Stock Purchase Agreement - ValueClick US, Jonathan Hendriksen and Timothy Williams
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (hereinafter called "Agreement") made as of this
20th day of January, 2000, by and between Mr. Jonathan Hendriksen, whose
address is at [701 6-21-4 Hongo, Bunkyo-ku Tokyo 113-0033 Japan] and Mr. Timothy
Williams, whose address is at [305 Isazaki Copo 4-5-18 Hongo Bunkyo-ku Tokyo
113-0033 Japan] (together, hereinafter called the "Sellers") and ValueClick US,
a corporation organized and existing under the laws of the State of Delaware
having its principal office at [6450 Via Real Carpinteria CA 93013] (hereinafter
called the "Purchaser"),
WITNESSETH:
WHEREAS, each of the Sellers wishes to sell and the Purchaser wishes to
purchase, a certain number of shares of capital stock owned by each of the
Sellers in ValueClick Japan, a Japanese corporation having its principal office
at [6F Ohma Building 4-37-6 Hongo, Bunkyo-ku Tokyo 113-0033 Japan], Japan
(hereinafter called the "Company") in accordance with the terms and conditions
specified hereinbelow,
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. PURCHASE AND SALE OF STOCK
Each of the Sellers shall sell and the Purchaser shall purchase the following
numbers of the issued shares of the Company owned by each of the Sellers
(hereinafter called the "Shares") in accordance with the terms and conditions
of the Agreement.
Mr. Jonathon Hendriksen [ 250 ] shares
Mr. Timothy Williams [ 250 ] shares
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ARTICLE 2. CONSIDERATION
2.1 The consideration for the Shares shall be paid by shares of common stock
of the Purchaser with par value of [$.001 cent]. The consideration for the
Shares of each of the Sellers shall be as follows:
Mr. Jonathan Hendriksen [ 48,836 ] shares of the Purchaser
Mr. Timothy Williams [ 48,836 ] shares of the Purchaser
2.2 The consideration shall be paid by the Purchaser to each of the Sellers at
the time and in the manner agreed upon between the parties.
ARTICLE 3. DELIVERY OF SHARE CERTIFICATE
Each of the Sellers shall deliver the share certificates representing the Shares
together with any documents required by the Purchaser as necessary for the
consummation of the transaction contemplated hereby to the Purchaser at a time
mutually agreed upon between the parties (hereinafter called the "Closing Date")
ARTICLE 4. REPRESENTATION AND WARRANTIES
4.1 Representation and Warranties by the Seller
Each of the Sellers hereby represents and warrants to the Purchaser as
follows:
4.1.1 Each of the Sellers has good and marketable title to the Shares, free and
clear of any all liens, security interests, covenants, conditions, options
and other restrictions.
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4.1.2 No consents, approvals, authorizations or other requirements prescribed by
any law, rule or regulation is required to be optained or satisfied by
each of the Sellers for the consummation of the transactions contemplated
hereby.
4.1.3 The execution of this Agreement and consummation of the transactions
contemplated hereby will not result in a breach of any of the terms or
provisions of, or constitute a default under, any agreement, or other
instrument to which each of the Sellers is a party or by which it is
bound.
4.2 Representation and Warranties by the Purchaser
The Purchaser hereby represents and warrants to each of the Sellers as
follows:
4.2.1 The Purchaser is duly organized and validly existing under the laws of the
State of Delaware, USA, and has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby.
4.2.2 No consents, approvals, authorizations or other requirements prescribed by
any law, rule or regulation is required to be obtained or satisfied by the
Purchaser for the consummation of the transactions contemplated hereby.
4.2.3 The execution of this Agreement and consummation of the transactions
contemplated hereby will not result in a breach of any of the terms or
provisions of, or constitute a default under, any agreement, or other
instrument to which the Purchaser is a party or by which it is bound.
4.2.4 The Purchaser has taken all necessary corporate actions required to pay
the consideration provided for in Article 2.
