<PAGE>
SHARE PURCHASE AGREEMENT
between
Primix Solutions Inc.
and
the minority owners of
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 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
<TABLE>
<CAPTION>
PAGE
<S> <C>
A. OWNERSHIP OF SHARES...........................................................4
B. PAYMENT TO THE SELLERS - PURCHASE SHARES......................................4
B.1. Purchase Shares...............................................................4
C. TARSAP SHARES.................................................................4
D. REGISTRATION RIGHTS...........................................................5
E. THE CLOSING...................................................................6
F. CONDITIONS TO CLOSING.........................................................6
G. REPRESENTATIONS AND WARRANTIES................................................7
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PAGE
G.1. Capacity of the Sellers and the Principals; Ownership of Shares...............7
G.2. Broker's Fees:................................................................7
G.3. U.S. Securities Laws:.........................................................7
G.4. Incorporation of the Company..................................................8
G.5. Accounts......................................................................9
G.6. Personnel and corporate officers of the Company...............................9
G.7. Tangible and Intangible Assets...............................................10
G.8. Debtors - Provisions.........................................................11
G.9. Loans........................................................................11
G.10. Litigation...................................................................11
G.11. Customers....................................................................11
G.12. Contracts....................................................................12
G.13. Relationships with Sellers...................................................12
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PAGE
G.14. Tax Regulations..............................................................13
G.15. Material adverse change......................................................14
G.16. Indemnification..............................................................14
G.17. Duration.....................................................................15
G.18. Notification procedure and payment of indemnification........................15
G.19. Third party claims...........................................................16
G.20. Limitations of the obligations of the Sellers................................17
G.21. Shareholders' Agent..........................................................17
G.22. Method of payment of Indemnification.........................................18
H. USE AND CONFIDENTIALITY......................................................18
I. NON-COMPETITION..............................................................19
I.1. Employment, operation etc....................................................19
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PAGE
I.2. Third parties................................................................19
I.3. Special regulation regarding DIOS A/S........................................20
J. TAXES, FEES AND COSTS........................................................20
K. COSTS AND EXPENSES...........................................................20
L. ACTIONS TO BE TAKEN AT CLOSING...............................................20
L.1. At Closing, the Sellers shall deliver to the Purchaser:......................20
L.2. At Closing, the Purchaser shall deliver to the Sellers:......................21
M. ESCROW.......................................................................21
M.1. Escrow Shares; Escrow Agent..................................................21
M.2. Claims Upon Escrow Shares....................................................21
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PAGE
N. DUE DILIGENCE................................................................22
O. CHOICE OF LAW AND ARBITRATION................................................23
P. NOTICE.......................................................................23
</TABLE>
<PAGE>
WHEREAS the Sellers own nom. DKK 885,800 of the outstanding shares (the
"Shares") in the Company (as defined below);
WHEREAS the Purchaser wishes to purchase the Sellers' shares in the Company on
the terms and conditions set out in this Agreement in consideration for
the payment of the purchase price 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
TOM JACOBSGAARD APS
a company limited by shares having its registered office at
Toldbodgade 39,4.
DK-1253 Copenhagen K
CVR no. 20898097
and
MORTEN FALCON APS
a company limited by shares having its registered office at
Frederiksberggade 2, 1.
DK-1459 Copenhagen K
CVR no. 25538838
and
DIOS A/S
a company limited by shares having its registered office at
Gl. Kongevej 91 A
DK-1850 Frederiksberg C
CVR no. 14600582
and
CHR A WANDEL-PETERSEN.DK. APS
a company limited by shares having its registered office at
Schioldannsvej 32
DK-2920 Charlottenlund
CVR no. 21564877
(collectively referred to as "the Sellers")
and
TOM JACOBSGAARD, KIM PEDERSEN, CHRISTIAN WANDEL PETERSEN, AND MORTEN FALCON
(hereinafter collectively referred to as the "Principals")
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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
Sellers and the purchase by the Purchaser all of the Sellers' 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 Sellers contained
herein and subject to the terms of this Agreement, the Purchaser shall purchase
the Shares from the Sellers.
Table 1: The Sellers hereby represent and warrant to the Purchaser that the
Shares is owned as follows by the persons identified below:
<TABLE>
<S> <C>
Tom Jacobsgaard ApS 551,600
Morten Falcon ApS 68,100
DIOS A/S 206,700
CHR A Wandel-Petersen.dk. ApS 59,400
---------
TOTAL 885,800
---------
</TABLE>
B. PAYMENT TO THE SELLERS - PURCHASE SHARES
B.1. PURCHASE SHARES
The Sellers shall receive 214,704 (two-one-four--seven-zero-four)
shares of common stock of the Purchaser (hereinafter the "Purchase
Shares") paid in consideration of the Purchaser's purchase of the
Shares from the Sellers. The Purchase Shares is to be delivered to the
Sellers in accordance with their Share ownership as stated above in
table 1. However, 20 (twenty) percent of the Purchase Shares equal to
42,941 Purchase Shares shall be held in escrow in accordance with
Clause M.
