Share Purchase Agreement - ValueClick Inc. and Todd Treusdell
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "Agreement") is dated as of
December 31, 1999, and is between Todd Treusdell, an individual (the "Seller"),
and ValueClick, Inc., a Delaware corporation (the "Buyer").
WHEREAS, the Buyer desires to purchase all of the outstanding ordinary
shares of ValueClick Europe Limited, a private limited company organized under
the laws of England and Wales with registered number 3807256 (the "Company"),
resulting in the Company becoming the wholly-owned subsidiary of the Buyer (the
"Transaction");
WHEREAS, the Seller owns 30,000 of the issued and outstanding ordinary
shares, nominal value L3.00 each, which have only been partly paid up as
to $0.01 per ordinary share (the "Shares"), of the Company;
WHEREAS, the Seller is obligated to pay the Company an aggregate
amount of $148,200, which represents the balance of the original purchase price
not paid for the Shares (the "Remaining Original Purchase Price");
WHEREAS, in order to facilitate the Transaction, Seller desires to
sell all of the Shares to the Buyer and Buyer desires to purchase all of the
Shares from the Seller under the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged the parties hereto agree as follows:
1. PURCHASE AND SALE
1.1 PURCHASE AND SALE OF THE SHARES. In reliance upon the
representations and warranties of the Buyer contained herein, and
on the terms and subject to the conditions herein set forth, the
Seller hereby sells with full title guarantee, conveys, assigns,
transfers and delivers the Shares to the Buyer. In reliance upon
the representations and warranties of the Seller contained
herein, and on the terms and subject to the conditions herein set
forth, the Buyer hereby purchases the Shares and the Buyer hereby
agrees to pay the purchase price of $300 in aggregate (the
"Purchase Price") and to assume the obligation of Seller to pay
the Company the Remaining Original Purchase Price for the Shares.
1.2 PRE-EMPTION RIGHTS. The Seller hereby irrevocably waives and
undertakes to procure the waiver of all rights of pre-emption
over the Shares or any of them to which he or any other person is
or may be entitled in relation to the sale and purchase of the
same.
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1.3 TRANSFER OF SHARES. At the Closing (as hereinafter defined), the
Seller shall execute and deliver to the Buyer a certificate or
certificates representing the Shares (in the case of certificated
Shares) together with duly executed stock powers, stock transfer
forms, transfer deeds or other documents of transfer sufficient
to convey the Shares to the Buyer, and such other instruments of
conveyance as the Buyer may reasonably request in order to effect
the sale, transfer, conveyance and assignment to the Buyer with
full title guarantee for the purposes of the Law of Property
(Miscellaneous Provisions) Act 1994 to the Shares, and clear of
all claims, liens, pledges, charges, encumbrances, equities,
options, calls, voting trusts, agreements, commitments,
restrictions and other security interests whatsoever
(collectively, "Encumbrances").
1.4 DOCUMENTS OF TRANSFER. At the Closing, in addition to the
documents of transfer described in Section 1.3:
(a) each of the Seller and the Buyer will execute, acknowledge
and deliver such bills of sale, endorsements, assignments
and other good and sufficient instruments of conveyance,
sale, transfer and assignment as shall be required in order
to effectively vest in the Buyer all of the Seller's right,
title and interest in and to the Shares; and
(b) the Seller will deliver to the Buyer all of the files,
minute books, share registers, documents, papers, contracts,
agreements, legal descriptions, open books of account or
ledgers and documentation in support thereof, and all other
information appearing in writing and relating primarily to
the Company and which is in the Seller's possession.
(c) the Seller will deliver to the Buyer a letter of resignation
as director of VCEU.
1.5 FURTHER ASSURANCES. Each of the Buyer and Seller agree that at
the Closing and at any time or from time to time thereafter, at
the request of the other party and without further consideration,
such party shall: execute, acknowledge and deliver such further
instruments of conveyance, sale, transfer and assignment as the
other party may reasonably request, and take such other action as
may be reasonably requested, in order to more effectively convey,
sell, transfer and assign the Shares.
