AGREEMENT
between
SIHL
Xxxxxxxxxxxxxx 000
0000 Xxxxxx
Xxxxxxxxxxx
(hereinafter "Vendor")
and
XXXXXX INTERNATIONAL INC.
Xxxxxxxxxxxxxxxxx 00
0000 Xxxxxx
Xxxxxxxxxxx
(hereinafter "Purchaser")
concerning
the Sale and Purchase of all existing Shares of
LANDQART
Landqart SPA / 14 December 2001 - 2 -
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PREAMBLE
WHEREAS
A. Landqart is a Swiss company limited by shares registered with the
Commercial Register of the Canton of Grisons, with a share capital of CHF
30'000'000 divided into 30'000 fully paid up registered shares with a
nominal value of CHF 1'000 each (hereinafter referred to as the "Company").
The Company has not issued any share certificates. The Company is a wholly
owned subsidiary of the Vendor.
B. The Company has outstanding debt in the amount of CHF 8'737'000 against
Vendor. Furthermore, the Company has outstanding short and long term debt
vis-a-vis Graubundner Kantonalbank (hereinafter referred to as "GKB" in the
range of CHF 19 million to 21 million.
C. The Vendor is willing to sell 100% of the Company's shares to the
Purchaser, and the Purchaser is willing to purchase all such shares.
D. The Purchaser and Vendor have signed a Letter of Intent on 14 November 2001
regarding the sale of the Company's shares (hereinafter referred to as the
"LOI").
E. The Purchaser has been provided access to detailed information on the
Company and its management and has undertaken a due diligence examination
of such information (hereinafter referred to as the "Due Diligence").
F. Purchaser has received the business plan of the Company's management of
August 23, 2001 (hereinafter referred to as the "Business Plan") and the
offering memorandum of Altium Capital of September 2001 and confirms its
support of the key strategy to further develop the product lines "Security
and Specialty Papers". Furthermore, Purchaser is in principle willing to
undertake to secure the production place Landquart in the Canton of Grisons
Landqart SPA / 14 December 2001 - 3 -
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NOW THEREFORE, the Parties hereto agree as follows:
1. SALE AND PURCHASE
1.1. OBJECTS OF SALE AND PURCHASE
Subject to the terms and conditions of this Agreement, Vendor undertakes to
sell to Purchaser and Purchaser undertakes to purchase from Vendor 100% of
the issued and outstanding shares of the Company (hereinafter referred to
as the "Shares").
1.2. PURCHASE PRICE
The purchase price for the Shares (hereinafter referred to as the "Purchase
Price") is composed of
(a) An initial payment amount of CHF 1,2 millions payable at Closing
(hereinafter referred to as the "Initial Payment Amount").
(b) A deferred payment amount subject to the achievement of a certain
EBITDA in the period between January 1, - September 30, 2003
(hereinafter referred to as the "Deferred Payment Amount"). In the
event that the Company achieved in the period between January 1, -
September 30, 2003 at least an EBITDA in the amount of CHF 5'372'000,
i.e. 9/12 of 60% of CHF 11'938'000 (hereinafter referred to as "Target
EBITDA") the Deferred Payment Amount will be CHF 3.250'000. In case of
an achieved EBITDA below the Target EBITDA, the Deferred Payment
Amount shall be reduced on a pro rata basis. The Deferred Payment
Amount is payable on or before December 15, 2003.
The calculation of the EBITDA achieved shall be based on unaudited
interim financial statements of the Company for the nine months
starting on January 1, 2003 and ending on September 30, 2003. Such
statements shall be prepared in accordance with the Swiss Code of
Obligations and shall be consistent with past practice. The
calculation of the EBITDA shall be based on the principles listed in
ANNEX 1.2. Vendor has the option to appoint an independent big five
audit firm to verify the EBITDA achieved by the Company.
1.3. PURCHASE PRICE ADJUSTMENTS
The Deferred Payment Amount shall be increased after Closing in the event
that the Company sells any real estate prior to January 1st, 2004 for an
amount in excess of the book value of that real estate (based on the
audited annual statements for the year 2000) by 30 % of the net gain (i.e.
after deduction of transfer tax, taxation of capital gains, notarial and
registry fees and other costs directly related to the sale of such real
estate). The sale of parcels 46, 49, 51, 53, 56, 57 and 943 as registered
with the land register of Landquart to GKB does not entitle Vendor to an
adjustment pursuant to this Section 1.3.
