STOCK PURCHASE AGREEMENT BY AND BETWEEN THE SHAREHOLDERS OF PR MARINE INC, A FLORIDA CORPORATION AND SUPERYACHTS HOLDINGS INC., A NEVADA CORPORATION AUGUST 12, 2002
BY AND BETWEEN
THE SHAREHOLDERS OF
PR MARINE INC, A FLORIDA CORPORATION
AND
SUPERYACHTS HOLDINGS INC., A NEVADA CORPORATION
AUGUST 12, 2002
| Page | ||
| ARTICLE I | PURCHASE AND SALE | 1 |
| ARTICLE II | CONSIDERATION | 2 |
| ARTICLE III | CLOSING | 3 |
| ARTICLE IV | PARTIES’ CLOSING OBLIGATIONS | 3 |
| ARTICLE V | SELLER REPRESENTATIONS AND WARRANTIES | 6 |
| ARTICLE VI | PURCHASER’S REPRESENTATIONS AND WARRANTIES | 17 |
| ARTICLE VII | PRECLOSING COVENANTS | 18 |
| ARTICLE VIII | CONDITIONS TO PURCHASER’S OBLIGATIONS | 23 |
| ARTICLE IX | CONDITIONS TO SELLER’S OBLIGATIONS | 24 |
| ARTICLE X | INDEMNIFICATION | 25 |
| ARTICLE XI | TERMINATION | 29 |
| ARTICLE XII | POST-CLOSING COVENANTS | 30 |
| ARTICLE XIII | MISCELLANEOUS | 32 |
| ARTICLE XIV | DEFINITIONS | 34 |
| EXHIBIT A | XXXX OF SALE. |
| EXHIBIT B | ASSIGNMENT OF LIABILITIES. |
| ADDITIONAL SCHEDULES: 1.2(a) through 7.11 | |
1
THIS STOCK PURCHASE AGREEMENT (“Agreement”) dated as of Auigust 12, 2002, by and between THE SHAREHOLDERS OF PR MARINE INC., (collectively “Seller”), and SUPERYACHTS HOLDINGS INC., a Nevada corporation, having its registered office at 000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxx, 00000 (“Purchaser” or "SYHI”), shall be effective as of the date hereof:
WHEREAS, Seller is the majority shareholder owner of PR MARINE INC., a Florida corporation (“PR Marine”), with an office address at 0000 XX 00xx Xxxxxx Xxxxx 000 ,Xx. Xxxxxxxxxx XX 00000 Xxxxxxx XXX , which is engaged in the business of design, distribution , marketing and sale of of custom made yachts and related products, including apparel and other accessories bearing the “PR MARINE” brand name and logo (“Related Assets”); and
WHEREAS, Seller is presently under negotiations to acquire its affiliated companies, PR Marine AG. (“PRMG”), a German corporation and PR Marine ME Ltd. (“PRME”), a Cyprus corporation. PR Marine are the worldwide marketing and sales agents for a custom yacht-building company in Germany. The company has regional sales offices in Dubai UAE, Doha Qatar, India, Limmassol Cyprus and Fort Lauderdale, Florida, that sell custom built GRP yachts from 75 to 200 feet; and
WHEREAS, PR Marine has acquired an excellent client base and contacts and has developed designs and technical layouts and renderings for promoting the marketing and sales of luxury yachts in the worldwide markets; and PR Marine currently has a team of yacht brokerage sales personal and technical professionals, and have participation agreements with the organsers of boatshows and various yachting publications ; and
WHEREAS, Purchaser shall be a publicly traded company listed on the NASDAQ OTC Bulletin Board and is currently a private company seeking to acquire a substantial company with a successful operating history, in order to increase the value of SYHI and its shares for the benefit of all SYHI shareholders; and
WHEREAS, Purchaser desires to purchase up to One Hundred Percent (100%) of PR Marine and the Business (as defined herein), and all associated operating assets of PR Marine, and assume certain liabilities and obligations of PR Marine as set forth herein below; and
WHEREAS, SYHI desires to acquire a substantial company with a successful operating history that has a realistic potential for future revenues and earnings, in order to increase the value of SYHI and its shares for the benefit of all SYHI shareholders; and
WHEREAS, Seller desires to sell to Purchaser equity shareholding in lots of 10% of the total company with the total acquisition up to 100% of PR Marine , being completed not later
Buyer Initials______
Sellers Initials______
2
than 31st December 2002., With all associated operating assets and to be relieved of certain of its liabilities and obligations as set forth herein below:
NOW THEREFORE, in consideration of the mutual promises, issuance and delivery of shares of stock, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties hereto, and agreeing to be legally bound hereunder, the parties hereby agree to the following terms and conditions as follows:
1.1
PURCHASE OF BUSINESS, ASSETS AND ASSUMPTION OF LIABILITIES.