2. REPRESENTATIONS AND WARRANTIES BY THE SELLER.
The Seller hereby represents and warrants to the Buyer as follows:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
private limited company duly incorporated under the laws of
England and Wales. The Company has all requisite corporate power
and authority to carry on the business of the Company as
presently conducted.
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2.2 SHARE CAPITAL AND OWNERSHIP.
(a) The Shares have been duly authorized and validly issued, are
partly paid up as to $0.01 per ordinary share, not subject
to any call and are free of pre-emptive rights, rights of
first refusal and other similar rights.
(b) The Seller holds good and marketable title to the Shares,
free and clear of all Encumbrances. The transfer of the
Shares to the Buyer pursuant to this Agreement will vest in
the Buyer beneficial title to the Shares with full title
guarantee for the purposes of the Law of Property
(Miscellaneous Provisions) Act 1994.
2.3 AUTHORITY.
(a) The Seller has all requisite right, power, capacity and
authority to enter into, deliver and perform this Agreement
and any other agreement or document necessary to perform
this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and
validly executed and delivered by the Seller pursuant to all
necessary action on the part of the Seller.
(b) This Agreement is legal, valid and binding upon and
enforceable against the Seller in accordance with its terms.
2.4 NO CONFLICT; NO CONSENTS OR APPROVALS.
(a) Neither the execution and delivery by the Seller of this
Agreement or any agreement, instrument or document
contemplated hereby, the consummation of the transactions
contemplated herein or therein by the Seller, nor compliance
by the Seller with any of the provisions hereof or thereof,
will (i) conflict with, result in a violation or breach of
or constitute a default under (or would result in a
violation, breach or default with the giving of notice or
the passage of time or both) (A) the certificate of
incorporation or Memorandum or Articles of Association of
the Company or (B) any law, statute, ordinance, writ,
injunction, decree, rule, regulation or court or
administrative order by which the Seller or the Company is
subject or bound; or (ii) result in the creation or
imposition of, or give any party the right to create or
impose, any material encumbrance upon any of the Shares;
except, in the case of clause (i) (B), such violations,
breaches or defaults which would not have a material adverse
effect on the business, assets, properties, financial
condition or results of operations of the Company.
(b) Prior to Closing, neither the Seller nor the Company is
required to submit any notice, report or other filing with
or to any governmental body in connection with the
execution, delivery or performance of this Agreement
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by the Seller or the Company and the consummation of the
transactions contemplated hereby by the Seller.
(c) No litigation, claim, administrative proceeding or other
proceeding or governmental investigation is pending or, to
the Seller's knowledge, threatened which would prevent or
delay the execution, delivery or performance of this
Agreement or any agreement, instrument or document
contemplated hereby by the Seller or the consummation by the
Seller of the transactions contemplated hereby or thereby.
2.5 MATERIAL CONTRACTS. To the best of Seller's knowledge, set forth
on SCHEDULE A attached hereto is a complete and accurate list of
all material contracts and obligations of the Company.
2.6 BANK ACCOUNTS. To the best of Seller's knowledge, set forth on
SCHEDULE B attached hereto is a complete and accurate list of all
accounts of the Company held with financial institutions.
3. REPRESENTATIONS AND WARRANTIES BY THE BUYER.
The Buyer hereby represents and warrants to the Seller as follows:
3.1 ORGANIZATION AND GOOD STANDING. The Buyer is a corporation or
other form of limited liability company duly incorporated or
otherwise duly organized and validly existing under the laws of
the jurisdiction of its incorporation or organization, and has
all requisite corporate power and authority to carry on its
business as it is now being conducted.
3.2 AUTHORITY.
(a) The Buyer has all requisite corporate right, power, capacity
and authority to enter into, deliver and perform this
Agreement and any other agreement or document necessary to
perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and
validly executed and delivered by the Buyer pursuant to all
necessary corporate or other action on the part of the
Buyer.
