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SHARE PURCHASE AGREEMENT
by and between
CELL NETWORK AB
Kongsgatan 60, 1 tr.
101 26 Stockholm
Sverige
and
PRIMIX SOLUTIONS INC.
One Arsenal Marketplace
Watertown, MA 02472
USA
for the purchase of DKK 1.000.000 equal to 51% outstanding 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
CELL NETWORK AB, a company registered in Sweden under registration number
556216-0357 and having its registered address at Kungsgatan 60, 1 TR, 101 26
Stockholm, Sweden (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 1,000,000 equal to 51% 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 rest of the shares nom. DKK 961,000 equal to 49% of the outstanding
shares of the Company (the "Minority Shares") is owned by a number of minority
shareholders including the management of the Company and employees of the
Company (the "Minority Shareholders");
WHEREAS the Purchaser wishes to purchase the Vendor's 51% majority 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;
WHEREAS the Purchaser wishes to purchase the Minority Shareholders' 49% of the
Company on the terms and conditions
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set out in that certain Share Purchase Agreement dated of even date hereof by
and among the Purchaser and each of the Minority Shareholders (the "Minority
Share Purchase Agreement");
WHEREAS the Parties 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 under this Agreement and
the Minority Share Purchase Agreement, and
WHEREAS the Purchaser has completed a full legal, financial and commercial due
diligence investigation of the Company and conducted interviews with the
management 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 1,000,000 shares equal to 51% of the
shareholding in the Company upon the terms and conditions of the
Agreement.
2.0 PURCHASE PRICE
2.1 Subject to the terms and conditions of the Agreement the Purchaser
shall purchase the Shares from the Vendor at a total purchase
price equal to approximately DKK 7,500,000. The purchase price
shall be satisfied in DDK 2,000,000 cash and 450,000 shares of
Common Stock, par value $ 0.001 per share , of the Purchaser as
follows:
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2.1.1 The Purchaser shall on Completion pay in cash to the Vendor DKK
2,000,000.
2.1.2 The Purchaser shall on Completion transfer to the Vendor 450,000
shares of the Purchaser (the "Primix Shares") as stated hereunder:
2.1.2.1 At 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.
2.1.2.2 A legal opinion of McDermott, Will & Emery, counsel to the
Purchaser, in the form attached hereto as SCHEDULE 3, shall be
delivered by the Purchaser at Completion.
2.1.2.3 On or before 31 March 2000, the Purchaser shall, as additional
consideration for the Shares transferred to it by the Vendor under
and pursuant to the terms and provisions of this Agreement, either
(A) deliver to the Vendor either a legal opinion of a recognized
U.S. law firm to the substantive effect that as of the date of
such opinion (i) Primix has filed a registration statement
covering the Primix Shares with the United States Securities and
Exchange Commission (the "Registration Statement"), (ii) the
Registration Statement has been declared and is effective, and
(iii) the Primix Shares may be sold by the Vendor in accordance
with the plan of distribution set forth in the Registration
Statement if the Vendor complies with the applicable prospectus
delivery requirement pursuant to Section 5 of the Securities Act
of 1933, as amended (the "Securities Act"), or (B) as of the
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aforementioned date repurchase all of the Primix Shares for DKK
5,500,000 in cash.
2.1.2.4 The Purchaser shall prepare and file as expeditiously as possible
but in any event on or before 29 December 2000 the Registration
Statement with the Securities and Exchange Commission. In the plan
of distribution in the Registration Statement the Purchaser shall
include possible resales pursuant to Regulation S and other
available exemptions from the registration provisions of the
Securities Act.
2.1.3. 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."
3.0 SIGNING
3.1 The signing of the transactions contemplated hereby ("Signing")
shall take place 22 December, 2000 at
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9.00 AM Danish time at the offices of Lindh Stabell Horten,
Attorneys at Law, or on such other date or place as the parties
may agree upon.
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. Such evidence
of authority of the Purchaser shall be satisfied by delivery of
the Secretary's Certificate attached hereto as SCHEDULE 4.
5.0 CONDITIONS PRECEDENT
5.1 The sale of the Shares is conditional upon the following
conditions precedent:
5.1.1 The Minority Shareholders of the Company shall waive any rights of
first refusal and any other rights with respect to the Shares and
release the Vendor from all obligations to the minority
shareholders set forth in the shareholders' agreement of 29
September 1999 as amended on 13 October 1999.
5.2. If the condition 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
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6.1 The Purchaser represents and warrants to the Vendor that:
6.1.1 The Primix Shares shall be fully paid and nonassessable and be
free and clear of all liens, claims and encumbrances except for
restrictions imposed by applicable securities laws and are not
subject to preemptive rights.
6.1.2 At Completion, the Vendor shall be released from and the Purchaser
shall assume those guarantees, indemnities, charges and
encumbrances identified in Schedule 1.
It is the Vendor's opinion that the guarantee for an amount of DKK
1,179,916.5 (the "ATP Guarantee") referred to in schedule 15 of
agreement between ATP and the Company, enclosed as SCHEDULE 1 (i)
and the bank guarantee issued by DiskontoBanken in favour of ATP
for an equal amount (the "Bank Guarantee"), enclosed as Schedule 1
(iii) should be interpreted as constituting one guarantee for a
total amount of DKK 1,179,916.5. , Should ATP call the ATP
Guarantee, the Purchaser shall in each instance the ATP Guarantee
is called pay to the Vendor the called amount upon demand.
