Share Purchase Agreement - ValueClick Inc. and James R. Zarley
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "Agreement") is dated as of
December 31, 1999, and is between James R. Zarley, 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 2,500 of the issued and outstanding ordinary
shares, nominal value L3.00 each (the "Shares"), of the Company; and
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 US$12,375 in aggregate (the
"Purchase Price").
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.
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
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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.
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.
2.2 SHARE CAPITAL AND OWNERSHIP.
(a) The Shares have been duly authorized and validly issued, are
fully paid, 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
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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 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.
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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 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
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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.
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; and
(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.
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
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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.
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
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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 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.
JAMES R. ZARLEY VALUECLICK, INC.
/s/ JAMES R. ZARLEY /s/ JAMES R. ZARLEY
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James R. Zarley 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 # 30659762
Telephone: 0171-441-3083
Fax: 0171-584-3778
Contact Name: Peter Wickes
2. BARCLAYS BANK INTEREST BEARING ACCOUNT
Account # 70731463
3. BARCLAYS BANK VISA CREDIT CARD
Company # 3009404
Card # 4929 4660 5044 5397