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SHARE PURCHASE AGREEMENT
between
Primix Solutions Inc.
and
Teknologisk Innovation 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 OR WARRANTS 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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TABLE OF CONTENTS
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A. OWNERSHIP OF SHARES............................................................................3
B. PAYMENT TO THE SELLER - PURCHASE SHARES........................................................3
B.1. Purchase Shares................................................................................3
C. REGISTRATION RIGHTS............................................................................4
C.1. Registration Rights............................................................................4
D. THE CLOSING....................................................................................6
E. CONDITIONS TO CLOSING..........................................................................6
F. REPRESENTATIONS AND WARRANTIES.................................................................6
F.1 Capacity of the Seller.........................................................................6
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PAGE
F.2 Broker's Fees:.................................................................................7
F.3. U.S. Securities Laws:..........................................................................7
F.4. Relationships with Seller......................................................................7
G. TAXES, FEES AND COSTS..........................................................................8
H. COSTS AND EXPENSES.............................................................................8
I. ACTIONS TO BE TAKEN AT CLOSING.................................................................8
I.1 At Closing, the Seller shall deliver to the Purchaser:.........................................8
I.2 At Closing, the Purchaser shall deliver to the Seller..........................................8
J. CHOICE OF LAW AND ARBITRATION..................................................................9
K. NOTICE.........................................................................................9
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WHEREAS Teknologisk Innovation A/S own nom. DKK 75,200 of the outstanding
shares (the "Shares") in the Company;
WHEREAS the Purchaser wishes to purchase the Seller's Shares in the
Company on the terms and conditions set out in this Agreement in
consideration for the payment of the Purchase Shares (as defined
below) provided for in this Agreement;
WHEREAS the Purchaser wishes to purchase the rest of the outstanding
shares in the Company;
WHEREAS the parties hereto understand that the purchase of the Shares by
the Purchaser hereunder is subject to and conditioned upon the
acquisition of 100% of the share capital and any and all other
outstanding equity interests in the Company after giving effect to
the transactions contemplated by Purchaser; and
NOW, THEREFORE,
the undersigned parties
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PRIMIX SOLUTIONS INC.
a company incorporated in Delaware, U.S.A. with offices at
One Arsenal Marketplace
2nd Floor
Watertown, Massachusetts 02472
USA
(referred to as "the Purchaser")
and
TEKNOLOGISK INNOVATION A/S
a company limited by shares having its registered office at
Gregersensvej 3
DK-2630 Tastrup
CVR no. 20665645
(referred to as "the Seller")
have on this 27 day of December 2000 entered into this
SHARE PURCHASE AGREEMENT
(the "Agreement")
The parties having reached an understanding with respect to the sale by the
Seller and the purchase by the Purchaser of all the Seller' Shares in 21ST.DK
A/S, a private company with the company address Haydnsvej 2, DK-2450 Copenhagen
SV, Denmark, duly organised under the laws of Denmark with the registration
number 21210374 (hereinafter the "Company"), it is therefore agreed as follows:
A. OWNERSHIP OF SHARES
In reliance on the representations and warranties of the Seller contained herein
and subject to the terms of this Agreement, the Purchaser shall purchase the
Shares from the Seller.
B. PAYMENT TO THE SELLER - PURCHASE SHARES
B.1. PURCHASE SHARES
The Seller shall receive 29,377 (two-nine-three-seven-seven) shares of
common stock of the Purchaser (hereinafter the "Purchase Shares") paid
in consideration of the Purchaser's purchase of the Shares from the
Seller.
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C. REGISTRATION RIGHTS
Any certificate(s) representing the Purchase 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."
C.1. REGISTRATION RIGHTS.
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 issued by the Purchaser with respect to
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 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 Securities issued
hereunder ("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
Closing date (the "REGISTRATION PERIOD"). The Purchaser's obligation in
the preceding sentence to file the registration statement by the Filing
Date is subject to the condition that the Sellers provide the Purchaser
promptly, but in no event more than three (3) business days before the
proposed filing date, all information relating to the Sellers
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and the proposed method of distribution of the Securities
necessary for inclusion in the registration statement as
reasonably requested by Purchaser.
The Sellers agrees that upon notice from the Purchaser that (i) a
registration statement filed in accordance with this clause C.1.
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 Sellers 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.
The Sellers, upon receipt of any notice (a "SUSPENSION NOTICE") from
the Purchaser of the happening of any event of the kind described in
clause C.1, shall forthwith discontinue disposition of the Registered
Shares pursuant to the registration statement covering such Registered
Shares until the Sellers'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 Sellers will deliver to the Purchaser all copies, other
than permanent file copies then in the Sellers'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 Closing date and in no
event shall the period from the date on which the Sellers receives a
Suspension Notice to the date on which the Sellers 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.
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D. THE CLOSING
The closing of the contemplated transaction ("Closing") will occur as
of the date of all the parties having signed this Agreement.
