1
EXHIBIT 2.4
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is entered into as
of this _____ day of ____ 2000, by and between American Spectrum Realty, Inc.,
a Maryland corporation (the "Company" or "American Spectrum") and Sierra
Pacific Institutional Properties V (the "Merging Entity").
RECITALS:
WHEREAS, the American Spectrum and the Merging Entity (the "Parties,"
and individually, a "Party") hereto desire to merge the Merging Entity with and
into American Spectrum, pursuant to the Maryland General Corporation Law (the
"Maryland GCL"), and California, with American Spectrum being the surviving
entity (the "Merger") as set forth in the registration statement of the Company
on Form S-4, No. 33-_______ including all amendments thereto (the "Registration
Statement"), filed with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), of
which the Prospectus/Consent Solicitation Statement of the Company (the
"Prospectus/Consent Solicitation Statement") is a part; and
WHEREAS, American Spectrum and the Merging Entity have received a
fairness opinion (the "Fairness Opinion") from Xxxxxx X. Xxxxxxx & Co., Inc.
("Xxxxxxx"), an independent financial advisor that the allocation of the
American Spectrum Common Shares (i) between the Funds, as a group, and the CGS
Affiliates, including the CGS Management Company, and (ii) among the Funds, is
fair to the Limited Partners of the Merging Entity from a financial point of
view; and
WHEREAS, the Company's Articles of Incorporation and Bylaws permit, and
resolutions adopted by the Company's board of directors authorize, this
Agreement and the consummation of the Merger; and
WHEREAS, the Parties hereto anticipate that the Merger will further
certain of their business objectives.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the receipt and sufficiency of which are
acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under
1
2
the Securities Exchange Act of 1934, as amended.
"Affiliates' Properties" means properties held or controlled by
affiliates of CGS and which will be owned by American Spectrum immediately
following the consummation of the Merger.
"Agreement" means this Agreement, as amended from time to time.
"American Spectrum" has the meaning set forth in the preface above.
"American Spectrum Certificate of Merger" has the meaning set forth in
Section 2.2 below.
"American Spectrum Common Shares" shall mean the shares of common
stock, $.01 par value, of American Spectrum.
"American Spectrum Preferred Shares" has the meaning set forth in
Section 6.2 below.
"Business Combination" has the meaning set forth in Section 4.1 below.
"CGS" means CGS Real Estate Company, Inc.
"CGS Affiliates" means CGS and its affiliates.
"CGS Management Company" means the portion of CGS's property management
business which manages the properties of the Funds and the Affiliated Entities.
"Closing" has the meaning set forth in Section 2.3 below.
"Closing Date" has the meaning set forth in Section 2.3 below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Effective Time" has the meaning set forth in Section 2.2 below.
"Fairness Opinion" has the meaning set forth in the second paragraph
of the Recitals above.
"Funds" means Sierra Pacific Development Fund I, Sierra Pacific
Development Fund II, Sierra Pacific Development Fund III, Sierra Pacific
Institution Properties V, Sierra Pacific Pension Investors '84, Xxxxxx Income
Fund Ltd., L.P., Xxxxxx Income Fund Ltd. II, L.P. and Xxxxxx Real Property
Investors-Two, L.P.
"Limited Partner" means a limited partner of the Merging Entity.
2
3
Limited Partnership Units has the meaning set forth in Section 2.1
below.
"Managing General Partner" means the managing general partner of the
Merging Entity.
"Maryland GCL" has the meaning set forth in the first paragraph of the
Recitals above.
"Material Adverse Effect" means, as to any Party, a material adverse
effect on the business, properties, operations or condition (financial or
otherwise) which is not related to any industry-wide change in the economy or
market or other conditions affecting all businesses in the industry of the
Party to which the term is applied.
"Merger" has the meaning set forth in the first paragraph of the
Recitals above.
"Merging Entity" has the meaning set forth in the preface above.
"Merging Entity's Certificate of Merger" has the meaning set forth in
Section 2.2 below.
"Note Option" has the meaning set forth in paragraph 4.1 below.
"Notes" has the meaning set forth in paragraph 4.2 below.
"Party" or "Parties" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, a limited
liability company, an unincorporated organization, a governmental entity (or
any department, agency, or political subdivision thereof) or other entity.