C. TARSAP SHARES
The Purchaser shall issue to the Sellers an aggregate of 123,137
(one-two-three-one-three-seven) shares of common stock of the Purchaser
(the "TARSAP Shares") under the conditions set forth in Schedule C
pursuant to Restricted Stock Agreements in substantially the form
attached hereto as Schedule C.
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D. REGISTRATION RIGHTS
The Purchase 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 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 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 D 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.
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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 clause
D, shall forthwith discontinue disposition of the Registered Shares
pursuant to the registration statement covering such Registered Shares
until the 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 Sellers 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 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.
E. THE CLOSING
The closing of the contemplated transaction ("Closing") will occur as
of the date of all the parties having signed this Agreement.
F. CONDITIONS TO CLOSING
The validity of this Agreement is conditioned upon the fulfillment of
each of the following:
- that the Company and Tom Jacobsgaard have entered in to and duly
signed a service agreement attached hereto as Schedule F.1;
- that the Company and Kim Pedersen have entered in to an employment
agreement attached hereto as Schedule F.2;
- that the Company and Christian Wandel-Petersen have entered in to
and duly signed an employment agreement attached hereto as
Schedule F.3;
- that the Seller has demonstrated that the any shareholder agreement
or similar agreement between the Sellers and or any other third
party affecting the ownership or voting of the shares and the
business of the Company has been terminated;
- that none of the the key employees identified in Schedule G.6. have
expressed their wish to discontinue their employment on unchanged
terms and conditions;
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- that any claims and outstanding accounts that the Sellers,
Infomarked.dk ApS and other companies owned by the Principals may
have against the Company is settled;
- that in connection with the Closing, a shareholders' meeting shall
be held at the offices of the Company at the Closing Date, at which
time the members of the board of directors and the management board
of the Company shall resign without any claim for compensation, and
the new board of directors, the management board and the auditor
shall be elected by the Purchaser for the Company; and
- that the Purchaser successfully purchases the remaining outstanding
share capital and any and all other outstanding equity interest in
the Company after giving effect to the transactions contemplated by
Purchaser and that these shares and equity interests are free and
clear of all liens, claims and encumbrances. -
G. REPRESENTATIONS AND WARRANTIES
Each of the Sellers and the Principals represents and warrants to the Purchaser:
G.1. CAPACITY OF THE SELLERS AND THE PRINCIPALS; OWNERSHIP OF SHARES
Each of the Sellers and each of the Principals have full capacity to
enter into this Agreement, to perform their obligations under this
Agreement, and to benefit from the rights contained herein.
Neither Sellers nor the Principals have been or are 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 Sellers or the Principals subject to any
reorganisation or liquidation procedure.
There is no consent, authorisation or judicial decision that is
necessary for the Sellers to execute and perform their obligations
under this Agreement, which have not yet been obtained.
Each of the Sellers owns his Shares free from all liens, claims and
encumbrances.
G.2. BROKER'S FEES:
The Sellers and the Principals hereby represent and warrant that
neither the Company nor any Seller or Principal has 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.
G.3. U.S. SECURITIES LAWS:
(a) Each 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;
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(b) Each 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) Each of the Sellers 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 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."
G.4. INCORPORATION OF THE COMPANY
The Company has been duly incorporated, validly exists, is fully
entitled to own its assets and carry on its activities under the laws
of the Kingdom of Denmark. The Company is not subject to any
proceedings with a view to preventing or settling difficulties in the
business nor is the Company subject to reorganisation or liquidation
proceedings, and there are no grounds for making the Company subject to
such proceedings except for the present financial situation of the
Company as set out in Schedule G.5. Likewise, it is not nor has it ever
been the object of a petition seeking to declare its dissolution or its
nullity.
The corporate bodies of the Company operate in accordance with the laws
and regulations applicable to them, and all corporate decisions have
been made and published in accordance with applicable regulations. The
formalities required by law have all been complied with.
The Company has not granted any outstanding power of attorney to any
person. The corporate record books of the Company accurately record all
corporate actions taken by its stockholders and board of directors and
committees. The copies of the corporate records of the Company has been
provided to counsel to the Purchaser for review and are true and
complete copies of the originals of such documents. The Company has
provided true and correct copies of all documents referred to in this
Clause or in the Schedules delivered to counsel to the Purchaser
pursuant to this
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Agreement. However, the minutes from the board meeting held at 31
October 2000 has not yet been signed by the board.
G.5. ACCOUNTS
The accounts of the Company as of October 31, 2000, forecast for the
year 2000 and estimated finacial statements as of December 15, 2000
(hereinafter "Accounts"), set out in Schedule G.5, have been prepared
in accordance with Danish generally accepted accounting methods and
principles ("GAAP"). The accounts are true and accurate and give a true
and fair view of the financial situation and of the assets and
liabilities of the Company as of said date off balance sheet
liabilities.
All the liabilities of the Company are duly reflected in the Accounts
in accordance with GAAP and are adequately provided for.
The Company has not given or agreed to give any security, charge,
guarantee, encumbrance or letter of comfort for the performance of
contractual undertakings either by third parties or by the Company or
by the Sellers, or of one of the Sellers' affiliates or shareholders
(including relatives).
