EXHIBIT 8
Sale of FuiszDrugstore Ltd.
December 31, 1998
Page 1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made and dated as of
December 31, 1998 by and among Fuisz Technologies Ltd., a corporation formed
under the laws of the State of Delaware ("Seller"), Privateer Ltd. a
corporation organized under the laws of the State of Delaware and doing
business at 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000
("Purchaser") and Xx. Xxxxxxx X. Xxxxx, an individual residing at 0000
Xxxxxxxxxx Xxxx Xxxxx, XxXxxx, Xxxxxxxx 00000 ("Guarantor").
RECITALS
WHEREAS, Seller owns beneficially and of record all of the issued and
outstanding capital stock of XxxxxXxxxxxxxx.xxx Ltd., a Delaware corporation
("drugstore");
WHEREAS, Drugstore owns all of the assets set out in Schedule 1;
WHEREAS, Purchaser wishes to acquire all of the issued and outstanding
equity of the Drugstore (the "Shares") and Seller wishes to sell the Shares
to Purchaser, all upon the terms and subject to the conditions set forth in
this Agreement; and
WHEREAS, in consideration of the sale of the shares, Guarantor agrees to
guarantee the obligations of Purchaser hereunder.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual covenants, representations, warranties and agreements hereinafter set
forth, and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
Article 1
Definitions
When used in this Agreement, the following terms shall have the meanings
specified below
"Affiliate" shall have the meaning prescribed by Rule 12b-2 of the
regulations promulgated pursuant to the Exchange Act.
"Agreement" shall have the meaning set forth in the Preamble hereto.
"Closing" shall have the meaning set forth in Section 2.03 hereof.
"Closing Date" shall have the meaning set forth in Section 2.03 hereof
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December 31, 1998
Page 2
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
rules and regulations thereunder.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"GAAP" shall mean United States generally accepted accounting
principles, consistently applied.
"Governmental Authority" shall mean any laws, agency, department,
ministry, commission, board or other administrative or governmental body of
the United States or any state or jurisdiction thereof
"Indemnified Party" shall mean a Purchaser Indemnified Party or a Seller
Indemnified Party, as the case may be.
"Laws" shall mean, collectively, any statute, law, rule, regulation,
ordinance, order, decree, action, restriction, requirement or policy of the
United States or any state or jurisdiction thereof.
"Material Adverse Change" shall mean any material adverse change in the
results of operations, condition (financial or otherwise), assets, liabilities
(whether absolute, accrued, contingent or otherwise), or business of
Drugstore.
"Material Adverse Effect" shall mean any material adverse effect upon
the condition (financial or otherwise), assets, properties, or business of
Drugstore.
"Purchase Price" shall have the meaning set forth in Section 2.02 hereof
"Purchaser Indemnified Party" shall have the meaning set forth in
Section 7.02
"Seller Indemnified Party" shall have the meaning set forth in Section
7.01
"Seller" shall have the meaning set forth in the Preamble hereto.
"Shares" shall have the meaning set forth in the Recitals hereto.
"Subsidiary" shall mean any company, corporation, partnership, joint
venture, limited liability company or other entity in which Drugstore
directly or indirectly, owns or control, or pursuant to any agreement or
agreements in the future may have the right to acquire by any means, any
equity or profit interest equal to or greater than fifty percent (50%) of the
equity or profit interests thereof.
"Tax Returns" shall mean all reports, returns, statements, forms or
other documents or information required to be filed with a taxing authority
with respect to the Taxes of Drugstore.
Sale of FuiszDrugstore Ltd.
December 31, 1998
Page 3
"Taxes" shall mean all federal, state, local or foreign income, gross
receipts, windfall profits, severance, property, productions, sales, use,
license, excise, franchise, employment, withholding, alternative minimum or
add-on minimum or similar taxes imposed on the income, properties or
operations of Drugstore, together with any interest, additions or penalties
with respect thereto and any interest in respect of such additions or
penalties.
"Third Party Claim" shall have the meaning set forth in Section 7.02
hereof
"Transactions" shall have the meaning set forth in Section 2.03(a)
hereof
Article II
SALE OF STOCK AND TERMS OF PAYMENT
Section 2.01 THE SALE.
On the terms and subject to the conditions set forth herein, at the
Closing the Seller shall sell, transfer, convey, assign and deliver to
Purchaser and Purchaser shall purchase, acquire and accept from Seller the
Shares.
Sections 2.02 THE PURCHASE PRICE.
