EXHIBIT 10.34
Effective September 13, 1996
BETWEEN
QUANTUM CORPORATION
AND
QUANTUM STORAGE (MALAYSIA) SDN.BHD.
AND
IOMEGA CORPORATION
AND
IOMEGA (MALAYSIA) SDN.BHD.
__________________________________________________
AGREEMENT FOR THE SALE AND PURCHASE
OF ASSETS IN MALAYSIA
__________________________________________________
CONTENTS
Clause Heading Page
1. Interpretation. . . . . . . . . . . . . . . 3
2. Sale of Assets. . . . . . . . . . . . . . . 4
3. Consideration . . . . . . . . . . . . . . . 5
4. Pre-Closing . . . . . . . . . . . . . . . . 5
5. Closing . . . . . . . . . . . . . . . . . . 6
6. Obligations of QSM. . . . . . . . . . . . . 8
7. Obligations of Iomega . . . . . . . . . . . 8
8. Employees . . . . . . . . . . . . . . . . . 8
9. Periodic Payments . . . . . . . . . . . . . 8
10. Representations, Warranties and Undertakings of QSM 9
11. Representations, Warranties and Undertakings ofIomega 10
12. Representations, Warranties and Undertakings of Both
Parties. . . . . . . . . . . . . . . . . . 11
13. Limitation of Liabilities . . . . . . . . . 11
14. Access to Information . . . . . . . . . . . 13
15. Environmental Indemnity . . . . . . . . . . 13
16. Termination . . . . . . . . . . . . . . . . 13
17. Miscellaneous . . . . . . . . . . . . . . . 14
Schedule and Exhibits
Schedule The Assets . . . . . . . . . . . . . . 16
Exhibit A Secured Promissory Note. . . . . . . . . 17
Exhibit B The Indemnification Agreement. . . . . . 21
Exhibit C Agreement as to Certain Employees of Quantum
Peripherals Malaysia Sdn.Bhd . . . . . . 23
Exhibit D Mutual Non-Disclosure Agreement. . . . . 24
Exhibit E Non-Exclusive List of Equipment Turned Over
to Iomega. . . . . . . . . . . . . . . . . 25
THIS AMENDED AND RESTATED AGREEMENT is effective as of September 13, 1996.
BETWEEN:
(1) Quantum Corporation, a Delaware Corporation whose
principal place of business is at 000 XxXxxxxx Xxxx.,
Xxxxxxxx, Xxxxxxxxxx 00000, ("Quantum U.S.") and
Quantum Storage (Malaysia) Sdn.Bhd., a private limited
company incorporated in Malaysia whose registered
office is Ground Floor, Wisma Pen-Group, Xx. 00 Xxxxx
Xxxxx 00000 Xxxxxx, Xxxxxxxx ("QSM"), (collectively
"Quantum"):
AND
(2) Iomega Corporation, a Delaware Corporation whose
principal place of business is at 0000 Xxxx Xxxxxx Xxx,
Xxx, Xxxx 00000 ("Iomega U.S.") and Iomega Malaysia
Sdn.Bhd., a private limited company incorporated in
Malaysia whose [registered office] will be (is) Xxxxx
00-00, 00xx Xxxxx, Xxxxxx, Tan & Tan 207 Xxxxx Xxxxx
00000, Xxxxx Xxxxxx, Xxxxxxxx, ("Iomega Malaysia")
(collectively "Iomega));
WHEREAS, Quantum U.S. and Iomega U.S. have entered into a
Letter Agreement dated July 15, 1996 (the "Letter
Agreement") for the sale by QSM and purchase by Iomega
Malaysia of the Assets (as hereinafter defined); and
WHEREAS, the Parties now wish to enter into a more
definitive agreement as herein stated.
NOW THEREFORE, THE PARTIES HEREBY AGREE:
1. INTERPRETATION
1.1 In this Agreement, unless the context requires otherwise:
"Agreement to
Charge" means the agreement by Iomega Malaysia to execute
the Charge;
"Assets" means the Property and the Equipment;
"Charge" means the legal charge over the Property by Iomega
Malaysia in favor of QSM;
"Closing" means closing of the sale and purchase of the Assets
as specified in Section 5.