G.6. PERSONNEL AND CORPORATE OFFICERS OF THE COMPANY
The list of salaried employees and corporate officers of the Company
set out in Schedule G.6.1. contains details of their contracts,
category and classification as the case may be, as well as their
remuneration (including all bonuses and benefits in kind) and details
of all retirement schemes.
The Company complies with and has always complied with all applicable
social security provisions.
Except as set forth on SCHEDULE G.6.1. attached hereto, the Company
does not maintain and has never maintained an employee benefit plan
which is subject to any governmental regulations or oversight. Except
as set forth in SCHEDULE G.6.2, the Company has no other stock option
plans, bonus or incentive award plans, severance pay policies or
agreements, deferred compensation agreements, supplemental income
arrangements, vacation plans, or other employee benefit plans,
agreements, or arrangements. True and correct copies of all plans and
arrangements set forth on SCHEDULE G.6.3. have been provided to
Purchaser. For purposes of this Clause G.6, an entity "maintains" an
employee benefit plan if such entity sponsors, contributes to, or
provides (or has promised to provide) benefits under such employee
benefit plan, or has any obligation (by agreement or under applicable
law) to contribute to or provide benefits under such employee benefit
plan, or if such employee benefit plan provides benefits to or
otherwise covers employees of such entity, or their spouses, dependants
or beneficiaries.
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G.7. TANGIBLE AND INTANGIBLE ASSETS
G.7.1. Tangible Assets
The Company has good title or has the right to use all of its assets.
The assets owned by the Company are free from any encumbrance or third
party rights.
All the Assets are in a good condition and working order, fit for their
particular purpose and are well maintained and repaired, have no
apparent defects and comply with the applicable environmental laws.
The Company has disclosed having leased a part of its working equipment
including four company cars.
G.7.2. Intangible Assets
All trademarks, patents, trade names, designs, models, software
products, domain names and other intellectual property rights that are
used by the Company or necessary for its activities are either validly
owned exclusively by the Company or are used pursuant to a valid
license agreements. All such intellectual property rights, when owned
by the Company, are validly registered with the competent authorities,
if so registration is required pursuant to Danish law, and all
corresponding fees have been duly paid. A complete and up-to-date list
of all such intellectual property assets is attached in Schedule G.7.2.
The Company has required all professional and technical employees, and
other employees having access to valuable non-public information of the
Company, to execute standard employment agreements ref. clause N under
which such employees are required to convey to the Company ownership of
all inventions and developments conceived or created by them in the
course of their employment and to maintain the confidentiality of all
such information of the Company. The Company has not made any such
information available to any person other than employees of Company
except pursuant to written agreements requiring the recipients to
maintain the confidentiality of such information and appropriately
restricting the use thereof. The Sellers and the Principals have no
knowledge of any infringement by others of any intellectual property
rights of the Company.
To the knowledge of the Sellers and the Principals, the Company is not
making unauthorised use of any confidential information or trade
secrets of any person, including without limitation, any former
employer of any past or present employee of Company. Neither the
Company nor, to the knowledge of the Sellers and the Principals, any of
its employees have any agreements or arrangements with any persons
other than the Company related to confidential information or trade
secrets of such persons or restricting any such employee's ability to
engage in business activities of any nature. The activities of the
Company's employees on behalf of the Company do not violate any such
agreements or arrangements known to the Company.
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To the knowledge of the Sellers and the Principals, the present and
contemplated business, activities and products of the Company do not
infringe any intellectual property of any other person.
G.8. DEBTORS - PROVISIONS
The receivables shown in the accounts and specified in Schedule G.8
which remain outstanding on the last accounting date are certain and
payable, and corresponding provisions have been booked in accordance
with GAAP. None of the receivables are subject to a counterclaim or
indemnities beyond normal business practice
However, in relation to the debtor "Mousehouse" the debt of DKK 84,375
will be written off at Closing as this debt is settled in Purchasers
share purchase agreement with Cell Network AB.
The receivables which have arisen or will arise between 15 December
2000 and the date of this Agreement will be settled within a 120-day
period as from the date on which they are due for an amount at least
equal to their nominal amount.
G.9. LOANS
No loans or other financial aids have been granted by the Company to
third parties.
The Company has not been granted any subsidy which could be cancelled
and made payable with the exception of the employment subsidy in
respect of the employee listed in Schedule G.9.
G.10. LITIGATION
The Company is not subject to any litigation, legal proceedings,
investigation or administrative proceedings or arbitration either as a
claimant or a defendant and, to the knowledge of the Sellers and the
Principals, there is no fact or event which suggests that such
proceedings may arise.
The Company has not been notified by any administrative body whatsoever
of a breach of a legal or regulatory provision, and the Company has not
been subject to any judgement or order affecting it or affecting its
activities or its assets or which could affect their financial
situation.
However, the Purchaser has been informed of the letter of inquiry from
the tax authorities enclosed as Schedule G.10. (the "Tax Inquiry").
