Attached files
EXHIBIT 10.3
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Tel. +31(0)10 8900
400
info@symbid.co
www.symbid.com
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Symbid Corp.
Marconistraat
16
3029 AK Rotterdam
(Nederland)
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I.
RIGHT OF FIRST REFUSAL AGREEMENT
Execution version
November 15, 2016
I.
Symbid Corp., a public Nevada Corp.,
incorporated under the laws of the United States, with its
registered seat in Rotterdam, the Netherlands, having its business
address at Marconistraat 16, 3029 AK Rotterdam, the Netherlands
("Symbid
Corp.");
II.
Symbid Holding B.V., a private limited
liability company, incorporated under the laws of the Netherlands,
with its registered seat in Rotterdam, the Netherlands, having its
business address at Marconistraat 16, 3029 AK Rotterdam, the
Netherlands ("Symbid Holding
B.V.");
III.
Symbid Coöperatie UA, a private
limited liability company, incorporated under the laws of the
Netherlands, with its registered seat in Rotterdam, the
Netherlands, having its business address at Marconistraat 16, 3029
AK Rotterdam, the Netherlands ("Symbid Coöperatie
UA");
IV.
Stichting Symbid IP Foundation, a
foundation (stichting),
incorporated under the laws of the Netherlands with its registered
seat in Rotterdam, the Netherlands, having its business address at
Marconistraat 16, 3029 AK Rotterdam, the Netherlands ("Symbid IP Foundation");
V.
Korstiaan Zandvliet, a private
individual residing in the Netherlands (Lloydstraat 32C, 3024 EA
Rotterdam), currently CEO and President of Symbid Corp
(“Zandvliet”);
VI.
Maarten van der Sanden, a private
individual residing in the Netherlands (Overtoom 346/3, 1054JG
Amsterdam), currently CFO and Treasurer of Symbid Corp
(“van der
Sanden”);
VII.
Robin Slakhorst, a private individual
residing in the Netherlands (Sint-Jobsweg 24K, 3024 EJ Rotterdam),
currently CCO and Secretary of Symbid Corp (“Slakhorst”);
A.
NN IP and Symbid
Corp. entered into the Subscription Agreement dated September
8, 2015 ("Subscription Agreement"), pursuant to
which NN IP has participated for $1,175,000 in a Private Placement
Offering of a convertible note;
B.
NN IP and Symbid
Corp. signed a Convertible Promissory Note (the “Note”) dated September 8,
2015;
C.
As of November 15,
2016 the Note will be cancelled by NN IP by signing a Note
Termination agreement (the “Note Termination
Agreement”), as a consequence NN IP will cease to be
an investor in Symbid;
D.
In consideration of
recital C, NN IP and Symbid related parties have agreed to a Right
of First Refusal “ROFR” for any direct or indirect
activities of Symbid related parties and any of their current or
future group companies in the field of funds activities and
mandates for asset management in the Small- and Medium size
Enterprises segment (“Asset
Management Activities”);
E.
Symbid Holding
B.V., Symbid Foundation and NN IP entered into a Change Consent
Agreement, dated November 19, 2015 (“CCA”) and parties agreed on an
amendment of the CCA.
F.
NN IP and Symbid
related parties now wish to specify the conditions of this ROFR and
the arrangements made regarding the CCA in this agreement
("Agreement").
1
Symbid related
parties shall offer to NN IP and shall ensure that any of their
current of future holdings, businesses or enterprises (whether by
shares or as a partner or otherwise to the extent they have the
control to do so) or group companies (within the meaning of Article
2:24b of the Dutch Civil Code (‘Burgerlijk Wetboek’) (such
Symbid related parties and such group companies called together the
“Symbid Group
companies”) shall offer to NN IP:
(i)
The right to
exercise the ROFR and participate or cooperate (in any way as
further agreed between NN IP and the relevant Symbid Group company)
under for NN IP favorable benefits and terms and conditions in
Asset Management Activities to be undertaken by (one or more of
the) Symbid Group companies.
2.1
The Symbid related
parties shall inform NN IP in writing, accompanied by a reasonably
detailed business plan, of any (intended) Asset Management Activity
to be undertaken by (one or more of the) Symbid Group companies
after having developed a material plan to market such (intended)
Asset Management Activity, but before costs or expenses are being
made to actually market such (intended) Asset Management Activity,
but in any case at least sixty (60) days before such (intended)
Asset Management Activity is being marketed ("ROFR Notice").
2.3
In the event NN IP
informs the Symbid related parties in writing that it has interest
in exercising the ROFR, the Symbid related parties shall forward
such notice to the relevant Symbid Group company or companies that
wish to undertake the (intended) Asset Management Activity
(“Relevant Symbid
Party”), and NN IP and the Relevant Symbid Group Party
shall hold a meeting as soon as possible after the notice by NN IP
to discuss in more detail any participation or cooperation of NN IP
pursuant to the ROFR, after which NN IP and the Relevant Symbid
Party shall negotiate in good faith and by observing reasonableness
and fairness towards each other, taking into account recital C,
with respect to any participation or cooperation of NN IP (if
any).