Landqart SPA / 14 December 2001 - 4 -
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2. CLOSING
2.1. DATE OF LOCATION
The closing of this Agreement (hereinafter referred to the "Closing") shall
take place on or about December 14, 2001 (hereinafter referred to as the
"Closing Date") in the offices of Bar & Xxxxxx in Zurich, or at such other
location as mutually agreed upon by the Parties, after all conditions
precedent to Closing pursuant to Section 3 have been satisfied or waived by
Purchaser.
2.2. DELIVERY
At the Closing, Vendor shall present to Purchaser the following documents:
(a) Assignment Declaration ("Zessionsurkunde") regarding all Shares, duly
assigned in favor of Purchaser;
(b) Share register of the Company mentioning the Purchaser as sole
shareholder and the decision of the board of directors of the Company
approving the transfer of the Shares to Purchaser and the entry of
Purchaser in to the share register of the Company;
(c) Resignation letters of the members of the Company's board of directors
as requested by the Purchaser effective as of the Closing Date.
2.3. PURCHASER'S OBLIGATIONS
Upon the Vendor's presentation of said documents, the Purchaser shall give
the Vendor a check issued by a first class Swiss Bank in the amount of CHF
1'200'000.
All actions taken at Closing shall be deemed to have occurred
simultaneously. If any such action has not occurred on the Closing Date,
Closing shall not be deemed to have occurred.
Landqart SPA / 14 December 2001 - 5 -
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2.4. EFFECTS
Ownership as well as all risks and benefits related to the Shares shall
pass to Purchaser at Closing.
2.5. CONDUCT FROM SIGNING TO CLOSING
Vendor undertakes to cause the Company that pending Closing the Company
will (i) operate its business only in the ordinary course consistent with
past practices; (ii) not enter into any material contracts or agreements;
(iii) promptly advice the Purchaser in writing of any material adverse
change in the business of the Company; (iv) maintain the books, records and
accounts of the Company in the ordinary course and record all transactions
on a basis consistent with practice; (v) not increase, in any material
manner, the compensation or employee benefits of any of its directors,
senior officers or employees or pay or agree to pay any of the foregoing in
pension, severance or termination amount or other employee benefit not
required by plans or programs in existence prior to September 30th, 2001,
and (vi) not make any profit distributions by way of dividends,
constructive dividends or otherwise.
3. CONDITIONS PRECEDENT TO CLOSING
The obligations of the Parties to close under this Agreement are subject to
the following conditions to be satisfied or waived by the Purchaser prior
to the Closing Date:
3.1. CHANGE OF CONTROL
OF Xxxxx Xxxxxx Sicherheitsdruck AG shall have declared in writing that it
will not terminate its contracts with the Company due to the change of
control resulting from the transaction envisaged in this Agreement
3.2. WAIVER OF CLAIMS
The claim of Vendor vis-a-vis the Company in the amount of CHF 8'737'000
has been waived by Vendor.
3.3. MATERIAL ADVERSE CHANGE
There shall be no material adverse change in the business of the Company.
Landqart SPA / 14 December 2001 - 6 -
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The Parties undertake to use all efforts to cause the conditions precedent
to Closing to be satisfied or waived by Purchaser prior to the Closing
Date. If these conditions have not been satisfied or waived by Purchaser
prior to the Closing Date, then this Agreement ceases to be effective and
no Party shall have any rights against the other Party except for failure
to use best efforts in accordance with the above undertaking and except
with regard to the obligations under Section 8.2.
4. REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The Vendor hereby represents and warrants to the Purchaser in relation to
the Company as of the Closing Date as follows:
4.1. SHARES
The Vendor has good and marketable title to the Shares, free and clear of
any liens and encumbrances and has full power and authority to sell them to
Purchaser. Share certificates have never been issued regarding the Shares.
The Shares represent all issued shares of the Company. No person or company
has any right to acquire or subscribe to any Shares or shares of the
Company.
4.2. PATENTS TRADEMARKS AND KNOW-HOW AND GOVERNMENTAL LICENSES
AND AUTHORISATIONS
The Company has good and marketable title to the patents and trademarks as
disclosed in ANNEX 4.2, free and clear of any liens and encumbrances.
Except as disclosed in the same Annex the Company has not licensed such
patents and trademarks to third parties. To the best of Vendor's knowledge
such patents and trademarks are not infringed by third parties. The Company
owns or validly licenses all patents, trademark and know-how necessary to
conduct its business. To the best of Vendor's knowledge the Company does
not infringe and has not infringed any intellectual property rights and
know how of third parties.