"Closing Date" means a date not later than five months (150 days)
after the filing of a joint application to the PSA
for its approval, but not later than six months
after execution of this agreement or such other
date as the parties may agree in writing.
"Consideration" means the consideration for the sale and purchase
of the Assets being the sum specified in Section 3.l;
"Equipment" means the plan equipment and other items set out
in paragraph (3) of the Schedule and the list
attached thereto.
"Good and
Marketable
Title" means title that is saleable, unencumbered and valid
under Malaysian Law.
"Guaranty" means that guaranty delivered at Preclosing by Iomega
U.S. in favor of QSM.
"Parties" means Quantum and Iomega, collectively;
"Party" means either Quantum or Iomega singularly;
"Preclosing" means preclosing of the sale and purchase of the
Assets as specified in Section 4.
"Pre-Closing
Date" means Friday, September 27, 1996 or such other date
as the Quantum U.S. and Iomega may agree in writing.
"Property" means all the leasehold estate in and to the real
property as set out in the attached Schedule and
any building thereon or other improvements thereto
subject to any and all express or implied conditions
listed on the title;
"Iomega's
Lawyers" means Xxxxxxx Xxx of the Azman Davidson law offices
in Kuala Lumpur; and Xxxxxx Xxx of Xxxxxxxxx and
Xxxxxxxxxx in Singapore.
"Quantum's
Lawyers" means Xxxxx & XxXxxxxx of 0 Xxxxxxx Xxxxxx, #00-00
Xxxxxxxxx Xxxxx, Xxxxxxxxx 000000;
1.2 References to statutory provisions shall be construed
as references to those provisions as amended or re-enacted
or as their application is modified by other
provisions (whether before or after the date hereof)
from time to time and shall include any provisions of
which they are re-enactments (whether with or without
modification).
1.3 References herein to Sections and the attached Schedule
are to Sections in and the attached Schedule to this
Agreement unless the context requires otherwise and the
attached Schedule to this Agreement shall be deemed to
form part of this Agreement.
1.4 The expressions "Quantum U.S.", "QSM", "Iomega U.S."
and "Iomega Malaysia" shall, where the context permits,
include their respective successors and permitted
assigns.
1.5 The headings are inserted for convenience only and
shall not affect the construction of this Agreement.
1.6 Unless the context requires otherwise, words importing
the singular include the plural and vice versa and
words importing a gender include every gender.
2. SALE OF ASSETS
2.1 Subject to the terms of this Agreement, Quantum U.S.
shall cause, and QSM shall sell as legal and beneficial
owner and Iomega U.S. shall cause Iomega Malaysia to
purchase the Assets.
2.2 Iomega U.S. undertakes that it shall guarantee
fulfillment the performance of Iomega Malaysia's
obligations under the Note and the Agreement to Charge
and the performance of all the obligations of Iomega
Malaysia pursuant to this Agreement, the Note and the
Agreement to Charge and, for such purpose shall be
jointly and severally liable hereunder.
3. CONSIDERATION
3.1 The Consideration shall be U.S. Dollars Twenty Eight
Million (U.S. $28,000,000) to be paid to Quantum by
Iomega as follows:
(a) U.S. Dollars Two Million Eight Hundred
Thousand (U.S. $2,800,000) due, as xxxxxxx money,
upon and with execution of this Agreement. This
payment will be offset against the $28,000,000
purchase price. Such initial payment is non-
refundable and forfeit to Quantum U.S. if the
parties fail to proceed to Closing due to a
material breach of this Agreement by Iomega. If
Closing does not take place as contemplated
hereunder due to reasons other than any material
breach by Iomega, Quantum U.S. shall thereupon
refund to Iomega such initial payment.
(b) At Pre-Closing the sum of U.S. Dollars Seven
Million Two Hundred Thousand (U.S. $7,200,000) to
be paid by wire transfer as specified by Quantum
U.S. in favor of Quantum U.S. (whose receipt shall
be an absolute discharge therefore). If Closing
does not take place as contemplated hereunder due
to reasons other than any material breach by
Iomega, Quantum U.S. shall thereupon refund to
Iomega such initial payment.
(c) The sum of U.S. Dollars Eighteen Million
(U.S. $18,000,000) in accordance with the method
of payment described in the note (the format of
which is attached to this Agreement as Exhibit "A"
(the "Note"). The Note shall be executed and
delivered by Iomega Malaysia in favor of QSM upon
Closing.
