STOCK PURCHASE AGREEMENT
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Agreement dated March 13th, 2000, by and among XxxXxx.xxx Inc., a Delaware
Corporation with its principal executive offices located at 0000 Xxxxxx Xxxx
Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"AcuBid"), AcuBid Acquisition Corporation, a Delaware corporation wholly owned
by AcuBid (hereinafter referred to as "Acquisition Corp."), PT Jaring Data
Interaktif, an Indonesian corporation with its principal offices located at
Wisma Indovision, Mezzanine Floor, XX. Xxxx Xxxxxxx X/000 Xxxxx Xxxxxx, Xxxxxxx
00000, Xxxxxxxxx (hereinafter referred to as "JDI") and Adisatrya Xxxxx Xxxxxxx
(hereinafter referred to as "Seller").
WITNESSETH:
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WHEREAS, Seller is the owner of ninety one percent (91%) of all of the
outstanding capital stock of JDI, and
WHEREAS, Acquisition Corp. desires to purchase from Seller, and Seller
desires to se]1 to Acquisition Corp., ninety percent (90%) of all of the issued
and outstanding shares of JDI for consideration all upon and subject to the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, covenants, representations, warranties and conditions herein
contained, the parties hereto agree as follows:
ARTICLE I - SALE AND PURCHASE OF CAPITAL STOCK.
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Upon the terms and subject to the conditions set forth in this
Agreement, the Seller agrees to sell, assign, transfer and deliver to
Acquisition Corp. and Acquisition Corp. agrees to purchase from the Seller, on
the Closing Date (as hereinafter defined) ninety percent (90%) of the issued and
outstanding shares of JDI (JDI "Stock").
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ARTICLE II - PURCHASE PRICE AND PAYMENT.
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2.1 Subject to adjustments as provided in paragraph 3 below, the
aggregate purchase price to be paid to Seller for all the shares of JDI Stock to
be purchased by Acquisition Corp. hereunder shall be 44,000,000 shares of AcuBid
Common Stock, $.001 par value ("AcuBid Common Stock").
ARTICLE III - ADJUSTMENTS OF PURCHASE PRICE.
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3.1 In the event that between the date of this Agreement and the
Closing Date, JDI raises an additional $10,000,000 (U.S.) in capital, then the
number of Acubid Common Shares to be received by the Seller hereunder shall be
increased from 44,000,000 Common Shares to 49,000,000 Common Shares.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF SELLERS
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Seller hereby represents and warrants to AcuBid and Acquisition Corp.
as follows:
4.1 CORPORATE ORGANIZATION: GOOD STANDING JDI is a corporation duly
organized, validly existing and in good standing under the laws of Indonesia,
and has the corporate power and authority to carry on its business as presently
conducted. The copies of JDI's Certificate of Incorporation and By-Laws, and all
amendments thereto, which have heretofore been delivered to AcuBid and
Acquisition Corp. are complete and correct as of the date hereof. JDI is duly
qualified to do business and is in good standing in Indonesia.
4.2 CAPITALIZATION As of the date hereof, the authorized capital stock
of JDI consists of 20,000,000,000 shares of Common Stock, par value 25
Indonesian Rupiahs per share, of which 200,000,000 shares are issued and
outstanding and owned by the JDI Shareholders. There are no outstanding options,
warrants, or other rights to subscribe for or purchase any capital stock of JDI
or securities convertible into or exchangeable for capital stock of JDI.
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4.3 SUBSIDIARIES JDI does not own, directly or indirectly, any shares
of capital stock of any corporation other than PT. Media Lintas Antarbuana ("PT.
MLA"), which validly exists and is in good standing under the laws of Indonesia,
has the corporate power and authority to carry on its business as presently
conducted. The JDI Schedule sets forth an accurate description of the
capitalization of PT. MLC, and the number of shares and percentage of
outstanding shares of each class of its capita] stock owned (directly or
indirectly) by JDI. The shares of capital stock of PT. MLC stated therein to be
owned by JDI are so owned free and clear of all liens, options, charges or
encumbrances of any kind, and are validly issued fully paid and non-assessable,
and there are no outstanding options or agreements of any kind relating to the
issuance to any person of any shares of capital stock or securities convertible
into or exchange for capital stock of PT. MLC.
4.4 FINANCIAL STATEMENTS Seller has furnished AcuBid and Acquisition
Corp. with the Consolidated Balance Sheet of JDI as at December 31, 1999, and
the related Consolidated Statements of Operations Changes in Stockholder Equity
and Cash Flows from inception (February 25, 1999) to December 31, 1999,
including the notes thereto, all certified by Xxxxxx Xxxxxxxx, independent
certified public accountants. All such financial statements have been prepared
in accordance with generally accepted accounting principals consistently applied
and fairly present the financial position, results of operations, additional
paid in capital and retained earnings and changes in financial position of JDI
at such dates and for the period indicated. The Balance Sheet as at December 31,
1999 is hereinafter referred to as the "JDI Balance Sheet" and the date thereof
as the "JDI balance Sheet Date".
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4.5 ABSENCE OF CERTAIN EVENTS Since the JDI Balance Sheet Date there
has not been any:
a. Material adverse changes in the business, operations, or
financial condition of JDI or any physical damage, destruction or
loss (whether or not covered by insurance) materially adversely
affecting the property or business of JDI;
b. Declaration, setting aside or payment of dividends or other
distribution by JDI in respect of its capital stock, or any redemption,
purchase or other acquisition of any such stock;
c. Issuance, transfer, sale of, or contract to sell, any shares,
warrants, options or other corporate securities or obligations
convertible into shares of JDI capital stock except as already
acknowledged by AcuBid and Acquisition Corp.;
d. Indebtedness incurred by JDI for borrowed money except for
short term borrowings incurred in the ordinary course of business
except as already acknowledged by AcuBid and Acquisition Corp.;
e. Mortgage pledge or subjection to lien of any of the material
assets or properties of JDI, except in the ordinary course of business;
or
f. Labor strike or other occurrence, event or condition of any
similar character which materially adversely affects the business,
operations or financial condition of JDI.
4.6 LIABILITIES As of the date hereof, there are no material
liabilities, debt or obligations of JDI, of the type normally shown on a balance
sheet (including notes thereto) in accordance with generally accepted accounting
principles, whether accrued, absolute, contingent or otherwise and whether due
or to become due, including, but not limited to, liabilities or obligations on
account of taxes or other government charges, other than (i) liabilities
disclosed in the JDI Balance Sheet or in the contracts or agreements referred to
therein, and (ii) liabilities incurred in the ordinary course of business since
the JDI Balance Sheet Date none of which has been materially adverse to the
business, operations or financial condition of JDI.
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4.7 TAX RETURNS JDI has duly filed all tax reports and returns
(including, without limitation, income tax, franchise tax, gross receipts and
sales tax and real personal property tax returns) required to be filed by it and
it has paid all taxes as shown on said returns and all assessments which it has
received to the extent that such have become due or are not being contested in
proceedings with respect thereto. The reserves for taxes reflected in the JDI
Balance Sheet, and carried on JDI's books as of the date hereof, are in the
opinion of JDI adequate, and except as otherwise shown on the JDI Balance Sheet,
there are no pending claims asserted for taxes or assessments against JDI.
4.8 TITLE TO PROPERTIES; ENCUMBRANCES JDI has good and marketable title
to all its material tangible property and assets reflected in the JDI Balance
Sheet (except for properties and assets which since the JDI Balance Sheet Date
have been sold or disposed of in the ordinary course of business), in each case
subject to no mortgage, pledge, lien, conditional sale agreement, option to
purchase, encumbrance or charge of any kind (except liens reflected in the JDI
Balance Sheet or the notes thereto, liens for taxes not yet due, and minor
imperfections of title and encumbrances, if any, which are not substantial in
amount, do not materially detract from the value, or the present or contemplated
use of the property subject thereto, and do not materially impair the operations
of JDI.)
