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SHARE PURCHASE AGREEMENT
by and between
PRIMIX SOLUTIONS INC.
One Arsenal Marketplace
Watertown
MA 02472
USA
and
PROMAX COMMERCIAL HOLDINGS LIMITED
Grosvenor Court
Ramsey Isle of Man
British Isles
IM8 1JA
for the purchase of nom. DKK 800,846 shares in
21ST.DK A/S
THE SHARES OF COMMON STOCK OF PRIMIX SOLUTIONS INC. ISSUABLE HEREUNDER HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). SUCH SHARES ISSUED TO NON-U.S. PERSONS MAY NOT BE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER THE SECURITIES ACT,
PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS INVOLVING SUCH SHARES MAY NOT
BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
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THIS AGREEMENT (the "Agreement") is made and entered into this 27 day of
December 2000, by and between
PROMAX COMMERCIAL HOLDINGS LIMITED, a company having its address at Grosvenor
Court, Ramsey Isle of Man, British Isles, IM8 1JA (the "Vendor")
and
PRIMIX SOLUTIONS INC., a company incorporated in Delaware, U.S.A. and having its
principal place of business at One Arsenal Marketplace, Watertown, MA 02472, USA
(the "Purchaser")
(together the "Parties").
WHEREAS the Vendor owns nom DKK 800,846 of the outstanding shares (the "Shares")
in 21st.dk A/S, a company registered in the Kingdom of Denmark under
registration number 21210374, and having its registered address at Haydnsvej 2,
2450 Copenhagen SV, Denmark (the "Company");
WHEREAS the Purchaser wishes to purchase the Vendor's Shares of the Company on
the terms and conditions set out in the Agreement in consideration for the
payment of the purchase price provided for in the Agreement; and
WHEREAS the Purchaser wishes to purchase all outstanding shares of the Company.
NOW, THEREFORE it is agreed by the Parties as follows:
1.0 SALE OF SHARES
1.1 With effect as of the date of Signing the Vendor hereby sells to
the Purchaser nom. DKK 800,846 Shares of the Company upon the
terms and conditions of the Agreement.
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2. PURCHASE SHARES
2.1 Subject to the terms and conditions of the Agreement the Purchaser
shall purchase the Shares from the Vendor with 360,763 shares of
common stock, ("Primix Shares"), of the Purchaser as follows:
2.1.2 The Vendor shall on Completion transfer to the Purchaser the
Shares.
2.1.3 The Purchaser shall on Completion transfer to the Vendor Primix
Shares as stated hereunder:
2.1.3.1. At the Completion, a document issued by EquiServe L.P., the
Purchaser's transfer agent, shall be delivered by the Purchaser,
such document evidencing that the Primix Shares have been issued
in book entry form in the name of the Vendor on the date of
Completion.
2.1.3.2. In the event that the average closing bid price per share of the
Primix Common Stock for the ten-day period ending on March 30,
2001 is less than USD $.75, Primix shall issue to Promax an
additional 120,000 shares of Common Stock, which for purposes of
this Agreement shall be included in the term "Primix Shares."
2.2. TARSAP SHARES
The Purchaser shall issue to the Vendor an aggregate of 198,419
shares of common stock of the Purchaser (the "TARSAP Shares")
under the conditions set forth in the Restricted Stock Agreement
in substantially the form attached hereto as Schedule 1.
2.3 Any certificate(s) representing the Primix Shares shall carry
substantially the following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1993, as amended (The
"Securities Act"), or the securities laws of any state. The shares
may not be sold or transferred in the absence of such registration
or an exemption from registration.
The shares represented by this certificate issued to non-U.S.
persons may not be transferred except in accordance with the
provisions of Regulation S under the Securities Act, pursuant to
registration under the Securities Act, or pursuant to an available
exemption from registration. Hedging transactions involving such
shares may not be conducted unless in compliance with the
Securities Act."
2.4 REGISTRATION RIGHTS
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The Primix Shares and the TARSAP Shares (the "SECURITIES") to be
issued hereunder will be issued in a transaction exempt from
registration under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), by reason of Section 4(2) thereof and/or
Regulation D promulgated thereunder and/or pursuant to Regulation
S promulgated under the Securities Act and may not be re-offered
or resold other than in conformity with the registration
requirements of the Securities Act and such other laws or pursuant
to an exemption therefrom. The certificates and/or written
instruments delivered by the Purchaser with respect to the
Securities issued hereunder shall be legended to the effect
described above and shall include such additional legends as
necessary to comply with applicable securities laws.
The Purchaser shall prepare and file on or before as expeditiously
as possible but in any event within ten (10) business days after
the Completion (the "FILING DATE") a registration statement with
the Securities and Exchange Commission (the "SEC") covering the
resale of all Primix Shares and those TARSAP Shares which may vest
on or prior to the first anniversary of the Completion Date
("REGISTERED SHARES") and the Purchaser shall use commercially
reasonable efforts to cause such registration statement to become
effective as promptly as practicable after filing and to keep such
registration statement effective until the first anniversary of
Completion date. The Purchaser's obligation in the preceding
sentence to file the registration statement by the Filing Date is
subject to the condition that the Vendors provide the Purchaser
promptly, but in no event more than three (3) business days before
the proposed filing date, all information relating to them and the
proposed method of distribution of the Registered Shares necessary
for inclusion in the registration statement as reasonably
requested by Purchaser.
