Exhibit 10.1


 


Execution Copy / January 18, 2005


 




 





SUPPLEMENTAL AGREEMENT AND
SETTLEMENT AGREEMENT


 


among


 


Digital River, Inc.


 


and


 


Digital River GmbH,


 


and


 


element 5 AG


 


and


 


Mr Clemens Roth, Mr Christopher
Reimold, Mr Gerrit Schumann,


and Mr Stephan Naujoks


 


and


 


the Other Sellers as set forth
individually herein


 










 


Dated as of January 18, 2005


 












 





 
























 


This
Supplemental Agreement and Settlement Agreement (“Agreement”)
is made and entered into as of the date set forth on the first page, by and
among


 


1.
Digital River, Inc., a Delaware
corporation having its principal place of business at Eden Prairie, MN,
Minnesota, 55344 USA,


 


hereinafter referred to as “DR Inc.”,


 


2.
Digital River GmbH, a German limited
liability company registered in the commercial register of the local court of
Frankfurt am Main, Germany, under registration number HRB 58186,


 


hereinafter referred to as “DR GmbH”,


 


3.
element 5 Informationstechnologien und
-dienstleistungen Aktiengesellschaft, a German stock corporation
registered in the commercial register of the local court of Cologne, Germany,
under registration number HRB 30389,


 


•                  hereinafter referred to as “element 5”,


 


4.
Mr Clemens Roth, Overstolzenstraße 2,
50677 Köln, Germany,


 


5.
Mr Christopher Reimold, Feilstrasse
25-27, 50672 Köln, Germany,


 


6.
Mr Gerrit Schumann, Danziger Str. 4b,
50858 Köln, Germany


 


7.
Mr Stephan Naujoks, Im Mediapark 10,
50670 Köln, Germany and


 


8.
the Other Sellers whose names and addresses
are set forth in Annex A hereto


 


•  hereinafter referred to as the “Other Sellers”.


 


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Mr
Roth, Mr Reimold, and Mr Schumann are hereinafter collectively referred to as
the “Selling Managers”, and the Selling Managers and Mr Naujoks are hereinafter
collectively referred to as the “Managers”. The Selling Managers and the Other
Sellers are hereinafter collectively referred to as the Sellers. The Managers
and DR Inc., DR GmbH and element 5 and the Other Sellers are hereinafter
collectively referred to as the “Parties”.


 


Recitals


 


1.
DR GmbH is the sole shareholder of element 5, and DR Inc. is the sole
shareholder of DR GmbH. The Managers are members of the management board of
element 5.


 


2. Under a certain Stock Purchase Agreement dated as
of April 17, 2004, (the “SPA”) among DR Inc., DR GmbH (formerly known as the
Blitz F03-1424 GmbH), and the Sellers, DR GmbH acquired all of the issued and
outstanding shares of capital stock of element 5 from the Sellers as the former
shareholders of element 5. The SPA was closed, and the shares of capital stock
of element 5 were assigned and transferred to DR GmbH, on April 19, 2004.


 


3. The total consideration paid by DR GmbH under the
SPA for the shares of element 5 was split, in accordance with the SPA, in
certain cash payments payable immediately upon Closing, and a total amount of
US$ 13,500,000 deposited in escrow in accordance with a certain Escrow
Agreement dated as of April 17, 2004 (the “Escrow Agreement”) by and among DR
GmbH, the Shareholders’ Agent as representative of the Sellers as former
shareholders of element 5, and Hypovereinsbank AG as Escrow Agent.


 


4.
In accordance with the Escrow Agreement, cash in the amount of US$1.5 million
was released on the Management Release Date (as defined in the Escrow
Agreement). The remainder of the Escrow Funds, equal to US$12 million, shall,
under the Escrow Agreement, be distributed to the Sellers within five business
days following the 18-month-anniversary of the Closing Date (the Escrow
Termination Date).


 


5.
The SPA provides inter alia for a representation
and warranty by the Selling Managers with respect to the financial statements
of element 5 as per December 31, 2003 and December 31, 2002.


 


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The
financial statements of element 5 as of December 31, 2003 were adopted prior to
the closing, in January 2004.


 


6. The parties wish to resolve all claims against the
escrow funds, including the claim filed with the escrow agent on July 16, 2004.


 


7.
Each of the Managers has entered into a service agreement with the company
dated as of April 16, 2004 (each a “Service Agreement”).