4.9 LITIGATION There are no claims, actions, proceedings or
investigations pending, or to the best of JDI's knowledge and belief, threatened
against or affecting JDI which, if adversely determined, would have a material
adverse effect upon the business, properties, operations or prospects, financial
or otherwise of JDI. JDI is not subject to or in default with respect to any
material court or administrative order, writ, injunction, or decree applicable
to it or its business, property or operations.
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4.10 CONTRACTS AND OTHER DOCUMENTS JDI is not a party to or bound by
any material written or oral:
a. Employment contract or consulting agreement which is not
terminable (without liability) on thirty (30) days' or less notice
(subject to Indonesian laws and practice on termination of employment);
b. Plan, contract or arrangement for officers or directors, or for
employees generally, with respect to bonuses, incentive compensation,
pensions, deferred compensation or retirement payment, or any profit
sharing, stock option, stock purchase, hospitalization, insurance or
other employee benefit plan otherwise than provided under standard
Indonesian practice;
c. Contract or agreement with any labor or trade union
association;
d. Lease with respect to any property, real, personal or mixed,
whether, as a lesser or lessee, involving payment of an annual rental
in excess of $10,000 except for lease of JDI office premises in Wisma
Indonesia;
e. Continuing contract or agreement for the future purchase of any
materials, equipment or supplies in excess of normal operating
requirements;
f. Material contract which by its terms requires the consent of
any party thereto to the consummation of the transactions contemplated
hereby;
g. Contract or commitment for the acquisition or sale of a
material portion of its assets not made in the ordinary course of
business;
h. Contract of commitment involving payment by JDI of more than
$30,000 in the aggregate following the date hereof or extending beyond
December 31, 2000 and not terminable by JDI prior thereto except for
regular consultants (lawyers, accountants, etc.) fees in the ordinary
course of business;
i. Contract or commitment between JDI and any officers, directors
or shareholders of JDI deviating from the ordinary course of business;
or
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j. Any other material contract or agreement not of the type
covered by any of the other specific items of this Section 4.10 and not
made in the ordinary course of business.
Seller represents that neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will
result in the breach of the terms and conditions of, or constitute a default
under or cause the acceleration of the maturity of, or violate, as the case may
be, any material agreement, lease, mortgage, note, bond, indenture, license or
other document or undertaking, oral or written, to which JDI is a party or by
which it is bound or by which it or any of its properties or assets may be
materially adversely affected.
4.11 INSURANCE Seller has delivered to Acubid and Acquisition Corp. a
schedule which contains a list of all principal policies of fire, life,
liability, xxxxxxx'x compensation, or other forms of insurance maintained by
JDI.
4.12 EMPLOYEES There are no directors, officers, employees or
consultants of JDI whose current annual compensation is in excess of $50,000.00
(U.S.).
4.13 BANK ACCOUNTS The JDI Schedule sets forth the name of each bank in
which there is an account or safe deposit box of JDI and the names of persons
authorized to draw thereon or to have access Thereto
4.14 NO VIOLATION Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will violate or
conflict with (i) the Certificate of Incorporation or By-Laws of JDI or (ii) any
order, writ, injunction or decree of any court, administrative agency or
governmental body to which JDI is a party.
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4.15 CORPORATE AUTHORITY The execution and delivery of this Agreement
and the consummation of The transactions contemplated hereby have been duly
authorized by the Board of Commissioners and Shareholders of JDI and no further
corporate authorization on the part of JDI is necessary to consummate the
transactions contemplated herein.
4.16 PENSION TRUST FUNDS JDI has no pension, profit sharing or similar
plan with respect to which any employees of JDI are participants.
4.17 PATENTS AND TRADEMARKS The JDI Schedule is a true and complete
list of all Indonesian trademarks and applications relating thereto owned or
filed or currently in the process of registration by JDI which are of material
importance to the business of JDI as presently conducted. To the best of JDI's
knowledge, JDI has the right and authority to use such patent and trademark
rights in Indonesia in connection with the conduct of its business in the manner
presently conducted and such use does not conflict with, infringe upon, or
violate any patent, trademark or any application relating thereto, of any other
person, firm or corporation.
4.18 DISCLOSURE No representation or warranty of Seller or JDI set
forth in this Agreement contains or will contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements herein or therein, in light of the circumstances in which they are
made, not misleading.
4.19 STOCK OWNERSHIP Seller is the record and beneficial owner of
ninety percent (90%) of the JDI Stock, and has the full right, power and
authority to sell, transfer, assign and deliver said shares as provided in this
Agreement, and, when so sold to Acquisition Corp. said shares shall be free and
clear of any and all liens, claims, pledges, options, encumbrances and
restrictions of whatever nature.
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4.20 SECURITIES ACT COMPLIANCE
a. Seller represents and warrants that the shares of Acubid common
stock acquired by them pursuant to this Agreement is being acquired for
his own account and not with a view to the distribution thereof within
the meaning of the Securities Act of 1933, as amended, (The Act) and
agrees that any transfer or other disposition of any shares of Acubid
Common Stock acquired by him hereunder will he made only pursuant to a
registration statement under the Act which has become effective and is
current with respect to the shares of Acubid Common Stock being sold,
or pursuant to a specific exemption from registration under the Act but
only upon first having obtained the prior favorable written opinion
with respect to such deposition from counsel satisfactory to Acubid.
b. Acubid may Cause to be set forth on the certificates
representing the shares of Acubid Common Stock issued hereto or on
certificates issued in exchange for all or part of such shares, a
legend to the foregoing effect in form and substance reasonably
satisfactory to Acubid and Acubid may issue such "stop transfer"
instructions to its transfer agent in respect of all or any part of
such shares as Acubid deems reasonably appropriate to prevent
violations of the Act.
c. Seller acknowledges that the shares of Acubid Common Stock to
be acquired by him have not been registered under the Act and must be
held indefinitely unless a subsequent disposition thereof is registered
under the Act or an exemption from such registration is available.
Seller understands that the exemption from registration afforded by
Rules 144 and 237 of the General Rules and Regulations under the Act
depends upon the satisfaction of various conditions and that, if
applicable, such rules afford the basis of sales of shares only in
limited amounts and, in the case of securities to which such rules are
not applicable, compliance with Regulation A or some other exemption of
the Act will be required. Seller acknowledges that, except as otherwise
provided in this Agreement, Acubid has not undertaken to register the
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shares of Acubid Common Stock to he delivered to Seller hereunder and
that Acubid will have no obligation to effect on behalf of any Seller
any other exemption from registration under the Act. Acubid agrees,
however, (i) that it will not voluntarily withdraw its registration
under Section 12 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder ("Exchange Act"), (ii) that it
will use its best effort to comply with the reporting requirements of
Section 13 or 15 (d) of the Exchange Act, and (iii) that it will supply
Seller with such information as may be necessary to enable Seller to
make sales of shares of Acubid Common Stock under Rule 144 or its then
equivalent.
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF ACUBID
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Acubid and Acquisition Corp. hereby, jointly and severally, represent
and warrant to Seller as follows:
5.1 CORPORATE ORGANIZATION: GOOD STANDING Acubid is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has the corporate power and authority to carry on its own business
as presently conducted. The copies of Acubid's Certificate of Incorporation and
By-Laws, and all amendments thereto, which have heretofore been delivered to
Seller are complete and correct as of the date hereof. Acubid is duly qualified
to do business and is in good standing as a foreign corporation in every
jurisdiction in which its ownership or leasing of properties requires such
qualification, and, to the extent that the character of the business conducted
by it may require such qualification in any other jurisdiction, the consequences
of the failure so to qualify in the aggregate would not under presently
applicable law have a material adverse affect on its business as now conducted
(financial or otherwise) or the results of its operations.
