AMENDMENT
TO SHARE PURCHASE AGREEMENT
THIS AGREEMENT is made as of January 1, 2009
KEVIN
LOISELLE , of
the City of Ottawa in the Province of Ontario (“
Loiselle ”)
MICHEL
LUCAS , of
the City of Ottawa in the Province of Ontario (“ Lucas
”)
THE
WISHART SPOUSAL TRUST , a
trust formed under the laws of the Province of Alberta by its sole
trustee, Vernon Strang (the “ Lucas Trust
”)
KATHY
BRYDEN , of
the City of Ottawa in the Province of Ontario (“
Bryden ”)
DONNA
WISHART , of
the City of Ottawa in the Province of Ontario (“
Wishart ”)
THE
LUCAS SPOUSAL TRUST, a
trust formed under the laws of the Province of Alberta by its sole
trustee, Vernon Strang (the “ Wishart Trust
”)
THE
DAN KIRKLAND FAMILY TRUST , a
trust formed under the laws of the Province of Ontario (the “
Kirkland Trust ”)
DAN
KIRKLAND , of
the City of Toronto in the Province of Ontario (“
Kirkland ”)
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BRUCE
ANDERSON , of
the City of Ottawa in the Province of Ontario (“
Anderson ”)
ED
HUM , of
the City of Ottawa in the Province of Ontario (“ Hum
”)
2145204
ONTARIO INC. , a
corporation incorporated under the laws of the Province of Ontario
(“ Holdco ”)
2144798
ONTARIO INC. , a
corporation incorporated under the laws of the Province of Ontario
(the “ Buyer ”)
HARRIS
INTERACTIVE INC., a
corporation incorporated under the laws of the State of Delaware
(“ Harris ”)
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1.
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Loiselle, Lucas, Lucas Trust, Bryden, Wishart, Wishart Trust,
Kirkland Trust, Kirkland, Anderson, Hum and Holdco (collectively,
the “ Sellers ”), the Buyer and Harris are
parties to a share purchase agreement dated August 16, 2007,
as such agreement may be amended, supplemented and/or restated from
time to time (the “ Share Purchase Agreement
”).
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2.
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Pursuant to the Share Purchase Agreement, the Sellers sold to the
Buyer and the Buyer purchased from the Sellers all of the issued
and outstanding shares in Decima Research Inc. (now Harris/Decima
Inc.).
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3.
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The Purchase Price for the Purchased Shares included the Long-Term
Term Earn-Out payments and Short Term Earn-Out payments, if any. As
of the date of this amending agreement including the schedules
attached hereto (the “ Agreement ”), the Sellers
have not received nor have they been entitled to receive any
payments from the Buyer in respect of the Short Term Earn-Out or
Long Term Earn-Out.
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4.
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Anderson ceased to be an employee of Harris/Decima Inc. and a
shareholder of Holdco effective October 31, 2008.
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5.
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The Sellers, the Buyer and Harris wish to amend the Share Purchase
Agreement to replace the Short Term Earn-Out and Long Term Earn-Out
entitlements with Post-Closing Payments (as hereinafter
contemplated).
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NOW THEREFORE , in consideration of the sum of $10.00 now
given by each party to the other parties and for other good and
valuable consideration (the receipt and sufficiency of which are
hereby acknowledged by each of the parties hereto), the parties
hereto hereby agree as follows:
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1.1
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Unless the context otherwise requires, all capitalized terms which
are used in this Agreement and which are not otherwise defined
herein shall have the respective meanings attributed to such terms
in the Share Purchase Agreement.
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1.2
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Unless otherwise noted herein, all references in this Agreement to
Sections and clauses are to Sections and clauses of the Share
Purchase Agreement.
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1.3
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The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation of this
Agreement.
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2.1
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Definitions
— The following changes shall be made to Section 1.1 of
the Share Purchase Agreement:
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(a)
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The following definitions shall be deleted in their
entirety:
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(i)
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Earn-Out Credit;
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(ii)
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Long Term Earn-Out;
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(iii)
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Long Term Earn-Out Period;
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(iv)
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Long Term Earn-Out Targets;
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(v)
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Short Term Earn-Out;
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(vi)
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Short Term Earn-Out Payment Date; and
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(vii)
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Short Term Earn-Out Target.
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(b)
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The following new definition shall be included after the definition
of “Corporation’s Auditor” and before the
definition of “Current Assets”:
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““ Credit ” has the meaning set forth in
Section 2.4(b)(i);”.
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(c)
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The following new definition shall be included after the definition
of “Debt” and before the definition of
“Disposal”:
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“” Departing Seller ” has the meaning set
forth in Section 2.4(b)(i);”.
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(d)
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The following new definitions shall be included after the
definition of “Person” and before the definition of
“Pre-Closing Reorganization”:
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““ Post-Closing Payments ” means the
aggregate amount of $2,000,000;”; and
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“ “Post-Closing Payments Allocation
Schedule” has the meaning set forth in Section
2.2(b)(ii);”.
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(e)
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The definition of “ Proportionate Share ” shall
be amended by adding the words “of the Class X
shares” after the word “percentage” and before
the word “as”.
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(a)
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Section 1.10 of the Share Purchase Agreement is amended as
follows:
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(i)
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reference to “Schedule 2.4 Earn-Out Payments” is
deleted;
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(ii)
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a new reference to “Schedule 2.2(b)(ii) Post-Closing
Allocation Schedule” is added after the reference to
“1.1(b) Post-Closing Reorganization” and before the
reference to “2.12 Shareholder Loan Payout Amounts (Loiselle
and Lucas)”; and
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(iii)
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a new reference to “Schedule 4.20 Performance Incentive
Bonus Plan” is added after the reference to
“Schedule 4.16A Online Pricing Agreement” and
before the reference to “6.3.4 Rules of Procedure for
Arbitration”.
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(b)
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Schedule 2.4 Earn-Out Payments is deleted from the Share
Purchase Agreement.
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(c)
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Schedule 4.16 Operational Principles is amended by deleting it
in its entirety and replacing it with Schedule 4.16
Operational Principles, in the form attached as Schedule C to
this Agreement.
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(d)
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The following new schedules shall be added to the Share Purchase
Agreement:
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(i)
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Schedule 2.2(b)(ii) Post-Closing Allocation Schedule, in the
form attached as Schedule B to this Agreement; and
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(ii)
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Schedule 4.20 Performance Incentive Bonus Plan of
Harris/Decima Inc., in the form attached as Schedule A to this
Agreement.
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(a)
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Section 2.2(a)(ii) of the Share Purchase Agreement is amended
by deleting the words “Long Term Earn-Out payment and Short
Term Earn-Out payment” and replacing it with the
wo
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