ARTICLE 5. CONDITIONS TO THE CLOSING
5.1 Conditions to Obligations of each of the Sellers
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The obligations of each of the Sellers to effect the transactions
contemplated hereby shall be, at the option of each of the Sellers,
subject to fulfillment, at or prior to the Closing date, of the following
additional conditions:
(a) The representations and warranties of the Purchaser contained in
this Agreement shall have been true and correct in all material
respects on the date such presentations and warranties were made
and as of the Closing Date; and
(b) Each of the obligations of the Purchaser to be performed by it on
or before the Closing Date pursuant to the terms of this
Agreement shall have been duly performed on or before the Closing
Date.
5.2 Conditions to the Obligations of the Purchaser
The obligations of the Purchaser to effect the transactions contemplated
hereby shall be, at the option of the Purchaser, subject to fulfillment,
at or prior to the Closing Date, of the following additional conditions:
(a) The representations and warranties of each of the Sellers
contained in the Agreement shall have been true and correct in
all material respects on the date such representations and
warranties were made and as of the Closing Date;
(b) Obligations of each of the Sellers to be performed on or before
the Closing Date pursuant to the terms of this Agreement shall
have been duly performed on or before the Closing Date; [and
(c) Resolution of the board of the directors of the Company shall
have been made to approve the sale of the Shares by each of the
Sellers contemplated hereby.] (This
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condition should be added if sale of shares is restricted under
the Articles of Incorporation of the Company.)
ARTICLE 6. INDEMNIFICATION
6.1 Each of the Sellers jointly and severally indemnify and hold the Purchaser
harmless against, and shall reimburse the Purchaser for any loss or
damage, including, without limitation, attorneys' fees reasonably incurred
arising out of any misrepresentation, breach or nonfulfillment of any
covenant or obligation of each of the Sellers under this Agreement, or any
misrepresentation in, or omission from, any certificate or other
instrument furnished or to be furnished to the Purchaser pursuant to this
Agreement.
6.2 The Purchaser shall indemnify and hold each of the Sellers harmless
against, and shall reimburse each of the Sellers for any loss or damage,
including, without limitation, attorney's fees reasonably incurred arising
out of any misrepresentation, breach of nonfulfillment of any obligation
of the Purchaser under this Agreement.
ARTICLE 7. TERMINATION
This Agreement may be terminated:
(a) by each of the Sellers, if there has been a material
misrepresentation or material breach of any warranty or covenant
by the Purchaser;
(b) by the Purchaser, if there has been a material misrepresentation
of material breach of any warranty or covenant by each of the
Sellers; or
(c) by either Seller or Purchaser, if the Closing shall not have
taken place on the Closing Date.
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ARTICLE 8. PAYMENT OF EXPENSES
The Purchaser and each of the Sellers will respectively pay all fees and
expenses (including, without limitation, legal fees and expenses) incurred by
them in connection with the transactions contemplated hereunder.
ARTICLE 9. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties and supersedes
all prior agreements or understandings between the parties hereto related to the
subject matter of this Agreement.
ARTICLE 10. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with the laws
of Japan.
ARTICLE 11. JURISDICTION
The parties hereto agree that Tokyo District Court shall have jurisdiction over
any disputes which may arise among the parties hereto.
ARTICLE 12. AMENDMENT
Neither this Agreement nor any of the terms and conditions hereof may be
amended, supplemented, waived or modified orally, but only by an instrument in
writing signed by the parties hereto.
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ARTICLE 13. HEADINGS
The headings of this Agreement are for convenience of reference only and shall
not define, modify or otherwise affect any of the provisions thereof.
ARTICLE 14. INVALID OR UNENFORCEABLE PROVISION
Should any provision of this Agreement be deemed invalid or unenforceable, then
such provision shall be given no effect and shall be deemed not to be included
within the terms and conditions of this Agreement, but without invalidating any
of the remaining terms and conditions of this Agreement. The parties hereto
shall then endeavor to replace the invalid or unenforceable provision by a
clause which is closest to the contents of the invalid or unenforceable
provision.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
as of the date first above written.
THE SELLER:
/s/ JONATHAN HENDRIKSEN
-------------------------------------
Jonathan Hendriksen
THE SELLER:
/s/ TIMOTHY WILLIAMS
-------------------------------------
Timothy Williams
THE PURCHASER: VALUECLICK, INC. USA
By: /s/ JAMES R. ZARLEY
---------------------------------
James R. Zarley
CEO, ValueClick Corporation