Subject to the exceptions and upon the terms and conditions set forth in this Agreement, (i) Seller will sell, transfer, convey, assign and deliver to Purchaser, and Purchaser will purchase, as per the schedule set forth here below:
10% of the total equity shares immediately upon signature of this agreement.
The balance equity shares up to 100% or the mutually agreed percentage in writing between there two parties, against fulfillment of the obligations stated herein but not later than 31st December 2002., which is also set as the Closing date.
At the Closing (as defined below), up to one hundred percent (100%) of PR Marine Inc., the Related Assets, the Assets (as defined below), properties, goodwill, all rights and interests of Seller in and to PR Marine as a going concern, of every nature, kind and description, tangible and intangible, wherever located and as reflected in the books and records of Seller or PR Marine (all collectively, the “Business”), shall be assumed by the Purchaser and (ii) Purchaser shall assume certain and only those liabilities of Seller that are specifically set forth herein on Schedule 1.1 hereof.
1.2
(a) ASSETS. Purchaser upon closing (as defined below) shall purchase: (i) up to One Hundred Percent (100%) of the assets set forth on Schedule 1.2(a) hereto, which include without limitation, cash, cash equivalents (including certificates of deposit), accounts receivable, inventory (raw materials, work in process and finished goods), furniture, fixtures, equipment, all Patents and other Intellectual Property and applications, all rights in and to all insurance policies, PR Marine’s documents and records, prepaid expenses, goodwill and other rights or interests that may accrue to or constitute the Business (or are used or useful in the Business) of PR Marine; and (ii) Seller’s contractual rights, licenses, sales, dealer distribution, brokerage and marketing, supply, freight and floor plan contracts and arrangements, Intellectual Property rights, licenses, permits and approvals, and any and all intangible rights and interests set forth on Schedule 1.2(a) hereto, all of which shall be assigned to Purchaser at the Closing, if such rights and interests are by their terms assignable (collectively the “Assets”). The prorate owner SYHI interest in the Assets shall be sold to Purchaser free and clear of all liens, Encumbrances
3
and other interests, except for any Permitted Encumbrances set forth herein, pursuant to a xxxx of sale in the form attached hereto as Exhibit A (the “Xxxx of Sale”).
ARTICLE III
4
ARTICLE IV
4.1 SELLER’S OBLIGATIONS AFTER THE CLOSING; FURTHER ASSURANCES.
(a) CLOSING DELIVERABLES. On the day of the closing, Seller will deliver, or cause to be delivered, to Purchaser:
(i) The PR Marine Shares evidencing up to one hundred percent (100%) owner SYHI interest in and to PR Marine and the Business; and
(ii) A Xxxx of Sale in the form of, and as set forth in, Exhibit A annexed hereto and the ancillary documents set forth as schedules hereto, duly executed by Seller; and
(iii) The Assignment of Liabilities in the form of, and as set forth in, Exhibit B annexed hereto, duly executed by Seller; and
(iv) Such other good and sufficient instruments of conveyance, assignment and transfer, in form and substance reasonably satisfactory to Purchaser’s counsel, as shall be effective to vest in Purchaser good and marketable title of up to one hundred percent (100%) owner SYHI of the Business and the Assets, and as shall be necessary to reflect the assignment and assumption of the Assigned Liabilities. Such documents shall include, but not be limited to:
(1) The Assignment and Assumption Agreement(s) for permits, licenses and authorizations to assume all business and agency agreements and marketing rights of PR Marine Inc. USA specifically for the territory of USA and Canada including North & South America and Mexico.
(2) Trademarks or trade names, including the name and logos for PR Marine and related marks or names, and other Intellectual Property assignment(s).