(b) This Agreement is legal, valid and binding upon and
enforceable against the Buyer in accordance with its terms.
3.3 NO CONFLICT; NO CONSENTS OR APPROVALS.
(a) Neither the execution and delivery by the Buyer of this
Agreement or any agreement, instrument or document
contemplated hereby, the consummation of the transactions
contemplated herein or therein by the Buyer, nor compliance
by the Buyer with any of the provisions hereof or
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thereof, will conflict with, result in a violation or
breach of or constitute a default under (or would result
in a violation, breach or default with the giving of
notice or the passage of time of both) (i) the
certificate of incorporation or bylaws (or other similar
charter or governing documents) of the Buyer or (ii) any
law, statute, ordinance, writ, injunction, decree, rule,
regulation, or court or administrative order by which the
Buyer (or any of the properties or assets of the Buyer)
is subject or bound; except, in the case of clause (ii),
such violations, breaches or defaults which would not
have a material adverse effect on the business, assets,
properties, financial condition or results of operations
of the Buyer.
(b) Prior to the Closing, the Buyer is not required to submit
any notice, report or other filing with any governmental
body in connection with the execution, delivery or
performance of this Agreement by the Buyer and the
consummation of the transactions contemplated hereby by the
Buyer.
(c) No litigation, claim, administrative proceeding or other
proceeding or governmental investigation is pending or, to
the buyer's knowledge, threatened which would prevent or
delay the execution, delivery or performance of this
Agreement or any agreement, instrument or document.
(d) The Buyer shall use its best endeavours to procure the
release of Seller as guarantor from the lease specified in
Part A of Schedule A as soon as practicable and the Buyer
and the Company jointly and severally indemnify the Seller
again any and all losses incurred out of a failure to do so.
4. CLOSING.
(a) The Closing contemplated by this Agreement (the "Closing")
shall take place at Los Angeles, California at 10:00 a.m.,
local time, on December 31, 1999, or on such other date or
place as the Buyer and the Seller may mutually agree (such
date being herein called the "Closing Date"). All
transactions at the Closing shall be deemed to take place
simultaneously at 10:00 a.m., local time, on the Closing
Date, and no transaction shall be deemed to have been
completed and no document or certificate shall be deemed to
have been delivered until all transactions are completed and
all documents are delivered.
(b) At the Closing:
(i) the Seller shall execute and deliver to the Buyer the
certificates and any other relevant documents referred
to in Sections 1.3 and 1.4;
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(ii) the Buyer shall transfer to the Seller the Purchase
Price as specified in Section 1.1 and any other
relevant documents referred to in Section 1.4; and
(iii) the Buyer shall procure that a Board meeting of the
Company be held accepting the Seller's resignation
as a director and directing that the Company
Secretary file Form 288b with Companies House;
cancelling the Seller's Shares and amending the
Register of Members approving the registration of
the share transfer subject only to it being duly
stamped.
(c) Closing shall constitute full and final settlement of any
and all claims of any nature whatsoever which the Seller has
or might seek to enforce against the Buyer, the Company or
any director, officer, employee, agent or attorney of either
of them including, without limitation, claims for breach of
contract, claims in tort and any claim for breach of duty.
The Seller hereby waives absolutely and irrevocably any and
all rights he may have or might seek to assert and which
relate to his position as a shareholder in the Company,
whether such right arises or may have arisen under section
459 Companies Act 1985, at law or otherwise. Closing shall
also constitute full and final settlement of any and all
claims of any nature whatsoever which the Buyer or the
Company has or might seek to enforce against the Seller or
any agent of the Seller including without limitation claims
for breach of contract, claims in tort and any claim for
breach of duty.
5. MISCELLANEOUS.
5.1 AMENDMENTS. This Agreement may be amended only by a written
agreement signed by the Seller and the Buyer.