G.11. CUSTOMERS
Schedule G.11. contains the pre-tax turnover of the 10 (ten) largest
current customers (measured by turnover) of the Company, as well as
details of claims by such clients over the 12 (twelve) months prior to
31 October 2000.
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G.12. CONTRACTS
Schedule G.12 contains a list of the contracts entered into by the
Company:
- of a duration in excess of 2 (two) years and/or involving an amount
of DKK 200,000 (two hundred thousand) or more per annum (other than
employment contracts, commercial leases and other contracts
specifically referred to or listed in the other Schedules to this
Agreement);
- which can only be terminated by the payment of an indemnity in
excess of DKK 200,000 (two hundred thousand) or requiring a period
of notice of more than 3 (three) months;
- limiting the ability of the Company to carry out its activities,
notably, by way of a non-compete clause; and
- in respect of mergers, contributions, purchase of assets, shares or
parts including in particular representations and warranties still
in force or any letters of intention.
The contracts referred to in this clause G.12. (the "MATERIAL
CONTRACTS") are in full force and effect and are not subject to any
contentious or non-contentious claim. The Company has complied with its
contractual obligations and, to the knowledge of the Sellers and the
Principals, there is no event which may give rise to termination or
amendment of the said contracts or render the contracts void or which
may authorise a third party to demand prompt payment or the payment of
a penalty clause or give rise to any liability on the part of the
Company or their officers, directors or employees.
There is no contract or undertaking containing a termination clause or
a prompt payment clause or a modification of the provisions in the
event of a change of control within the Company except what has been
disclosed.
G.13. RELATIONSHIPS WITH SELLERS
Except for relations and contracts referred to in Schedule G.13., the
Company has not had relations with the Sellers or the Principals or any
of their directly or indirectly owned companies other than as a company
with its shareholders and directors and, in particular:
The Company has not been and is not a creditor or a debtor of the
Sellers or the Principals in respect of any payment, and none of the
Sellers (or their beneficial owners or affiliates) have been or is a
creditor or a debtor of the Company in respect of any payment except as
set out in Schedule G.8 and G.13;-
- The Company and DIOS A/S has had and will have in the future a
business relationship that are carried out on standard business
terms and in accordance with the "arms length principle"
- The Company has not used and does not use, either gratuitously or
for payment, any property belonging to any of the Sellers or the
Principals, and none of the
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Sellers (or their beneficial owners or affiliates) or the
Principals has used or uses, either gratuitously or for payment,
any property belonging to the Company;
- The Company has not given to the Sellers or the Principals any
particular right over its assets; and
- Neither the Company, nor any shareholder, officer, supervisory
employee or director of the Company (or any of their respective
family members or affiliates) owns directly or indirectly any
material interest in, or serves as an officer or director or in
another similar capacity of, any competitor or supplier of the
Company or any organisation which has a material contract or
arrangement with the Company.
G.14. TAX REGULATIONS
The Company has always complied with the applicable Tax Regulations.
More specifically:
- the Company is up-to-date in the payment of all Taxes on the date
of this Agreement, and adequate provisions have been made in the
Accounts for all future Taxation relating to the period before the
last accounting date as shown in Schedule G.14.;
- the Company has made and filed all declarations and have complied
with all formalities required by the Tax Regulations in the form
required and within the necessary time limit. These declarations
have always been and remain exact and complete and, to the
knowledge of the Sellers and the Principals, contain no error,
omission, inexactitude or material item which is missing;
- the basis and amount of Tax for which the Company has been or is
liable have always been determined in a regular manner in
conformity with the Tax Regulations in force and are not liable to
be adjusted or reassessed;
- the Company is not aware of any other tax examination in respect
of Taxes or any enquiry instigated by an administrative authority
leading or likely to lead to the payment of a Tax or a
reassessment of any Tax basis, except as described in Schedule
G.10;
- the Company has not received any other notification or a tax
authority audit, notice of reassessment nor has it otherwise been
informed in writing by any other administrative authority of its
intention to carry out any reassessment whatsoever, except as
described in Schedule G.10;
- VAT, duties, taxes, taxes at source and other public taxes have on
the day of Closing been entered on the income tax return and paid
in time and correctly, and there are no pending actions against
the Company, and no claims of such as stated above nature can be
enforced against the Company with respect to previous accounting
years as shown in Schedule G.14; and
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- the Company complies with all provisions of all social and Tax
benefits, all agreements or subsidies that they have received. All
Tax credits (including any Tax concessions) have been used in
accordance with the Tax Regulations.
"Taxes" means any taxes, withholdings, levies or similar payments
imposed by any government or taxing authority.
"Tax Regulation" means in this Agreement the tax regulation, tax
case-law and tax practice currently existing in the Kingdom of Denmark.
The Seller's has informed the Purchaser of the existence of a litigious
correspondence in form of a letter of inquiry from the tax authorities
of the City of Copenhagen regarding 21ST.DK A/S' annual income
statement for 1999, the correspondence is enclosed hereto as Schedule
G.10 It is hereby understood and accepted by the Seller's that the
Purchaser's knowledge of said correspondence shall be of no relevance
to the warranties and guarantees made herein by the Seller's and
Principal's to the Purchaser.