5.2 CAPITALIZATION As of the date hereof, the authorized capital stock
of Acubid consists of 50,000,000 shares of common stock, par value $.001 per
share, of which 8,765,408 shares are issued and outstanding and 10,000,000
shares of Preferred Stock, $,001 par value, none of which is outstanding. There
are no outstanding options, warrants or other rights to subscribe for or
purchase any capital stock of Acubid or securities convertible into or exchange
for capital stock of Acubid, except for outstanding options and warrants to
purchase 2,595,000 shares of Acubid Common Stock. All such issued and
outstanding shares of Acubid Common Stock are validly issued, fully paid and
non-assessable. Any shares of Acubid Common Stock which may be issued upon
exercise of Acubid options in accordance with the terms thereof will be validly
issued, fully paid and non-assessable.
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5.3 ACQUISITION CORP. Acquisition Corp. is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. AS of the date hereof, Acquisition Corp. in not and has not engaged in
any trade or business. All of the issued and outstanding stock of Acquisition
Corp. is owned by Acubid.
5.4 NO VIOLATION Neither the execution and delivery of this Agreement
by Acubid or Acquisition Corp. nor the consummation of the transactions
contemplated hereby will violate or conflict with (i) the Certificate of
Incorporation or By-Laws of Acubid or Acquisition Corp. or (ii) any order, writ,
injunction or decree of any court, administrative agency or governmental body to
which Acubid or Acquisition Corp. is a party.
5.5 CORPORATE AUTHORITY The execution and delivery of the Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Acubid and Acquisition Corp. Except for
the approval of this transaction by Acubid as sole shareholder of Acquisition
Corp. and by the shareholders of Acubid, no further corporate authorization on
the part of Acubid or Acquisition Corp. is necessary to consummate the
transactions contemplated hereby.
5.6 DISCLOSURE No representation or warranty of Acubid as set forth in
the Agreement or the Acubid Schedule contains or will contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements herein or therein, in light of the circumstances in which
they are made, not misleading.
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5.7 SEC FILINGS Acubid has complied, on a timely basis, in all material
respects, with the reporting requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder, as well
as any other reporting requirements of the Securities and Exchange Commission.
No such report contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein, in light of the circumstances in which they are made, not misleading.
Sellers may rely on all of the aforementioned documents which Acubid has filed
with the Securities and Exchange Commission.
5.8 ISSUANCE OF ACUBID COMMON STOCK The shares of Acubid Common Stock
to be issued by Acubid to Seller in exchange for his shares of JDI Stock as
contemplated by this Agreement will be validly issued and outstanding shares of
Acubid Common Stock, fully paid and non-assessable.
ARTICLE VI - COVENANTS
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Between the date hereof and the Closing Date Acubid and Acquisition
Corp. on the one hand, and JDI and Seller on the other hand, respectively,
covenant and agree as follows:
6.1 REGULAR COURSE OF BUSINESS JDI and Acubid and each of its
subsidiaries will carry on their respective business substantially in the same
manner as heretofore. Neither Acubid nor any of its subsidiaries will engage in
any one or more activities or transactions outside of the ordinary course of
their respective businesses as conducted as of the date hereof which in the
aggregate shall be material to them as a group, and JDI will not engage in any
one or more activities or transactions which shall be outside of the ordinary
course of its business as conducted as of the data hereof which in the aggregate
shall be material to it. Acquisition Corp. will not engage in any business.
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6.2 ADDITIONAL SECURITIES Except as expressly set forth in this
Agreement, neither JDI nor Acubid or any of its subsidiaries (including
Acquisition Corp.) will issue or sell, or issue options or warrants to purchase,
any capital stock or securities convertible into or rights to subscribe to, or
enter into any agreement or contracts with respect to, any of its capital stock,
or make any other changes in its authorized, issued or outstanding capital
stock, provided that: (i) JDI may issue or sell shares of its Common Stock upon
the exercise of its options outstanding as of the date hereof; (ii) Acubid may
issue or sell shares of its Capital Stock upon the exercise of its options
outstanding as of the date hereof; and (iii) Acubid may increase its authorized
Common Stock from 5O,000,000 shares, $.001 par value, to 100,000,000 shares,
$.001 par value.
6.3 DIVIDENDS AND DISTRIBUTIONS Neither JDI nor Acubid shall declare or
pay any dividend on any shares of its capital stock in cash, stock, or property;
make any other distribution with respect to any shares of its capital stock or
directly or indirectly redeem, purchase or otherwise acquire any of its own
capital stock; or make any other distribution of its assets to its shareholders.
6.4 FULL ACCESS JDI and Acubid and their respective subsidiaries shall
each afford to the officers and authorized representatives of the other full
access to their respective plants, properties, books and records, in order that
each party may have full opportunity to make such investigations as it shall
deem necessary with respect to the affairs of the other; and the officers of
each such party will furnish, and each such party will cause its auditors to
furnish, the other party with such additional financial and operating data and
other information as the other party from time to time reasonably requests. Each
party hereto agrees that it will hold in strict confidence all information
obtained from the other party hereto, that it will not divulge such information
to any other person, firm or corporation or use the same for its own benefit or
for the benefit of any of its subsidiaries or affiliates and that it will return
all such confidential information to the party supplying the same if the sale
herewith is not consummated for any reason.
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In the event that any investigation of Acubid or Sellers, as the case may be,
results in the discovery of a misrepresentation or a breach of warranty as to a
material matter made by the other party hereto, then Acubid or Sellers, as the
case may be, shall promptly advise the party that made such misrepresentation or
breach of warranty and, if such misrepresentation or breach can be cured prior
to the Closing Date, the party that made such misrepresentation or breach shall
be given an opportunity to attempt to cure the same. The failure to advise the
other party hereto promptly of the discovery of a misrepresentation or breach of
warranty as to a material matter made by such other party shall not constitute a
waiver thereof, provided such other party shall be given an opportunity to cure
the same.
6.5 APPROVAL OF SHAREHOLDERS
a. Acubid will cause a meeting of its shareholders to be duly
called and held as soon as practicable following the date hereof and
will submit and recommend the transaction contemplated hereto to its
shareholders for approval at such meeting, and JDI agrees to use its
best efforts to assist Acubid in the preparation of any information
required by Acubid in connection therewith including, without
limitation, a complete description of JDI business and required
financial information.
b. The Seller shall vote all of the outstanding Common Stock of
JDI for the approval of this Agreement and the transactions
contemplated hereby prior to the Closing Date.
6.6 SUPPLEMENT TO SCHEDULES Acubid and Seller each will promptly advise
the other in writing of any matter arising or discovered after the date hereof
which, if existing on known at the date hereof, would have been required to be
set forth or described in any Schedule referred to in this Agreement.
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6.7 CONSENTS Acubid and Seller each agrees to use its best efforts to
obtain any and all third party consents and approvals required by the Agreement
or any Schedule referred to herein for the consummation of the transactions
contemplated hereby.
6.8 FURTHER ASSURANCES Each party hereto agrees to execute and deliver
such instruments and take such other action as the other party may reasonably
require in order to carry out the intent of this Agreement.