3.2 The Consideration shall be allocated to the Assets in
the manner as stated in the attached Schedule.
3.3 QSM owes to Quantum U.S. a sum of U.S. Dollars in
excess of Twenty-Eight Million. QSM hereby directs
Iomega U.S., to pay directly to Quantum U.S., the
Consideration in Section 3.1(a) and (b) and such of the
Consideration in Section 3.2(c) as is properly required
under the Note, in satisfaction of Iomega's payment
obligations to QSM under this Agreement.
3.4 The Parties agree that in the event any payment of the
Consideration or any part thereof shall be effected by
Iomega Malaysia to QSM, the payment of such
Consideration shall be in Ringgit Malaysia (the
currency of Malaysia) equivalent to the sum to be paid
in U.S. Dollars. The rate of exchange will be the spot
rate obtained by Iomega Malaysia in effecting its
payments hereunder in Ringgits, if applicable.
3.5 To the extent that it becomes necessary to obtain
exchange control approval by local Malaysian
authorities or local law requires up to a five (5%)
withholding that is not satisfied by the Note, the
Parties agree to comply with such regulations. Any
amount withheld in excess of taxes subsequently
determined payable will be returned with interest
earned, if any.
4. PRE-CLOSING
4.1 Pre-Closing shall take place in Singapore at the
offices of Quantum's Lawyers or at such other place and
time as shall be mutually agreed.
4.2 At Pre-Closing:
(a) QSM shall deliver to Iomega Malaysia:
(i) the document of title to the
Property which is evidence of Good and
Marketable title to the Property under
Malaysian law together with the transfer form
(Form 14A) of the National Land Code No. 56
of 1965 duly executed by QSM for the transfer
of the Property from QSM to Iomega Malaysia;
(ii) any designs and drawings, plans,
technical and sales publications, advertising
material, brochures, catalogues held by QSM
in relation to the Assets,
(iii) copies of all receipts in respect
of quit rent and assessment in respect of the
Property;
(iv) title to the Equipment by way of
delivery of possession of the Equipment, as
well as any title documents thereto (if any);
(v) and any other documents necessary
and in the possession of QSM to the transfer
of the Assets and requested by Iomega;
(vi) any warranty documents as to the
Property or Equipment, if any.
(vii) Quantum will obtain or deliver to
Iomega a copy of the resolutions of the
shareholders an the board of directors of
Quantum Malaysia authorizing the sale of the
property.
4.3 Iomega to deliver to QSM:
(i) the executed Guaranty;
(ii) such payment of the Consideration
as specified in Section 3.1(b).
5. CLOSING
5.1 The following shall be obtained, or delivered to
Quantum, as the case may be on or before Closing by
Iomega:
(a) approval of the Penang Development
Corporation ("PDC") to the transfer of the
Property to Iomega Malaysia;
(b) the approval of the Penang State Authority
("PSA") to the transfer of the Property to Iomega
Malaysia;
(c) the adjudication of the stamp duty payable on
the transfer of the Property by the relevant Stamp
Office;
(d) the approvals required for the registration
of the Charge (the "Charge Approvals" as defined
in the Agreement to Charge;
(e) charter documents of Iomega Malaysia and
certificates from appropriate Malaysian
governmental agencies certifying that Iomega
Malaysia is in good standing under the law of
Malaysia;
(f) certificates from the Secretaries of State
for the States of Delaware and Utah certifying
that Iomega U.S. in good standing in such state;
(g) a certificate dated as of the Closing of the
Secretary or Assistant Secretary of Iomega U.S.
certifying (i) the incumbency and specimen
signatures of the persons authorized to execute
and deliver this Agreement and the Guaranty on
behalf of Iomega U.S., (ii) a copy of the
resolutions of the board of directors of Iomega
U.S. authorizing the transactions contemplated
hereby including the issuance of the Guaranty; and
(iii) a copy of the Certificate of Incorporation
and By-Laws of Iomega U.S., together with all
amendments and supplements thereto as in effect on
the Closing Date; and
(h) a legal opinion of counsel to Iomega U.S. as
to the due authorization, execution and delivery
by Iomega U.S. of this Agreement and the Guaranty,
that this Agreement and the Guaranty are
enforceable against Iomega U.S. in accordance with
their terms and that the execution and delivery of
this Agreement and the Guaranty by Iomega U.S.
will not violate any relevant U.S. law or any
material agreement of Iomega U.S.