The Company is in the possession of all governmental licenses and
authorizations necessary to conduct its business. Such governmental
licenses and authorizations are valid and have not been revoked and the
Company is and was in all material respects in compliance with all such
governmental licenses and authorizations.
Landqart SPA / 14 December 2001 - 7 -
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4.3. FINANCIAL STATEMENTS
The financial statements of the Company, meaning the audited balance sheet
and profit and loss statement for the business year 2000 and the unaudited
interim balance sheet and profit and loss statement as per September 30,
2001 listed in ANNEX 4.3 (together referred to as "the Financials")
adequately reflect the financial position and results of the Company on
December 31, 2000, or September 30, 2001 respectively and have been
prepared in accordance with the requirements of the Swiss Code of
Obligations and on a basis consistent with past practice.
In all material respects, the Financials include all assets and liabilities
and contain adequate provisions and/or reserves, in particular for taxes
and pending litigation. This paragraph does not apply to accounting issues
related to environmental contamination as described in Section 7.1.
4.4. REAL PROPERTY
The Company has good and valid title to all real estate as disclosed in the
land register of Landquart, free and clear of any liens and encumbrances
except as disclosed in the land register of Landquart and the Company does
not own other real property.
The Company has good and valid title as lessee to a warehouse at Xxxxxx &
Co, Xxxxxxxx 00X-00000 Xxxxxx (xxx Ulm) and at STF Intern. Transport- und
Speditions-GmbH, Xxxxxxxxxxxxxx 00, Xx-0000 Xxxxxxxxx used for the
operation of its business.
4.5. COMPLIANCE WITH LAW
The Company conducts its business and operates in compliance with all
applicable law, the Purchaser being aware of the documentation "Liste
Gefahrenpotenziale" of November 2001. With regard to environmental
contamination issues Section 7.1 shall apply and supersede any other
provision in this Agreement.
4.6. LITIGATION
Except for the pending litigation with GEVAG the Company is not involved in
any legal, arbitral or administrative proceedings nor are such proceedings
to the best knowledge of Vendor impending or threatened; the Purchaser
being aware of the potential claim in connection with delivery of bank note
paper to Xxxxx Xxxxxx in the amount of approximately CHF 200'000.
Landqart SPA / 14 December 2001 - 8 -
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4.7. INSURANCE
The Company is covered by insurance reasonably necessary or required by
law.
4.8. NO OTHER REPRESENTATIONS AND WARRANTIES
The Vendor does not make any other implied or express representations or
warranties other than those set forth in Section 4.
5. INDEMNIFICATION
5.1. INDEMNIFICATION BY THE VENDOR
5.1.1. General Principle
Following the Closing, any and all claims of the Purchaser against the
Vendor arising out of any breach of the representations or warranties of
Vendor contained in this Agreement shall exclusively be based on this
Section 5.
5.1.2. Liability of Vendor
In the event of any breach of the representations and warranties by the
Vendor as contained in Section 4, the Purchaser shall be entitled to claim
a reduction of the Deferred Payment Amount, as adjusted according to
Section 1.3, ("Minderung") and/or to claim damages within the limits of
Section 5.1.3 - 5.1.5. Any other contractual or extra-contractual action or
relief, in particular rescission of this Agreement ("Wandelung") pursuant
to art. 205 of the Swiss Code of Obligations, is hereby expressly excluded.
5.1.3. Assessment of Claims
There shall be liability of the Vendor only with respect to such claims
which, individually, exceed CHF 20'000 (twenty thousand Swiss Francs) each
and which, in the aggregate exceed CHF 1'000'000 (one million Swiss
Francs). Once such threshold amount has been exceeded Purchaser may claim
not only the amount above CHF 1'000'000, but also between CHF 1 and CHF
1'000'000.
5.1.4. Maximum Recovery
Notwithstanding anything in this Agreement to the contrary, the Vendor's
liability, meaning the maximum indemnification payment by Vendor under this
Section 5 shall not exceed the Deferred Payment Amount, as adjusted
according to Section 1.3.