6.1.3 The Purchaser shall indemnify, defend and hold harmless the Vendor
from and against any loss incurred by the Vendor as a result of
any third party's claim against the Vendor on the basis of such
guarantees, indemnities, charges or other encumbrances as
mentioned in SCHEDULE 1.
6.1.4 The Purchaser shall maintain the Registration Statement effective
until the earlier of the date which is (A) first (1st) anniversary
of the Completion date, or (B) the date on which all of
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the Primix Shares shall have been sold or otherwise transferred or
disposed of by Vendor.
6.1.5 The Vendor agrees that upon notice from the Purchaser that (i) a
Registration Statement 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 Primix Shares pursuant to such Registration
Statement until such time as the Purchaser is able to take
reasonable action to rectify such situation; PROVIDED that such
period shall not exceed 30 days; and PROVIDED, FURTHER, that the
Purchaser shall not be permitted to assert such right more than
once or at any time during the initial 90 days following the
effectiveness of the Registration Statement and PROVIDED, FURTHER,
that for purposes of the foregoing clause (ii), a possible
negative impact on the price of the Primix common stock caused by
the sale of the Primix Shares pursuant to the Registration
Statement may not be the basis for the requested discontinuance.
6.1.6 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.
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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.
6.2.2 At Completion, the Company shall, with the exception stated below,
be released from all present financial obligations to the Vendor,
which to the best of the Vendor's knowledge exist, such
obligations being itemised in SCHEDULE 2. The Purchaser expressly
recognises that the Vendor on 29 November 2000 has granted the
Company a short term loan and transferred an amount of DKK 850.000
to the Company. The Company shall not be released from its
obligation of repayment of such loan and the Purchaser guarantees
for the benefit of the Vendor for the Company's obligation to
repay such loan on or before 31 January 2001.
6.2.3 Notwithstanding the first paragraph of clause 6.1.2 the Vendor
shall maintain in force the Bank Guarantee in SCHEDULE 1 (iii)
until 31 January 2001 at which time the Purchaser shall secure
that the Vendor is released from all obligations under the Bank
Guarantee. If the Bank Guarantee is called by the Diskontobanken
before 31 January 2001, the Purchaser shall in each instance the
Bank Guarantee is called pay to the Vendor upon demand the amount
called.
6.2.3 The Vendor is a non-U.S. person ("Non-U.S. Person") within the
meaning of Regulation S of the Securities Act, and is not
acquiring the Primix Shares issuable hereunder for the account or
benefit of any U.S. person.
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6.2.4 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.
6.3 In the event of material breach of any representation or warranty
under the Agreement the rights, remedies and powers provided by
law shall apply.
6.4 The representations and warranties shall survive Completion and
continue in full force and effect for a period of 12 months
thereafter.
7.0 COMPLETION
7.1 The completion of the transactions contemplated hereby
("Completion") shall take place subsequent to the Signing and,
unless otherwise agreed between the parties, before the end of the
day of the Signing at the offices of Lindh Stabell Horten
Attorneys at Law.
8.0 ACTIONS TO BE TAKEN AT COMPLETION
8.1 The Vendor shall deliver to the Purchaser at Completion the
following:
8.1.1 Certificate for the Shares registered in the name of the Vendor.
The share certificate shall be duly
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endorsed for transfer in favour of the Purchaser within 10
business days after Completion.
8.2 The Purchaser shall deliver to the Vendor at Completion the
following:
8.2.1 The cash purchase price stated in clause 2.1.1 by way of wire
transfer to a bank account pointed out by the Vendor, this bank
account being Nordbanken account number 3214 78 002 01.
8.2.2 The document as described in clause 2.1.2.1, the Secretary's
Certificate as described in clause 4.1 and a legal opinion as
described in clause 2.1.2.2.
8.2.3 Evidence that the Vendor has been released from the obligations
referred to in 6.1.2.
8.3 The Purchaser shall procure that an extraordinary general meeting
of the Company is held, at which any board members elected by the
Vendor is replaced.
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
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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 any
party without the prior approval of the other party hereto, save
that each party reserves the right to publish, make or issue any
announcement, press release, statement, comment or circular
required by law or any other rules pertaining to publicly listed
companies.
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
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.
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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
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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 Notice
18.1 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:
Cell Network AB
Kungsgatan 60, 1 TR
101 26 Stockholm, Sweden
Attn: Jerker Kall
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Fax. +46 8 522 040 01
With copies to:
Lett & Co. Attorneys at Law
Borgergade 111
DK-1300 Copenhagen
Attn: Claus Holberg/Frederik Bjorn
Fax: + 45 33 77 00 01
If to the Purchaser to:
Primix Solutions Inc.
One Arsenal Marketplace - 2nd floor
Watertown, MA 02472
U.S.A.
Attn: 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
and
Lindh Stabell Horten
Ved Stranden 18
P.O. Box 2034
1012 Copenhagen, Denmark
Attn: Nicolai Horten
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
CELL NETWORK AB PRIMIX SOLUTIONS INC.
By: /s/ Jerker Kall By: /s/ Joseph W. Seebach
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Name: Jerker Kall Name: Joseph W. Seebach
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Title: Title: Executive Vic President
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