5.2 The approvals and the adjudication referred to in
Section 5.1 or any of them shall be deemed not to have
been obtained if they are obtained with conditions
deemed to be prejudicial to Iomega Malaysia. For the
purpose of this section, a condition shall only be
deemed to be prejudicial if it involves a payment by
Iomega Malaysia of an aggregate sum exceeding U.S.
Dollars One Hundred Thousand (U.S. $100,000) or if such
condition materially and adversely affects the
commercial viability of the Property.
5.3 Iomega may waive all or any of the approvals and the
adjudication, or any conditions of the approvals or
adjudication deemed to be prejudicial to Iomega
Malaysia.
5.4 Iomega Malaysia agrees that none of the payment of the
stamp duty payable in respect of the transfer of the
Property, and the administrative fees chargeable by PDC
and the PSA in giving their approvals, referred to in
5.1, shall be deemed to be a condition which is
prejudicial to Iomega referred to in Section 5.2 above.
5.5 Iomega Malaysia hereby agrees to execute the Agreement
in Charge and all documents and do all things as shall
be necessary to give effect to the Charge.
5.6 Iomega hereby undertakes that it shall present the
Transfer for registration at the relevant Land Office,
on the same day the last of the approvals referred to
in Section 5.1 are obtained and, simultaneously
therewith, also present the Charge for registration.
5.7 If, due to failure to obtain the Approvals, for other
reason than material breach, the Parties fail to Close,
on or before Closing Date, Iomega shall either waive
the preconditions to Closing or vacate the Property
within ninety (90) days. If Iomega chooses to vacate,
it shall restore the Property to its original
condition, less reasonable wear and tear, and Quantum
shall deduct from the ten million dollars ($10,000,000)
Consideration to be refunded to Iomega pursuant to
Section 3.1 of this Agreement, a sum equal to the
accrued interest on the Note from the date of this
Agreement (i.e. September 13, 1996) until such time as
Iomega vacates and restores the premises.
5.8 At Closing, Iomega Malaysia shall execute and deliver
to QSM the Note, a copy of which is attached to this
Agreement as Exhibit "A".
5.9 Quantum U.S. shall execute and deliver to Iomega a
Board of Directors Resolution authorizing the sale of
the Property.
6. OBLIGATIONS OF QSM
6.1 Prior to Pre-Closing, QSM shall pay, satisfy and
discharge all the debts, liabilities and obligations as
might encumber the Assets.
6.2 QSM shall assist Iomega in obtaining any necessary
consents granted by any third parties and the approval
of the Penang State Authority and the Penang
Development Corporation to the transfer of the Property
to Iomega Malaysia.
6.3 QSM shall duly submit such notifications and execute
all documents and do all acts and things on its part to
be executed and done under the Real Property Gains Tax
Act, 1976.
6.4 QSM shall do and execute or procure to be done and
executed all such further acts, deeds, things, and
documents as may be necessary to give effect to the
terms of this Agreement.
7. OBLIGATIONS OF IOMEGA
7.1 Iomega Malaysia shall obtain a manufacturing license
sufficient to operate the Assets and take possession of
the Property as soon as possible.
7.2 Iomega Malaysia shall duly submit such notifications
and execute all documents and do all acts and things on
its part to be executed and done under the Real
Property Gains Tax Act, 1976.
7.3 Iomega shall do and execute or procure to be done and
executed all such further acts, deeds, things, and
documents as may be necessary to give effect to the
terms of this Agreement.
8. EMPLOYEES
8.1 At Iomega's request, QSM retained a number of employees
on behalf of Iomega for the purpose of facilitating
Iomega's timely operation of the Assets. Iomega has
agreed to indemnify Quantum U.S. and QSM for any and
all liability incurred pursuant to this accommodation.
See Indemnification Agreement, a copy of which is
attached to this Agreement as Exhibit "B" and
incorporated by this reference.
8.2 As part of the consideration for QSM selling the
Property and temporarily hiring the employees (See
Section 8.1 above), Iomega further agrees that for a
six month period, expiring January 31, 1997 it will not
recruit or hire certain employees of Quantum
Peripherals Malaysia as listed in Exhibit "C".