(a) In consideration of the aforesaid sale, transfer, conveyance,
assignment and delivery of the Shares, Purchaser hereby agrees on the
terms and subject to the conditions set forth herein, to pay to the
Seller, in payment therefor, the sum of One Hundred Thousand Dollars
($100,000) in immediately available funds and two hundred thousand
shares of Common Stock of XxXxxxxxxxx.xxx Limited (the "Purchase Price").
(b) Payment of the cash portion of the Purchase Price shall be made by
wire transfer of immediately available funds to the account designated
by Seller, at the time or by such other means as may be designated by
the Seller.
Section 2.03 THE CLOSING.
(a) On the terms and subject to satisfaction of the conditions set forth
herein, the closing of the transactions contemplated hereby (the
"Transactions") will take place at the offices of the Seller, at 14555
Avion at Xxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 at 10:00 a.m. on February
22, 1999, or at such other place or time as the parties may agree (the
"Closing"). The date and time at which the Closing actually occurs is
hereinafter referred to as the "Closing Date". All events occuring at
the Closing will, unless otherwise specified, be deemed to have occurred
simultaneously.
(b) At the Closing,
Sale of FuiszDrugstore Ltd.
December 31, 1998
Page 4
(i) Seller will deliver to Purchaser certificates evidencing the
Shares, duly endorsed for transfer and with all transfer stamps
attached. All stock transfer and other Taxes and changes, if any, that
are required to be paid or withheld in connection with the sale and
transfer of the Shares to Purchaser shall be borne equally between the
parties.
(ii) Purchaser will deliver to Seller certificates registered in
the name of Seller representing two hundred thousand shares of common
stock of XxXxxxxxxxx.xxx Limited as well as documentation reasonably
satisfactory to Seller reflecting the simultaneous contribution of the
Shares to XxXxxxxxxxx.xxx Limited, a Delaware corporation.
Article III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Seller represents and warrants to Purchaser as follows:
Section 3.01 STOCK OWNERSHIP: CAPACITY TO SELL
(a) Seller is the beneficial and record owner of the Shares, free and
clear of all liens or other encumbrances (other than liens created by
this Agreement) and the Shares are not subject to any preemptive rights
or restriction on their transferability (other than restrictions on
transfer under applicable federal and state securities laws). At the
Closing, Purchaser will acquire good and marketable title to the Shares
free and clear of all liens or other encumbrances.
(b) Seller has full power and authority to execute and deliver this
Agreement and to consummate the Transactions. The execution and delivery
of this Agreement and the consummation of the Transactions has been duly
and validly authorized and no other proceedings on the part of Seller is
necessary to authorize the execution and delivery of the Agreement or
the consummation of the Transactions. This Agreement constitutes a valid
and binding agreement of the Seller, enforceable against the Seller in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforceability of creditors' rights generally, and except
that the remedy of specific performance or similar equitable relief may
be subject to equitable defenses and to the discretion of the court
before which enforcement is sought.
Section 3.02 ORGANIZATION: QUALIFICATION
(a) Drugstore is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has all
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
Sale of FuiszDrugstore Ltd.
December 31, 1998
Page 5
(b) The certificate of incorporation and the by-laws and all amendments
thereto, and the minute books, stock ledgers and stock transfer records
of Drugstore furnished to Purchaser for review are accurate and complete
in all material respects. Such stock ledgers and stock transfer records
reflect all issuances, registrations of transfer and cancellations of
all shares of capital stock of Drugstore. All meetings of the
shareholders and board of directors (and committees thereof) of
Drugstore were duly called and held and a quorum was present and acting
throughout each such meeting, except in each case where any such failure
does not impair the current business activities, operations, and/or
status of Drugstore in any material respect.
Section 3.03 CAPITALIZATION OF DRUGSTORE
(a) The authorized capital stock of Drugstore consists solely of One
Hundred (100) shares, par value $0.01, of which One Hundred (100) are
designated common stock, of which One Hundred are issued and outstanding.
(b) There is no subscription, option, warrant, call right, agreement or
commitment relating to the issuance, sale, holding, voting, delivery or
transfer (including any right of conversion or exchange under any
outstanding security, instrument or other agreement) of any capital
stock of Drugstore.
(c) No dividend has ever been declared and/or paid on common stock.
Section 3.04 NO OTHER LIABILITIES
Seller represents and warrants to Purchaser that Drugstore has no
assets or liabilities of any kind whatsoever, including but not limited to
those for taxes or employee benefits or any related to Pangea Ltd., other
than as set out in Schedule 1 hereto. There are no, nor have there ever been,
any employees of Drugstore.