ARTICLE VII - CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
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Each and every obligation of Seller under this Agreement to be
performed on or before the Closing Date shall be subject to the satisfaction, on
or before the Closing Date, of the following conditions:
7.1 REPRESENTATION AND WARRANTIES TRUE: OBLIGATIONS PERFORMED
a. The representations and warranties made by Acubid and
Acquisition Corp. in this Agreement shall be true and correct in all
material respects at and as of the Closing Date as though such
representations and warranties were made at and as of such time, except
for any matters the aggregate cumulative effect of which on the
financial condition, results of operations, prospects or assets of
Acubid and its subsidiaries, taken as a whole, is not materially
adverse.
b. Acubid and Acquisition Corp. shall have performed and complied
in all material respects with all obligations and agreements required
by this Agreement to be performed and complied with by Acubid and
Acquisition Corp. prior to or on the Closing Date.
c. Acubid and Acquisition Corp. shall have delivered to Seller a
certificate of its President and its Secretary, dated the Closing Date,
certifying to the fulfillment of both the foregoing conditions.
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7.2 APPROVAL OF SHAREHOLDERS, ETC. The approval of the shareholders of
Acubid Acquisition Corp. referred to in section 6.5 hereof shall have been
obtained in the manner required by applicable law; and all material consents
from third parties required to consummate the transactions contemplated
hereby shall have been obtained. Seller shall have received copies, certified
by the Secretary of Acubid or Acquisition Corp., as the case may be, of all
resolutions adopted by Acubid's Board of Directors, by Acubid as the sole
shareholder of Acquisition Corp. and by Acquisition Corp.'s Board of Directors,
with respect to this Agreement.
7.3 OPINIONS OF COUNSEL FOR ACUBID AND ACQUISITION CORP. Seller shall
have received from counsel for Acubid and Acquisition Corp. (who may rely in
part on opinions of other counsel satisfactory to Seller's counsel), an
opinion dated the Closing Date, in form and substance reasonably satisfactory
to Seller's counsel, to the effect that:
a. Acubid is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation;
b. Acubid has the corporate power to conduct its business as now
being conducted;
c. The authorized capital stock of Acubid consists of 100,000,000
shares of Common Stock, par value $.001 per share, and 10,000,000
shares of Preferred Stock, par value $.001 per share, and the issued
and outstanding shares of Acubid Capital Stock (the number of which
shall be stated) have been duly and validly authorized and issued and
are fully paid and non-assessable with no pre-emptive rights attaching
to the ownership thereof;
d. The authorized capital stock of Acquisition Corp. consists of
1000 shares of Common Stock, $.01 par value, of which 100 shares are
issued and outstanding and owned by Acubid and are fully paid and
non-assessable;
e. The shares of Acubid Common Stock to be issued to Sellers
pursuant to this Agreement will, when so issued, be validly issued,
fully paid and non-assessable;
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f. This Agreement has been duly executed and delivered by Acubid
and Acquisition Corp. and is the valid and binding obligation of
Acubid and Acquisition Corp., and all corporate action by Acubid and
Acquisition Corp. required in order to authorize the transactions
contemplated hereby has been duly taken;
g. Neither the execution and delivery of this Agreement by Acubid
or Acquisition Corp., nor the consummation of the transactions
contemplated thereby, will violate the Certificate of Incorporation or
By-Laws of Acubid or Acquisition Corp., or, to the best of the
knowledge of such counsel, will result in a material violation of any
material contract or agreement to which Acubid or Acquisition Corp. is
a party or will result in a material default under, or cause any
acceleration in the maturity of, any material obligation to which
Acubid or Acquisition Corp. is a party (consents having been
obtained), or violate any material order, writ, injunction or decree
of any court, administrative agency or governmental body binding
upon Acquisition Corp. or Acubid.
h. Except as set forth in said opinion, there is no litigation,
proceeding or governmental investigation pending or, to the best of
such counsel's knowledge, threatened against or relating to Acubid,
its properties or business, officers or directors, or the
transaction contemplated by this Agreement which if adversely
determined could have a material adverse effect on the business,
prospects, properties, assets, results of operations or financial
condition of Acubid.
In rendering such opinion, counsel may rely on certificates of public
officials and upon certificates of officers of Acubid as to factual matters
and on opinions of other counsel of good standing whom they believe to be
reliable as to matters to which the laws of jurisdictions other than
Delaware are applicable.
7.4 No action or proceeding shall have been instituted or threatened
before any court or governmental agency to restrain or prohibit, or to
obtain substantial damages in respect of this Agreement, or the consummation of
the transactions contemplated herein.
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ARTICLE VIII - CONDITIONS PRECEDENT TO THE OBLIGATIONS
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OF ACUBID AND ACQUISITION CORP.
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Each and every obligation of Acubid and Acquisition Corp. under this
Agreement to be performed on or before the Closing Date shall be subject to the
satisfaction, on or before the Closing Date, of the following conditions:
8.1 REPRESENTATIONS AND WARRANTIES TRUE; OBLIGATIONS PERFORMED
a. The representations and warranties made by JDI and Seller in
this Agreement shall be true and correct in all material respects at
and as of the Closing Date as though such representations and
warranties were made at and as of such time, except for any changes
permitted by the terms hereof or consented to by Acubid and except for
any matters the aggregate cumulative effect of which on the financial
condition, results of operations, prospects or assets of JDI and its
subsidiaries taken as a whole, is not materially adverse.
b. JDI and Seller shall have performed and complied in all
material respects with all obligations and agreements required by this
Agreement to be performed and complied with by JDI and Sellers
prior to the Closing Date.
c. JDI shall have delivered to Acubid and Acquisition Corp. a
certificate of its President Director, dated the Closing Date,
certifying to the fulfillment of both of the forgoing conditions.
8.2 APPROVAL OF SHAREHOLDERS, ETC. The approval of the shareholders of
Acubid and Acquisition Corp. referred to in Section 6.5 hereof shall have been
obtained in the manner required by applicable law; and all material consents
from third parties required to consummate the transactions contemplated
hereby shall have been obtained. Acubid and Acquisition Corp. shall have
received copies, certified by the President Director of JDI of all resolutions
adopted by JDI's Board of Directors and Board of Commissioners and
shareholders with respect to the approval of this Agreement and the
transactions contemplated thereby.
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8.3 OPINION OF COUNSEL FOR JDI Acubid and Acquisition Corp. shall have
received from counsel for JDI and Seller (who may rely in part on opinions of
other counsel satisfactory to Acubid's counsel), an opinion dated the Closing
Date, in form and substance reasonably satisfactory to Acubid's counsel, to the
effect that:
a. JDI is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation;
b. JDI has the corporate power to conduct its business as now
being conducted;
c. The authorized capital stock of JDI consists of 20,000,000,000
shares of Common Stock, par value 25 Indonesian Rupiahs per share, of
which 200,000,000 shares and the issued and outstanding shares of JDI's
Capital Stock (the number of which shall be stated) have been fully and
validly authorized and issued and are fully paid and non-assessable;
d. This Agreement has been duly executed and delivered by JDI and
is a valid and binding obligation of JDI; and all corporate action by
JDI required in order to authorize the transactions contemplated
hereby has been duly taken;
e. Subject to Article 12.11 herein, neither the execution and
delivery of this Agreement by JDI, nor the consummation of the
transactions contemplated thereby, will violate the Certificate of
Incorporation or By-Laws of JDI, or, to the best of the knowledge of
such counsel, will result in a material violation of any material
contract or agreement to which JDI is a party or will result in a
material default under, or cause any acceleration in the maturity of,
any material obligation to which JDI is a party (consents having
been obtained), or violate any material order, writ injunction or
decree of any court, administrative agency or governmental body
binding upon JDI;
f. This Agreement and all other agreements and instruments to be
executed in connection herewith by Seller have been fully executed
and delivered by Seller and constitute the legal, valid and binding
obligation of Seller, except as limited by bankruptcy, insolvency or
other laws affecting generally the enforcement of creditors' rights;
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g. Seller has full right, power, legal capacity and authority to
enter into this Agreement and to sell, transfer and deliver to
Acquisition Corp. the shares of JDI Stock as provided in this
Agreement; and that upon delivery of certificates representing said
shares in accordance with the terms of this Agreement, good and
marketable title thereto, free and clear of any and all claims, liens,
charges, restrictions, encumbrances and equities, will pass to
Acquisition Corp and;
h. Except as set forth in said opinion, there is no litigation,
proceeding or governmental investigation pending or, to the best of
such counsel's knowledge, threatened against or relating to JDI, its
properties or business, officers or directors, or the transactions
contemplated by this Agreement which if adversely determined could have
a material adverse effect on the business, prospects, properties,
assets, results of operations or financial condition of JDI.