 


8.
The Parties wish to comprehensively and conclusively settle their legal
relationship under the SPA, including but not limited to the escrow, and any
representation and warranty claims.  The
Parties also agree that the Managers shall resign as members of the management
board of element 5, whilst continuing to render their services to the company
for a transitional period, under the existing Service Agreements and without
terminating these agreements. The Parties therefore have agreed to amend the
Service Agreements accordingly as set forth herein.


 


Part A Supplemental Provisions to
the SPA


 


§1 General


 


The
provisions of this Part A of this Agreement shall supplement, amongst the
Parties to this Agreement and the Sellers, the provisions of the SPA. The SPA
shall remain in full force and effect except to the extent that this Agreement
explicitly provides otherwise. In the event of any inconsistency between the
SPA and this Agreement, the provisions of this Agreement shall supersede and
control the provisions of the SPA, as among the Parties to this Agreement and
the Sellers. Terms not defined in this Agreement shall have the meaning
assigned to them in the SPA and the Escrow Agreement.


 


§2 Settlement of Escrow and Representations and Warranties


 


1.
In order to comprehensively and conclusively settle the legal relationship
between the parties of the SPA including but not limited to the escrow and
representations and warranties,  DR


 


4





















 


GmbH
and DR Inc. on the one hand, and the Selling Managers and the Other Sellers, on
the other hand, hereby enter into the settlement as set forth in this §2, by
way of mutual concessions (Vergleich
within the meaning of § 779 of the German Civil Code, BGB).
The Selling Managers have been authorised by each of the Other Sellers to enter
into this settlement with DR GmbH and DR Inc. The powers, authorisations or
consents granted by each of the Other Sellers to the Selling Managers (or any
of them) are attached to this Agreement as Annex 2.1.


 


2. The Sellers hereby waive any rights and claims
under the Escrow Agreement to receive their respective share of the Escrow
Funds at the Escrow Termination Date, to a total aggregate amount of US$2
million, plus interest earned thereon. Consequently, each of the Sellers waives
to this extent and to this amount his rights and claims to receive his relevant
pro rata share of the Escrow Funds payable to him on the Escrow Termination
Date. The Sellers, DR GmbH and DR Inc. will instruct the Escrow Agent, and the
Sellers will procure that the Shareholder Agent shall instruct by irrevocably
written declaration (unwiderrufliche Anweisung)
the Escrow Agent, to distribute, within 60 days after the date of this
Agreement, the cash (or other property) held in the Escrow Fund in accordance
with Annex 2.2 hereto, plus any interest earned with respect to that amount, to
the parties set forth in Annex 2.2 hereto. For the avoidance of doubt, the
Escrow Amount attributable to each of the Sellers in accordance with the Escrow
Agreement shall, under the forgoing sentence, be reduced by their pro rata
share of the total reduction amount of US$2 million. The total amount of this
reduction (US $2 million plus earned interest thereon) shall thus be
distributed to DR GmbH rather than to the Sellers.


 


3.
In consideration of the waiver by the Sellers under Para. 2 above, DR GmbH and
DR Inc, subject to the condition precedent of the receipt by DR GmbH of the
aggregate of US$ 2 million plus earned interest thereon from the Escrow Funds,
hereby waive any and all rights and claims for damages, defending,
indemnification, holding harmless or representations/warranties under or in
connection with the SPA, including but not limited to Sections 3, 4 (in
particular Section 4.7) and 7 of the SPA. For the avoidance of doubt, DR GmbH
and DR Inc. on the one hand and the Sellers on the other hand hereby agree that
(i) after consummation of the provisions as set forth herein in this Part A (Supplemental Provisions to the SPA) no further rights or
claims resulting from or in connection with any warranty/guarantee and/or
indemnification obligation, Working Capital Adjustment, covenants and/or
Purchase Price adjustments shall exist and (ii) any failure


 


5





















 


to
comply with obligations under Part B and under § 3 of this Agreement shall not
affect § 1 and 2 of this Part A of this Agreement.


 


§3 Earn Out Programme


 


The
provisions of §1.4 of the SPA (“Management Earn Out”) shall remain in full
force and effect, except that the amount of the two earn out payments described
in Schedule 1.4 to the SPA are guaranteed at $1,250,000, each payable on March
1, 2005 and 2006 as set forth in Exhibit H to the SPA, irrespective of the
EBITDA achievement of element 5, provided, however, that the payment of Earn
Out Consideration to any of the Managers shall be subject to the continued
compliance, as at the date that the relevant Earn Out Consideration payment
falls due, by all of the Managers with the (surviving) obligations of
confidentiality, non-competition and non-solicitation within the applicable
restricted time periods, and with the obligation of non-disparagement (§ 5 para
2). For the avoidance of doubt, this shall apply in addition to any contractual
penalty payable under the Service Agreements for non-compliance with the
non-compete or any other covenants.