Section 3.05 CONSENTS AND APPROVALS; NO VIOLATIONS
Seller represents and warrants that the execution and delivery of
this Agreement does not, and the performance by it of its obligations
hereunder and the consummation of the Transactions, will not, directly or
indirectly:
(a) Conflict with or violate any provisions of the certificate of
incorporation or by-laws (or other similar governing documents) of Seder.
(b) Require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Authority to be made or
obtained by Seller as a result of or in connection with this Agreement
or the Transactions.
(c) Result in a material default, termination, cancellation or
acceleration (or give rise to any material right of termination,
cancellation or acceleration) under any of the terms, conditions or
provisions of any material note, bond, mortgage, indenture, license,
lease, agreement or other material instrument or obligation to
Sale of FuiszDrugstore Ltd.
December 31, 1998
Page 6
which Seller or Drugstore is a party or by which any of them or any of
their respective material assets may be bound
Section 3.06 FINANCIAL STATEMENTS
(a) Seller has provided or made available to Purchaser the consolidated
balance sheet as of December 31, 1998 (the "Balance Sheet").
(b) The Balance Sheet present fairly in accordance with GAAP
consistently applied the financial condition of Drugstore at such date.
Section 3.07 LIABILITIES
Except as reflected in the Financial Statements, there is no
material liability, obligation or indebtedness, secured or unsecured (whether
absolute, accrued, contingent or otherwise, and whether due or to become due)
that is required by GAAP to be set forth on a balance sheet.
Section 3.08 TRADEMARKS, TRADE NAMES
Schedule 2 hereto lists all trademarks, trade names and registered
copyrights owned and currently used by Drugstore and all material licenses
and other material agreements related thereto.
Section 3.09 LITIGATION
There is no action, suit, claim, inquiry, proceeding or
investigation at law or in equity, by or before any court, arbitrator or
Governmental Authority, or to Seller's knowledge, is one threatened, against
or involving Seller or any of its Affiliates which questions or challenges
the validity of this Agreement or any action to be taken by Purchaser, any of
its Affiliates or Seller or any of its Affiliates pursuant to this Agreement
or in connection with the Transactions.
Section 3.10 FINDERS; SUCCESS FEE
Neither Seller nor any of its Affiliates has employed any
investment banker, broker, finder or other intermediary in connection with
the Transactions who is or might be entitled to a fee or commission in
connection with the proposed purchase of the Shares. Neither Seller nor any
of its Affiliates is a party to any agreement pursuant to which any person is
entitled to any success of other fee contingent upon the execution of this
Agreement or consummation of the Transactions.
Article IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Seller as follows:
Sale of FuiszDrugstore Ltd.
December 31, 1998
Page 7
Section 4.01 AUTHORITY
Purchaser has full power and authority to execute and deliver this
Agreement and to consummate the Transactions. This Agreement has been duly
and validly executed and delivered by Purchaser and constitutes a valid
and binding agreement of Purchaser, enforceable against Purchaser in
accordance with its terms, except as the same may be lifted by bankruptcy,
insolvency, reorganization, or other laws relating to or affecting the
enforceability of creditors' rights generally, and except that the remedy of
specific performance or similar equitable relief may be subject to equitable
defenses and to the discretion of the court before which enforcement is
sought.
Section 4.02 CONSENTS AND APPROVALS NO VIOLATIONS
The execution and delivery of this Agreement by Purchaser does not,
and the performance by it of its obligations hereunder and the consummation
of the Transactions, will not, directly or indirectly, require any consent,
approval, authorization or permit of; or filing with or notification to, any
Governmental Authority or other party
Section 4.03 ACQUISITION OF STOCK FOR INVESTMENT
Purchaser is acquiring the Shares for investment and not with a
view toward, or for sale in connection with, any distribution thereof, nor
with any present intention of distributing or selling the Shares. Purchaser
agrees that the Shares may not be sold, transferred, offered for sale,
pledged, hypothecated or otherwise disposed of without registration under the
Securities Act of 1933, except pursuant to an exemption from the registration
available under such Act.
Section 4.04 ACKNOWLEDGEMENT OF POSITION AS EXECUTIVE OFFICER OF SELLER AND
KNOWLEDGE OF DRUGSTORE
Purchaser hereby acknowledges to Seller that he is an executive
officer of Seller, with full participation, direction and knowledge of the
development and operations of Drugstore and Pangea. Resultingly, Purchaser
acquires the Shares with full knowledge of the status, potential prospects
and difficulties of both Drugstore and Pangea.