"Prospectus/Consent Solicitation Statement" has the meaning set forth
in the first paragraph of the Recitals above.
"Registration Statement" has the meaning set forth in the first
paragraph of the Recitals above.
"SEC" has the meaning set forth in the first paragraph of the Recitals
above.
"Securities Act" has the meaning set forth in the first paragraph of
the Recitals above.
"Share Consideration" has the meaning set forth in Section 4.1.
"Xxxxxxx" has the meaning set forth in the second paragraph of the
Recitals above.
"Surviving Corporation" has the meaning set forth in Section 2.1 below.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll,
3
4
employment, excise, severance, stamp occupation, premium, windfall profits,
environmental (including taxes under Code (S) 59A), customs duties, capital
stock, franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on minimum, estimated,
or other tax of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
ARTICLE II
MERGER; EFFECTIVE TIME; CLOSING
2.1 Merger.
Subject to the terms and conditions of this Agreement, the Maryland GCL
and the California Revised Limited Partnership Act, at the Effective Time, the
Merging Entity and American Spectrum shall consummate the Merger in which (i)
the Merging Entity shall be merged with and into American Spectrum and the
separate existence of the Merging Entity shall cease to exist, (ii) American
Spectrum shall be the successor or surviving corporation in the Merger and
shall continue to be governed by the laws of Maryland and (iii) the properties,
other assets and liabilities of the Merging Entity will be deemed to have been
transferred to American Spectrum. The corporation surviving the Merger is
sometimes hereinafter referred to as the "Surviving Corporation." The Merger
shall have the effects set forth in the Maryland GCL and the California Revised
Limited Partnership Act. Pursuant to the Merger, American Spectrum will issue
American Spectrum Common Shares or, in certain circumstances, as set forth in
Section 4.2 below, Notes in exchange for limited partnership units, of the
Merging Entity (the "Limited Partnership Units").
2.2 Effective Time.
On the Closing Date, subject to the terms and conditions of this
Agreement, the Merging Entity and American Spectrum shall (i) cause to be
executed (A) a certificate of merger in the form required by the Maryland GCL
(the "American Spectrum Certificate of Merger") and (B) a certificate of merger
in the form required by the California Revised Limited Partnership Act (the
"Merging Entity's Certificate of Merger"), and (ii) cause the American Spectrum
Certificate of Merger to be filed with the Maryland Department of Assessments
and Taxation as provided in the Maryland GCL and the Merging Entity's
Certificate of Merger to be filed with the California Secretary of State. The
Merger shall become effective at (i) such time as the American Spectrum
Certificate of Merger has been duly filed with the Maryland Department of
Assessments and Taxation or (ii) such other time as is agreed upon by the
Merging Entity and American Spectrum and specified in the Merging Entity's
Certificate of Merger and the American Spectrum Certificate of Merger. Such
time is hereinafter referred to as the "Effective
4
5
Time."
2.3 The Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of
_____________________, commencing at 9:00 a.m. local time on such date as
within five (5) business dates following the fulfillment or waiver of the
conditions set forth in Article IX (other than conditions which by their nature
are intended to be fulfilled at the Closing) or at such other place or time or
on such other date as the Managing General Partner of the Merging Entity and
American Spectrum may agree or as may be necessary to permit the fulfillment or
waiver of the conditions set forth in Article IX (the "Closing Date"), but in
no event later than __________.
ARTICLE III
NAME; ARTICLES OF INCORPORATION; BY-LAWS; AND
DIRECTORS AND OFFICERS OF SURVIVING CORPORATION
3.1 Name. The Name of the surviving corporation shall be American
Spectrum Realty, Inc.
3.2 Articles of Incorporation. The articles of incorporation of
American Spectrum, as in effect immediately prior to the Effective Time, shall
be the articles of incorporation of the Surviving Corporation until thereafter
amended as provided therein.
3.3 By-Laws. The by-laws of American Spectrum, as in effect
immediately prior to the Effective Time, shall be the by-laws of the Surviving
Corporation.
3.4 Directors and Officers. The directors and officers of American
Spectrum immediately prior to the Effective Time shall be the directors and
officers of the Surviving Corporation from and after the Effective Time until
their successors have been duly elected, appointed or qualified or until their
earlier death, resignation or removal in accordance with the articles of
incorporation and by-laws of the Surviving Corporation.