(v) All contracts, files and other data and documents pertaining to the Assets or the Business (which may be delivered at the offices of Seller), except Seller’s minute books, shareholder transfer and owner SYHI records, and such other financial and other records that may be necessary or desirable to be maintained by Seller on and after the Closing Date in connection with its compliance with all Applicable Laws, rules and regulations, the filing of all
5
Tax Returns or Immigration petitions, and its compliance with its covenants and agreements hereunder; and
(vi) A certificate signed by Seller dated as of the Closing Date, to the effect that the representations and warranties made by Seller in this Agreement and in any document, instrument and/or agreement to be executed and/or delivered by Seller pursuant to this Agreement are true, complete and correct in all material respects at and as of the Closing with the same force and effect as those representations and warranties made on the date hereof or as of such date as set forth therein, and that Seller has conformed and complied with in all material respects all of its respective covenants, agreements, and obligations under this Agreement, which are to be performed and complied with by Seller at or prior to the Closing; and
(vii) A Release by Seller in favor of Purchaser in a form acceptable to the parties and their respective counsel;
(viii) A copy certified by the secretary or similar officer of PR Marine of the duly adopted resolutions of the Board of Directors and Stockholders approving this Agreement and authorizing the execution and delivery of this Agreement, including the documents, instruments, certificates and agreements to be executed and/or delivered by Seller or PR Marine pursuant hereto, and the consummation of the transactions contemplated hereby and thereby; and
(ix) A certificate of good standing or valid company trade license for PR Marine Inc issued by the appropriate authority of Florida dated on or before thirty (30) days after the Closing Date; and
(x) Such other documents and items as are reasonably necessary or appropriate to effect the consummation of the transactions contemplated hereby; and
(xi) A legal opinion in a form acceptable to the parties and their respective counsel.
(b) ADDITIONAL ASSURANCES. At any time and from time to time after the Closing, at Purchaser’s request and without further consideration, Seller will execute and deliver such other documents or instruments of sale, transfer, conveyance, assignment and confirmation and take such action as Purchaser may reasonably deem necessary or desirable in order to more effectively transfer, convey and assign to Purchaser, and to confirm Purchaser’s title to the PR Marine Shares, or the Assets, the Related Assets and the Business, to put Purchaser in actual possession and operating control thereof and to assist Purchaser in exercising all rights with respect thereto.
4.2
PURCHASER’S OBLIGATIONS AFTER THE CLOSING.
(a) CLOSING DELIVERABLES. At the time of each exchange, the Purchaser shall deliver, to Seller:
6
(i) One Hundred Thousand (100,000) newly issued restricted common shares of stock in SYHI, which shares shall be issued in the name of the shareholders of PR Marine or any other name as designated by Seller. The share certificate(s) shall bear a restrictive legend thereon in conformity with the Act; and
(ii) A certificate signed by a duly authorized officer of Purchaser, dated as of the exchange date or the Closing Date, whichever is earlier, to the effect that the representations and warranties made by Purchaser in this Agreement and in any document, instrument and/or agreement to be executed and/or delivered by Purchaser pursuant to this Agreement are true, complete and correct at and as of the Date of exchange with the same force and effect as those representations and warranties made on the date hereof and that Purchaser has performed and complied with all of its covenants, agreements and obligations under this Agreement which are to be performed and complied with by Purchaser on or prior to the Closing; and
(iii) A copy certified by an officer of Purchaser of the duly adopted resolutions of the Board of Directors of Purchaser approving this Agreement and authorizing the execution and delivery of this Agreement, including the documents, instruments and agreements to be executed and/or delivered by Purchaser pursuant hereto, and the consummation of the transactions contemplated hereby and thereby.
Board of Directors and Officers: SYHI shall appoint Shahid Xxxxxx Xxxxx, an Indian national, as a Director of the SYHI.
ARTICLE V
SELLER REPRESENTATIONS AND WARRANTIES
As an inducement to Purchaser to enter into this Agreement and to consummate the transactions contemplated hereby, Seller represents and warrants to Purchaser that each and all of the following representations and warranties are true and correct as of the date of this Agreement and will be true and correct as of the Closing Date.