Section 4.05 LITIGATION
There is no action, suit, claim, inquiry, proceeding or
investigation at law or in equity, by or before any court, arbitrator or
Governmental Authority, or to Purchaser's knowledge, is one threatened,
against or involving Purchaser or any of its Affiliates which questions or
challenges the validity of this Agreement or any action to be taken by
Purchaser, any of its affiliates or Seller pursuant to this Agreement or in
connection with the Transactions.
Section 4.06 FINDERS; SUCCESS FEE
Sale of FuiszDrugstore Ltd.
December 31, 1998
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Neither Purchaser nor any of its Affiliates has employed any
investment banker, broker, finder or other intermediary in connection with
the Transactions who is or might be entitled to a fee or commission in
connection with the proposed purchase of the Shares. Neither Purchaser nor
any of its Affiliates is a party to any agreement pursuant to which any
person is entitled to any success of other fee contingent upon the execution
of this Agreement or consummation of the Transactions.
Article V
COVENANTS
Purchaser and Seller hereby agree as follows:
Section 5.01 COVENANT TO NEGOTIATE TO PROVIDE PRODUCT
Purchaser shall negotiate with Seller from time to time in good
faith to provide to it for sale over the Internet (including telephonic
orders generated by the Drugstore over its Webstar) such products as Seller
produces and distributes to third parties. Products currently supplied to the
Drugstore by Seller shall continue to be furnished to Drugstore on the same
terms and conditions are provided on the date hereof. For the avoidance of
doubt, nothing in the foregoing shall require Seller to breach any obligation
of exclusivity or other covenants to any other party with respect to any
product now or hereinafter manufactured, licensed or sold by Seller.
Section 5.02 MOST FAVORED NATION TREATMENT
Consistent with its responsibilities to third parties, Seller shall
sell to Purchaser such products as may be provided to Purchaser pursuant to
Section 5.01 above on terms no less favorable than it grants to other
purchasers of such products on equivalent terms and conditions. Purchaser
agrees to list for sale of its Internet drugstore such products as Seller may
reasonably request after the date hereof at prices advantageous to Seller.
Section 5.03 TRANSITIONAL ASSISTANCE
For a period of up to nine months, Seller will provide to Purchaser
reasonable assistance in the maintenance of the web site transferred to
Seller pursuant to this Agreement and warehouse and order fulfillment
services as currently provided to the Drugstore and its Affiliates and such
other services as the parties may mutually agree. Seller will promptly
reimburse Purchaser for the costs of such services as such are incurred by
Seller, provided that the amount of such reimbursement shall not exceed
$20,000 per month.
Section 5.04 AGREEMENT ON USE OF NAMES
The parties hereto agree that neither shall, after a period of one
year following the Closing Date, use the name Fuisz in connection with the
name "Drugstore" or words of like meaning or import. Purchaser further agrees
not to take any action, after a period of one
Sale of FuiszDrusgtore Ltd.
December 31, 1998
Page 9
year following the Closing Date, to identify the Drugstore with the Purchaser
or any Affiliate thereof. Purchaser agrees that it is his intent during such
paled not to use the Fuisz name as the primary means of identification of the
Drusgtore or its operations. Purchaser agrees not to establish any competing
Internet drugstore for a period of ten years.
Section 5.05 LINK.
Seller agrees to provide a link to Purchaser on Seller's corporate website
(which shall be the only link for drug and drugstore-related product sales).
ARTICLE VI
CLOSING CONDITIONS
Section 6.01 CONDITIONS TO THE OBLIGATION OF SELLERS TO EFFECT THE
TRANSACTION.
The obligations of the Seller to effect the Transactions shall be subject to
the fulfillment on or before the Closing Date of the following conditions,
any one or more of which may be waived by the Seller:
(a) Each of the obligations of Purchaser to be performed by it on or
before the Closing Date pursuant to the terms of this Agreement shall
have been duly performed on or before the Closing Date in all material
respects.
(b) All actions required to be taken by, or on the part of, Purchaser to
authorize the execution, delivery and performance of this Agreement, and
the consummation of the Transactions shall have been duly and validly
taken.
Section 6.02 CONDITIONS TO THE OBLIGATION OF PURCHASER TO EFFECT THE
TRANSACTION.
(a) Each of the obligations of Seller to be performed by it on or before
the Closing Date pursuant to the terms of this Agreement shall have been
duly performed on or before the Closing Date in all material respects.