ARTICLE IV
CONSIDERATION
4.1 Share Consideration. (a) At the Closing, the Limited Partners
other than those Limited Partners who vote against the Merger and affirmatively
elect to receive notes (the "Note Option") will be allocated American Spectrum
Common Shares (the "Share Consideration") in accordance with the final
Prospectus/Consent Solicitation Statement included in the Registration
Statement.
(b) Prior to the Effective Time, if American Spectrum splits or
combines American Spectrum Common Shares, or pays a stock dividend or other
stock distribution in American Spectrum Common Shares, or in rights or
securities exchangeable or convertible into or exercisable for American
Spectrum Common Shares, or otherwise changes the American
5
6
Spectrum Common Shares into, or exchanges the American Spectrum Common Shares
for, any other securities (whether pursuant to or as part of a merger,
consolidation, acquisition of property or stock, separation, reorganization, or
liquidation of American Spectrum as a result of which American Spectrum
stockholders receive cash, stock, or other property in exchange for, or in
connection with, their American Spectrum Common Shares (a "Business
Combination") or otherwise)), then the American Spectrum Common Shares to be
received by the Limited Partners of the Merging Entity will be appropriately
adjusted to reflect such event.
(c) At the Effective Time, by virtue of the Merger and without any
action by holders thereof, all of the American Spectrum Common Shares issued
and outstanding prior to the Effective Time shall remain issued and
outstanding.
4.2 Note Consideration. Notwithstanding Section 4.1 above and
subject to the limitations described herein, those Limited Partners who, in
connection with the Merger, affirmatively elect the Note Option shall receive
notes (the "Notes"). The principal amount of the Notes will be determined in
accordance with the final Prospectus/Consent Solicitation Statement. In the
event that any of the Limited Partners elect the Note Option, the number of
American Spectrum Common Shares allocated to the Merging Entity will be reduced
in accordance with the final Prospectus/Consent Solicitation Statement.
4.3 Fractional American Spectrum Common Shares. No certificates
representing fractional American Spectrum Common Shares shall be issued. Each
Limited Partner who would otherwise be entitled to a fractional American
Spectrum Common Shares will receive one American Spectrum Common Share for each
fractional interest representing 50% or more of one American Spectrum Common
Share. No American Spectrum Common Shares will be issued for a fractional
interest representing less than 50% of an American Spectrum Common Share.
4.4 Issuance of Shares. American Spectrum shall designate an
exchange agent (the "Exchange Agent") to act as such in connection with the
issuance of certificates representing the American Spectrum Common Shares
pursuant to this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF AMERICAN SPECTRUM
American Spectrum represents and warrants to the Limited Partners and
the Merging Entity that the statements contained in this Article V are correct
and complete as of the date hereof:
5.1 Organization, Qualification and Corporate Power. American
Spectrum is a corporation duly organized, validly existing, and in good
standing under the laws of Maryland, as set forth in the Preface. American
Spectrum is duly authorized to conduct business and is in good standing under
the laws of each jurisdiction where such qualification is required, except
where failure to so qualify or obtain authorization would not have a Material
Adverse Effect on American Spectrum.
6
7
5.2 Authorization for Common Stock. The Share Consideration will,
when issued, be duly authorized, validly issued, fully paid and nonassessable,
and no stockholder of American Spectrum will have any preemptive right or
similar rights of subscription or purchase in respect thereof.
5.3 Authorization of Transaction. American Spectrum has full power
and authority (including full corporate power and authority) to execute and
deliver this Agreement and to perform its obligations hereunder. The
execution, delivery and performance by American Spectrum of this Agreement has
been duly and validly authorized by the board of directors of American
Spectrum. This Agreement constitutes the valid and legally binding obligation
of American Spectrum, enforceable in accordance with its terms and conditions.
American Spectrum is not required to give any notice to, make any filing with,
or obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions contemplated by
this Agreement, except in connection with the federal securities laws, the Xxxx
Xxxxx Xxxxxx Act, if applicable, and any applicable "Blue Sky" or state
securities laws.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES CONCERNING
THE MERGING ENTITY
The Merging Entity represents and warrants to American Spectrum that
the statements contained in this Article VI are correct and complete as of the
date hereof.