G.15. MATERIAL ADVERSE CHANGE
Since 15 December 2000 and until the date of this Agreement, and except
as set out in Schedule G.15:
- there has been no event which has led to or could lead to any
material adverse change in the assets and liabilities, the
financial situation, prospects or the profitability of the Company;
- there has been no declaration or payment of dividends or any other
distribution to shareholders, nor any depreciation, increase or
reduction in capital in respect of the Company;
- the Company has been managed in the ordinary and normal course of
business; and
- the Company has in no way amended its accounting methods and
principles and has not revalued any assets nor written off any
debt.
G.16. INDEMNIFICATION
The Sellers and the Principals shall be jointly and severally liable
for and shall indemnify and hold harmless the Purchaser and the Company
and their respective officers, directors, shareholders and affiliates
(the "Indemnified Parties") hereby undertake to indemnify the Purchaser
for:
- any loss that the Company or the Purchaser may suffer by virtue of
a reduction of assets or an increase in liabilities resulting in a
liability not being accounted for or
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insufficient provisions being made for it in the Accounts, as long
as the cause or origin of this reduction in assets or increase in
liabilities arises prior to the last accounting date;
- any and all liabilities that might be arising out of or in
connection with the Tax inquiry set out in Schedule G.10 from the
tax authorities of the City of Copenhagen to the Company.
- any loss that the Company or the Purchaser may suffer as a result
of any inaccuracy or omission in the representations and warranties
contained in Clause G.2 - G.19 or of the non-performance by the
Sellers or the Principals of any of their obligations under this
Agreement, as long as such loss has not given rise to a reduction
of the Escrow Shares (as defined in Clause M).
(any indemnification due under Clause G. 16. being referred to as an
"INDEMNIFICATION").
- However, any loss that the Company or the Purchaser may suffer as
a result of any inaccuracy or omission in the representations and
warranties contained in clause G.1 can only be claimed from that
Seller or Principal in breach.
G.17. DURATION
The obligation of the Sellers to indemnify the Purchaser hereunder
shall be limited as follows:
- Claims for Indemnification pursuant to this Agreement in respect of
Taxes must be received before the expiration of a period equal to
the relevant limitation period applicable to Taxes plus thirty (30)
days.
- Any requests for Indemnification other than matters relating to
Taxes pursuant the Agreement must be received before 31 March 2002.
- The Purchaser shall not lose its right to Indemnification at the
expiration of the limitation periods referred to above as long as
the claims pursuant to this Agreement are notified before the
expiration of such periods.
G.18. NOTIFICATION PROCEDURE AND PAYMENT OF INDEMNIFICATION
Any event capable of giving rise to Indemnification in accordance with
this Agreement must be notified in writing by the Purchaser to the
Shareholders' Agent (as defined in Clause G.20) and the Escrow Agent
specifying the reasons for which the Purchaser claims such
Indemnification from the Sellers as well as the amount of said
Indemnification, if determinable (a "CLAIM FOR INDEMNIFICATION").
Except in the event that a written objection is not sent by the
Sellers' Shareholders' Agent to the Purchaser within twenty (20)
Business Days of the receipt by the Shareholders' Agent of the
notification above, the Claim for Indemnification shall be
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considered due and shall give rise to interest accruing after the date
of receipt by the Shareholders' Agent of the Claim for Indemnification
by the Purchaser (the interest being payable at the same time as the
indemnity). The relevant interest rate shall be the LIBOR one month
rate as published at the date of receipt of such notification.
"Business Days" means in this Agreement a day on which commercial banks
in Denmark is open to transact business.
If, on the contrary, the Shareholders' Agent notify an objection to the
Purchaser in the time-limits set out above, the dispute shall be
settled pursuant to Clause O.
G.19. THIRD PARTY CLAIMS
In the event of any legal or administrative action filed by a third
party against any Indemnified Party as well as of a Tax reassessment
conducted against the Company, which would give rise to a request by
the Purchaser to the Sellers and/or the Principals hereunder, the
Purchaser shall give written notice to the Shareholders' Agent as soon
as such action is known by the Purchaser in order to determine what
action the Sellers and/or the Principals intend to take in respect of
the conduct of the relevant legal action.
The Shareholders' Agent will inform the Purchaser in writing as to the
manner in which they intend to proceed with the claim. At their option,
the Sellers may (i) take full responsibility for the defence of the
claim and pay all costs of such defence on behalf of the Indemnified
Parties or (ii) participate in such defence together with the Purchaser
or the Company.
Should the Shareholders' Agent notify the Purchaser of the decision of
the Sellers and the Principals to participate in the defence of the
Company, the Purchaser undertakes to ensure that the points of view and
opinions expressed by the Shareholders' Agent are taken into
consideration, although they may be rejected in the best interests of
the Company.
In the event the Shareholders' Agent does not inform the Purchaser in
writing of the intentions of the Sellers and the Principals in respect
of the conduct of the legal action referred to above within 10 (ten)
Business Days of receipt of the notification referred to above, the
Sellers and the Principals shall be deemed to have decided not to take
part in the defence of the Company against the third party claim.
