Share Purchase Agreement
Razorfish AB
and
Razorfish, Inc.
for the sale and purchase of all of the issued shares of Qb International
Holding AB, org. no. 556523-9976
THIS AGREEMENT is made on December 12th, 2001
BETWEEN:
(1) RAZORFISH AB, org. no. 556503-3247, (the "Buyer"); and
(2) RAZORFISH, INC. with principal offices at 00 Xxxxxx Xxxxxx, Xxx Xxxx,
XX 00000 (the "Seller").
THE PARTIES AGREE AS FOLLOWS:
1. INTERPRETATION
1.1 In this agreement the following words and expressions and
abbreviations have the following meanings, unless the context
otherwise requires:
"Company" means Qb International Holding AB whose registered office is
at c/o Razorfish AB, Grev Xxxxxxxxx 00, Xxxxxxxxx, Xxxxxx and which is
registered under number 556523-9976;
"Subsidiaries" means the subsidiaries of the Company as at the date
hereof including but not limited to those companies listed at Schedule
1;
"Encumbrance" means any mortgage, charge (fixed or floating), pledge,
lien, hypothecation, trust, right of set off or other third party
right or interest (legal or equitable) including any right of
pre-emption, assignment by way of security, reservation of title or
any other security interest of any kind however created or arising or
any other agreement or arrangement (including a sale and repurchase
arrangement) having similar effect;
"Related Person" means in relation to any party its holding companies
and the subsidiaries and associated companies from time to time of
such holding companies, all of them and each of them as the context
admits;
"Shares" means the 1.600.000 shares of the Company and which
constitute all of the issued and outstanding shares of the Company.
1.2 In this agreement unless otherwise specified, reference to:
(a) "includes" and "including" shall mean including without
limitation;
(b) a "party" means a party to this agreement and includes its
permitted assignees (if any) and/or the successors in title
to that part of its undertaking which includes this
agreement;
(c) words denoting the singular shall include the plural and
vice versa and words denoting any gender shall include all
genders;
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(d) any statute, statutory instrument, regulation, by-law or
other requirement of Swedish law and to any Swedish legal
term for any action, remedy, method of judicial proceeding,
legal document, legal status, procedure, court, official or
any legal concept or doctrine or other expression shall in
respect of any jurisdiction other than Sweden be deemed to
include that which most nearly approximates in that
jurisdiction to the Swedish term;
1.3 The schedules form part of the operative provisions of this agreement
and references to this agreement shall, unless the context otherwise
requires, include references to the schedules.
2. SALE AND PURCHASE ETC.
2.1 The Seller hereby sells and the Buyer hereby purchases the Shares free
from any Encumbrance together with all accrued benefits and rights
attached thereto.
2.2 The Seller waives or agrees to procure the waiver of any rights or
restrictions conferred upon it or any other person which may exist in
relation to the Shares under the articles of association of the
Company and Subsidiaries or otherwise.
2.3 The consideration for the sale and purchase of the Shares and for
warranties and undertakings etc. given by the Seller under this
agreement shall be the total sum of one (1) USD to be paid to the
Seller by the Buyer immediately after the signing of this agreement.
2.4 The Seller shall immediately after the signing of this agreement
deliver to the Buyer the following documents:
(a) share certificates representing the Shares executed in
favour of the Buyer;
(b) certified copy of the resolution of the Seller's board of
directors authorizing the transfer of the Shares to the
Buyer.
2.5 The Seller shall transfer or procure the transfer of the sum of
700.000 SEK to the Company's nominated bank account on the basis that
such amount shall be used to pay creditors and liabilities of the
Company and/or the Subsidiaries (other than where such a creditor is
the Buyer or any party connected with or associated with the Buyer or
the Company) whether they exist as at the date hereof or arise
hereafter and which are properly evidenced by invoices, contract, tax
claims etc For the avoidance of doubt the Seller shall have no
liability to any creditor or in respect of any liability of the
Company howsoever caused.
3. WARRANTIES
3.1 The Seller warrants to the Buyer as follows:
(a) The Seller is the only legal and beneficial owner of the
Shares.
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(b) The Company has not allotted any shares other than the
Shares and the Shares are fully paid or credited as fully
paid.
(c) There are no: (i) outstanding subscriptions, warrants,
options, calls, or rights to acquire any shares in the
capital or other securities of the Company; (ii) outstanding
securities, instruments or obligations that are or may
become convertible into or exchangeable for any shares in
the capital or other securities of the Company; (iii)
contracts under which the Company is or may become obliged
to sell or otherwise issue any shares of its capital stock
or any other securities; (iv) conditions or circumstances
that may directly or indirectly give rise to or provide a
basis for the assertion of a claim by any person to the
effect that such person is entitled to acquire or receive
any shares in the capital, or other securities of the
Company.
(d) There is no Encumbrance in relation to any of the Shares or
unissued shares in the capital of the Company.
(e) The Seller warrants that it will take all necessary actions
needed to liquidate Spray Network, Inc. USA, a subsidiary of
the Buyer, as soon as practically possible after this
agreement has been signed and to assume responsibility for
all legal and other costs involved herewith.
(f) The Seller warrants that it has released Per Jauring, Xxxxxx
Xxxxxxx, Xxxx Lidefelt and Xxxxx Xxxxxxxx from any
non-competition obligations in any agreement between the
above persons and the Seller in relation to the Seller's
purchase of the shares in the Company.
(g) The Seller has the right, power and authority to enter into
and perform its obligations under this agreement and each of
the other transaction documents to which it is a party.