The Vendor agrees that upon notice from the Purchaser that (i) a
registration statement filed in accordance with this Clause 2.4
contains an untrue statement of material fact or omits to state
any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading or (ii) the Purchaser's
Co-Chief Executive Officers have determined reasonably and in good
faith it would be seriously detrimental to the Purchaser and its
stockholders to maintain the effectiveness of such registration
statement, the Vendor shall discontinue any further disposition of
Registered Shares pursuant to such registration statement until
such time as the Purchaser is able to take reasonable action to
rectify such situation; PROVIDED that any action which the
Purchaser's Co-Chief Executive Officers determines reasonably and
in good faith would be seriously detrimental to the Purchaser and
its stockholders shall not be deemed to be reasonable for such
purpose.
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The Vendor, upon receipt of any notice (a "SUSPENSION NOTICE")
from the Purchaser of the happening of any event of the kind
described in the immediately preceding paragraph, shall forthwith
discontinue disposition of the Registered Shares pursuant to the
registration statement covering such Registered Shares until such
Vendor's receipt of the copies of a supplemented or amended
prospectus or until it is advised in writing (the "ADVICE") by the
Purchaser that the use of the prospectus may be resumed, and has
received copies of any additional or supplemental filings which
are incorporated by reference in the prospectus, and, if so
directed by the Purchaser, the Vendor will deliver to the
Purchaser all copies, other than permanent file copies then in the
Vendor's possession, of the prospectus covering such Registered
Shares current at the time of receipt of such notice; PROVIDED,
HOWEVER, that the Purchaser shall not give a Suspension Notice
until after the registration statement has been declared effective
and shall not give more than two Suspension Notices prior to the
first anniversary of the Completion date and in no event shall the
period from the date on which the Vendor receives a Suspension
Notice to the date on which the Vendor receives either the Advice
or copies of the supplemented or amended prospectus (the
"SUSPENSION PERIOD") exceed 90 days. In the event that the
Purchaser shall give any Suspension Notice, the Purchaser shall
use its commercially reasonable efforts and take such actions as
are reasonably necessary to render the Advice and end the
Suspension Period as promptly as practicable.
3.1 SIGNING
3.1 The signing of the transactions contemplated hereby ("Signing")
shall take place 19 December, at the offices of Lindh Stabell
Horten, Attorneys at Law. Such evidence of authority of the
Purchaser shall be satisfied by delivery of the Secretary's
Certificate attached hereto as SCHEDULE 2.
4.0 ACTIONS TO BE TAKEN AT SIGNING
4.1 The Vendor and the Purchaser shall deliver to each other evidence
of authority of any person executing the Agreement.
5.0 CONDITIONS PRECEDENT
5.1 The sale of the Shares is conditional upon the following
conditions precedent:
5.1.1 That the Purchaser successfully has acquired all outstanding
shares in the Company.
5.1.2 That the Vendor has successfully subscribed the newly issued
shares in the Company.
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If the conditions precedent have not been satisfied or waived by
the time of Completion, the Agreement shall, unless the parties
otherwise agree, thereupon automatically cease and terminate and
no party shall have any claim of any nature whatsoever against
each other.
6.0 REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 The Purchaser represents and warrants to the Vendor that:
6.1.1 The Primix Shares shall, upon issuance, be free and clear of all
liens, claims and encumbrances except for restrictions imposed by
applicable securities laws.
6.1.4. The Purchaser hereby covenants not to register any transfer of the
Primix Shares not made in accordance with the provisions of
Regulation S, pursuant to registration under the Securities Act,
or pursuant to an available exemption from registration.
6.2 The Vendor represents and warrants to the Purchaser that:
6.2.1 The Shares are owned beneficially and of record by the Vendor free
and clear of all liens, claims and encumbrances.
6.2.4 The Vendor is a non-U.S. person ("Non-U.S. Person") within the
meaning of Regulation S of the Securities Act of 1933, as amended
(the "Securities Act"), and is not acquiring the Primix Shares
issuable hereunder for the account or benefit of any U.S. person.
6.2.5 The Vendor agrees to: (i) transfer the Primix Shares issued
hereunder only in accordance with the provisions of Regulation S
promulgated under the Securities Act, pursuant to registration
under the Securities Act, or pursuant to an available exemption
from registration; and (ii) not to engage in hedging transactions
with regard to the Primix Shares unless in compliance with the
Securities Act.
7.0 COMPLETION
7.1 The completion of the transactions contemplated hereby
("Completion") shall take place on December 21, 2000 at the
offices of Lindh Stabell Horten Attorneys at Law.
8.0 ACTIONS TO BE TAKEN AT COMPLETION
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8.1. The Vendor and the Purchaser shall deliver to each other evidence
of authority of any person executing the Agreement.