5.1 ORGANIZATION, STANDING AND QUALIFICATION. Sellers are individuals who are the only shareholders of PR Marine. PR Marine is a corporation duly organized and validly existing under the laws of Florida USA and its status is active; it has all requisite power and authority and is entitled to carry on the Business as now being conducted and to own, lease or operate the Assets, and the Related Assets, as and in the places where such Business is now conducted and such Assets and Related Assets are now owned, leased or operated; and it is duly qualified, licensed or domesticated and in good standing as a foreign company authorized to do business in the jurisdictions listed on Schedule 5.1 annexed hereto, which are the only jurisdictions where the nature of the activities conducted by it or the character of the properties owned, leased or operated by it require such qualification, licensing or domestication, except where the failure to so qualify or be licensed or domesticated would not have a Material Adverse Effect. Seller has delivered to Purchaser true and complete copies of Seller’s articles of organization and all amendments thereto, certified by the authorities in Florida
7
USA, and the bylaws of Seller as presently in effect, certified as true and correct by Seller’s Secretary.
8
of Seller for the respective months and fiscal year then ended, including any notes thereto (collectively, the “Audited Financial Statements”), and (ii) the unaudited balance sheet of Seller as of December 31, 2001 and the unaudited statement of earnings of Seller for the six-month period then ended (collectively, the “Unaudited Financial Statements”). The Audited Financial Statements and the Unaudited Financial Statements are hereinafter collectively referred to as the “Financial Statements.” The Financial Statements have been prepared from, and are in accordance with, the books and records of Seller and present fairly the financial position and results of operations of Seller as of the dates and for the periods indicated, and in the case of the Audited Financial Statements, in conformity with Generally Accepted Accounting Principles, consistently applied.
9
5.8 ABSENCE OF CHANGES OR EVENTS. Except as set forth in Schedule 5.8 or as reflected in the Financial Statements, since December 31, 2001, Seller has conducted the Business only in the Ordinary Course of Business and has not:
(a) Incurred any obligation or Liability, absolute, accrued, contingent or otherwise, whether due or to become due, except for capital expenditures described in subparagraph (k) of this Section 5.8 and current Liabilities for trade or business obligations incurred in connection with the purchase of goods or services in the Ordinary Course of Business and consistent with its prior practice, none of which Liabilities, in any case or in the aggregate, have a Material Adverse Effect on Seller;
(b) Discharged or satisfied any Encumbrance other than those then required to be discharged or satisfied, or paid any Liability, other than current Liabilities incurred since December 31, 2001 in the Ordinary Course of Business;
(c) Declared or made any distribution to its past or present shareholders or upon or in respect of any outstanding shares of capital stock, or purchased, retired or redeemed, or obligated itself to purchase, retire or redeem, any of its outstanding shares of capital stock or other securities;
(d) Mortgaged, pledged or subjected to any Encumbrance any of its property, the Business or the Assets, except for the existing Encumbrances that are listed on Schedule 5.8;
(e) Sold, transferred, leased to others or otherwise disposed of any of the Assets, except for inventory sold in the Ordinary Course of Business, or canceled or compromised any debt or claim or waived or released any right of substantial value;
(f) Received any notice of termination of any contract, lease or other agreement or suffered any damage, destruction or loss (whether or not covered by insurance) which, in any case or in the aggregate, has had a Material Adverse Effect on Seller;
(g) Encountered any labor union organizing activity, had any actual or Threatened employee strikes, work stoppages, slow-downs or lock-outs, or had any material adverse change in its relations with its employees, agents, customers or suppliers or with any governmental authorities or self-regulatory organizations;
(h) Transferred or granted any rights under, or entered into any settlement regarding the breach or infringement of, any Intellectual Property rights, or modified any existing rights with respect thereto;
(i) Made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, extra compensation, pension or severance or vacation pay, to any shareholder, director, officer, employee, salesman, distributor or other agent of Seller;
(j) Issued or sold any shares of capital stock or other securities, or issued, granted or sold any options, rights or warrants with respect thereto, or acquired any capital stock
10
or other securities of any Person or any interest in any business enterprise, or otherwise made any loan or advance to or investment in any Person;
(k) Made any capital expenditure or capital additions or betterments in excess of an aggregate of $500,000;
(l) Failed to replenish its inventories and supplies in a normal and customary manner consistent with its prior practice, or made any purchase commitment in excess of the reasonably estimated requirements of the Business or at any price in excess of the then current market price, or made any material change in its selling, pricing, advertising or personnel practices inconsistent with its prior practice;
(m) Suffered any Material Adverse Change;
(n) Entered into any transaction, contract or commitment or paid or agreed to pay, any brokerage, finder’s fee, Taxes or other expense in connection with, or incurred any severance pay obligations by reason of, this Agreement or the transactions contemplated hereby;
5.10 COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS. Except as set forth in Schedule 5.10 annexed hereto, Seller has complied with all Applicable Laws and Orders, judgments and decrees now applicable to the Business as presently conducted. Neither the owner SYHI nor use of the Assets nor the conduct of the Business conflicts, to Seller’s Knowledge, with the rights of any other Person, or violates, or with or without the giving of notice or the passage of time, or both, will violate, conflict with or result in a default, right to accelerate or loss of rights under, any terms or provisions of its certificate of incorporation or bylaws as presently in effect, or any Encumbrance, mortgage, deed of trust, lease, license, agreement, understanding, to which Seller is a party or by which it may be bound or affected, except where such conflict, violation, default, acceleration or loss of rights will not have a Material Adverse Effect on Seller.