2.4
In the event NN IP
informs the Symbid related parties in writing that it does not
exercise the ROFR, the Relevant Symbid Party can continue with the
planned Asset Management Activity without having any liability
towards NN IP, provided that the business plan that is sent to NN
IP pursuant to article 2.1 has not changed and the (intended) Asset
Management Activity shall be undertaken and marketed substantially
in a way as disclosed to NN IP. For the avoidance of doubt, this
Agreement (and the ROFR) shall remain in full force and effect with
respect to any other for any future partnership with a third party
as described in article 1.1 for the term as described in article
5.1.
2.5
In the event NN IP
does not provide a response to the ROFR Notice within the fifteen
(15) days term specified in article 2.2, the ROFR shall be deemed not to be
exercised. In which case the Relevant Symbid Party can continue
with the planned partnership without having any liability towards
NN IP, provided that the business plan that is sent to NN IP
pursuant to article 2.1 has not changed and the (intended) Asset
Management Activity shall be undertaken and marketed substantially
in a way as disclosed to NN IP. For the avoidance of doubt, this
Agreement (and the ROFR) shall remain in full force and effect with
respect to any other for any future partnership with a third party
as described in article 1.1. for the term as described in article
5.1.
3.1
The Symbid related
parties shall not and shall ensure that the Symbid Group companies
shall not disclose, discuss, pitch, negotiate or communicate with
any party other than NN IP (i) in the event as described in article
2.3 ultimately until the moment that the negotiations have ended or
six (6) months after the negotiations have started (whichever term
is longer), unless NN IP and the Relevant Symbid Party have come to
an agreement, in which case the exclusivity term pursuant to this
article expires on the date of such agreement, or (ii) in the even
as described in article 2.4 or article 2.5 ultimately after the
fifteen (15) days term specified in article 2.2 has lapsed.
4.1
Parties agreed that
the CCA will remain in force after NN IP ceased to be an investor
in Symbid Corp. Effective as of the date of signing of the
Agreement, clause 4.2 of the CCA shall be amended and replaced by
the following clause:
“4.2
This Agreement, and
the approval mechanism specified in article 2, shall automatically
terminate in the following events:
a)
Bankruptcy of
receivership of NN IP;
b)
Bankruptcy of
receivership of Symbid Foundation.
c)
Termination of the
Right of First Refusal Agreement, dated November 15,
2016.
4.2
Parties agreed and
consent in accordance with article 1.1 of the CCA on the following
changes:
a)
The IP License
Agreement between Symbid Holding B.V. and Stichting Symbid IP
Foundation will be amended to a non-exclusive IP License
Agreement;
b)
An additional IP
License Agreement, identical to the amended non-exclusive IP
License Agreement between Symbid Holding B.V. and Stichting Symbid
IP Foundation, will be signed between Stichting Symbid IP
Foundation and Symbid Coöperatie UA before November 15,
2016.
2
4.3
All other terms and
conditions of the CCA will remain in full force and
effect:
5.1
The Agreement is
entered into for a term valid until December 31, 2020 as of the
date of signature of this Agreement.
5.2
Symbid Corp. will
cease to be a party to this Agreement after another legal entity
with significantly different business activities has taken control
over Symbid Corp.
5.3
This Agreement, and
the exercise mechanism specified in article 2, shall automatically
terminate in the following event:
a.
Bankruptcy or
receivership of NN IP.
6.1
All of the
obligations of any of the Symbid related parties under this
Agreement shall be joint and several (‘hoofdelijk’) and any of
the Symbid related parties shall be jointly and severally liable
for any of the other Symbid related parties. For the avoidance of
doubt, the Symbid related parties will not be joint and several
liable anymore for Symbid Corp. once Symbid Corp, ceases to be a
party to this Agreement in accordance with article 5.2 of this
Agreement.
Any of
Zandvliet, van der Sanden or Slakhorst (each individually a
“Natural
Person”) shall not be jointly and severally liable to
the extent that such Natural Person provides compelling evidence to
NN IP that such Natural Person is not or no longer directly or
indirectly related or involved in any way (whether by contract or
otherwise), including (without limitation) as a shareholder,
(supervisory) board member, advisor and/or in any other capacity,
(i) to or in any of the
Symbid Group companies, including, for the avoidance of doubt, any
of the Natural Persons or any of their current or future direct or
indirect holdings, businesses or enterprises (whether by shares or
as a partner or otherwise), or (ii) to or in any Asset Management
Activity of any of the Symbid Group companies, including, for the
avoidance of doubt, any of the Natural Persons or any of their
current or future direct or indirect holdings, businesses or
enterprises (whether by shares or as a partner or otherwise). For
the avoidance of doubt, the joint and several liability shall
revive if the aforementioned conditions under (i) and/or (ii), as the case may be, have been
fulfilled on any given time, but are not or no longer fulfilled on
any other given time.