 


As
a precondition to the payment of the Earn out payable on March 1, 2006, each of
the Managers shall, as at March 1, 2006, confirm in writing to element 5, DR
Inc. and DR GmbH that none of the Managers has been in breach of any of his
(surviving) obligations of confidentiality, non-competition and
non-solicitation within the applicable restricted time periods, and with the
obligation of non-disparagement (§ 5 para 2).


 


Part B –
Amendment to Service Agreements of Managers


 


§ 4 Continuation and Amendment of Service Agreements


 


1. Each of the Managers has notified element 5, represented
by the supervisory board, that he will be resigning as member of the management
board with effect as of the date of this Agreement. Element 5, represented by
the supervisory board, hereby accepts each of the resignations. On the next
shareholder’s meeting DR GmbH as the only shareholder of element 5 shall be
obliged to


 


6





















 


grant discharge (Entlastung) for
the services rendered by the relevant Manager; provided
however, no such discharge will be provided for criminal acts or
intentional misconduct included but not limited to intentional breaches of or
non-compliance with the articles of association or any applicable by-laws (Geschäftsordnung) of element 5 or any written standing
orders, policies or rules of procedure of DR Inc., DR GmbH or element 5
applicable to the Managers as members of the management board of element 5.


 


2.
The Managers and element 5 agree that the Service Agreements shall remain in
full force and effect, except to the extent that they are explicitly modified
under this § 4.


 


3.
Each of the Service Agreements, as amended by this Agreement, shall continue
through to the end of the fixed term of each of the Service Agreements, i.e.
through to March 31, 2006 (the right of termination - other than for good cause
(wichtiger Grund) - within this fixed
time shall be excluded),  provided,
however, that the Managers shall render their actual services to element 5 only
until the end of a transition period (the “Transition Period”) starting as of the
date that all Parties have signed this Agreement and ending sixty days
thereafter After the end of the Transition Period, the Service Agreements will
continue, but the Managers will irrevocably be deemed to be on paid leave from
their obligations (unwiderrufliche
Freistellung). At the end of the initial term of the Service
Agreements, the Service Agreements will expire and end without further notice,
save for the surviving provisions under the Service Agreements and under this
Agreement. However, DR Inc. reserves the right to accelerate the ending date of
the Transition Period to an earlier date in its sole discretion. For the
avoidance of doubt, as outlined in the Service Agreements, the Managers (each
individually) shall have the right to keep their company cars through to the
end of the fixed term, i.e. April 1, 2006. 
At the end of the initial term of the Service Agreements, the Managers
shall have the opportunity to keep the company car by way of assumption of the
respective lease agreement (Übernahme des
Leasingvertrages) at his own expense as far as legally possible.


 


4.
During the Transition Period and thereafter through to the expiration of the
terms of the Service Agreements, it will be the sole and exclusive
responsibility of the Managers to make any tax, social security and other
statutory payments, to the extent applicable, on any payments made by the
element 5, DR GmbH or DR Inc. to the Managers.


 


7





















 


§ 5 Communication


 


1.
The Managers will communicate the change in their status, and the termination
of their services under the Service Agreements during the Transition Period and
thereafter, to the employees, customers and other contractual partners of
element 5 and to the general public only after coordination with DR Inc. and
subject to the written instructions (including for the avoidance of doubt
instructions by e-mail or telefax or other media) of DR GmbH.


 


2.
In particular, the Managers will not during the Transition Period or any time
thereafter, in any manner disparage DR Inc., DR GmbH, element 5 or any of their
subsidiaries, officers, board members, employees, products or business and will
use their best efforts, through the Transition Period, to create a favourable
perception of DR Inc., DR GmbH, element 5 in the general public and with any
third party contract partner, in each case in close coordination with DR Inc.
and/or DR GmbH.


 


§ 6 Duties and Responsibilities of Managers during the Transition
Period, Retention Targets


 


1.
During the Transition Period, the Managers (each individually) will make their
services available to element 5 on a full-time basis; the Managers will be
present in the premises of element 5 every work day during the Transition
Period, subject to force majeure
(e.g. illness or the like).