E. CONDITIONS TO CLOSING
The validity of this Agreement is conditioned upon the fulfillment of
each of the following:
- that the Seller deliver all of the Shares to the
Purchaser, free and clear of all liens, claims and
encumbrances;
- that the Seller waives any right of first refusal as
set out in the articles of association and the
stockholder agreement; and
- that the Purchaser successfully purchase the
remaining outstanding share capital and any and all
other outstanding equity interests in the Company
after giving effect to the transactions contemplated
by Purchaser and that these shares are free and
clear of all liens, claims and encumbrances.
F. REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants to the Purchaser:
F.1. CAPACITY OF THE SELLER; OWNERSHIP OF SHARES
The Seller has full capacity to enter into this Agreement, to perform
its obligations under this Agreement, and to benefit from the rights
contained herein.
The Seller has not been or is not subject to any procedure, which has
been commenced with a view to preventing or settling difficulties in
the business or personal bankruptcy proceedings nor are the Seller
subject to any reorganisation or liquidation procedure.
The Seller owns the Shares free and clear of all liens, claims and
encumbrances.
There is no consent, authorisation or judicial decision that is
necessary for the Seller to execute and perform their obligations under
this Agreement, which have not yet been obtained.
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F.2. BROKER'S FEES:
The Seller hereby represent and warrant that the Seller has not
incurred or become liable for any broker's commission or finder's fee
relating to or in connection with the transactions contemplated by this
Agreement.
F.3. U.S. SECURITIES LAWS:
(a) The Seller is a non-U.S. person ("Non-U.S. Person") within the
meaning of Regulation S of the Securities Act, represents that he
or it is not acquiring the Securities issuable hereunder for the
account or benefit of any U.S. person;
(b) The Seller agrees to: (i) transfer the Securities 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 Securities
unless in compliance with the Securities Act; and
(c) The Purchaser hereby covenants not to register any transfer of the
Securities 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.
(d) The Seller understand that any certificate(s) or written
instruments representing the Securities shall contain the following
legends:
(e) Any certificate(s) or written instruments representing the
Securities shall carry substantially the following legend:
"The shares represented by this certificate have not been
registered under the securities act of 1933, 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."
F.4. RELATIONSHIPS WITH SELLER
The Company has not had relations with the Seller or any of its
directly or indirectly owned companies other than as a company with its
shareholders and directors and, in particular:
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- the Company is not a creditor or a debtor of the Seller in respect
of any payment, and the Seller (or their beneficial owners or
affiliates) is a creditor or a debtor of the Company in respect of
any payment;
- the Company has not used and does not use, either gratuitously or
for payment, any property belonging to the Seller, and neither the
Seller (or their beneficial owners or affiliates) have used or
uses, either gratuitously or for payment, any property belonging to
the Company; and
- the Company has not given to the Seller any particular right over
its assets.
G. TAXES, FEES AND COSTS
Any documentary transfer taxes and recording fees resulting from the
contemplated transaction will be paid by the Purchaser.
H. COSTS AND EXPENSES
Except as otherwise specifically set forth herein, the Purchaser will
bear the expenses in connection with the transaction, including,
without limitation, the costs and expenses of all attorneys, engineers,
brokers, investment bankers, agents and finders.
I. ACTIONS TO BE TAKEN AT CLOSING
I.1. AT CLOSING, THE SELLER SHALL DELIVER TO THE PURCHASER:
- The Seller shall deliver a copy of its certificate of incorporation
and such evidence satisfactory to the Purchaser of the power of the
person(s) binding the Seller in question to do so.
I.2. AT CLOSING, THE PURCHASER SHALL DELIVER TO THE SELLER
- A document issued by EquiServe L.P., the Purchaser's transfer
agent, shall be delivered by the Purchaser, such document
evidencing that the Purchase Shares have been issued in book entry
form in the name of the Seller before 11.59 p.m. Danish time on the
date of Closing;
- Evidence satisfactory to the Seller of the power of the person(s)
binding the Purchaser to do so in the form of the Secretary's
Certificate attached hereto as SCHEDULE 1.
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- At Closing, the Purchaser shall issue to the Seller the Purchase
Shares in accordance with Clause B.
J. CHOICE OF LAW AND ARBITRATION
The Agreement shall be governed by and construed in accordance with the
laws of the Kingdom of Denmark.
Any dispute or claim arising out of or in connection with this
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.
The Seller and the Purchaser shall each 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.
K. ENTIRE AGREEMENT
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.
L. NOTICE
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 Seller to: Teknologisk Innovation A/S
Gregersensvej 3
DK-2630 Tastrup
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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 a copy to: McDermott, Will & Emery
28 State Street
Boston, MA 02109-1775
Attn: John B. Steele, Esq.
Fax: + 1 617 535-3800
and
Lindh Stabell Horten A/S
Ved Stranden 18,
1012 Copenhagen K
Attn: Nicolai Horten, Esq.
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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By signing this agreement the Seller waive any and all rights of first refusal
as set forth in the Company's Articles of Association and the shareholder
agreement.
This Agreement has been signed by the parties on the date written above.
PRIMIX SOLUTIONS INC. Teknologisk Innovation A/S
By: By:
------------------------------------- ----------------------------------
Name: Joseph W. Seebach Name: Soren Kielgast
Title: Executive Vice President Title: Managing Director
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