In rendering such opinion, counsel may rely on certificates of
public officials and upon certificates of Seller and officers of JDI as to
factual matters and on opinions of other counsel of good standing whom they
believe to be reliable as to matters to which the laws of jurisdictions
other than Indonesia are applicable.
8.4 No action or proceeding shall have been instituted or threatened
before any court or governmental agency to restrain or prohibit, or to obtain
substantial damages in respect of, this Agreement, or the consummation of the
transactions contemplated herein.
ARTICLE IX - CLOSING.
---------------------
9.1 The Closing under this Agreement shall take place at a mutually
agreed upon location upon five (5) days prior written notice from Acubid
to Seller or at such other time and place as mutually may be agreed upon by
the parties hereto; provided, however, that the Closing shall take place no
later than August 31, 2000. The time and date of the Closing is referred to in
this Agreement as the "Closing Date".
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a. On the Closing Date, Seller and JDI shall deliver or cause to
be delivered to Acubid and Acquisition Corp. the following:
i. Certificates representing all of the shares of JDI
Stock to be acquired by Acquisition Corp. hereunder, all of which
certificates shall be duly endorsed by the Seller in accordance with
Indonesian Law;
ii. The certificates, executed by JDI, referred to in
paragraphs 8.1 (e) and 8.2;
iii. The opinion of counsel for Sellers referred to in
paragraph 8.3;
iv. Such other documents and instruments as reasonably
may be requested by, and in form and substance satisfactory to, counsel
for Acubid and Acquisition Corp.
v. On the Closing Date, Acubid and/or Acquisition Corp.
shall deliver to Sellers the following:
vi. Stock certificates registered in the name of Seller
representing the number of shares of Acubid Common Stock to be received
by Seller hereunder:
vii. The certificates of the respective Presidents or any
Vice Presidents of Acubid and Acquisition Corp. referred to in
paragraphs 7.1 (c);
viii. An opinion of counsel for Acubid and Acquisition
Corp. referred to in paragraph 7.3;
ix. Certified copies of resolutions referred to in
paragraph 7.2;
x. Such other documents and instruments as reasonably may
be requested by counsel for the Seller.
ARTICLE X - TERMINATION OF REPRESENTATIVE
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AND WARRANTIES; SURVIVAL OF COVENANTS
-------------------------------------
The respective representations and warranties of Acubid, Acquisition
Corp., JDI, and Sellers contained in this Agreement shall expire and terminate
on the Closing Date. The obligations under all covenants and agreements which
are to be performed after the
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Closing Date shall survive the Closing Date. All other covenants, agreements,
and certificates shall expire and terminate on the Closing Date.
ARTICLE XI - REGISTRATION RIGHTS
--------------------------------
11.1 DEFINED TERMS. As used in this Article XI, the following terms
shall have the following respective meanings:
a. "Act" shall mean the Securities Act of 1933. as amended, and
the rules and regulations of the Commission thereunder.
b. "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder.
c. "Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
federal securities law.
d. "Former JDI Shareholders" shall mean the shareholders of JDI
who received Acubid Common Stock pursuant to this Agreement.
e. "Maximum Includable Underwritten Shares" shall mean the
maximum number of shares of Acubid Common Stock and other classes of
stock of Acubid that a managing or principal underwriter, in its good
faith judgment, deems it practicable to offer and sell at that time in
a firm commitment underwritten offering at a reasonable price.
f. "Prospectus" shall mean any Preliminary Prospectus and final
Prospectus (as such may be amended or supplemented) which constitutes
Part 1 of a Registration Statement filed with the Commission.
g. "Registration Expenses" shall mean all expenses arising out of
or related to the preparation, filing, amendment and supplementing of a
Registration Statement, including, without limitation, all legal and
accounting fees, Commission filing fees, NASD filing fees, printing
costs, registration or qualification fees and expenses to comply with
the "blue sky" or other state securities laws, the fees of other
experts, and any expenses or other compensation paid to the
underwriters; provided however, that Registration Expenses shall not
include underwriting commissions and discounts and
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transfer taxes, if any, payable in connection with the sale of shares
of Acubid Common Capital Stock, and any legal fees for counsel to a
Seller.
h. "Restricted Stock" shall mean the shares of Acubid Common
Stock received by shareholders of JDI pursuant to this Agreement
(restricted only in terms of the Act); provided, however, that shares
of Acubid Common Stock transferred by a former JDI shareholder pursuant
to an effective Registration Statement or amendment thereto, or in a
transaction permitted by Rule 144 under the Act, or any successor rule
or regulation, or shares of Acubid Common Stock no longer subject to
any restriction against transferability under the Act, shall not
thereafter be considered Restricted Stock.
i. "Seller" shall mean each holder of Restricted Stock for whom
shares are included or proposed to be included in a Registration
Statement filed or to be filed by Acubid.
j. "Transfer" shall include any sale, pledge, assignment,
encumbrance or other disposition of any shares of Restricted Stock or
of any part thereof or interest therein.
k. "Market Value" shall mean the mean between the bid and asked
quotations in the over the counter market as determined by the NASDAQ
system for the 10 trading days immediately prior to the date of the
includable shares notice.
11.2 INCIDENTAL REGISTRATIONS.
a. If at any time Acubid proposes to file on its behalf and/or on
behalf of any of its security holders a Registration Statement under
the Act on form S-1, or on any other form for the general registration
of securities to be sold for cash with respect to any class of equity
security (as defined in Section 3(a)(11) under the Exchange Act),
Acubid shall be required to give written notice to each Former JDI
Shareholder at least thirty (30) days before the filing with the
Commission of such Registration Statement. The notice shall offer to
include in such filing on the same terms and conditions as the
securities proposed to be included in such Registration Statement of
Acubid and/or any of its security holders such number of shares of
Restricted Stock as the Former JDI Shareholders may request,
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subject in the limitations hereinafter set forth. Those Former JDI
Shareholders desiring to have Restricted Stock registered under this
section 11.2 shall be required (i) to so advise Acubid in writing
within twenty (20) days after the date of receipt of such offer from
Acubid, setting for the number of shares of Restricted Stock for which
registration is requested, and (ii) to deliver to Acubid a letter from
counsel (who shall be reasonably satisfactory to Acubid) for those
Former JDI Shareholders requesting registration to the effect that
registration of such Restricted Stock under the Act is required. Acubid
shall thereupon include in such filing subject to the limitations
hereinafter set forth, the Restricted Stock proposed to be offered for
sale by the Former JDI Shareholders making such request, on the same
terms and conditions as the securities proposed to be included in such
filing on behalf of Acubid and/or any of its security holders, and
shall use its best efforts to effect registration under the Act of such
shares.