In all cases, the Company may not accept, agree on any compromise or
pay any claim of a third party without the approval of the
Shareholders' Agent, who may only refuse his consent if such agreement
or absence of payment is not reasonable. In addition, the Purchaser
shall provide the Sellers with all documents or other information which
should reasonably be provided by it in consideration of the procedure
in progress, without this causing difficulties for the operation of the
Company.
It is expressly agreed that the Purchaser shall be authorised to
commence any urgent action with a view to defending the Company'
interests without consulting the Shareholders' Agent , if the his
advice cannot be reasonably obtained considering the
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nature of the legal action to be conducted and/or the time-limits for
response set out by the third party.
G.20. LIMITATIONS OF THE OBLIGATIONS OF THE SELLERS
The amount of any Indemnification may be reduced by (i) the amount of
any indemnity which has been effectively paid by third parties in
respect of a loss, either to one of the Company or to the Purchaser
which is covered by an insurance company or other indemnity, by an
agreement such as a guarantee of assets or liabilities or by any third
party (including the Government or the State); and (ii) to the extent
of any tax saving benefiting the Company due to the tax deductibility
of the loss resulting from the indemnifiable Claim for Indemnification.
"State" means in this Agreement the Kingdom of Denmark. "Government"
means in this Agreement the government of the Kingdom of Denmark.
No Indemnification will be made if the cumulative amount of the Claims
for Indemnification notified to the Sellers in accordance with this
Agreement do not exceed DKK 500,000 (five hundred thousand). Once this
amount is reached, the total amount of the Indemnification will be
payable.
However and notwithstanding anything to the contrary stated herein, the
parties have agreed that in respect of the Sellers and the Principals,
the Indemnification cannot exceed their relative amount equal to their
pro rata part of Purchase Shares (based on their respective ownership
interest in the Shares), except that such limitation shall not apply to
Indemnification to which the Purchaser and the other Indemnified
Parties are entitled to and relating to the Tax Inquiry or any other
Tax liabilities of the Company.
G.21. SHAREHOLDERS' AGENT
Tom Jacobsgaard shall be constituted and appointed as agent (the
"Shareholders' Agent") for and on behalf of the Sellers and the
Principals to give and receive notices and communications, to authorise
delivery to the Purchaser of the Escrow Shares in satisfaction of any
Claim for Indemnification by the Purchaser, to object to such
deliveries, to agree to, negotiate, enter into settlements and
compromises of, and demand arbitration and comply with orders of courts
and awards of arbitrators with respect to such Claim for
Indemnification, and to take all actions necessary or appropriate in
the judgement of the Shareholders' Agent for the accomplishment of the
foregoing. Such agency may be changed by the holders of a majority in
interest of the Escrow Shares from time to time upon not less than ten
(10) Business Days' prior written notice to the Purchaser. No bond
shall be required of the Shareholders' Agent, and the Shareholders'
Agent shall receive no compensation for his services. Notices or
communications to or from the Shareholders' Agent shall constitute
notice to or from each of the Sellers and the Principals.
The Shareholders' Agent shall not be liable for any act done or omitted
hereunder as Shareholders' Agent while acting in good faith and in the
exercise of reasonable
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judgement, and any act done or omitted pursuant to the advice of
counsel shall be conclusive evidence of such good faith. The Sellers
and the Principals shall severally indemnify the Shareholders' Agent
and hold him harmless against any loss, liability or expense incurred
without gross negligence or bad faith on the part of the Shareholders'
Agent and arising out of or in connection with the acceptance or
administration of his duties hereunder.
The Shareholders' Agent shall have reasonable access to information
about the Company and the reasonable assistance of the Company's
officers and employees for purposes of performing its duties and
exercising its rights hereunder, PROVIDED that the Shareholders' Agent
shall treat confidentially and not disclose any nonpublic information
from or about the Company to anyone (except on a need to know basis to
individuals who agree to treat such information confidentially).
A decision, act, consent or instruction of the Shareholders' Agent
shall constitute a decision of all Sellers and Principals and shall be
final, binding and conclusive upon each such Seller or Principal, and
the Escrow Agent and the Purchaser may rely upon any decision, act,
consent or instruction of the Shareholders' Agent as being the
decision, act, consent or instruction of each and every such Seller and
Principal. The Escrow Agent and the Purchaser are hereby relieved from
any liability to any person for any acts done by them in accordance
with such decision, act, consent or instruction of the Shareholders'
Agent.
G.22. METHOD OF PAYMENT OF INDEMNIFICATION
The Sellers and the Principals may satisfy any Indemnification due
hereunder by payment in cash or delivery of Escrow Shares or other
shares of common stock of the Purchaser. The value of such shares shall
be determined at a price equal to the average closing price of a share
of the common stock of the Purchaser as quoted on the Nasdaq National
Market for the 10 trading day period ending three (3) Business Days
prior to the date of the Claim for Indemnification (the "Fair Market
Value"). However, the Fair Market Value can not be less than a price
equal to the average closing price of a share of the common stock of
the Purchaser as quoted on the Nasdaq National Market for the 10
trading day period ending three (3) Business Days prior to the date of
the Closing.