Landqart SPA / 14 December 2001 - 9 -
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5.1.5. Exclusions
Vendor's liability shall be excluded:
a) if and to the extent the facts or circumstances giving rise to the
damage or loss have been duly disclosed by the Vendor during
negotiation of or in the present Agreement (including, but not limited
to the disclosure in the Due Diligence, and during management and
other interviews) or should have been known otherwise by the Purchaser
on or before the Closing Date; or
b) if and to the extent that such breach can be remedied by specific
performance, the Vendor has, within 60 days following receipt of the
Purchaser's notice, chosen to do so; or
c) if and to the extent that the Purchaser has received recovery for such
damages or loss under any title whatsoever from a third party
(including but not limited to recovery under any insurance policy),
or, if non-recovery is the result of the Purchaser's and, after the
Closing, the Company's failure to exercise best efforts to obtain
recovery; or
d) if and to the extent the loss could have been avoided by the Purchaser
and, after the Closing, by the Company had they complied with their
legal obligation to minimize damages, or
e) if and to the extent such damage or loss arises or increases as a
result of (i) any new issued or modified legislation (including but
not limited to tax legislation) after the Closing Date, or (ii)
modified accounting principles after the Closing Date or (iii) any
voluntary act or omission by the Purchaser or the Company after the
Closing Date (including but not limited to omission of appropriate
insurance coverage policies in order to maintain insurance at level
prior completion of this Agreement); or
f) if and to extent that the claim has been properly reserved for in the
financial statements of the Company; or
g) if and to the extent that, as a result of a claim for
misrepresentation or breach of warranty, any tax payable by the
Company is reduced.
Landqart SPA / 14 December 2001 - 10 -
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5.2. SURVIVAL AND NOTICE OF CLAIMS
The representations and warranties of the Vendor contained in Section 4
above shall be valid and enforceable until seven months after the Closing
Date ("Xxxx-, Gewahrleistungs- und Verjahrungsfrist"). Purchaser can notify
Vendor at any time during these seven months that a breach of a
representation and warranty occurred.
6. FINANCING COMMITMENT OF PURCHASER
Subsequent to Closing Purchaser will contribute CHF 10.0 to 12.0 million to
the capital of the Company by a combination of share capital, subordinated
loans and project finance based on the needs of the Company regarding
working capital, liquidity and capital expenditures according to the
Business Plan to extent that such contributions are economically
justifiable.
7. COVENANTS
7.1. ENVIRONMENTAL INDEMNITY
In connection with environmental contamination which were (i) caused prior
to Closing but were (ii) not disclosed to Purchaser prior to the signing of
this Agreement or (iii) for which clean-up is not foreseen in the Business
Plan, the Vendor will reimburse within the limits stated hereinafter the
Purchaser 50% of all disbursements exceeding CHF 150'000 provided that such
disbursements are caused by or incurred in connection with an order by a
competent authority made prior to December 15, 2003 ordering the clean-up
of any environmental contamination. Such indemnity by the Vendor is only
due up to the maximum of the Deferred Payment Amount (after any set-off or
compensation under Section 5) as per Section 1.2 (b) and will be paid by
compensation, in part or total, with the Deferred Payment Amount. The
indemnity will only be due if the business continues to operate within the
present framework and if the order is not made in connection with a change
in applicable rules or practice of the authorities.
7.2. ACCESS TO INFORMATION PRIOR TO THE CLOSING DATE
Between Signing and Closing, the Vendor shall and shall cause the
Company's officers, directors, employees and auditors to furnish to the
representative of the Purchaser such financial and operating data and other
information regarding the assets, properties, and the business of the
Company as Purchaser may reasonably request; provided, however, that such
investigation shall not unreasonably interfere with the business or
operation of the Company and provided that the delivery of such data and
information does not violate applicable laws.
Landqart SPA / 14 December 2001 - 11 -
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7.3. ACCESS TO INFORMATION AFTER THE CLOSING DATE
Each Party agrees that it will co-operate with and make available to the
other Party, during normal business hours, all books and records and
information (without substantial disruption of employment) retained and
remaining in existence after the Closing Date which are necessary or
relevant in connection with any tax filing, inquiry or dispute, in any
third party litigation or any other matter requiring any such records or
information in relation to the performance of this Agreement. The Party
requesting any such information shall bear all reasonable out of pocket
costs and expenses (including, but not limited to reasonable attorneys'
fees, but excluding reimbursements for salaries and employee benefits)
incurred in connection with providing such information. Specifically,
Vendor may require certain financial information relating to the business
for periods prior to the Closing Date for the purpose of filing federal,
state, local and/or foreign tax returns and other governmental reports, and
Purchaser agrees to furnish such information to Vendor at Vendor's request.
7.4. PRESERVATION OF RECORDS
The Purchaser agrees that it shall preserve and keep all books and records
relating to the Company for the period prior to the Closing Date in the
Purchaser's possession for a period of at least 10 years from the Closing
Date.