b. The right of the Shareholders to have Restricted Stock
included in any Registration Statement filed by Acubid in accordance
with the provisions of this Section 11.2 shall be subject to the
following limitations and conditions:
i. Acubid shall, in its sole discretion, select the underwriter
or underwriters, if any, who are to undertake the sale and distribution
of the Restricted Stock to be included in a Registration Statement
filed under the provisions of this Section 11.2;
ii. In the event the Registration Statement proposed to be filed
by Acubid pursuant to this Section 11.2 shall be, in whole or in part,
for an underwritten public offering of securities of Acubid, Acubid
shall, as soon as practicable after the Expiration of the twenty (20)
day period provided for in Section 11.2,(a) furnish each Seller with a
written statement of the managing or principal underwriter as to the
Maximum Includable Underwritten Shares (the "Includable Shares
Notice"). If the total number of shares of Acubid Common Stock and
other classes of' stock of Acubid proposed to be included in such
underwritten public offering is in excess of the Maximum Includable
Underwritten Shares, the number of shares of Restricted Stock to be
included within the coverage of such Registration Statement and which
are to be
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underwritten shall be reduced to the Maximum Includable Underwritten
Shares as follows:
c. No reduction shall be made in the number or amount or
securities to be executed for the account of Acubid;
d. The right to required incidental registration of shares of
Restricted Stock under this Section 11.2 shall terminate upon the
expiration of five (5) years following the Closing Date.
c. Anything contained in this Section 11.2 to the contrary
notwithstanding, the right to require incidental registration of shares
of Restricted Stock hereunder shall not apply to a Registration
Statement relating to an offering solely for the account of security
holders of a single corporation with respect to securities issued or to
be issued by Acubid in connection with the acquisition of the stock or
assets, or the merger or consolidation, of such corporation by or with
Acubid, which Registration Statement is filed by Acubid within ninety
(90) days following the closing of such acquisition.
f. Acubid agrees to furnish each Seller with such number of
copies of the Prospectus as such Seller may reasonably request in order
to facilitate the sale and distribution of his Restricted Stock.
11.3 REQUESTED REGISTRATIONS
a. If any former JDI Shareholder or Shareholders propose, on or
after December 31, 2000 to offer for sale, sell or transfer any
Restricted Stock pursuant to Section 5 of the Act, then they will give
Acubid written notice to that effect specifying the number of shares
proposed to be sold, the identity of the proposed underwriter and the
plan for distribution of such shares. Such notice shall be delivered to
Acubid together with a letter from counsel (who shall be reasonably
satisfactory to Acubid) for such former JDI Shareholders stating in
substance that registration for such Restricted Stock under the Act is
required.
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b. If and when Acubid shall be required by the provisions of this
Section 11.3 to effect the registration of any Restricted Stock under
the Act, Acubid will, as expeditiously as possible:
i. Give written notice to all former JDI Shareholders,
who were not a party to the aforementioned notice to Acubid requesting
registration of shares, advising them of its intention to effect a
proposed registration and to include in such proposed registration the
shares of Restricted Stock which any such former JDI shareholder
requests Acubid to register, provided such request is furnished to
Acubid in writing within twenty (20) days after the date of receipt of
the aforesaid notice from Acubid.
ii. Prepare and file a Registration Statement on Form
S-1, or other form for the general registration of securities as may be
appropriate (giving effect to plan or distribution of the restricted
Stock proposed to be transferred), and use its best efforts to cause
such Registration Statement to become effective in order that the
Sellers may sell their Restricted Stock in accordance with their
proposed plan of distribution.
iii. Prepare and file with the Commission such amendments
and supplements to such Registration Statement and the prospectus used
in connection therewith as may be necessary to keep such Registration
Statement effective and to comply with the provisions of the Act with
respect to the offer of the Restricted Stock covered by such
Registration Statement during the period required by the Sellers for
distribution of the Restricted Stock; and
iv. Furnish to each Seller such number of copies of the
Prospectus as such Seller may reasonably request in order to facilitate
the transfer of the Restricted Stock.
c. The right of the former JDI Shareholders to have Restricted
Stock registered under the Act pursuant to the provisions of this
section 11 .3 shall be subject to the following limitations and
conditions:
i. If a request for registration is made within thirty
(30) days prior to or following the conclusion of Acubid's then current
fiscal year, Acubid shall have the right to delay the filing of a.
Registration Statement for a period of ninety (90) days, or for
26
such a period in time until Acubid receives its audited financial
statements for such fiscal year, whichever first occurs;
ii. The Restricted Stock to be included by Sellers in a
Registration Statement filed under the provisions of this section 11.3
must be sold in an underwritten offering. In the event that fifty (50%)
percent or more of the Market Value (as determined in accordance with
Section 11.2(b)) of the Acubid securities proposed to be included in
any such Registration Statement shall be for the account of Acubid and
any Shareholders of Acubid rather than former JDI Shareholders, then
Acubid shall have the right to select the underwriter or underwriters
to undertake the sale of the stock included in the Registration
Statement. If more than fifty (50%) percent of the Market Value of the
Acubid securities proposed to be included in any such Registration
Statement shall be for the account of former JDI Shareholders, then
Sellers shall have the right to select the underwriter or underwriters
who are to undertake the sale and distribution of Restricted Stock to
be included in a Registration Statement filed under the provisions of
this Section 11.3, subject to the prior approval thereof by Acubid,
which approval will not be unreasonably withheld or delayed;
iii. The former JDI Shareholders shall not be entitled to
request more than one (1) Registration Statement under the provisions
of this Section 11.3; provided, however, if more than fifty (50%)
percent of the Market Value (as determined pursuant to Section 11.2(b))
of the Acubid securities included in any such Registration Statement
shall be for the account of Acubid and any Shareholders of Acubid other
than former JDI Shareholders, then such Registration Statement shall
not constitute a Registration Statement requested by former JDI
Shareholders for the purpose of this Section 11.3 but shall be deemed
an incidental registration under Section 11.2;
iv. Request for the Registration Statement required to be
filed by Acubid pursuant to this Section 11.3 shall be made by former
JDI Shareholders owning beneficially a minimum of 5,000,000 shares of
Restricted Stock who propose to register up to 17,500,000 shares of
Restricted Stock in such Registration Statement;
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v. The shares of Restricted Stock referred to in this
Section 11.3 shall be adjusted to reflect any changes in the
capitalization of Acubid through reorganization, re-capitalization,
stock split, stock dividend, combination of shares, merger,
consolidation or otherwise;
vi. Acubid shall have the right to include any Acubid
securities in any Registration Statement filed by Acubid pursuant to
this Section 11.3; provided, however, if the managing underwriter
determines that the total number of Acubid securities proposed to be
included in any such Registration Statement exceeds the Maximum
Includable Underwritten Shares, then all of the Acubid securities
proposed to he included in such Registration Statement by Acubid and by
any other Stockholders of Acubid, shall he excluded from such
Registration Statement before any shares to be offered by the Sellers
shall be excluded; provided, further, if the managing underwriter
determines that the number of Acubid securities proposed to be included
in such Registration Statement should be further reduced, then such
reduction shall be pro rata based upon the number of shares of Acubid
Common Stock which each Seller requested to have registered (unless the
Sellers agree to a different allocation);
vii. Acubid shall not be required to file a Registration
Statement on behalf of any former JDI Shareholder pursuant to the
provisions of this Section 11.3 within a period of six (6) months after
the effective date of any Registration Statement filed by Acubid with
respect to which Acubid complied with the incidental registration
provisions of Section 11.2; provided, however, that Acubid shall have
registered all of the shares of Restricted Stock with respect to which
registration was requested by such former JDI Shareholder and such
registration shall have remained effective for a period of not less
than thirty (30) consecutive days (unless all such shares of Restricted
Stock were previously sold pursuant to such registration); and
viii. The right to require registration of Restricted
Stock under this Section 11.3 shall terminate upon the expiration of
five (5) years following the Closing Date.