6.1 Organization, Qualification and Corporate Power. The Merging
Entity is a limited partnership duly organized, validly existing, and in good
standing under the laws of California, as set forth in the Preface. The
Merging Entity is duly authorized to conduct business and is in good standing
under the laws of each jurisdiction where such qualification is required,
except where failure to so qualify or obtain authorization would not have a
Material Adverse Effect on the Merging Entity.
6.2 Authorization of Transaction. Subject to the approval of the
Limited Partners, the Merging Entity has full power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. This
Agreement constitutes the valid and legally binding obligation of the Merging
Entity, enforceable in accordance with its terms and conditions. The Merging
Entity is not required to give any notice to, make any filing with, or obtain
any authorization, consent or approval of any governmental agency in order to
consummate the transactions contemplated by this Agreement, except in
connection with federal securities laws, the Xxxx Xxxxx Xxxxxx Act, if
applicable, and any applicable "Blue Sky" or state securities laws.
ARTICLE VII
PRE-CLOSING COVENANTS
7
8
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing:
7.1 General. Each of the Parties will use its reasonable best
efforts to take all action and to do all things necessary, proper or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions
set forth in Article IX below).
7.2 Notices and Consents. Each of the Parties shall give any
notices to, make any filings with, and use its reasonable best efforts to
obtain any authorizations, consents, and approvals of governments and
governmental agencies in connection with the matters referred to in Sections
9.1 below.
ARTICLE VIII
POST-CLOSING COVENANTS
The Parties agree as follows with respect to the period following the
Closing:
8.1 General. In the event that at any time after the Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement, each of the Parties will take such further action (including the
execution and delivery of such further instruments and documents) as any other
Party reasonably may request, all at the sole cost and expense of the
requesting Party. The Merging Entity acknowledge and agree that from and after
the Closing, the Surviving Corporation will be entitled to possession of all
documents, books, records (including Tax records), agreements and financial
data of any sort relating to the Merging Entity but will provide the Limited
Partners with reasonable access to such documents, books and records upon
request.
8.2 Litigation Support. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving the Merging Entity, the other Party will
cooperate with him and his counsel in the contest or defense, make available
their personnel, and provide such testimony and access to their books and
records as shall be necessary in connection with the contest or defense, all at
the sole cost and expense of the contesting or defending Party.
8.3. Share Registration. American Spectrum shall use commercially
reasonable efforts to register the American Spectrum Common Shares within one
year of the consummation of the Merger.
ARTICLE IX
CONDITIONS TO OBLIGATION TO CLOSE
8
9
9.1 Conditions to Each Party's Obligation. The respective
obligations of American Spectrum, the Limited Partners and the Merging Entity
to consummate the transactions contemplated by this Agreement are subject to
the fulfillment at or prior to the Closing Date of each of the following
conditions, which conditions may be waived upon the written consent of American
Spectrum and the Merging Entity:
(a) Governmental Approvals. The Parties shall have received all
other authorizations, consents, and approvals of governments and governmental
agencies required in connection with the consummation of the transaction
contemplated hereby.
(b) No Injunction or Proceedings. There shall not be an unfavorable
injunction, judgment, order, decree, ruling, or charge would, in the reasonable
judgment of American Spectrum, prevent consummation of any of the transactions
contemplated by this Agreement.
(c) No Suspension of Trading, Etc. At the Effective Time, there
shall be no declaration of a banking moratorium by federal or state authorities
or any suspension of payments by banks in the United States (whether mandatory
or not) or of the extension of credit by lending institutions in the United
States, or commencement of war or other international, armed hostility or
national calamity directly or indirectly involving the United States, which
war, hostility or calamity (or any material acceleration or worsening
thereof), in the reasonable judgment of American Spectrum, would have a
Material Adverse Effect on the Merging Entity.
(d) Minimum Value of American Spectrum's Property. At the Effective
Time, American Spectrum shall own property having an appraised value, as
determined by Xxxxxxx, of not less than $200,000,000.
(e) American Spectrum Common Shares shall have been approved for
listing on notice of issuance on a national securities exchange acceptable to
American Spectrum.
9.2 Conditions to Obligation of the Merging Entity. The obligations
of the Merging Entity to consummate the transactions contemplated hereby and
take the actions to be performed by it in connection with the Closing are
subject to satisfaction of the following conditions:
American Spectrum shall have delivered to the Limited Partners the
Share Consideration pursuant to Section 4.1.