5.2 EXPENSES. Except as otherwise provided herein, the Buyer agrees
to pay for all costs and expenses (including all legal,
accounting, broker, finder and investment banker fees), including
costs and expenses incurred by Seller of up to an aggregate of
$1,000, relating to this Agreement, the negotiations leading up
to this Agreement and the transactions contemplated by this
Agreement. Seller shall pay for its own costs and expenses
relating to this Agreement, the negotiations leading up to this
Agreement and the transactions contemplated by this Agreement
that exceed $1,000.
5.3 WAIVER. Waiver of any term or condition of this Agreement by any
party shall only be effective if in writing and shall not be
construed as a waiver of any subsequent breach or failure of the
same term or condition, or a waiver of any other term or
condition of this Agreement.
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5.4 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
5.5 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any
other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is
invalid or unenforceable, the parties agree that the court making
the determination of invalidity or unenforceability shall have
the power to reduce the scope, during or area of the term or
provision, to delete specific works or phrases, or to replace any
invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified
after the expiration of the time within which the judgment may be
appealed.
5.6 ASSIGNMENT. This Agreement shall not be assigned by either the
Buyer or the Seller or by operation of law or otherwise without
the prior written consent of the other party.
5.7 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of England and Wales as to all
matters, including but not limited to, matters of validity,
construction, effect, performance and remedies.
5.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be
an original but all of which shall constitute one and the same
agreement.
5.9 SPECIFIC PERFORMANCE. Each party acknowledges and agrees that the
other party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with
their specific terms or otherwise are breached. Accordingly, each
party agrees that the other party shall be entitled to an
injunction or injunctions to prevent breaches of the provisions
of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any
court of any country having jurisdiction over the parties and the
matter, in addition to any other remedy to which it may be
entitled, at law or in equity.
5.11 CONSTRUCTION. The language used in this agreement shall be deemed
to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be
applied against either party. Any reference to any federal,
state, local or foreign statute or law shall be deemed also to
refer to all
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rules and regulations promulgated thereunder, unless the context
requires otherwise.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
TODD TREUSDELL VALUECLICK, INC.
/s/ TODD TREUSDELL /s/ JAMES R. ZARLEY
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Todd Treusdell James R. Zarley
Chief Executive Officer
VALUECLICK EUROPE LIMITED
By: /s/ STEVE UMBERGER
---------------------
Name: Steve Umberger
Title:
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SCHEDULE A
LIST OF MATERIAL CONTRACTS
A. LEASE
Landlord:
Peter Michael Simon
Katherine Simon
Hartley Pensions Administration Limited
Terms:
Rent paid quarterly - 3,500 GBP (yearly rent = 14,000 GBP)
Business Rates to local authority - quarterly payment = 1,600 GBP
(Yearly rates = 6,400 GBP)
Start Date: Sept. 28, 1999
Minimum Contract Length - 21 months.
Default Contract Length - 36 months
Must notify 3 months prior to 18th month to terminate lease on the
18th month.
B. GX NETWORKS LEASED 64 K/bs LINE
GX Networks
113-123 Upper Richmond Road
London SW15 2TL
Setup Charge - 587.50 GBP
Recurring Quarterly Charge - 1,090.64 GBP
C. ADVERTISING INSERTION ORDERS
Maximum commitment without penalty - 6 months
See insertion orders individually for details.
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SCHEDULE B
LIST OF ACCOUNTS WITH FINANCIAL INSTITUTIONS
1. DAILY CHECKING ACCOUNT DETAILS:
Barclays Bank
Belgravia & Knightsbridge Business Centre
P.O. Box No. 4578
155 Brompton Road
London SW3 1 XD
Account #
Telephone: 0171-441-3083
Fax: 0171-584-3778
Contact Name: Peter Wickes
2. BARCLAYS BANK INTEREST BEARING ACCOUNT
Account #
3. BARCLAYS BANK VISA CREDIT CARD
Company # 3009404
Card #