrease in the capitalization of the Company
including any creation of or increase in the Company's bonded indebtedness;
(vi) the issuance or sale of stock or other securities of the
Company, or stock options, warrants or obligations convertible into such
stock or securities, except pursuant to options granted or to be granted
under any option plan existing as of the date hereof;
(vii) any acquisition by the Company of the stock, assets or
business of another corporation or entity or any investment by the Company
of corporate funds in another corporation or entity;
(viii) the merger, consolidation or amalgamation of the Company with
and into another corporation or entity, or of any other corporation or
entity with and into the Company;
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(ix) the liquidation or dissolution of the Company;
(x) the entering into any lease agreement for real property or any
capital expenditure relating to property, plant, equipment and intangibles,
or commitment therefor, involving an amount in excess of $50,000 for each
related expenditure or commitment or aggregating more than $250,000 during
any calendar year not otherwise approved in accordance with Section 3.1;
(xi) the making of any loans by the Company to any employee other
than (x) travel and business expense advances to employees in the ordinary
course of the Company's business or (y) loans with outstanding principal
and interest not in excess of $20,000 to any one employee or $100,000 in
the aggregate;
(xii) the entering into any transaction with any stockholder,
director or executive officer of the Company (including the entering into
or modification of any employment agreement) or any entity which controls,
is controlled by or under common control with, any of such parties, except
for transactions with Omnicom or any subsidiary thereof;
(xiii) any increase in the compensation payable to any Stockholder or
any other executive officer or director of the Company and the adoption or
amendment of any profit sharing or other employee benefit plan; except for
increases in the compensation payable to executive officers which are
within the parameters of the Company's approved budget;
(xiv) any change in the accounting policies, auditors (currently
Xxxxxx Xxxxxxxx), bankers, fiscal year or authorized signatories in respect
of bank accounts or loan documents of the Company;
(xv) the granting or entering into any license or agreement
concerning any portion of the Company's name not in the ordinary course of
business;
(xvi) causing or permitting any of the Company's subsidiaries to
take any actions as set forth in the foregoing clauses; and
(xvii) the delegation to any committee of the Board of Directors or
to any officer of the Company of the power to take any of the actions
referred to in the foregoing clauses before obtaining the authorization
required by this Section.
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3.3.2 Stockholder Action. Notwithstanding that a lesser percentage
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vote may be specified by law or otherwise, the Stockholders agree that during
the Term, the taking of any action requiring the authorization of the
stockholders of the Company shall require the affirmative vote of the holders of
not less than 80% of the issued and outstanding Company Stock (or such greater
percentage as required by law).
3.3.3 Related Provisions.
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(i) As long as any of the provisions of this Section 3.3 are
operative and this Agreement is in full force and effect, the Company shall
keep on file at its principal office a copy of this Agreement. The Company
shall make such copy available to any stockholder of the Company during
normal business hours and upon reasonable advance written notice.
(ii) To the extent permitted by applicable law, as long as the
provisions of this Section 3.3 are operative, the Company and the
Stockholders agree that they shall cause any and all controlled
subsidiaries of the Company to comply with the provisions of this Section
3.3 as if such provisions were applicable to such subsidiary and shall
cause each subsidiary's charter documents to include provisions consistent
with the provisions contained in this Section 3.3.
ARTICLE IV
COVENANTS OF COMMUNICADE
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SECTION 4.1 LINE OF CREDIT.. Communicade shall, or shall cause OFI to
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(whether directly or through one of its affiliates), to continue to provide a
line of credit to the Company (a "LINE OF CREDIT") during the term of this
Agreement pursuant to the terms and conditions of that certain Loan Agreement,
dated September 18, 1996 by and between the Company and OFI; provided that
Omnicom, directly or indirectly, then owns Company Stock. Such Line of Credit
shall be in an amount equal to $2,000,000 for use in the operation of the
Company's business. Except as otherwise provided in this Section 4.1, such
credit line shall be subject to the terms and conditions applicable generally to
the subsidiaries of Omnicom under the Omnicom cash management program. The
initial $1,000,000 of such line of credit at any time outstanding shall be
without interest and any borrowings outstanding at any time over and above
$1,000,000 shall bear interest at the rate then charged by Omnicom to its
subsidiaries under the Omnicom cash management program, such interest rate to
change when and as such rate shall change (the "APPLICABLE INTEREST RATE"). Any
borrowings hereunder shall be secured by a first priority lien on all assets
(and the proceeds thereof) of the Company, which security arrangement shall be
evidenced by appropriate documentation reasonably satisfactory to Communicade or
Omnicom, as the case may be, and the Company.
SECTION 4.2 ACQUISITION FINANCING. During the term of this Agreement
---------------------
provided that Omnicom, directly or indirectly, then owns Company Stock,
Communicade shall, or shall cause Omnicom (whether directly or through one
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of its affiliates), to provide financing to the Company for "new media"
acquisitions as shall have been approved in accordance with the provisions of
Section 3.3 of this Agreement. The interest rate charged by Communicade or
Omnicom with respect to any such financing will be the Applicable Interest Rate.
