[LOGO] Ashurst Xxxxxx Xxxxx
Share Purchase Agreement
Xxxxxx Xxxxxx
and
Razorfish, Inc.
and
UH 000 Xxxxxxxxxxx GmbH
for the sale and purchase of all of the issued shares of UH 107 Verwaltungs GmbH
2001
THIS AGREEMENT is made on 11 December 2001
BETWEEN:
(1) Xxxxxx Xxxxxx whose address is Xxxxxxxxx. 00, Xxxxxxxx, Xxxxxxx, (the
"Buyer") acting for himself (the `Company') ; and
(2) Razorfish, Inc., whose registered office is at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, XXX) (the "Seller"); and
(3) UH 107 Verwaltungs GmbH whose registered office is at Ebersberg,
Germany, which is registered under number HRB3240
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 any company owned by the Buyer
either solely or jointly with employees of the Company and/or the
Subsidiary (but no one else) all of them and each of them as the
context admits;
"Company" means UH 107 Verwaltungs GmbH, whose registered office is at
Ebersberg, Germany, which is registered under number HRB3240 and has a
registered capital of (euro) 25.000 fully paid up;
"Completion" means the completion of the sale and purchase of the
Shares in accordance with clause 3
"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 as of the date of this
Agreement, all of them and each of them as the context admits;
"Seller's Group" means Razorfish, Inc., its subsidiary undertakings
and associated companies as of the date of this Agreement, excluding
the Companies and the Subsidiary, all of them and each of them as the
context admits;
"Shares" means of 50% of all of the issued shares in the capital of
the Company representing Euros 12,500 of the registered capital of
Euros 25,000;
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"Subsidiary" means a subsidiary of the Company; in particular,
including Razorfish Management AG, Munchen, and Razorfish AG & Co. KG,
Munchen.
1.2 In this agreement unless otherwise specified, reference to:
(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 and, in the case of an individual, to his or her
estate and personal representatives;
(c) a "person" includes any person, individual, company, firm,
corporation, government, state or agency of a state or any
undertaking (whether or not having separate legal
personality and irrespective of the jurisdiction in or under
the law of which it was incorporated or exists);
(d) a "statute" or statutory instrument or accounting standard
or any of their provisions is to be construed as a reference
to that statute or statutory instrument or accounting
standard or such provision as the same may have been amended
or re-enacted before the date of this agreement;
(e) "clauses", "paragraphs" or "schedules" are to clauses and
paragraphs of and schedules to this agreement;
(f) "writing" includes any methods of representing words in a
legible form (other than writing on an electronic or visual
display screen) or other writing in non-transitory form;
(g) words denoting the singular shall include the plural and
vice versa and words denoting any gender shall include all
genders;
(h) any statute, statutory instrument, regulation, by-law or
other requirement of German law and to any German 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 Germany be deemed to
include that which most nearly approximates in that
jurisdiction to the German term;
(i) the time of day is reference to Central European Time
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.
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2. SALE AND PURCHASE
2.1 Upon the terms and subject to the condition in clause 3, the Seller
shall sell and the Buyer shall purchase 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
Companies or otherwise.
2.3 The Buyer shall not be obliged to complete the purchase of any of the
Shares unless the Seller completes the sale of all of the Shares
simultaneously, but completion of the purchase of some Shares shall
not affect the rights of the Buyer with respect to its rights to the
other Shares.
2.4 The consideration for such sale and purchase shall be the total sum of
1 Deutsche Xxxx to be satisfied in cash on Completion.
3. CONDITION AND COMPLETION
3.1 Completion of this agreement is conditional upon the certification and
registration by a German qualified Notary, as required by German Law
of a Deed of Transfer which shall transfer the Shares legally to the
Buyer (the `Condition')
3.2 Completion shall take place at the offices of the Company as soon as
possible after the execution of this agreement and immediately upon
the certification and registration by a German qualified Notary, as
required by German Law of a Deed of Transfer which shall transfer the
Shares legally to the Buyer.
3.3 The Buyer agrees to use his best endeavours to arrange for a German
qualified Notary to give such certification and registration as soon
as possible after the signing of this agreement and shall give such
notary all such assistance for such purpose.
3.4 Upon Completion the Buyer shall pay the Seller the sum of 1 Deutsche
Xxxx as consideration for the Shares.
3.5 If the Condition has not been fulfilled on or before 1700 hours
(German time) on 13 December 2001 this agreement shall terminate with
effect from that time and date.