11
repair, ordinary wear and tear excepted, are suitable for the purposes used, and are currently adequate and sufficient for the Business as currently conducted by Seller.
(a) All real estate in which Seller has a leasehold or other interest or which is used by Seller in connection with the operation of the Business, together with a description of each lease, sublease, license, or any other instrument under which Seller claims or holds such leasehold or other interest or right to the use thereof or pursuant to which Seller has assigned, sublet or granted any rights therein, identifying the parties thereto, the rental or other payment terms, expiration date and cancellation and renewal terms thereof.
(b) As of the date hereof or a date no earlier than December 31, 2001, all of Seller’s receivables (which shall include accounts receivable, loans receivable and any advances), which has been outstanding for more than thirty (30) days.
(c) All machinery, tools, equipment, motor vehicles, rolling stock and other tangible personal property (other than inventory and supplies), owned, leased or used by Seller, with a value of $1,000, setting forth with respect to all such listed property a summary description of all leases, Encumbrances, relating thereto, identifying the parties thereto, the rental or other payment terms, the expiration date, and the cancellation and renewal terms thereof.
(d) All Intellectual Property and applications for any Intellectual Property, wholly or partially owned or held by Seller or used in the operation of Seller’s Business as described in Section 5.13(d).
(e) All fire, theft, casualty, liability (including products liability) and other insurance policies insuring Seller or the Assets or interests therein, specifying with respect to each such policy the name of the insurer, the risk insured against, the limits of coverage, the deductible amount (if any), the premium rate and the date through which coverage will continue by virtue of premiums already paid. Except as disclosed in Schedule 5.12(e), such policies are with reputable insurers, provide adequate coverage for all normal risks incident to Seller’s Assets and Business
(f) All sales agency, dealer or distributor SYHI agreements or franchises or agreements providing for the services of an independent contractor to which Seller is a party or by which it is bound.
(g) All contracts, agreements, commitments or licenses relating to Intellectual Property to which Seller is a party or by which it is bound.
(h) All loan agreements, indentures, mortgages, pledges, conditional sale or title retention agreements, security agreements, equipment obligations, guaranties, leases or lease purchase agreements to which Seller is a party or by which it is bound.
(i) A description of all of Seller’s obligations with respect to warranties.
12
(j) All contracts, agreements, commitments or other understandings or arrangements to which Seller is a party or by which it or any of its property is bound or affected that are not otherwise listed above, but excluding (i) purchase orders and commitments for raw materials, parts (including motors) and supplies made in the Ordinary Course of Business involving payments or receipts by Seller of less than [$100,000] in any single case but not more than [$250,000] in the aggregate, (ii) contracts entered into in the Ordinary Course of Business and involving payments or receipts by Seller of less than [$100,000] in the case of any single contract but not more than [$250,000] in the aggregate, (iii) contracts entered into in the Ordinary Course of Business which are terminable by Seller on less than 30 days’ notice without any penalty or consideration and involving payments or receipts by Seller of less than [$2,500] in the case of any single contract but not more than [$10,000] in the aggregate, and (iv) sales orders or commitments for the sale of manufactured boats, parts or accessories made in the Ordinary Course of Business and at upon prices and upon terms consistent with past practices, which includes seasonal and promotional discounts.