6.2
The rights and
obligations of a Party under this Agreement cannot be assigned or
transferred except with the prior written approval of the other
Party. In derogation of the preceding sentence, NN IP shall always
have the right to assign or transfer any of its rights or
obligations under this Agreement to any of its group companies
without the prior written approval of any other Party.
6.3
Unless provided
otherwise in this Agreement, the Parties shall each pay their own
costs, charges and expenses in relation to this
Agreement.
6.4
This Agreement
constitutes the entire agreement and understanding of the Parties
with respect to its subject matter and replaces and supersedes all
prior agreements, arrangements, undertakings or statements
regarding such subject matter.
6.5
Any variation of
this Agreement is not valid unless and until it is in writing and
has been signed by or on behalf of the Parties.
6.6
If a provision of
this agreement is or becomes invalid or non-binding, the Parties
shall remain bound to the remaining provisions. In that event, the
Parties shall replace the invalid or non-binding provision by
provisions that are valid and binding and that have, to the
greatest extent possible, a similar effect as the invalid or
non-binding provision, given the contents and purpose of this
Agreement.
6.7
Except as otherwise
required by law, applicable regulations or the terms of this
Agreement or as mutually agreed upon by the parties hereto, each
party shall treat as confidential the terms and conditions of this
Agreement.
Any notices
pursuant to this Agreement shall be sent to the following addresses
unless and until a Party notifies the other Party in accordance
with this Clause 7.1 of another
address in the Netherlands.
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If to
Symbid Foundation:
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If to
Symbid Holding:
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Stichting
Symbid IP Foundation
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Symbid
Holding B.V.
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Marconistraat
16
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Marconistraat
16
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3029 AK
Rotterdam
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3029 AK
Rotterdam
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The
Netherlands
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The
Netherlands
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Attn:
Board of Directors
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Attn:
Board of Directors
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If to
Symbid Corp.:
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If to
Zandvliet:
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Symbid
Corp.
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Korstiaan
Zandvliet
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Marconistraat
16
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Lloydstraat
32C
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3029 AK
Rotterdam
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3024 EA
Rotterdam
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The
Netherlands
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The
Netherlands
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Attn:
Board of Directors
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If to
van der Sanden
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If to
Slakhorst:
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Maarten
van der Sanden
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Robin
Slakhorst
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Overtoom
346/3
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Sint-Jobsweg
24K
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1054 JG
Amsterdam
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3024 EJ
Rotterdam
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The
Netherlands
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The
Netherlands
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If to
NN IP:
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If to
the Symbid related parties jointly:
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NN
Investment Partners
International
Holdings B.V.
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Marconistraat
16
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Attn:
head of Legal &
Compliance
(HP.A.03.139)
Schenkkade
65
2595 AS
The Hague
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3029AK
Rotterdam
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8.1
This Agreement
shall be governed by and construed in accordance with the laws of
the Netherlands.
8.1
--Signature page to follow--
{00177968.1
/ 3006.002}
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In
witness whereof, agreed upon and signed in eight (8) counterparts
by
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:Symbid
Coöperatie UA
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Symbid Coöperatie UA
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/s/ Maarten Timmerman
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/s/ Robin Slakhorst
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By:
Maarten Timmerman
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By:
Robin Slakhorst
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Position:
Board Member
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Position:
Board Member
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Stichting Symbid IP Foundation
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Stichting Symbid IP Foundation
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/s/ Robin Slakhorst
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/s/ Korstiaan Zandvliet
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By:
Gastropoda Equus B.V.
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By:
Arena Amnis B.V.
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Robin
Slakhorst
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Korstiaan
Zandvliet
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Position:
President
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Position:
Treasurer
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Symbid Corp.
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Korstiaan Zandvliet
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/s/ Korstiaan Zandvliet
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/s/ Korstiaan Zandvliet
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By:
Korstiaan Zandvliet
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By:
Korstiaan Zandvliet
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Position:
President
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Maarten van der Sanden
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Robin Slakhorst
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/s/ Maarten van der Sanden
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/s/ Robin Slakhorst
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By:
Maarten van der Sanden
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By:
Robin Slakhorst
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{00177968.1
/ 3006.002}
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Symbid Holding B.V.
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NN Investment Partners International Holdings B.V.
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/s/ Korstiaan Zandvliet
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/s/
(Illegible)
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By:
Arena Amnis B.V.
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By:
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Korstiaan
Zandvliet
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Position:
Managing Director
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Position:
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{00177968.1
/ 3006.002}
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