3.6 If this agreement terminates in accordance with clause Error!
Reference source not found. then the obligations of the parties shall
automatically terminate save that the rights and liabilities of the
parties which have accrued prior to termination shall continue to
subsist including those under clauses 8, 9 and 11 to 18 (inclusive).
3.7 The Seller shall keep the Buyer advised of the progress towards the
satisfaction of the Condition.
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4. WARRANTIES
4.1 The Seller warrants to the Buyer as follows:-
(a) The Seller is the only legal and beneficial owner of the
Shares.
(b) The Company has not allotted any shares other than the
Shares and the Shares are fully paid in or credited as fully
paid in.
(c) There is no Encumbrance in relation to any of the Shares or
unissued shares in the capital of the Company.
(d) Other than this agreement, there is no agreement,
arrangement or obligation requiring the creation, allotment,
issue, sale, transfer, redemption or repayment of, or the
grant to a person of the right (conditional or not) to
require the allotment, issue, sale, transfer, redemption or
repayment of, a share in the capital of the Company
(including an option or right of pre-emption or conversion).
(e) The Seller has not secured any obligation or underwritten
any obligation of or in respect of any obligation of the
Seller on or using the assets of the Company and/or the
Subsidiary and the Seller agrees to indemnify the Buyer in
respect of any liability, cost, damage, suffered by the
Company and/or the Subsidiary as a result of such security
or underwriting.
(f) The Seller warrants that neither it nor its US subsidiaries
has any claim against the Buyer or the Company of whatever
kind and that if any such claim of whatever kind would
surface in the future the Seller and its US subsidiaries
will waive its rights under any such claim.
4.2 The Buyer warrants to the Seller that
(a) So far as the Buyer is aware having made all due and careful
enquiry, neither the Seller nor any member of the Seller's
Group has given any guarantee or underwritten any obligation
of or in respect of any obligation of the Company or any
subsidiary which is still outstanding at the date hereof and
the Buyer agrees to indemnify the Seller in respect of any
liability, cost, damage, suffered by any member of the
Seller's Group as a result of such guarantee;
(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 the Company and the Subsidiary, neither the
Company nor any such subsidiary has any claim against the
Seller or any member of the Seller's Group of whatever kind
and that if any claim of whatever kind would surface in the
future the Buyer, the Company and/or such subsidiary will
waive its rights under any such claim.
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5. PROTECTION OF GOODWILL
5.1 Subject to clause 5.12, the Seller hereby undertakes to procure that
(except as otherwise agreed in writing with the Buyer) no member of
the Seller's Group will either 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 Completion carry on or be
engaged or concerned or (except as the holder of shares in a
listed company which confer not more than one per cent. of
the votes which can generally be cast at a general meeting
of the company) interested in a business in Germany which
competes with the type of business carried on by the Company
as at the date of Completion;
(b) for a period of two years from Completion solicit an
employee of the Company or the custom of any person in
respect of services competitive with those supplied by the
Company during the period of 6 months prior to Completion,
such person having been a customer of the Company in respect
of such services during such period; or
5.2 Subject to clause 5.12, the Seller agrees that the undertakings
contained in clause 5.1 are reasonable and are entered into for the
purpose of protecting the goodwill of the business of the Company save
that the benefit of the undertakings may not be assigned by the Buyer
and its successors in title without the consent of the Seller. The
Buyer also agrees that the undertakings contained in clause 5.1 will
not apply in respect of an existing client of any member of the
Seller's Group. An existing client shall be deemed to be a client or
customer of any member of the Seller's Group as at the date of this
Agreement.
5.3 Subject to clauses 5.4 and 5.12, the Seller hereby grants the Company
a non transferable (save to another member of the Buyer's Group) and
royalty free exclusive licence to use the Razorfish name for a period
of one calendar month from the completion in Germany.
5.4 Subject to clause 5.12, the Seller hereby grants the Company a non
transferable (save to another member of the Buyer's Group) and royalty
free exclusive licence to use the name `Razorfish' within Germany
together with another name (e.g. "Germany") 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) 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 core business becomes anything other than providing digital
services.
5.5 Subject to clause 5.12, the Seller hereby grants the Company a royalty
free non transferable (save to another member of the Buyer's Group)
exclusive licence to use the name `Razorfish Europe' within the
Germany as a trade name but not as a company name until the earlier of
(a) the date which is the second anniversary of the date of this
Agreement; or
(b) the date the Company engages in a core business other than
providing digital services; or
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(c) the date the Seller or a member of the Seller's Group or a
company associated with the Seller's Group informs the Buyer
that it is trading or about to start trading in Europe;
whereupon the licence granted by this clause 5.5 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.