(k) All collective bargaining agreements, employment and consulting agreements, executive compensation plans, bonus plans, deferred compensation agreements, employee pension plans or retirement plans, employee stock option, or stock purchase plans and group life, health and accident insurance and other employee benefit plans, agreements, arrangements or commitments, whether or not legally binding, including, without limitation, holiday, vacation, Christmas and other bonus practices, to which Seller is a party or is bound or which relate to the operation of Seller’s Business.
(l) The names, title and current annual salary rates of all Persons (including independent commission agents) acting as employees in Seller’s Business, whether or not leased from a third party vendor, showing separately for each such Person the amounts paid or payable as salary, bonus payments and any indirect compensation for the current year; and
(m) The name of each bank in which Seller has an account or safe deposit box and the names of all Persons authorized to draw thereon or have access thereto; and the names of all Persons, if any, holding Tax or other powers of attorney from Seller and a summary of the terms thereof.
All of the contracts, agreements, leases, licenses and commitments required to be listed on Schedule 5.12 (other than those which have been fully performed) are valid and binding on Seller, enforceable in accordance with their respective terms subject to applicable bankruptcy, insolvency, moratorium and other similar laws relating to the enforcement of creditor’s rights generally, the availability of equitable remedies, and general equity principles, to Seller’s Knowledge are in full force and effect. Except as disclosed in Schedule 5.12, none of the payments required to be made under any such contract, agreement, lease, license or commitment has been prepaid more than 30 days prior to the due date of such payment thereunder, and there is not thereunder any existing default, or event which, after notice or lapse of time, or both, would constitute a default or, to Seller’s Knowledge, a basis for force majeure or other claim of excusable delay or non-performance thereunder or result in a right to accelerate or loss of rights, except where such default, basis or claim would not have a Material Adverse Effect on Seller. None of Seller’s existing or completed contracts is subject to renegotiation with any
13
Governmental Body. True and complete copies of all such contracts, agreements, leases, licenses and other documents listed on Schedule 5.12 (together with any and all amendments thereto) have been delivered to Purchaser and identified with a reference to this Section 5.12 of this Agreement.
5.13 PATENTS AND OTHER INTELLECTUAL PROPERTY.
(a) DEFINITION OF INTELLECTUAL PROPERTY. “Intellectual Property” shall mean (i) all inventions, whether Patentable or unpatentable (and whether or not reduced to practice), all improvements thereto, and all “Patents” including all Patents and Patent disclosures and applications, and registered design and registered design applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof, (ii) all “Trademarks,” including registered or unregistered Trademarks, registered or unregistered service marks, and all translations, adaptations, deviations, combinations, applications, registrations and renewals in connection with any registered or unregistered Trademark or service xxxx, and all trade names, trade dress and logos, (iii) all “Copyrights,” meaning all registered Copyrights, Copyright applications, Copyrightable works, and unregistered Copyrights, and all applications, registrations, and renewals in connection therewith, (iv) all mask works and all applications, registrations, and renewals in connection therewith, (v) all Confidential Information, (vi) all computer software and software licenses (including data and related documentation), (vii) all other similar proprietary rights, and (viii) all copies and tangible embodiments of the foregoing, in whatever form or medium.
14
Intellectual Property utilized in the Business has not conflicted and does not now conflict with, infringe upon or otherwise violate in any material respect, the rights of any third party. Except as set forth on Schedule 5.13, no Proceeding has been instituted against, or notice or claim received by Seller, that alleges that the use by Seller of the Intellectual Property (or any Intellectual Property or process) used in Seller’s Business infringes upon or otherwise violates the rights of a third party, other than any such Proceeding or notice or claim that has been disposed of without the imposition of any continuing Material Adverse Effect on the Business.
15
Assets, Business, operations or which might subject Seller to a material penalty in any private or governmental litigation or Proceeding.