7.5. INFORMATION TO EMPLOYEES
Information for the employees of the Company with respect to the
transactions pursuant to this Agreement shall be agreed upon by the parties
in respect of time, form and contents, and be made prior to or simultaneous
with any public announcement.
7.6. PENSION FUNDS
Vendor will continue to provide for pension and further cover for the
employees for a transition period (hereinafter referred to as the
"Transition Period") beginning on the Closing Date and ending not later
than June 30, 2002 under the present "Vorsorgeeinrichtung Sihl"
(hereinafter referred to as the "Vendor's Fund I"), the present
"Wohlfahtsstiftung der Sihl" (hereinafter referred to as the "Vendor's Fund
II") and further schemes of the second column like the "Sammelstiftung
Mythen, Zurich Versicherungsgesellschaft". Purchaser undertakes to cause
Company to pay or to make arrangements for payment of all contributions
required under the applicable regulations of the Vendor's Fund I and the
further schemes during such Transition Period.
Landqart SPA / 14 December 2001 - 12 -
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Purchaser undertakes to set up during the Transition Period a new pension
or to designate an existing pension fund (hereinafter referred to as the
"Purchaser's Fund") which shall insure the employees. Purchaser shall
inform the Vendor with a notice period of 60 days about the transfer of the
employees to Purchaser's Fund. The principles of the partial liquidation
of Vendor's Fund I, Vendor's Fund II and the further schemes, and,
correspondingly, the transfer of assets and liabilities to Purchaser's
Fund, including but not limited to the transfer of the claims of the
employees and others, the transfer of an adequate portion of the employer's
contribution reserves and other reserves and the transfer and of an
adequate portion of the free assets ("freies Stiftungsvermogen"), shall be
agreed upon by the Parties in accordance with applicable law. It is
understood that such agreement is subject to the approval of the competent
authorities.
7.7. INSURANCE
Vendor will use its best efforts to provide insurance coverage to the
Company consistent with past practice until December 31, 2002. The Company
will be charged the respective premiums in accordance with past practice.
Vendor undertakes to procure insurance coverage for the Company by June 30,
2002 effective January 1, 2003. The Parties will closely co-operate so as
to ensure that there is no unnecessary loss in insurance coverage,
especially in case of claims made insurance policies. Upon request Vendor
will extend these deadlines by up to 3 months.
7.8. OTHER TRANSITIONAL SERVICES AND RIGHTS
a) Vendor will continue to provide financial accounting software to the
Company consistent with past practice until December 31, 2002. The
Company will be charged the respective costs in accordance with past
practice. Vendor undertakes to cause the Company to procure an
independent solution regarding financial accounting software of the
Company by December 31, 2002 (effective date). The Company estimates
that the costs for procurement of new financial accounting software
will be in the range of CHF 50'000 - 100'000.
b) Vendor undertakes to transfer to the Company by June 30, 2002
(effective date) at the latest all contracts with third parties
currently performed by the Company but entered into in the name of
Vendor. If consent of such third parties is not obtained by June 30,
2002, the Company will obtain through a subcontracting arrangement or
otherwise and subject to the terms of those contracts, all claims,
rights and benefits and assume all obligations to best achieve the
economic result of a transfer of those contracts to the Company.
Landqart SPA / 14 December 2001 - 13 -
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c) Purchaser will cause the Company to transfer at the Company's cost the
trademarks Sihlart, Sihl Mill, Sccurshil and Sihlprint to Vendor
immediately after Closing and effective before June 30, 2002. Vendor
will grant the Company a licence to use the trademarks Sihl Xxxxx and
Sihl Art consistent with past practice and without any payment to
Vendor until December 31, 2004.
7.9. COMPANY'S MEMBERS OF BOARD OF DIRECTORS
The Purchaser undertakes to hold immediately after Closing an extraordinary
shareholders' meeting, which will (a) acknowledge the resignation of the
board members whose resignation has been requested by Purchaser and (b)
grant discharge to all board members for the business year 2001 and until
Closing in accordance with art. 698 of the Swiss Code of Obligations.
7.10. DUTY TO CO-OPERATE
Vendor, Purchaser and Company undertake to co-operate fully, as and to the
extent reasonably requested by the other Party, in connection with the
filing of tax returns and any audit, litigation or other proceedings in
order to safeguard their interests vis-a-vis third parties. In particular,
Vendor will fully co-operate with the Company and its advisers with regard
to the national transfers of the patent EP0490825 in Austria, Spain, the UK
and Italy to the Company and with regard to the transfer and endorsement of
share certificates No 1-6 of Landqart management and services (formerly
"Portals-Sihl AG") to the Company.