(h) The Seller warrants that it has no claim on the Company
and/or Subsidiaries of whatever kind and that if any claim
of whatever kind would surface in the future the Seller will
waive all such claims.
3.2 The Buyer warrants to the Seller that:
(a) 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.
(b) On behalf of the Company and the Subsidiaries, neither the
Company nor any of the Subsidiaries has any claim against
the Seller or its US subsidiaries of whatever kind and that
if any claim of whatever kind would surface in the future
the Company and/or the Subsidiaries will waive its rights
under any such claim.
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4. ANNOUNCEMENTS
4.1 No party shall disclose the making of this agreement nor any other
agreement referred to in this agreement, its terms (except those
matters set out in the press release in the agreed terms and subject to
clause 4) and each party shall procure that each of its Related Persons
and its professional advisers shall not make any such disclosure
without the prior consent of the other party unless disclosure is:
(a) to its professional advisers; or
(b) required by law or the rules and requirements of any
regulatory body, including, for the avoidance of doubt, the
US Securities laws or NASDAQ requirements
provided that this clause 4 does not apply to announcements,
communications or circulars made or sent by the Buyer after this
agreement to customers, clients or suppliers of the Company to the
extent that it informs them of the Buyer's acquisition of the Shares
or to any announcements containing only information which has become
generally available.
4.2 The restrictions contained in this clause 4 shall apply without limit
of time and whether or not this agreement is terminated.
5. ASSIGNMENT
This agreement is personal to the parties and accordingly neither party
without the prior written consent of the other shall assign, transfer
or declare a trust of the benefit of all or any of any other party's
obligations nor any benefit arising under this agreement.
6. 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.
7. FURTHER ASSURANCES
The Seller shall after the agreement from time to time forthwith upon
request from the Buyer at the Buyer's expense do or procure the 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.
8. ENTIRE AGREEMENT
8.1 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:
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(a) this agreement together with any other documents referred to
in this agreement (together the "Transaction Documents")
constitutes the entire and only agreement between the
parties and their respective Related Persons relating to the
subject matter of the agreement;
(b) neither it nor any of its Related Persons has been induced
to enter into any Transaction Document in reliance upon, nor
has any such party been given, any warranty, representation,
statement, assurance, covenant, agreement, undertaking,
indemnity or commitment of any nature whatsoever other than
as are expressly set out in the Transaction Documents and,
to the extent that any of them has been, it (acting on
behalf of itself and as agent on behalf of each of its
Related Persons) unconditionally and irrevocably waives any
claims, rights or remedies which any of them might otherwise
have had in relation thereto;
PROVIDED THAT the provisions of this clause 8 shall not exclude any
liability which any of the parties or, where appropriate, their
Related Persons would otherwise have to any other party or, where
appropriate, to any other party's Related Persons or any right which
any of them may have in respect of any statements made fraudulently by
any of them prior to the execution of this agreement or any rights
which any of them may have in respect of fraudulent concealment by any
of them.
9. VARIATIONS
This agreement may be varied only by a document signed by each of the
Seller and the Buyer.
10. WAIVER
10.1 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.
10.2 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.
10.3 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.
10.4 The rights and remedies herein provided are cumulative with and not
exclusive of any rights or remedies provided by law.
11. INVALIDITY
11.1 If any provision of this agreement is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction:
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(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.
12. COUNTERPARTS
This agreement may be executed in any number of counterparts which
together shall constitute one agreement. Any party may enter into this
agreement by executing a counterpart and this agreement shall not take
effect until it has been executed by both parties.
13. GOVERNING LAW AND JURISDICTION
13.1 This agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this
agreement or its formation) shall be governed by and construed in
accordance with Swedish law.
13.2 Each of the parties to this agreement irrevocably agrees that the
courts of Sweden shall have exclusive jurisdiction to hear and decide
any suit, action or proceedings, and/or to settle any disputes, which
may arise out of or in connection with this agreement (respectively,
"Proceedings" and "Disputes") and, for these purposes, each party
irrevocably submits to the jurisdiction of the courts of Sweden.
13.3 Each party irrevocably waives any objection which it might at any time
have to the courts of Sweden being nominated as the forum to hear and
decide any Proceedings and to settle any Disputes and agrees not to
claim that the courts of Sweden are not a convenient or appropriate
forum for any such Proceedings or Disputes and further irrevocably
agrees that a judgment in any Proceedings or Disputes brought in any
court referred to in this clause 13 shall be conclusive and binding
upon the parties and may be enforced in the courts of any other
jurisdiction.
13.4 Without prejudice to any other permitted mode of service the parties
agree that service of any claim form, notice or other document
("Documents") for the purpose of any Proceedings begun in Sweden shall
be duly served upon it if delivered personally or sent by registered
post, in the case of:
(a) the Seller to Razorfish, Inc. at 00 Xxxxxx Xxxxxx Xxx Xxxx
XX00000 XXX (marked for the attention of XX Xxxxx and Xxxxxx
Xxxxxx); and
(b) the Buyer to Razorfish AB, Grev Xxxxxxxxx 00, Xxxxxxxxx,
Xxxxxx.
or such other person and address as the Seller shall notify the Buyer
in writing or vice versa from time to time.
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IN WITNESS whereof this agreement has been executed on the date first above
written.
Schedule 1
The Subsidiaries
List subsidiaries
Qb International AB, 556528-0251
X-Core Konsult AB, 556565-4497
.
Signed by ) /S/ PER JAURING
for and on behalf RAZORFISH AB )
)
)
Signed by ) /S/ XXXX-XXXXXXXX XXXXX
for and on behalf of RAZORFISH, INC. )
)
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