5.6 Subject to clause 5.12, the Seller hereby approves expressly that the
Company and its subsidiaries are free to use all of the intellectual
property, especially know-how (including scan and thought pieces and
case studies), processes (especially Forenkla and ROI-Model),
templates, guidelines, denominations, etc. which do reflect and assist
the work and services rendered of the Company for a period of six (6)
months following Completion.
5.7 Subject to clause 5.12, the Seller shall procure that Razorfish Inc
shall grant the Company a royalty free non transferable (save to a
member of the Buyer's Group) exclusive licence to refer to the
Razorfish Inc website at xxx.xxxxxxxxx.xxx for marketing purposes only
for a period of three calendar month from the date of this Agreement.
5.6 The Seller hereby agrees to set up a banner on its website at
xxx.xxxxxxxxx.xxx which refers end users to xxx.xxxxxxxxx.xx or such
other name to which the Company changes pursuant to clause 5.4 for a
period of two years from the date of this Agreement. The Buyer shall
procure that the Company shall set up a banner on the website of the
Company which refers end users to the website of Razorfish Inc at
xxx.xxxxxxxxx.xxx
5.8 Subject to clause 5.12, the Seller hereby grants the Company non
transferable (save to another member of the Buyer's Group) licences to
the software used by the Company that may be so transferred and/or
granted to the Company pursuant to the terms of such licences or
sub-licences of the software used by the Company provided that such
transfer or grant is at no cost of the Seller and the Seller is
legally entitled to sublicense such software.
5.9 The Seller shall deliver a template format of the its website at
xxx.Xxxxxxxxx.xxx (including the source code) on a CD within ten (10)
working days of Completion to allow the Buyer to use such a template
for the purposes of designing a new website for the Company.
5.10 The Seller shall grant the Company a non exclusive non transferable
(save to another member of the Buyer's Group) licence to use the
Seller's Inc. owned intellectual processes, including the process known
as `Forenkla', for a period of six months from the date of this
Agreement.
5.11 In the event that the any claim regarding the acquisition of former
Medialab group, pursuant to a contract signed in August 2000, is
brought against Buyer, the Seller will make its reasonable best efforts
to provide any non-monetary support requested by the Buyer in
connection with its the defence of such claims. Furthermore, the Seller
will agree to make its reasonable best efforts to provide any
non-monetary support requested by Buyer in connection with the defence
of any claim brought against Buyer for events that occurred before
Completion.
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5.12 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
(e) the Company or the Buyer is insolvent or unable to pay its
debts as they fall due or will in all likelihood be unable
to pay its debts as they fall due; or
(f) the Shares or a majority of the Shares are sold or an
interest in the Company is acquired by a third party not
being a member of the Buyer's Group the acquisition of which
would give the acquirer not being a member of the Buyer's
Group of such Shares a majority shareholding in the Company
within six months
then the obligations of the Seller in clauses 5.1 to 5.11
shall immediately cease and the licences, rights and benefits
granted by the Seller to the Buyer and/or the Company pursuant
to clauses 5.1 to 5.11 inclusive shall immediately cease.
5.13 Notwithstanding clause 5.12, in the event that the Shares or a majority
of the Shares are sold or an interest in the Company is acquired by a
third party (not being a member of the Buyer's Group) the acquisition
of which would give the acquirer of such Shares a majority shareholding
in the Company after the date which is six months from the date of this
agreement such licences, rights and benefits granted by the Seller to
the Buyer and/or the Company pursuant to clauses 5.1 to 5.11 inclusive
shall not cease and shall continue for a period which is in each case
is deemed to be half of the period shown in clauses 5.1 to 5.11
inclusive.
6. INTER COMPANY AMOUNTS
6.1 Subject at all times to the completion of this Agreement:-
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(a) the Seller hereby agrees to waive any inter company debt,
management charge, invoice owing by the Company or the
Subsidiary to the Seller as of the date of Completion and
Seller shall release the Company and the Subsidiary from any
such inter company debt, management charge, invoice so
owing.
(b) the Buyer hereby agrees to procure that the Company and the
Subsidiary shall at Completion waive in writing any inter
company debt, management charge, invoice owing by the Company
or the Subsidiary to the Seller's Group (other than Razorfish
AB, Razorfish BV and Razorfish AS) as at that date and shall
release each member of the Seller's Group (other than
Razorfish AB, Razorfish BV and Razorfish AS) from any such
inter company debt, management charge, invoice so owing.