H. USE AND CONFIDENTIALITY
All of the information, records, books and data to which the Purchaser
and/or its representatives are given access as set forth above will be
used by the Purchaser solely for the purpose of analysing the Company
and the assets and will be treated on a confidential basis. The terms,
conditions and existence of this Agreement and all further discussions
between the parties will also be treated on a confidential basis,
subject to appropriate disclosure to regulatory authorities and as
otherwise required by law or the rules of any securities exchange which
may be applicable. All announcements to third parties pertaining to the
contemplated transaction will be subject to review and approval of both
parties before public disclosure and,
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notwithstanding anything to the contrary stated herein, will not
identify the Purchaser or its affiliates by name.
I. NON-COMPETITION
I.1. EMPLOYMENT, OPERATION ETC.
In the Loyalty Period as defined below the Principals, or any company
in which they directly or indirectly have a interest, the Principals
undertake not to engage, directly or indirectly, in any part of the
world where the Purchaser, the Company or any subsidiary carries out
business activities in any business which, directly or indirectly
competes with the business activities, engaged in by the Purchaser, the
Company or a subsidiary. By the Purchaser's business activities is
understood in this Clause I.1 as the sale and marketing of Strategic
Internet Services (hereinafter "SIS").
In case of any breach of the undertaking in this clause I. 1 by Tom
Jacobsgaard, Kim Pedersen, Christian Wandel Petersen, the party in
breach shall, in addition to any other relief that may be available to
the Purchaser, pay to the Purchaser the actual damage resulting from
such breach. However, such a payment shall in no case amount to less
than DDK 500,000.00 for each claim, regardless of the party in breach
income and cost connected therewith.
In relation to Tom Jacobsgaard the Loyalty Period is 2 (two) years
commencing on the day of Closing.
In relation to DIOS A/S and Kim Pedersen Loyalty Period is 12 (twelve)
months commencing on the day of Closing.
In relation to Christian Wandel Petersen the Loyalty Period is 6 (six)
months commencing on the day of Closing.
I.2. THIRD PARTIES
In the Loyalty Period as defined in Clause I. 1 the Principals and any
company in which they directly or indirectly have a interest, undertake
to refrain from offering or negotiating employment with any of the
employees of the Purchaser, the Company or any subsidiary without the
prior written consent of the Purchaser. The Principals further
undertake not to in any way solicit any customers or client of the
Purchaser, the Company or any subsidiary.
In case of any breach against the foregoing undertaking by Tom
Jacobsgaard, Kim Pedersen, Christian Wandel Petersen, the party in
breach shall, in addition to any other relief that may be available to
the Purchaser, pay to the Purchaser the actual damage resulting from
such breach but in no case an amount being less than DKK 500,000.00 for
each claim, regardless of the the party in breach's income and cost
connected therewith.
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I.3. SPECIAL REGULATION REGARDING DIOS A/S
The Purchaser acknowledge that DIOS A/S is a management consulting firm
and by being such perform management consultant services for clients.
Consequently, clause I.1 and I.2 shall not prevent DIOS A/S from
continuing the marketing and sales of these services. However, DIOS A/S
and the Purchaser agree that if the management consulting services
include creative and technical services and thereby defined as SIS
services, DIOS A/S must provide the Company and Purchaser with the
right of first refusal to perform the creative and technical part on
behalf of DIOS A/S. In the event DIOS A/S is introduced to customers
and/ or client seeking a provider of SIS services, DIOS A/S must in
good faith introduce and connect the Company and or the Purchaser to
such customers and / or clients.
This clause I.3. does only apply to DIOS A/S in the Loyalty Period.
In case of any breach against the foregoing undertaking by DIOS A/S,
DIOS A/S shall, in addition to any other relief that may be available
to the Purchaser, pay to the Purchaser the actual damage resulting from
such breach but in no case an amount being less than DKK 500,000.00 for
each claim, regardless of the DIOS A/S's income and cost connected
therewith.
J. TAXES, FEES AND COSTS
Any documentary transfer taxes and recording fees resulting from the
contemplated transaction will be paid by the Purchaser.
K. 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.
L. ACTIONS TO BE TAKEN AT CLOSING
L.1. AT CLOSING, THE SELLERS SHALL DELIVER TO THE PURCHASER:
- A copy of the certificate of incorporation of the Company, the
by-laws, minute book, stock book, and seal, the leases of all
premises used in the conduct of the business, any bills, vouchers,
records showing the ownership of the furniture, furnishings,
equipment, other personal property used in the operation of the
Company, and all other books of account, records and contracts of
the Company.
- Each 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.
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All the license certificate related to the assets mentioned under
clause G.7.2.
L.2. AT CLOSING, THE PURCHASER SHALL DELIVER TO THE SELLERS:
- Evidence satisfactory to the Sellers of the power of the person(s)
binding the Purchaser to do so in the form of the Secretary'
Certificate attached hereto as Schedule L.2.