ARTICLE X
TERMINATION
10.1 Termination by Mutual Consent. This Agreement may be terminated
and the Merger may be abandoned at any time prior to its Effective Time, before
or after the approval of the Limited Partners of the Merging Entity or American
Spectrum, respectively, either by the mutual written consent of American
Spectrum and the Merging Entity or by the mutual action of the board of
directors of American Spectrum and the Managing General Partner of the Merging
9
10
Entity.
10.2 Termination by Either American Spectrum or the Merging Entity.
This Agreement may be terminated and the Merger may be abandoned (a) by action
of American Spectrum in the event of a failure of a condition to the
obligations of American Spectrum set forth in Section 9.1 of this Agreement;
(b) by the Managing General Partner or the vote of a majority in interest of
the Limited Partners of the Merging Entity in the event of a failure of a
condition to the obligations of the Merging Entity set forth in Section 9.1 or
9.2 of this Agreement; or (c) if a United States or federal or state court of
competent jurisdiction or United States federal or state governmental agency
shall have issued an order, decree or ruling or taken any other action
permanently restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement and such order, decree, ruling or other action
shall have become final and non-appealable; provided, in the case of a
termination pursuant to clause (a) or (b) above, that the terminating party
shall not have breached in any material respect its obligations under this
Agreement in any manner that shall have proximately contributed to the
occurrence of the failure referred to in said clause.
10.3 Effect of Termination and Abandonment. In the event of
termination of this Agreement and abandonment of the Merger pursuant to this
Article X, no Party hereto (or any of its directors, officers, Managing General
Partners or Limited Partners) shall have any liability or further obligation to
any other Party to this Agreement, except that nothing herein will relieve any
Party from liability for any breach of this Agreement.
ARTICLE XI
MISCELLANEOUS
11.1 No Third-Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
11.2 Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they related in any way to the
subject matter hereof.
11.3 Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior
written approval of American Spectrum and the Managing General Partner;
provided, however, that American Spectrum may (i) assign any or all of its
rights and interests hereunder to one or more of its Affiliates and (ii)
designate one or more of its Affiliates to perform its obligations hereunder
(in any or all of which cases American Spectrum nonetheless shall remain
responsible for the performance of all of its obligations hereunder).
10
11
11.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
11.5 Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.6 Notices. All notices, requests, demands, claim, or other
communication hereunder shall be deemed duly given, as of the date two business
days after mailing, if it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:
If to the Merging Entity:
c/o Xxxxxxx X. Xxxxxx
Chief Executive Officer
American Spectrum Realty, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
With copy to:
If to American Spectrum:
Xxxxxxx X. Xxxxxx
Chief Executive Officer
American Spectrum Realty, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
With copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
Any Party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been
duly given unless and until it actually is received by the intended recipient.
Any Party may change the address to which notices, requests, demands, claims,
and other communications
11
12
hereunder are to be delivered by giving the other Party notice in the manner
herein set forth.
11.7 Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Maryland without giving effect to
any choice or conflict of law provision or rules (whether of the State of
Maryland or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Maryland.
11.8 Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
American Spectrum and the Merging Entity. No waiver by any party of any
default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
11.9 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
11.10 Expenses. Each of the Parties will its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby, except to the extent set forth in the
Prospectus/Consent Solicitation Statement.
11.11 Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue of the authorship of
any of the provisions of this Agreement. Any reference to any federal, state,
local or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. The Parties intend
that each representation, warrant, and covenant contained herein in any
respect, the fact that there exists another representation, warranty, or
covenant contained herein in any respect, the fact that there exists another
representation, warranty, or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the Party has not
breached shall not detract from or mitigate the fact that the Party is in
breach of the first representation, warranty or covenant.
11.12 Specific Performance. Each of the Parties acknowledges that the
other Party would be damaged irreparably in the event any of the provisions of
this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the Parties agrees that the other
Party shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having jurisdiction over the Parties and the
matter (subject to the provisions set
12
13
forth in Section 11.13 below), in addition to any other remedy to which they
may be entitled, at law or in equity.
11.13 Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in the State of California,
in any action or proceeding arising out of or relating to this Agreement and
agrees that all claims in respect of the action or proceeding may be heard and
determined in any such court.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
13