 


2.
The Managers will, during the Transition Period, fulfill the functions and
perform the tasks as described in each of the Service Agreements, except that
the Managers will in the Transition Period no longer have the powers and
prerogatives attaching to their prior status as members of the management
board. In addition, specific areas of responsibility of each of the Managers
are described in detail for each of the Managers in Annex 6.2.  For clarity, during the Transition Period,
the managers will - as far as legally permitted - comply with all legal
instructions and requests provided by element 5 or DR Inc. or DR GmbH
expeditiously as time will be of the essence for such instructions and
requests.


 


8





















 


3.
Immediately after the end of the Transition Period, the Managers shall give
back to element 5 any assets and documents (whether in written, electronic or
any other form) pertaining or belonging to element 5 and that are in the
possession of any of the Managers, including but not limited to any keys for
the premises of element 5. The Managers shall not have nor seek any access to
the premises, the data or any of the IT systems of element 5 after the end of
the Transition Period, in each case without the explicit and specific prior
approval of the management of element 5 or DR Inc. or DR GmbH.


 


4.
DR GmbH, DR Inc., element 5 and the Managers acknowledge that the success of
the services rendered by the Managers during the Transition Period as advisors
is essentially dependent on the ability of element 5 to retain the services of
certain key employees for an extended time period. The relevant key employees
are listed in Annex 6.4 to this Agreement (the “Key
Employees”). The Managers will, during the Transition Period, use their best
efforts to procure that each of the Key Employees shall remain employees of
element 5 during the Transition Period (the “Retention Target”).


 


§ 7 Compensation, Deduction Amount, Set-Off


 


1.
During the Transition Period and thereafter until the end of the fixed term of
the Service Agreements, the compensation per month payable to each of the
Managers shall be equal to the compensation per month payable to each of the
Managers under Section 3 of each of the Service Agreements, subject to the
Deduction Amount in accordance with Para. 2 below, and subject to the full
compliance by all of the Managers (during the Transition Period and thereafter
until the end of the fixed term of the Service Agreements) with their
obligations under Part B of this Agreement and with their remaining and/or
surviving obligations under the Service Agreements, in particular, but not
limited to, the (surviving) obligations of confidentiality, non-competition and
non-solicitation within the applicable restricted time periods, and with the
obligation of non-disparagement (§ 5 para 2).


 


2.
Should the endeavours of the Managers to retain the Key Employees in accordance
with § 6 para 4 above not be successful or not be successful with respect to
all of the Key Employees, the aggregate remuneration payable to the Managers
shall be subject to a deduction (the “Deduction


 


9





















 


Amount”)
of up to US$ 650,000 in the aggregate, pro rata of the monthly salary payable
to each of the Managers under the Service Agreements. Should any of the
Managers, in the reasonable opinion of DR GmbH and element 5, not have complied
with his obligations during the Transition Period and as described in more
detail in Annex 6.2, the Deduction Amount shall be increased by US$ 130,000 in
the aggregate (in addition to the Deduction Amount computed by reference to
Annex 6.4). For the avoidance of doubt, the total Deduction Amount shall in no
event exceed US$ 650,000.


 


3. The actual Deduction Amount shall
be determined at the end of the Transition Period in view of the number and
identity of the Key Employees for whom the Retention Target has been achieved
and in respect of the number and identity of the Key Employees for whom the
Retention Target has been failed, in accordance with Annex 6.4, and in view of
the compliance by the Managers with their obligations during the Transition
Period.


 


4. For the avoidance of doubt, each of the Managers
shall be liable for his pro rata share of the Deduction Amount, even if this
pro rata share exceeds the total salary payable by element 5 during the
Transition Period.  In the event that the
pro rata Deduction Amount owed by either of the Managers exceeds the salary
received from element 5 during the Transition Period or cannot be entirely set
off from salary payments still payable at the end of the Transition Period, DR
GmbH and element 5 shall each have the right to set off the excess amount of
the Deduction Amount against any other payments to be made to the Managers
under this Agreement, under the Service Agreements, or under the SPA, and to
deduct this excess amount from any of such payments.


 


§ 8 Surviving Obligations – Confidentiality, Non-Compete,
Non-Solicitation, Representation


 


1.
The provisions of the Service Agreements regarding duty of confidentiality
shall remain in full force and effect, provided that the duty of
confidentiality shall survive the end of the term of the Service Agreements (31
March 2006) for each of the Managers for an additional period of three years.