(a) BENEFIT PLANS. Except as described in Schedule 5.19 hereto, Seller does not maintain or contribute to any Benefit Plans. Without limiting the generality of the foregoing provision of this Section, except as described in Schedule 5.19 hereto, there are no pension plans, welfare plans or employee benefit plans qualified under Section 401(a) of the Code to which Seller is required to contribute. Seller does not and will not have any unfunded Liability for services rendered prior to the Closing Date under any Benefit Plans. Seller is not in any material default under any Benefit Plan. Except as set forth in Schedule 5.19, neither Seller, nor to Seller’s Knowledge any entity now or formerly part of a controlled group with Seller, within the meaning of Section 412(c)(11)(B)(ii) of the Code, maintains or has maintained since the date hereof a “defined benefit plan,” as defined in Section 3(35) of ERISA, that is subject to Section 412 of the Code and Section 302 of ERISA. Except as set forth in Schedule 5.19 hereto, neither Seller nor any of its “subsidiaries” contributes to or has any Liability (including but not limited to withdrawal Liability) with respect to any multi-employer plan (as defined in Section 4064(a) of ERISA or Section 4001(a)(3) of ERISA). Other than claims for benefits in ordinary course, there are no actions, suits, disputes, arbitrations or other material claims pending or, to Seller’s’ Knowledge, Threatened with respect to any Benefit Plan. For purposes of this Section, “subsidiaries” shall include all corporations and all trades or businesses (whether or not incorporated), which may be liable for any income Tax, loss of Tax deduction, excise Taxes, penalties or other similar consequences under ERISA (as hereinafter defined) or under the Code by reason of its owner SYHI affiliation with Seller.
16
17
5.24 ACKNOWLEDGEMENTS. Seller (and each of them) hereby acknowledges, and understands that:
a)
No United States federal or any state agency has made any finding or determination as to the fairness of this transaction regarding the SYHI shares, or any recommendation or endorsement of the SYHI shares.
b)
Seller (and each of them) is a sophisticated investor, or has financial advisors or legal counsel with many years of experience in purchasing and selling securities, who are knowledgable about these types of transactions.
c)
The SYHI shares have not been registered with the Securities and Exchange Commission (“SEC”) under the Act, and the SYHI shares will be restricted securities pursuant to Rule 144 thereof.
d)
Seller (and each of them) is not an “affiliate” of SYHI within the meaning of the Act.
e)
Seller (and each of them) is acquiring the SYHI Shares for its own account and benefit and has the requisite power and authority to purchase such SYHI Shares under this Agreement.
f)
Seller’s (and each of them) total commitment to investments that are not readily marketable is not disproportionate to its net worth and will not become disproportionate as a result of the purchase or sale of the SYHI Shares or the PR Marine Shares, respectively.
g)
Seller (and each of them) is acquiring the SYHI Shares without having been furnished any offering literature or prospectus.
The foregoing representations and warranties and any other information that Seller has provided to SYHI concerning PR Marine, the Assets, Related Assets, and Business and their respective financial condition, if any, is true and accurate as of the date hereof.
ARTICLE VI
PURCHASER’S REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES BY PURCHASER. Purchaser represents and warrants to Seller as follows:
18
this Agreement and the related agreements referred to herein and to carry out the transactions contemplated by this Agreement and to carry on the Business as now being conducted.
ARTICLE VII PRECLOSING COVENANTS
7.1
CONDUCT OF BUSINESS PRIOR TO CLOSING.
(a) Prior to the Closing, Seller shall conduct the Business and affairs only in the Ordinary Course of Business and shall maintain, keep and preserve the Assets in good condition and repair (ordinary wear and tear excepted) and maintain insurance thereon in accordance with present practices, and Seller will use commercially reasonable efforts (i) to preserve the Business and organization of Seller intact, (ii) to preserve for the benefit of Purchaser the goodwill of Seller’s suppliers, customers, landlords and others having business relations with it, and (iii) to cooperate with Purchaser and use commercially reasonable efforts to assist Purchaser in obtaining the consent of any landlord or other party to any lease or contract with Seller where the consent of such landlord or other party may be required by reason of the transactions contemplated hereby. Without limiting the generality of the foregoing, prior to the Closing Seller will not without Purchaser’s prior written approval:
(i) Change its articles of incorporation or other governing documents or merge or consolidate or obligate itself to do so with or into any other entity;
19
(ii) Enter into any contract, agreement, commitment or other understanding or arrangement except for those of the type which would not have to be listed and described under subparagraph (j) of Section 5.12 above; or
(iii) Perform, take any action or incur or permit to exist any of the acts, transactions, events or occurrences of the type (A) described in subparagraphs (a), (b), (c), (d), (e), (h), (i), (j), (k), (l), (m), (n), or (p) of Section 5.8 of this Agreement which would have been inconsistent with the representations and warranties set forth therein had the same occurred after October 31, 2001 and prior to the date hereof or (B) described in Section 5.3 of this Agreement which would be required to be set forth on Schedule 5.3 hereof.