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11.4 GENERAL
a. Acubid shall have sole control in connection with preparing,
filing, withdrawing, amending or supplementing any Registration
Statement under the Act to be filed on behalf of the Sellers.
b. Acubid shall use its best efforts to register or qualify the
Restricted Stock covered by any Registration Statement under the Act
filed on behalf of any Seller under such securities or Blue Sky laws in
such jurisdictions as the Sellers may reasonably request: provided,
however, that Acubid reserves the right, in its sole discretion, not to
register or qualify shares of Restricted Stock in any jurisdiction
where such shares do not meet the requirements of such jurisdiction, or
where registration or qualification would be contrary to Acubid's best
interests.
c. In the event any former JDI Shareholder proposed to include
his or its Restricted Stock in any Registration Statement filed
pursuant to Section 11.2, such former JDI Shareholder agrees to enter
into an underwriting agreement containing customary terms and
conditions.
11.5 INDEMNIFICATION In the event of the registration of any Restricted
Stock under the Act pursuant to the provisions of this Agreement, Acubid agrees
to indemnify and hold harmless the Seller of such Restricted Stock, each
underwriter, if any, of such Restricted Stock, and each person who controls such
Seller or any such underwriter within the meaning of Section 15 of the Act, from
and against any and all losses, claims, damages or liabilities, joint or
several, to which such Seller, underwriter or controlling person may become
subject under the Act or at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained, on the effective date thereof, in any Registration Statement
under which such Restricted Stock was registered under the Act, and Prospectus
contained therein, or any amendment or supplement thereto or arise out of or are
29
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or (in the case of a Prospectus) necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and will reimburse such Seller, each such underwriter, and each such
controlling person for any legal or any other expenses reasonably inclined by
such Seller underwriter or controlling person in connection with investigating
or defending any such losses, claim, damages, liability or action; provided,
however, that Acubid will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of an untrue statement or
alleged untrue statement or omission or alleged omission made in such
Registration Statement, such Prospectus or such at amendment or supplement in
reliance upon and in conformity with written information furnished to Acubid by
such Seller, underwriter or controlling person specifically for use in
preparation thereof.
In the event of the registration of any Restricted Stock under the Act
pursuant to the provisions hereof, each Seller of Restricted Stock, each
underwriter, if any, of such Restricted Stock, and each person who controls
such Seller or any such underwriter within the meaning of Section 15 of' the
Act, agrees to indemnify and hold harmless Acubid, each person who controls
Acubid within the meaning of Section 15 of the Act, each of its officers who
signs the Registration statement and each director of Acubid, from and against
any losses, claims, damages or liabilities, joint or several, to which Acubid,
such controlling person or any such officer or director may become subject under
the Act or at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained,
on the effective date thereof, in any Registration Statement under which such
Restricted Stock was registered under the Act, any Prospectus contained therein,
or amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not at misleading, or
(in the case of a Prospectus) necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, which untrue
statement or omission or alleged omission was made therein in reliance upon and
in
30
conformity with, written information furnished to Acubid by such Seller,
controlling person or underwriter, specifically for use in connection with the
preparation thereof; and will reimburse Acubid, such controlling person or each
such officer or director for any legal or any other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action.
Promptly after receipt by an Indemnified party of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against on indemnifying party, give written notice to such
indemnifying party of the commencement thereof, but the omission so to notify
the indemnifying party will not relieve it from any liability to which it may
have to any indemnified party otherwise than pursuant to the provisions of this
Section 11.5. In case any such action is brought against any indemnified party,
and it notifies any indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and to the extent that it
may wish jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof, other
than the reasonable cost of investigation.
11.6 EXPENSES
a. In connection with the incidental registration on behalf of
the Former JDI Shareholders of any Restricted Stock under the Act
pursuant to the provisions of Section 11.2 of the Agreement, Acubid
shall pay all Registration Expenses, it being understood, however, that
each Seller shall be required to bear that portion of the additional
underwriting commissions and discounts, transfer taxes, if any, and
Commission, NASD and Blue Sky registration and filing fees,
attributable solely to the inclusion of Seller's shares of Acubid
Common Stock in such Registration Statement and the related filings
under securities or Blue Sky laws of the several states.
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b. In connection with any requests for registration on behalf of
the former JDI Shareholders of any Restricted Stock under the Act
pursuant to the provisions of Section 11.3, Acubid shall pay all
Registration Expenses; provided, however, each Seller shall be required
to bear underwriting commissions and discounts and transfer taxes, if
any, in connection with the sale of his shares of Acubid Common Stock
and fees of his own attorneys; provided, further, if the registration
was requested other than in the months of August, September and October
and the Registration Statement requires any audited financial
statements of Acubid other than the audited financial statements
included in its Annual Report on Form 10-K, each Seller shall be
required to bear that portion of the expense of preparing such
additional financial information which the market value (as defined
below) of the Restricted Stock so registered on behalf of such Seller
bears to the market value of the total number of shares or other
securities of Acubid (including Restricted Stock) so registered. for
purposes of this Section 11.6, the term 'market value" shall mean the
aggregate initial public offering price of all securities included in
the Registration Statement as of the effective date of the Registration
Statement.
11.7 TRANSFEREES In the event that any shares of the Restricted
stock shall at any at any time be transferred of record by any
Shareholder other than pursuant to an effective Registration Statement
or pursuant to Rule 144 of the Act, the rights herein conferred upon
such Shareholder shall extend to the transferee of such shares, subject
in any event to the limitations and conditions set forth herein.
ARTICLE XII - MISCELLANEOUS PROVISIONS
--------------------------------------
12.1 GOVERNING LAW This Agreement and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
State of Delaware, except insofar as the internal law of any other political
entity or jurisdiction shall specifically and mandatorily apply to any of the
transactions contemplated hereby.
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12.2 AMENDMENT AND MODIFICATION Subject to applicable law, this
Agreement may be amended, modified and supplemented by mutual written agreement
of the respective parties hereto at any time prior to the Closing Date with
respect to any of the terms contained herein, whether before or after the
approval of this Agreement by the shareholders of Acubid: provided, however,
that no such amendment, modification or supplement may be executed which would
materially and adversely affect the rights of Acubid shareholders after approval
by Acubid shareholders.
12.3 ASSIGNMENT This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of each of the other
parties except as expressly provided in Paragraph 12.12.
12.4 NOTICES All notices, requests, demands, and other communications
hereunder shall be deemed to have been duly given if delivered by hand or
mailed, certified or registered mail, with postage prepaid:
a. if to Acubid or Acquisition Corp.
0000 Xxxxxx Xxxx Xxxxx,
Xxxxx 000 Xxxxxxxx,
Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx
with a copy to:
Xxxxxxx Xxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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b. If to JDI or Seller
Wisma Indovision
Mezzanine Floor
JI. Raya Panjang
X/000 Xxxxx Xxxxxx
Xxxxxxx 00000, Xxxxxxxxx
Attn: Dewi A.L. Gontha
with a copy to:
Xxxx Xxxxxxxx
Minang Xxxxxx Xxxxxx & Associates
Chase Plaza, 5th Floor
JI. Jend. Xxxxxxxx
Xxx. 00, Xxxxxxx 00000
Xxxxxxxxx
or to such other person or address as may be designated in writing in accordance
with this Section 12.4
12.5 BROKERS Acubid and Acquisition Corp., on the one hand, and JDI and
Sellers, on the other hand represent, warrant and agree with the other, that no
brokers, agents or finders are entitled to any brokerage fee, finder's fee,
commission or other compensation on account of this Agreement or any matter
contemplated hereby. Each party hereto agrees to indemnify and hold the other
parties harmless form and against any and all claims and liabilities for
brokerage commissions or finders' fees brought by any person incurred as a
result of any action taken by such indemnifying party.