9. PERIODIC PAYMENTS
9.1 Any amounts paid or receivable in respect of the Assets
which are of a periodical nature (such as deposits,
rents, quit rents, assessments, rates, insurance
premiums, gas, water, electricity, telephone charges,
license fees, commissions, royalties and other
outgoings or receipts) shall, unless otherwise agreed,
be prorated between QSM and Iomega Malaysia according
to the portion of the period remaining for the above
expense as of July 15, 1996.
9.2 Any salaries, wages and other emoluments and all
statutory contributions and salaries tax for which QSM
is accountable after July 15, 1996 in respect of QSM
employees retained by Iomega Malaysia pursuant to
Section 8.1 shall be reimbursed to QSM by Iomega.
10. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF QSM
Quantum U.S. and QSM hereby represent, warrant and
undertake to Iomega that:
10.1 The representations, warranties and undertakings set
out in each paragraph of this Section 10 shall remain
true as at Closing as a condition of the parties
obligation to complete the Closing.
10.2 Organization and Existence. Quantum U.S. is a
corporation duly incorporated, validly existing and in
good standing under the laws of Delaware and has all
corporate powers and all material governmental
licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
10.3 QSM is a wholly owned subsidiary of Quantum U.S. and
has been duly incorporated and is validly existing
under the laws of Malaysia and has full power,
authority and legal right to own its Assets and carry
on its business and is not in receivership or
liquidation, it has taken no steps to enter liquidation
and no petition has been presented for any winding up
QSM and there are no grounds on which a petition or
application could be based for the winding up or
appointment of a receiver of QSM.
QSM hereby represents, warrants and undertakes to
Iomega that:
10.4 To the best of QSM's knowledge, it is the sole
beneficial owner of and has a Good and Marketable title
to the Property.
10.5 To the best of QSM's knowledge, there are no options or
other agreements outstanding which provide for the sale
or transfer to any person of or the right to require
the creation of any mortgage, charge, pledge, lien or
other security or encumbrance over the Assets or any
part thereof.
10.6 To the best of QSM's knowledge, there is no unsatisfied
judgment, court order or tribunal or arbitral award
outstanding against QSM and no distress, execution or
process has been levied on any part of the Assets.
10.7 To the best of QSM's knowledge, it is not in default
under any agreement relating to the Equipment to which
it is a part or by which it is bound.
10.8 Without limiting the foregoing, to the best of QSM's
knowledge, there are no loans, guarantees, pledges,
mortgages, given, made or incurred by or on behalf of
QSM in relation to the Assets.
10.9 To the best of QSM's knowledge, it is not involved
whether as plaintiff or defendant or otherwise in any
civil criminal or arbitration proceedings in relation
to the Assets which might affect the Assets (apart from
debt collection in the ordinary course of business) or
in any proceedings before any tribunal and no such
proceedings are threatened or pending, and no claim,
dispute, adverse tax, acquisition or other notice by
any governmental authorities or creditors relating to
the Assets has been presented against or is being
engaged by Quantum.
10.10 There are no material facts or circumstances
currently known to QSM which are likely to result in
any such proceedings being brought by or against QSM or
against any person for whose acts or defaults QSM may
be vicariously liable.
10.11 To the best of QSM's knowledge, all information
contained in this Agreement (including the recitals) is
true and accurate.
10.12 To the best of QSM's knowledge, all information
given to Iomega and its professional advisors by QSM,
its officers and employees and QSM's professional
advisors in writing during the negotiations prior to
this Agreement was when given, and is at the date
hereof true and accurate and there is no fact, matter
or circumstance which has not been disclosed in writing
to Iomega or its professional advisors which renders
any such information untrue, inaccurate or misleading
or which might reasonably affect the willingness of
Iomega to proceed with the purchase of the Assets on
the terms of this Agreement.
10.13 QSM represents and warrants to Iomega that there
are no outstanding employee contracts or obligations
between QSM and any of its former employees that have
been hired by Iomega Malaysia.
11. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF IOMEGA
Iomega hereby represents, warrants, and undertakes to
Quantum that:
11.1 Organization and Existence. Iomega U.S. is a
corporation duly incorporated, validly existing and in
good standing under the laws of Delaware and has all
corporate powers and all material governmental
licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
Iomega Malaysia is a wholly owned subsidiary of Iomega
U.S. and has been duly incorporated and is validly
existing under the laws of Malaysia and has full power,
authority and legal right to enter into this Agreement
and carry out the obligations assumed hereunder.
11.2 Financing. Iomega has sufficient funds in bank
accounts, commitments for funds or currently available
lines of credit to pay the Consideration.
11.3 Iomega acknowledges and agrees that having been given
the opportunity to inspect the Property and review
information and documentation affecting the Property,
buyer is relying solely on its own investigation of the
Property and review of such information and
documentation, and not on any information provided or
to be provided by QSM. Iomega further acknowledges and
agrees that any information made available to Iomega or
provided or to be provided by or on behalf of Quantum
with respect to the Property was obtained from a
variety of sources and that Quantum has not made any
independent investigation or verification of such
information and makes no representations as to the
accuracy or completeness of such information or
documentation. Quantum is not liable or bound in any
manner by any representations or information pertaining
to the Property, or the operation thereof, furnished by
any real estate broker, agent, employee, servant or
other person.
11.4 Iomega further acknowledges and agrees that to the
maximum extent permitted by law, the sale of the
Property as provided for herein is made on an "as is"
condition and basis with all faults, and that Quantum
has no obligations to make repairs, replacements or
improvements except as may otherwise be expressly
stated herein.
11.5 To the best of Iomega's knowledge, all information
given to Quantum and its professional advisors by
Iomega, its officers and employees and Iomega's
professional advisors in writing during the
negotiations prior to this Agreement was when given,
and is at the date hereof true and accurate and there
is no fact, matter or circumstance which has not been
disclosed in writing to Iomega or its professional
advisors which renders any such information untrue,
inaccurate or misleading or which might reasonably
affect the willingness of QSM to proceed with the sale
of the Assets on the terms of this Agreement.
12. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF BOTH PARTIES
12.1 Non-Contravention. The execution, delivery and
performance of this Agreement and the Note do not and
will not contravene or conflict with any certificates
of incorporation or bylaws of either Party or
contravene or conflict with any provision of any law,
regulation, judgment, injunction, order or decree
binding upon or applicable to either party.
12.2 Finders' Fees. There is no investment banker, broker,
finder or other intermediary that has been retained by
or is authorized to act on behalf of either Party who
might be entitled to any fee or commission from either
Party or any of its Affiliates upon consummation of the
transactions contemplated by this Agreement.
12.3 Litigation. There is no claim or any third party nor
any action, suit, investigation or proceedings pending
against or to the knowledge of either Party, threatened
against or affecting either Party before any court or
arbitrator or any governmental body, agency or official
that in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the transactions
contemplated hereby.
12.4 Both parties have the full power, authority and legal
right to enter into this Agreement. The execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby will not result in the
breach or cancellation or termination of any of the
terms or conditions of or constitute a default under
any agreement, commitment or other instrument to which
either is a Party.
13. LIMITATION OF LIABILITIES
13.1 (a) Neither Party shall be liable for any breach of
representations, warranties or undertakings:
(i) which would not have arisen but for
a voluntary act, omission or transaction by
the other Party after the date hereof which
could reasonably have been avoided or carried
out and/or which on the part of the other
Party was not in the ordinary course of
business;
(ii) which arise as a result of the
other Party's failure to cooperate, or arises
as a result of the Other Party failing to act
in accordance with any reasonable request to
avoid, resist or compromise any claim after
being given a reasonable time in which to
comply with any such request; and/or
(b) The liability of QSM in respect of any claims
for breach of representations, warranties or
undertakings made hereunder shall be limited as
follows:
(i) the maximum aggregate liability of
QSM in respect of all claims for breach of
representations warranties or undertakings
shall not exceed U.S. $2,000,000.
(ii) no claims may be brought against
QSM in respect of a breach of
representations, warranties or undertakings
after the expiry of three years from the date
hereof.
(c) It is a condition of any claim for breach of
representations, warranties or undertakings
hereunder either Party shall, upon any claim,
action, demand or assessment being made or issued
against it which could lead to a claim by it for
breach of representations, warranties or
undertakings under this Agreement, promptly give
notice thereof to the other Party.