 


10





















 


2.
The provisions of the Service Agreements regarding contractual and post
contractual non-competition shall continue to apply and remain in full force
and effect with respect to each of the Managers, and the 24 months’
post-contractual non-compete period shall start, for each of the Managers,
after the expiration of the fixed term of the Service Agreement (as set forth
above). During the term of the post-contractual non-compete period (24 months
starting on April 1, 2006), element 5 shall pay to each of the Managers a
monthly compensation equal to 50% of the monthly gross salary received by the
relevant Manager in the last year before March 31, 2006; the compensation shall
be payable monthly in arrears.


 


3.
The provisions of the Service Agreements on non solicitation (§15 of the
Service Agreements) shall remain in full force and effect with respect to each
of the Managers, provided that the post-contractual non-solicitation period
shall start at the end of the term of the Service Agreements (31 March 2006)
and extend to March 31, 2008.


 


4.
As a condition of receiving compensation (in accordance with the Service
Agreements and in accordance with § 8 para 2 above), each of the Managers individually
agrees to represent, testify and/or be deposed on behalf of and to defend
element 5, DR Inc., and DR GmbH as necessary through any period during which
compensation is being paid and to comply with the provisions of
non-disparagement, non-solicitation and non-competition as required by this
Agreement.


 


5.
The Managers acknowledge and agree that the full compliance by each of the
Managers with the surviving restrictive covenants of this § 8 of this Agreement
is a preconditon for element 5, DR Inc. and DR GmbH entering into the
arrangements set forth in this Agreement with the Managers in respect of the
SPA and in view of their position as members of the management board of element
5 and that consequently, Sec. 74 through to Sec. 75h of the German Commercial
Code do not apply to the relationship among the Parties.


 


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Part C – General
Provisions


 


 


§ 9


 


1. This Agreement shall be governed by and
construed exclusively in accordance with the laws of Germany.


 


2. Any change or addition to this agreement
including this § 9 para 2 shall be made in writing.


 


3. Should one or more provisions of this
Agreement be void or impracticable, this shall not affect the validity of the
other provisions. The Parties shall replace any provision that may be void or
impracticable, or they shall fill any unintentional contractual gap, by such
new provision that comes as close as possible to the provision that is void or
impracticable, or, in the event of a contractual gap, as close as possible to
what the parties would have agreed upon had they considered the relevant
matter.


 


 


	
  Cologne
  (Germany), January 18, 2005

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Digital River, Inc.

  	
  Digital River GmbH 

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Digital River, Inc. 

  	
   

  	
  /s/
  Digital River GmbH

  	
   

  
	
  by:

  	
  by:
  Jeff Skie

  
				



 


12





















 


	
  ELEMENT 5 AG

  	
  ELEMENT 5 AG

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Element 5 AG 

  	
   

  	
  /s/Element
  5 AG 

  	
   

  
	
  by:

  	
  by:
  

  
	
  (Chairman
  of the Supervisory Board)

  	
  (Members
  of the Management Board)

  
	
   

  	
   

  
	
  Clemens Roth

  	
  Christopher Reimold 

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Clemens Roth

  	
   

  	
  /s/
  Christopher Reimold

  	
   

  
	
  on his own behalf and bv virtue
  of powers of attorney on

  behalf of Almuth Roth-Bilz; Mona Roth and Ralf

  Bellartz

  	
  on his own behalf and by virtue
  of powers of attorney on

  behalf of Roland Reimold and Hedwig Reimold

  
	
   

  	
   

  
	
  Gerrit Schumann

  	
  Stephan Naujoks

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Gerrit Schuman

  	
   

  	
  /s/
  Stephan Naujoks

  	
   

  
	
  on his own behalf and by virtue
  of powers of attorney on

  behalf of Folkmar Schumann, Dr. Ursula Schumann,

  Jason Cammisa; Karl-Heinz Killeit; Christian Bergmann;

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dr. Michael Inhester 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Dr. Michael Inhester

  	
   

  	
   

  
	
  by virtue of powers of attorney
  on behalf of Olaf Arlt;

  Ingrid Arlt; Dr. Ulrich Arlt; 3i Group Investments LP

  Earlybird Pre-Seed Bet. KG Nr. 1 der Earlybird VC

  GmbH & Co. KG; Earlybird Pre-Seed GmbH & Co. KG

  Bet. KG Nr. 2, IKB Private Equity GmbH

  	
   

  



 


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