12.6 COUNTERPARTS This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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12.7 HEADINGS The headings of the Articles and Sections of this
Agreement are inserted for convenience only and shall not constitute a part
hereof.
12.8 ENTIRE AGREEMENT. This Agreement. including other documents
referred to herein which form a part hereof, contains the entire understanding
of the parties hereto in respect if the subject matter contained herein. There
are no restrictions, promises, warranties, covenants, or undertakings, other
than those expressly set forth herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
12.9 EXPENSES Each of the parties hereto will pay its own fees and
expenses, including its own counsel fees and accounts' fees, incurred in
connection with this Agreement or any transaction contemplated by this
Agreement.
12.10 WAIVER Any condition to a party's obligation hereunder may be
waived in writing by such party.
12.11 FOREIGN INVESTMENT APPROVAL The sale and transfer by the Seller
of his shares in JDI as contemplated herein is subject to the approval of the
Indonesian capital investment authority (the Badan Penanaman Modal, BPM) and
that of the Ministry of Law and Legislation (MOLAL) to the amended Articles of
Association of JDI. The Seller warrants to arrange for and file the BPM
application as soon as practicable upon the execution of this Agreement.
12.12 TRANSFER OF JDI SHARES It is acknowledged and agreed that it is
the intention of the Seller to transfer the JDI Stock to an offshore entity (the
"Third Party") subsequent to execution hereof and prior to the Closing Date.
Acubid and Acquisition Corp. hereby agree to such transfer by the Seller
(subject only to notice of such transfer to be made to them in writing). The
parties herein acknowledge that subsequent to such transfer, the Third Party
shall be deemed to be substituted in this Agreement in place of the Seller and
all the Seller's rights and obligations in this Agreement shall transfer to the
Third Party as if this Agreement had been executed by the Third Party.
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12.13 ANNOUNCEMENTS/CONFIDENTIALITY
(a) None of the parties shall, without prior written consent of
the others make or authorize any announcement concerning the subject
matter of this Agreement or any matter ancillary thereto otherwise than
as may be required by law or applicable regulatory requirements. In the
event that this Agreement lapses for any reason whatsoever, the Parties
agree to keep all information related to hereto confidential. This
provision shall survive termination of this Agreement.
(b) The parties hereto agree that the information exchanged
between them prior to and after Closing Date is and shall remain the
property of the party disclosing it (the "Discloser"). No written
information disclosed by a party to the other party shall be copied
and/or reproduced without the express written permission of the
Discloser. The parties herein specifically agree that they shall not,
and they shall procure that the present Directors, officers and
employees of JDI, Acubid and Acquisition Corp. (the "Companies") shall
not, disclose any information pertaining to the Companies to any third
party, without the express permission in writing of the other parties
herein.
12.14 ARBITRATION
(a) Any and all disputes, controversies, and conflicts between
the parties herein in connection with this Agreement shall, so far as
possible, be settled amicably.
(b) Failing such amicable settlement, any and all disputes,
controversies and conflicts arising out of or in connection with this
Agreement or its performance (including the validity or this Agreement)
shall be settled by arbitration by a one (1) member arbitration board
which will hold its sessions in the United States in English under the
ICC (International Chamber Commerce) Rules. The tribunal of one (1)
arbitrator shall be appointed by the Chairman of the ICC.
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(c) The one (1) member of the board of arbitration shall be
appointed in accordance with the ICC Rules regarding the appointment of
arbitrators.
(d) The arbitral proceeding shall accord to each of the parties
the right of cross-examination of witnesses, the right to provide
witnesses including expert witnesses, and the right to make both
written and oral submissions.
(e) The arbitral award made and granted by the arbitrators shall
be final, binding and incontestable and may be used as a basis for
judgment thereon in the United States: the Republic of Indonesia or
elsewhere. All costs of arbitration in the appointment of the one (1)
member of the arbitration board shall be shared equally among the
parties.
(f) None of the parties herein shall be entitled to commence or
maintain any action in a court of law upon any matter in dispute
arising from or in relation to this Agreement except for the
enforcement of an arbitral award granted pursuant to this paragraph.
(g) During the period of submission to arbitration and thereafter
until the granting of the arbitral award, the parties shall, except in
the event of termination, continue to perform all their obligations
under this Agreement without prejudice to a final adjustment in
accordance with the said award.
(h) The parties expressly waive the Article 68 (b) of Indonesian
Law No. 30/1999 (Arbitration and Alternatives).
(i) The provisions contained herein shall survive the termination
and/or expiration of this Agreement.
12.15 WAIVER OF ARTICLE 1266 OF THE INDONESIAN CIVIL CODE For the
purposes of this Agreement the parties waive Article 1266 of the Indonesian Code
to the extent that judicial cancellation of this Agreement is required as a
precondition to terminate.
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12.16 BOARD OF DIRECTORS OF ACUBID following the Closing Date Acubid
agrees that at such times as it solicits proxies for the approval of this
Agreement by shareholders, it shall also solicit proxies for the election of a
Board of Directors consisting of eight persons, six (6) of whom shall be
designated by Seller and two (2) of whom shall be designated by management.
12.17 OTHER GOVERNMENT APPROVALS The Closing hereunder is subject to
receipt of all necessary government approvals and consents required to
consummate the transactions contemplated hereby including without limitation the
following, if required by Indonesian law:
(i) approval of BPM (Investment Board) on the conversion of JDI to a
PMA company subject to the Foreign Investment Law, as amended;
(ii) approval of the Ministry of Laws and Legislation of the amended
Articles of Association of JDI reflecting the position of Acubid
as a shareholder;
(iii) approval of the Minister of Communications on the changes in
shareholding structure of PT Medialintas Antarbuana resulting
from the Acubid entry into JDI (if required).
12.18 Termination: The parties herein or any one of them may terminate
this Agreement for breach.
WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
XXXXXX.XXX INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------
Xxxxx Xxxxxxxxxx
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PT Jaring Data Interaktif
By: /s/ Jicky Iskansar di Nata
--------------------------------
Jicky Iskansar di Nata
ACUBID ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------
Xxxxx Xxxxxxxxxx
SELLER:
/s/ Adisatrya Suryo Sulisto
----------------------------------
Adisatrya Suryo Sulisto
WITNESSES:
1. /s/ Suhara signature 2. /s/ Tjamjone Soerjodibboro
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THE JDI SCHEDULE
----------------
(A) Corporate Structure of PT Media Lintas Antarbuana
Authorized capital - Rupiah 2,800,000,000
Issued capital - Rupiah 700,000,000
Shareholders:
Xxxx Xxxxxxxxxx 217 shares
PT Jaring Data Interactif 483 shares
Par value: Rupiah 1,000,000
(B) JDI Bank Accounts
Bank Intenasional Indonesia
Bank Central Asia
Bank Bukopin
Signatories: Xxxxx Xxxxxxxx Dinata; Xxxxxxx
Xxxxxxx; Xxxx Xxxxxxxx; Xxxxx Xxxxxxx.
(C) JDI Trademarks
Web 00000.xxx (now in process of registration)
Web 88888 (now in process of registration)
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