(b) All actions required to be taken by, or on the part of, Seller to
authorize the execution, delivery and performance of this Agreement, and
the consummation of the Transactions shall have been duly and validly
taken.
Sale of FuiszDrugstore Ltd.
December 31, 1998
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ARTICLE VII
INDEMNIFICATION
Section 7.01 INDEMNIFICATION BY SELLER.
Seller indemnifies and holds harmless Purchaser and its officers,
Affiliates, successors and assigns (the "purchaser Indemnified Parties") in
respect of any and all claims, losses, damages, liabilities and expenses
(including, without limitation, settlement costs and any legal or other
expenses for investigating or defending any actions or threatened actions),
together with interest thereon at the rate of eight percent (8%) per annum,
compounded annually, from the date incurred until paid, reasonably incurred
by the Purchaser Indemnified Parties in connection why, arising from or as a
result of (i) any breach on the part of the Seller of any representation or
warranty of Seller contained in this Agreement or any document delivered in
connection herewith; (ii) any breach on the part of the Seller of any
covenant of Seller contained in this Agreement or any document delivered in
connection herewith; (iii) any claim in respect of tax liability for
Drugstore resulting from actions taken or omitted prior to the Closing Date;
(iv) any claim against or relating to Pangea Ltd.; or (v) any other claim
against Drugstore by any third party made or resulting from any action or
omission made on or prior to the Closing Date. All indemnification payments
shall be paid by Seller in immediately available funds upon presentation by
the Purchaser indemnified Party of invoices representing indemnifiable
claims, and which invoices may be paid as accrued.
Section 7.02 INDEMNIFICATION BY PURCHASER.
Purchaser indemnifies and holds harmless Seller and its officers,
Affiliates, successors and assigns (the "Seller Indemnified Parties") in
respect of any and all claims, losses, damages, liabilities and expenses
(including, without limitation, settlement costs and any legal or other
expenses for investigating or defending any actions or threatened actions),
together with interest thereon at the rate of eight percent (8%) per annum,
compounded annually, from the date incurred until paid, reasonably incurred
by the Seller Indemnified Parties in connection with, arising from or as a
result of (i) any breach on the part of the Purchaser of any representation or
warranty of Purchaser contained in this Agreement or any document delivered
in connection herewith or (ii) any breach on the part of the Seller of any
covenant of Seller contained in this Agreement or any document delivered in
connection herewith. All indemnification payments shall be paid by Seller in
immediately available funds upon presentation by the Purchaser Indemnified
Party of invoices representing indemnifiable claims, and which invoices may
be paid as accrued.
Section 7.03 CLAIMS FOR INDEMNIFICATION: DEFENSE OF CLAIMS.
(a) In order for an Indemnified Party to be entitled to indemnification
provided for under this Agreement in respect of, arising out of or involving
a claim made by any person against the Indemnified Party (a "Third Party
Claim"), the Indemnified Party must notify Seller (in the event of an
indemnification under Section 7.01 hereof) or the Purchaser (in the event of
indemnification arising under Section 7.02 hereof) in writing of the Third
Party Claim within a reasonable time after receipt of such Third Party Claim,
provided, however,
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December 31, 1998
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that failure to give such notification shall not affect the indemnification
provided hereunder except to the extent the indemnifying parties shall have
been actually prejudiced as a result of such failure. Thereafter, the
Indemnified Party shall give to Seller or Purchaser, as the case may be,
within a reasonable time after the Indemnified Party's receipt thereof,
copies of all notices and documents (including court papers) received by the
Indemnified Party relating to Third Party Claims.
(b) In connection with any Third Party Claim which may give rise to a claim
for indemnification pursuant to Section 7.01 or 7.02, the Indemnified Party
shall consult with the indemnifying party with respect to the defense or
settlement of such claim; provided, however, that such consultation shall
not limit or otherwise affect the Indemnified Party's conduct of the
defense of settlement of such claim.
Section 7.04 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations, warranties, covenants and agreements contained in
this Agreement and in any document delivered in connection herewith shall
survive the Closing and shall remain in full force and effect for a period of
nine months from the Closing Date, regardless of any investigation made by or
on behalf of any party hereto.
ARTICLE VIII
GUARANTY
Section 8.01 GUARANTY.