6.2 In the event that 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, the Buyer shall pay an amount which is the
lower of:-
(a) the aggregate amount of any inter company debt, management
charge, invoice which the Seller has waived and released
pursuant to clause 6.1 (a) on the date of such sale or
agreement for sale; and
(b) 50% of the sale proceeds arising from such sale or agreement
for sale
7. ANNOUNCEMENTS
7.1 No party shall disclose the making of this agreement nor any other
agreement referred to in this agreement, its terms 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 US
securities laws and the rules of NASDAQ
provided that this clause 7 does not apply to announcements,
communications or circulars made or sent by the Buyer after Completion
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.
7.2 The restrictions contained in clause 7.1 shall apply without limit of
time and whether or not this agreement is terminated.
8. ASSIGNMENT
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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.
9. 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.
10. EFFECT OF COMPLETION
10.1 The terms of this agreement (insofar as not performed at Completion
and subject as specifically otherwise provided in this agreement)
shall continue in force after and notwithstanding Completion. The sale
and purchase of the Shares shall be deemed to have taken effect from
30 November 2001.
10.2 The remedies of the Buyer in respect of any breach of any of the
Warranties shall continue to subsist notwithstanding Completion.
11. FURTHER ASSURANCES
Following Completion the Seller shall from time to time forthwith upon
request from the Buyer at the Buyer's expense do or procure the 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
12. ENTIRE AGREEMENT
12.1 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 Transaction Documents;
(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 12 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
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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.
13. VARIATIONS
This agreement may be varied only by a document signed by each of the
Seller and the Buyer.
14. WAIVER
14.1 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.
14.2 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 any such right,
power or privilege preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
14.3 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.
14.4 The rights and remedies herein provided are cumulative with and not
exclusive of any rights or remedies provided by law.
15. INVALIDITY
15.1 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.
16. NOTICES
16.1 Any notice, demand or other communication given or made under or in
connection with the matters contemplated by this agreement shall be in
writing and shall be delivered personally or sent by fax or prepaid
first class post to the addresses set out above :
and shall be deemed to have been duly given or made as follows:
(a) if personally delivered, upon delivery at the address of the
relevant party;
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(b) if sent by first class post, two Business Days after the
date of posting;
(c) if sent by air mail, 5 Business Days after the date of
posting; and
(d) if sent by fax, when despatched;
provided that if, in accordance with the above provisions, any such
notice, demand or other communication would otherwise be deemed to be
given or made after 5.00 p.m. on a Business Day such notice, demand or
other communication shall be deemed to be given or made at 9.00 a.m.
on the next Business Day.
16.2 A party may notify the other party to this agreement of a change to
its name, relevant addressee, address or fax number for the purposes
of clause Error! Reference source not found. provided that such
notification shall only be effective on:
(a) the date specified in the notification as the date on which
the change is to take place; or
(b) if no date is specified or the date specified is less than
five Business Days after the date on which notice is given,
the date falling five Business Days after notice of any such
change has been given.
17. 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 all parties.
18. GOVERNING LAW AND JURISDICTION
18.1 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 German law. The sale needs the formal certification by
a German Notary to be effective in its legal consequences.
18.2 Each of the parties to this agreement irrevocably agrees that the
courts of Germany 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 Germany.
18.3 Each party irrevocably waives any objection which it might at any time
have to the courts of Germany 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 Germany 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
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21 shall be conclusive and binding upon the parties and may be
enforced in the courts of any other jurisdiction.
18.4 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 Germany
shall be duly served upon it if delivered personally or sent by
registered post, in the case of:
(a) the Seller to Razorfish, Inc. 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (marked for the attention of Xxxxxx Xxxxxx
and Xxxx-Xxxxxxxx Xxxxx); and
(b) the Buyer to Razorfish AG & Co. KG (marked for the attention
of Xx. Xxxxxx Xxxxxx)
or such other person and address as the Seller shall notify the Buyer
in writing or vice versa from time to time.
Signed by ) /S/ XXXX-XXXXXXXX XXXXX
for and on behalf Razorfish, Inc. )
)
)
Signed by ) /S/ XXXXXX XXXXXX
for and on behalf of Xxxxxx Xxxxxx )
)
Signed by )
for and on behalf of UH 107 Verwaltungs GmbH ) /S/ XXXXXX XXXXXXX
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