(d) The amount of any compensation or damages
payable by QSM in respect of any claims for breach
of representations, warranties or undertakings or
under the indemnities shall be computed after
taking into account and giving full credit for
Assets realized, if any, at the date of any
relevant claim within two (2) years from the date
hereof (less any realization costs and expenses);
(e) If any claim for breach of representations,
warranties or undertakings is brought under this
Agreement in relation to any liability of either
Party which is contingent only, the other Party
shall not be liable to make any payment in respect
thereof until such contingent liability becomes an
actual liability and liquidated as to amount.
(f) In no event shall either Party be liable to
the other for any remote, punitive or
consequential damages.
13.2 Iomega acknowledges and agrees that QSM has not made,
does not make and specifically negates and disclaims
any representations, warranties, promises, covenants,
agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or
written, past, present or future, of, as to, concerning
or with respect to:
(a) value;
(b) the income to be derived from the Property;
(c) the suitability of the Property for any and
all activities and uses which Iomega may conduct
thereon, including the possibilities for future
development of the Property;
(d) the habitability, merchantability,
profitability or fitness for a particular purpose
of the Property;
(e) the manner, quality, state of repair or lack
of repair of the Property;
(f) the nature, quality or condition of the
Property, including, without limitation, the
water, soil and geology;
(g) the manner or quality of the construction or
materials if any, incorporated into the Property;
(h) the conformity of the Property to applicable
zoning or building requirements after Closing.
14. ACCESS TO INFORMATION
14.1 At the Pre-Closing, QSM shall make available to Iomega
and any persons authorized by it all such information
relating to the Assets and such access to the Assets
and all title deeds, and of relating to the Assets.
14.2 Both Parties hereby undertake that they will not, save
as required by law, divulge any confidential
information obtained from the other as a result of the
transaction memorialized in this Agreement to any
person other than its own officers, employees,
professional advisors and/or local government
authorities who "need to know". For the purposes of
implementing this section the parties agree to execute
the mutual non-disclosure Agreement, attached to this
Agreement as Exhibit "D".
14.3 In the event this Agreement is terminated (pursuant to
Section 16), both Parties undertake to return to each
other, all information and documents concerning the
Assets which have been provided in connection with this
Agreement. Each Party also agrees not to use any such
information gained by it to further itself in its trade
or to the detriment of the other Party unless such
information had already been known to it or had become
or subsequently becomes public knowledge otherwise than
by reason of any act or default of the recipient Party,
its advisors or employees.
15. ENVIRONMENTAL INDEMNITY
15.1 Quantum Indemnification: QSM agrees to indemnify, hold
harmless and defend Iomega from and against any
liabilities, claims, demands, damages (including,
without limitation, attorneys', experts' and
consultants' fees), fines, penalties, and monetary
sanctions arising out of any liability related to
contamination of the Property as a result of Hazardous
Material Activities conducted by Quantum before July
15, 1996.
15.2 Iomega Indemnification: Iomega shall indemnify, hold
harmless and defend Quantum from and against any
liabilities, claims, demands, damages (including,
without limitation, attorneys', experts' and
consultants' fees), fines, penalties, and monetary
sanctions arising out of any liability related to
contamination of the Property as a result of Hazardous
Materials Activities which occur during Iomega's
possession or operation of the Property which for
purposes of this section shall be deemed to have begun
on July 16, 1996.
15.3 For purposes of this Section 15, Environmental
Indemnity, "Hazardous Material" shall mean oil,
petroleum (or any fraction thereof), explosives,
asbestos, radioactive materials and any such other
substances as are defined as "hazardous substances," or
"hazardous materials" or "hazardous wastes" under
applicable laws, regulations, ordinances, rules, codes,
permits, and/or restrictions relating to the protection
of human health and safety and the indoor and outdoor
environment ("Environmental Requirements").
15.4 For purposes of this Section 15, Environmental
Indemnity, "Hazardous Material Activity" shall mean the
use, processing, distribution, manufacture, handling,
storage, transportation, treatment, disposal, emission,
discharge, release (as defined by applicable
Environmental Requirements), or threatened release of
any Hazardous Material.
15.5 The provisions of these indemnities shall survive to
the Closing and to the extent necessary to give effect
to such provisions.