- 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 respective Sellers before 11.59 p.m. Danish
time on the date of Closing;
M. ESCROW
M.1. ESCROW SHARES; ESCROW AGENT
At Closing, 42,941 Purchase Shares (the "Escrow Shares") shall be
registered in the name of and deposited in an account with Lindh
Stabell Horten A/S (the "Escrow Agent") and shall be held by the Escrow
Agent until 31 March 2002 or if earlier the day of which the chief
financial officer of Purchaser have approved the certified accounts for
the Company. On this day, provided that no Claim for Indemnification is
outstanding, the Escrow Agent shall release to the Sellers the Escrow
Shares less the sum of the following items:
(a) Accounts receivable which are included in the balance sheet of
the Company as of 15 December 2000 and which remain uncollected
on 31 May 2001; and
(b) Any amounts paid by the Company prior to the expiration of such
period for liabilities or obligations which are not included in
the balance sheet of the Company as of 15 December 2000.
M.2. CLAIMS UPON ESCROW SHARES.
Upon receipt by the Escrow Agent on or before the last day of the
Escrow Period of a Claim for Indemnification, the Escrow Agent shall,
subject to the Clauses M.2.1 and M.2.2 below, deliver to the Purchaser
the Escrow Shares having a value equal to the amount of such
Indemnification. For the purpose of compensating the Purchaser for its
Indemnification pursuant to this Agreement, the Escrow Shares or other
shares of common stock of the Purchaser to be delivered to the
Purchaser in satisfaction of such obligation shall be valued at the
Fair Market Value.
At the time of delivery of any Claim for Indemnification to the Escrow
Agent, a duplicate copy of such Claim for Indemnification shall be
delivered to the Shareholders' Agent and for a period of 20 Business
days after such delivery to the Escrow Agent of such Claim for
Indemnification, the Escrow Agent shall make no delivery of the Escrow
Shares pursuant to this Clause M unless the Escrow Agent shall have
received written authorisation from the Shareholders' Agent to make
such delivery. After the
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expiration of such 20 Business Day period, the Escrow Agent shall make
delivery of the Escrow Shares in accordance with this Clause M,
provided that no such payment or delivery may be made if the
Shareholders' Agent shall object in a written statement to the Claim
for Indemnification, and such statement shall have been delivered to
the Escrow Agent and to the Purchaser prior to the expiration of such
20 Business Day period.
M.2.1. Shareholders' Agent objection to Claim for Indemnification
In case the Shareholders' Agent shall so object in writing to any Claim
for Indemnification, the Purchaser shall have 20 Business Days after
receipt by the Escrow Agent of an objection by the Shareholders' Agent
to respond in a written statement to the objection of the Shareholders'
Agent. If after such 20 Business Day period there remains a dispute as
to any claims, the Shareholders' Agent and the Purchaser shall attempt
in good faith for 20 Business Days to agree upon the rights of the
respective parties with respect to each of such claims. If the
Shareholders' Agent and the Purchaser should so agree, a memorandum
setting forth such agreement shall be prepared and signed by both
parties and shall be furnished to the Escrow Agent. The Escrow Agent
shall be entitled to rely on any such memorandum and shall distribute
the Escrow Shares in accordance with the terms thereof.
M.2.2. Failure to reach agreement
If no such agreement can be reached after good faith negotiation,
either the Purchaser or the Shareholders' Agent may, by written notice
to the other, demand arbitration of the matter unless the amount of the
damage or loss is at issue in pending litigation with a third party, in
which event arbitration shall not be commenced until such amount is
ascertained or both parties agree to arbitration; and in either such
event the matter shall be settled by arbitration conducted in
accordance with Clause O. The decision of the arbitrator (selected in
accordance with Clause O) as to the validity and amount of any Claim
for Indemnification shall be binding and conclusive upon the parties to
this Agreement, and notwithstanding anything in this Clause M, the
Escrow Agent shall be entitled to act in accordance with such decision
and make or withhold payments out of the Escrow Shares in accordance
therewith. Any portion of the Escrow Shares held by the Escrow Agent
which are not required to be paid to the Purchaser in accordance with
the foregoing provisions or in satisfaction of the Indemnification
obligations of the Sellers hereunder shall be paid to the Sellers.
N. DUE DILIGENCE
The Purchaser has executed a limited due diligence under which certain
contracts and the standard employment agreement have been disclosed.
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O. 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.
Each of the Purchaser and the Shareholders' Agent 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.
P. 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.
Q. 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 Sellers to: Tom Jacobsgaard
Toldbodgade 39 4
1253 Kobenhavn K
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
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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.
By signing this agreement the Seller's and the Principals waive any and all
rights of first refusal as set forth in the Company's Articles of Association
Section 4.
[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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This Agreement has been signed by the parties on the date written above.
PRIMIX SOLUTIONS INC.
By:
------------------------
Name: Joseph W. Seebach
Title: Executive Vice President
and
-------------------------- -------------------- -----------------------------
Tom Jacobsgaard ApS Morten Falcon ApS CHR A Wandel-Petersen.dk. ApS
-------------------------- -----------------------------
DIOS A/S DIOS A/S
Kim Pedersen Torben Barnholdt
as the Sellers
and
-------------------------- -------------------- ---------------------------
Tom Jacobsgaard Morten Falcon Kim Pedersen
--------------------------
Christian Wandel Petersen
as the Principals.
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