The Guarantor hereby unconditionally and irrevocably guarantees (the
undertaking being the "Guaranty"), the punctual payment when due, of the
Note. The liability of the Guarantor under this Guaranty is absolute and
unconditional, irrespective of any lack of validity or enforceability of the
Note or any other document, and change in the time manner or place of
payment, any bankruptcy, insolvency or reorganization of the Purchaser or the
Guarantor. The Guarantor hereby waives presentment, demand, promptness,
diligence, notice of acceptance and any other notice with respect to the Note
or this Agrement and any requirement that the Seller protect, secure, perfect
or insure any right of Purchaser.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 AMENDMENT AND MODIFICATION.
Subject to applicable law, this Agreement may be amended, modified or
supplemented only by written agreement of the parties hereto.
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December 31, 1998
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Section 9.02 WAIVER OF COMPLIANCE: CONSENTS.
Except as otherwise provided in this Agreement, any failure of any of
the parties to comply with any obligation, covenant, agreement or condition
herein may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver
or failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a wavier of, or estoppel with
respect to, any subsequent or other failure.
Section 9.03 NOTICES.
(a) All notices and other communications hereunder (the "Notices") shall
be in writing and shall be deemed given if delivered personally or by
overnight delivery service or facsimile transmission, or mailed by
registered or certified mail (return receipt requested), postage prepaid,
to the parties at the addresses set forth at subsection 8.03(b) below (or
at such other address for a party as shall be specified by like Notice);
provided, however, that notices of a change of address shall be effective
only upon receipt thereof. Unless a Notice delivered by facsimile
transmission is transmitted on other than a business day, in which case it
shall be conclusively deemed to be delivered on the next business day
thereafter, and Notices delivered by facsimile transmission shall be
conclusively deemed to be delivered and receded on the date on which such
facsimile is transmitted. Notices delivered by overnight delivery service
shall be conclusively deemed to be delivered and received on the next
business day after such Notice is timely deposited with such overnight
delivery service.
(b) Subject to the foregoing subsection 8.03(a), all Notices shall be
given to the parties at the following addresses:
(i) If to Purchaser, to
Privateer Ltd.
Attn: Xx. Xxxxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
(ii) If to Guarantor, to
Xx. Xxxxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxx Xxxxx
XxXxxx Xxxxxxxx 00000
(iii) If to Seller, to
Xxxxxxx X. XxXxx
President and Chief Executive Officer
Fuisz Technologies Ltd.
14555 Avion at Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
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December 31, 1998
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Section 9.04 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 party hereto
without the prior written consent of the other party, nor is this Agreement
intended to confer upon any other person except the parties hereto any rights
or remedies hereunder.
Section 9.05 GOVERNING LAW
This Agreement shall be governed by the laws of the State of New
York as to all matters, including, without limitation, matters of validity,
construction, effect, performance and remedies.
Section 9.06 SEVERABILITY
If any term or provision specified herein is held by a Court of
competent jurisdiction to be in violation of any applicable local state or
federal ordinance, statute, law, administrative or indicial decision, or
public policy, and if such court should declare such term or provision to be
illegal, invalid, unlawful, void, avoidable or unenforceable as writer, than
such provision shall be given full force and effect to the fullest possible
extent that is legal, valid and enforceable, and the remainder of the terms
and provisions herein shall be construed as if such illegal, invalid,
unlawful, void, avoidable or unenforceable term or provision was not
contained herein, but only to the extent that giving effect to such provision
and the remainder of the terms and provisions hereof shall be in accordance
with the intent of the parties.
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December 31, 1998
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Section 9.07 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
Section 9.08 ENTIRE AGREEMENT
This Agreement, including the schedules referred to herein, embody
the entire agreement and understanding between the parties hereto in respect
of the Transactions. There are no restrictions, promises, representations,
warranties, covenants or undertakings, other than those expressly set forth
or referred to herein or therein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to the
Transactions.
Section 9.09 EXPENSES
Each party hereto will pay all costs and expenses incurred by it or
any of its Affiliates in connection with this Agreement and the Transactions,
including but not limited to costs and expenses of counsel and other
consultants.
Section 9.10 PUBLIC ANNOUNCEMENTS
The parties shall consult with regard to public announcements of
this Agreements and the Transactions.
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December 31, 1998
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
FUISZ TECHNOLOGIES LTD.
/s/ XXXXXXX X. XXXXX
By: Xxxxxxx X. XxXxx
Title: President and Chief Executive Officer
PRIVATEER LTD.
/s/ XXXXXXX X. XXXXX
By: Xx. Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
XXXXXXX X. XXXXX, as Guarantor
/s/ XXXXXXX X. XXXXX
By: Xx. Xxxxxxx X. Xxxxx