Unless otherwise agreed between Communicade and the Company on a case-by-case
basis, interest on any such loan shall be paid quarterly on the then outstanding
principal amount and principal shall be repaid quarterly in equal installments
over a seven year period.
ARTICLE V
MISCELLANEOUS
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SECTION 5.1 NOTICES. Any notice or other communications required or
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permitted hereunder shall be in writing and shall be deemed effective (a) upon
personal delivery, or (b) on the next business day if mailed by an overnight
courier service or sent by facsimile transmission, or (c) three days after the
date of deposit in the mails, if mailed by registered or certified mail, postage
prepaid, and in each case at the respective addresses or numbers set fort below
or to such other address or number as such party may have fixed by notice:
If to Communicade, to it c/o:
Communicade Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Fax No. (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax No. (000) 000-0000
If to the Company, Dachis or Kanarick, to:
Razorfish, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax No. (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: Xxxx X. Xxxxxx, Esq.
Fax No. (000) 000-0000
If to Spray Ventures, to:
Spray Ventures AB
Xxxxxxxxxx 00
000 00 Xxxxxxxxx
Xxxxxxxxx: Per Xxxxxxx
Fax No. 000-00-0-000 15 95
with a copy to:
Xxxxxxxxxx Swartling Advokatbyra
Xxxxxxxxxxxxx 0
Xxx 0000
XX-000 00 Xxxxxxxxx
Attention: Xxxx Xxxxxxxxxxxxx
Fax No. 000-00-0-000 55 01
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SECTION 5.2 ENTIRE AGREEMENT. This writing constitutes the entire
----------------
agreement of the parties with respect to the subject matter hereof and may not
be modified, amended or terminated, except by a written agreement signed by the
parties hereto (or such of them that still then own Company Stock). This
Agreement supersedes all prior agreements and understandings between the parties
with respect to the subject matter hereof, including without limitation, that
certain Shareholders Agreement, dated September 18, 1996, by and among the
Company, Communicade, Dachis and Kanarick.
SECTION 5.3 EMPLOYMENT. Nothing contained in this Agreement shall give
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any Stockholder any right to be retained in the employ of the Company or affect
the right of the Company to terminate a Stockholder's employment with the
Company.
SECTION 5.4 THE SPRAY NAME AND TRADEMARKS. Spray Ventures has granted to
-----------------------------
the Company a royalty-free, non-exclusive and non-assignable license to use the
Spray tradename and trademarks on the terms and conditions set forth in the
License Agreement attached hereto as Exhibit A.
SECTION 5.5 WAIVER. No waiver of any breach or default hereunder shall be
------
considered valid unless in writing, and no such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature.
SECTION 5.6 SEVERABILITY. If any provision of this Agreement shall be
------------
held invalid or unenforceable, such invalidity or unenforceability shall attach
only to such provision and shall not in any manner affect or render invalid or
unenforceable any other provision of this Agreement, and this Agreement shall be
carried out as if any such invalid or unenforceable provision were not contained
herein.
SECTION 5.7 ASSIGNMENT. Communicade shall have the right to assign its
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rights and/or obligations to purchase shares of Company Stock pursuant to this
Agreement to any member of the Omnicom Group, provided that upon any such
transfer such member agrees in writing to be bound by the terms of this
Agreement, and any such transferee shall be deemed to be included within the
defined term "Communicade" for purposes of this Agreement. This Agreement shall
be binding upon the parties hereto, their respective heirs, executors,
administrators, successors and assigns.
SECTION 5.8 HEADINGS. The paragraph headings contained herein are for the
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purpose of convenience only and are not intended to define or limit the contents
of such paragraphs.
SECTION 5.9 FURTHER ASSURANCES. Each party hereto shall cooperate and
------------------
shall take such further action and shall execute and deliver such further
documents as may be reasonably requested by any other party in order to carry
out the provisions of this Agreement.
SECTION 5.10 SPECIFIC PERFORMANCE. It is agreed that the parties will be
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irreparably damaged if this Agreement is not specifically enforced. In the event
of a breach or threatened breach of the terms, covenants and/or conditions of
this Agreement by any of the parties hereto, the other parties shall, in
addition to all other remedies, be entitled to a temporary or permanent
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injunction, without showing any actual damage, and/or a decree for specific
performance, in accordance with the provisions hereof.
SECTION 5.11 GOVERNING LAW. This Agreement shall be construed under the
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laws of the State of New York, without reference to its conflict of laws
provisions.
SECTION 5.12 COUNTERPARTS. This Agreement may be executed in two or more
------------
counterparts, all of which taken together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed, as of the day and year first written.
RAZORFISH, INC.
By: /s/ Xxxxxxx X. Xxxxxx
_______________________________
Xxxxxxx X. Xxxxxx, President
COMMUNICADE INC.
By: /s/ Xxxxx Xxxxxxx
________________________________
Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
SPRAY VENTURES AB
By: /s/ Per Xxxxxxx
_______________________________
Name: Per Xxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxx
___________________________________
XXXXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxxxx
___________________________________
XXXXX X. XXXXXXXX
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