8. MISCELLANEOUS
8.1. TRANSACTION COSTS
All costs relating to this Agreement shall be borne by the Parties hereto,
with each Party bearing its own costs (including but not limited to
attorney's fees, financial advisers, taxes, etc.). The stamp duly payable
on the capital of the Company due to the spin-off in 1999 in the amount of
approximately CHF 300'000 shall be borne by the Company.
Landqart SPA / 14 December 2001 - 14 -
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8.2. CONFIDENTIALITY
The Parties undertake to keep the contents of this Agreement confidential
and not to inform any third party (except GKB and the management of the
Company) about its content unless required to do so by law or applicable
stock exchange regulations or unless mutually agreed upon by the Parties.
All documents and information handed out during contractual negotiations
are confidential and may not be made available or shown to third parties,
even in case this Agreement will not enter into full force and effect or
will at a later point in time be regarded as null and void.
8.3. PUBLIC ANNOUNCEMENTS
Both Vendor and Purchaser shall consult each other before issuing any press
release or otherwise making any public statement with respect to this
Agreement and shall not issue any such press release or make any such
public statement prior to such consultation and without the other Party's
prior written approval.
8.4. WAIVER/REMEDIES
Except if applicable law or this Agreement require the exercise of a right
within a certain period of time, no delay on the part of any Party in
exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver or partial exercise on the part of the
Parties of any right, power or privilege hereunder, preclude any other or
further exercise thereof of the exercise of any other right, power or
privilege which is not precluded by this Agreement.
8.5. AMENDMENTS AND MODIFICATIONS
This Agreement may not be amended or modified except by a document in
writing duly executed by the parties hereto. This undertaking itself may
only be modified by an agreement in writing. The Parties agree that they
jointly negotiated and prepared this Agreement and that it shall not be
construed against any Party on the grounds that such Party prepared or
drafted the same.
Landqart SPA / 14 December 2001 - 15 -
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8.6. NOTICES
Notices hereunder shall be in writing. Notice shall be deemed received upon
receipt of a registered letter addressed as follows:
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If to the Vendor: Sihl, Melk X. Xxxxxx. Xxxxxxxxxxxxxx 000, 0000 Xxxxxx
Copy to: lic. jur. et oec. Xxxxxx X. Xxxxxxx,
Bar & Xxxxxx, Xxxxxxxxxxxxxx 00, 0000 Xxxxxx,
Xxxxxxxxxxx
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If to the Purchaser: Xxxxxx International Inc, Xxxxxxxxxxxxxxxxx 00,
0000 Xxxxxx, Xxxxxxxxxxx
Copy to: Xx. Xxxxxx Xxxxxxx, Xxxxxx Xxxx & Partner,
Xxxxxxxxxxxx 0, Xxxxxxxx 0000, 0000 Xxxxxx,
Xxxxxxxxxxx
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8.7. SEVERABILITY
Each provision of this Agreement shall be interpreted in such manner as to
be effective and valid under the applicable law, but if any provision of
this Agreement shall be unenforceable or invalid under applicable law, such
provision shall be ineffective only to the extent of such unenforceability
or invalidity and be replaced by such valid enforceable provision which the
Parties consider, in good faith, to match as closely as possible the
invalid or unenforceable provision and attaining the same or a similar
economic effect. The remaining provisions of this Agreement shall continue
to be binding and in full force and effect.
8.8. ASSIGNMENT
No party may assign, in whole or in part, or delegate all or any part of
its rights, interests or obligations under this Agreement to any person
without the prior written approval of the other Party, such approval is not
to be unreasonably withheld.
Landqart SPA / 14 December 2001 - 16 -
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8.9. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the
internal law of Switzerland (excluding Swiss Private International Law and
International Treaties).
8.10. DISPUTE RESOLUTION
All disputes arising out of or in connection with this Agreement, including
disputes on its conclusion, binding effect, amendment and termination shall
be settled by the Court of Commerce (Handelsgericht) of the canton Zurich.
8.11. COUNTERPARTS
This Agreement is executed in four counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
instrument.
(Place, Date): Zurich, December 14, 2001 (Place, Date):
------------------------- -----------------------
Sihl
by: /s/ Xxxxxx Xxxxxxx by: /s/ Xxxxx Xxx
------------------------------------ ----------------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxx X. X. Xxx
Title: [UNIDENTIFIABLE] Title: Chairman