8.2 The Vendor shall deliver to the Purchaser:
8.2.1 Agreement for subscription of Shares in the Company duly signed
for transfer to the Purchaser.
8.2.2 Evidence that the conditions precedent in clause 5.0 have been
satisfied.
8.3 The Purchaser shall deliver to the Vendor:
8.3.2 A legal opinion issued by a recognise US law firm in the form
attached hereto as SCHEDULE 3.
9.0 CHOICE OF LAW AND VENUE
9.1 The Agreement shall be governed by and construed in accordance
with the laws of the Kingdom of Denmark.
9.2 Any dispute or claim arising out of or in connection with the
Agreement or the breach, termination, or invalidity thereof, shall
be settled by arbitration in accordance with the Rules of
Procedure of the Danish Institute of Arbitration.
9.3. Each party shall appoint one arbitrator, and the Institute shall
appoint a third arbitrator, who shall be the chairman of the
arbitration tribunal, if possible, according to a mutual
recommendation of the two arbitrators. The place of arbitration
shall be Copenhagen. The language of the arbitration shall be
English. The decision of the arbitration tribunal shall be final
and binding on the Parties.
10.0 ANNOUNCEMENTS
10.1 No announcement, press release, statement, comment or circular
relating to the Agreement or any matter referred to in the
Agreement shall be published made or issued by or on behalf of by
the Vendor without the prior approval of the Purchaser.
11.0 ASSIGNMENT
11.1 The Agreement may not be assigned by the Parties without the
express written consent of the other party hereto.
12.0 ENTIRE AGREEMENT
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12.1 The Agreement (including any documents referred to in it) sets out
the entire agreement and understanding between the Parties or any
of them in connection with matters dealt with in this Agreement
and supersedes any previous agreement between the Parties in
relation to all such matters. Each of the Parties acknowledges
that, in entering into this Agreement, it has not relied on any
representations or warranties, which is not expressly set out or
referred to in this Agreement.
13.0 AMENDMENTS
13.1 No amendment, modification or alteration to the terms or
provisions of the Agreement shall be binding unless the same shall
be in writing and duly executed by the Parties hereto.
14.0 NON WAIVER
14.1 The waiver or forbearance or failure of a party in insisting in
any one or more instances upon the performance of any provisions
of this Agreement shall not be construed as a waiver or
relinquishment of the party's rights to future performance of such
provision and the other party's obligation in respect of such
future performance shall continue in full force and effect.
15.0 SEVERABILITY
15.1 If any of the provisions of the Agreement is or becomes invalid,
illegal or unenforceable the parties shall thereupon negotiate in
good faith in order to agree on the terms of a mutually
satisfactory provision achieving, as nearly as possible, the same
commercial and legal effect.
16.0 COSTS
16.1 Any costs and expenses incurred by the Vendor and the Purchaser
with respect to the advisors retained shall be paid by the party
retaining such advisors.
17.0 COPIES
17.1 This Agreement shall be executed in two counterparts, each of
which shall be deemed to constitute an original, and shall become
effective when all the counterparts have been executed by all of
the Parties.
18.0 ENTIRE AGREEMENT
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The Agreement (including any documents referred to in it) sets out
the entire agreement and understanding between the Parties or any
of them in connection with matters dealt with in this Agreement
and supersedes any previous agreement between the Parties in
relation to all such matters. Each of the Parties acknowledges
that, in entering into this Agreement, it has not relied on any
representations or warranties, which is not expressly set out or
referred to in this Agreement.
19.0 NOTICE
19.1 Any notice, request, demand or other communication required or
permitted hereunder shall be in writing and shall be deemed to
have been given if delivered or sent by facsimile transmission,
upon receipt, or if sent by registered or certified mail, upon the
sooner of the date on which receipt is acknowledged or the
expiration of five days after deposit by post properly addressed
with postage prepaid. All notices, requests, demands and other
communications shall be in writing by post or facsimile
transmission and shall be addressed as follows:
IF TO THE VENDOR TO: PROMAX COMMERCIAL HOLDINGS LIMITED
Grosvenor Court
Ramsey Isle of Man
British Isles
IM8 1JA
IF TO THE PURCHASER TO: PRIMIX SOLUTIONS INC.
One Arsenal Marketplace - 2nd floor
Watertown, MA 02472
U.S.A.
Attention Chief Financial Officer
Fax: +1 617 923 6550
With copies to: McDermott, Will & Emery
28 State Street
Boston, MA 02109-1775
Attn: John B. Steele, Esq.
Fax: + 1 617 535-3800
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and Lindh Stabell Horten
Ved Stranden 18
P.O. Box 2034
1012 Copenhagen, Denmark
Attn: Nicolai Horten, Attorney at Law
Fax: + 45 77 30 40 77
or to such other address or to such other person as any party
hereto shall have last designated by notice to the other party.
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IN WITNESS WHEREOF, the Parties hereto have executed the Agreement on the date
first written herein.
For and on behalf of For and on behalf of
PROMAX COMMERCIAL HOLDING LIMITED PRIMIX SOLUTIONS INC.
By: By:
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Name: Leif Andersen Name: Joseph W. Seebach
Title: Title: Executive Vice President