16. TERMINATION
16.1 In the event the approvals referred to in Section 5 are
not obtained or not obtained on or before Closing or
obtained with conditions deemed to be prejudicial (as
defined in Section 5.2) to Iomega Malaysia, then the
following shall occur:
(a) all sums forming part of the Consideration,
if paid to QSM, shall be refunded free of interest
by QSM to Iomega;
(b) Good and Marketable Title to the Property
under Malaysian law shall be redelivered to QSM or
its designee;
(c) all the Equipment shall be re-delivered by
possession to QSM, or its designee at the
Property; and
(d) all other documents delivered by QSM pursuant
to Section 4.2 of this Agreement shall be
re-delivered to QSM, or its designee
and this Agreement, the Charge and Agreement to
Charge as well as the Letter Agreement (other than
sections concerned with the parties post
termination responsibilities and allocation of
costs and the mutual Non-Disclosure Agreement
attached to this Agreement as Exhibit D), subject
to any antecedent breach by either Party, shall
terminate and be null and void and of no effect.
17. MISCELLANEOUS
17.1 Each party shall pay its own legal costs and
disbursements of, and incidental to, this Agreement,
Iomega shall, however, bear all stamp duties and
registration fees with such other disbursements of, and
incidental to the transactions in this Agreement.
However, the Parties hereby agree that the stamp duties
and registration fees with such other disbursements of,
or incidental to, the registration of the Charge shall
be borne by QSM and Iomega Malaysia in equal
proportions.
17.2 Each notice, demand or other communication given or
made under this Agreement shall be in writing and
delivered or sent to the relevant party at its address
or fax number as the addressee has by five (5) days'
prior written notice specified to the other parties:
To Quantum U.S. and QSM: Attention: Xxxxxx Xxxxxx
Vice President, General Counsel
Quantum Corporation
000 XxXxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
To Iomega U.S. and Attention: Xxxxxx Xxxxxxxx
Iomega Malaysia: Vice President, Corporate
Counsel and Secretary
Iomega Corporation
0000 Xxxx Xxxxxx Xxx
Xxx, Xxxx 00000
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
Any notice, demand or other communication so addressed
to the relevant party shall be deemed to have been
delivered (a) if given or made by letter, when actually
delivered to the relevant address; (b) if given or made
by telex, when dispatched with confirmed answer back
and (c) if given or made by fax, when dispatched.
17.3 No waiver by either party of any breach by the other
party of any provision hereof shall be deemed to be a
waiver of any subsequent breach of that or any other
provision hereof. If at any time any provision of this
Agreement is or becomes illegal, invalid or
unenforceable in any respect, the legality, validity,
and enforceability of the remaining provisions of this
Agreement shall not be affected or impaired thereby.
17.4 This Agreement is a fully integrated Agreement and
constitutes the whole Agreement between the Parties and
it is expressly declared that no variations hereof
shall be effective unless mutually agreed upon in
writing.
17.5 This Agreement shall be governed by and construed in
accordance with the laws of California, taking into
account the extent to which the Agreement contains
terms designed to address the unique circumstances of
Malaysia. To the extent that the resolution of a
particular action requires the jurisdiction of the
courts of Malaysia, both Parties hereby agree to bring
the action in said courts of Malaysia.
IN WITNESS WHEREOF this Agreement has been executed on the
day and year first above written.
SIGNED by: /s/ Xxxxxxx Xxxxx
Signature
for and on behalf of Xxxxxxx X. Xxxxx
Name
QUANTUM CORPORATION President and CEO
Title
SIGNED by: /s/ Xxxxxxx Xxx
Signature
for and on behalf of Xxxxxxx Xxx
Name
QUANTUM STORAGE (MALAYSIA)
SDN.BHD. President and General Manager
Title
SIGNED by: /s/ Xxxxxx X. Xxxxxxxx
Signature
for and on behalf of Xxxxxx X. Xxxxxxxx
Name
IOMEGA CORPORATION Vice President, Corporate Counsel
Title
SIGNED by: /s/ Xxxxxx X. Xxxxxxxx
Signature
for and on behalf of Xxxxxx X. Xxxxxxxx
Name
IOMEGA (MALAYSIA) SDN.BHD. Director
Title