7.3 DIRECTORS AND SHAREHOLDERS AUTHORIZATION; CHANGE OF PURCHASER’S NAME.
(a) At the Closing, Seller will deliver to Purchaser a copy of the resolutions of its Board of Directors and the resolutions or consents of the requisite number of shareholders approving the execution and delivery of this Agreement and the consummation of all of the transactions contemplated hereby, duly certified by an officer of PR Marine and by Seller.
(b) At the Closing, Seller will deliver to Purchaser a copy of the resolutions of the PR Marine Board of Directors and the resolutions or consents of the requisite number of shareholders, and execute any and all other appropriate documents which are required, necessary or desirable to change Purchaser’s corporate name to “PLATINNUM SUPERYACHTS, INC”. Purchaser is hereby authorized to file such certificates or other documents in order to effectuate such change of name at or any other name after the Closing as Purchaser shall elect.
20
Seller shall not enter into any contract, incur any Liability, assume, guarantee or otherwise become liable or responsible for any Liability of any other Person, make any loans, advances or capital contributions to any other Person (except for extensions of credit to its customers in the Ordinary Course of Business), or waive any right or enter into any other transaction, in each case other than in the Ordinary Course of Business. Without limiting the foregoing, for the purposes of this Agreement, any contract involving the sum of $[500,000] or more shall be deemed to be outside the Ordinary Course of Business.
7.10 Intention to institute an investigation into, or institute a Proceeding to obtain an Injunction restraining or enjoining the consummation of the transactions contemplated hereby or to nullify or render ineffective this Agreement or such transactions if consummated.
21
ARTICLE VIII
CONDITIONS TO PURCHASER’S OBLIGATIONS
Unless waived by Purchaser in writing, each and every obligation of Purchaser to be performed at the Closing shall be subject to the satisfaction at or prior thereto of each and all of the following conditions precedent:
ARTICLE IX
CONDITIONS TO SELLER’S OBLIGATIONS
Unless waived by Seller in writing, each and every obligation of Seller to be performed at the Closing shall be subject to the satisfaction at or prior thereto of each and all of the following conditions precedent:
23
4.2 hereof, or in such documents, instruments and agreements, all of which shall be reasonably satisfactory in form and substance to counsel for Seller.
(a) Any and all losses, costs, expenses (including without limitation, reasonable attorneys fees and disbursements of counsel), Liabilities, damages, fines, penalties, charges, assessments, judgments, settlements, claims, causes of action, Proceedings, Orders and other obligations of any kind or nature (individually a “Loss” and collectively “Losses”) arising from, in connection with, or suffered or incurred by Purchaser (i) by reason of any untrue representation, breach of warranty or non-fulfillment of any covenant or other agreement by Seller contained herein or in any certificate, document or instrument delivered to Purchaser pursuant hereto or in connection herewith, or (ii) which would not have been suffered or incurred if such representation or warranty were true and not breached or if such covenant or other agreement were fully performed;
(b) Any and all Losses suffered or incurred by Purchaser by reason of or in connection with any claim for a finder’s fee or brokerage or other commission arising by reason of any services alleged to have been rendered to or at the instance of Seller or any Stockholder with respect to this Agreement or any of the transactions contemplated hereby;
(c) Any and all Losses incurred in connection with or that arises from any claim or Proceeding by any former shareholder of Seller;
(d) Any and all Proceedings, Orders, claims, demands, assessments, judgments, costs and expenses, including, without limitation, legal fees and expenses, incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnity.
Notwithstanding the foregoing, neither Seller or the Stockholders shall be liable to Purchaser for any breaches of representations or warranties (i) if the aggregate amount of all the Losses of Purchaser based thereon or resulting therefrom is less than $100,000 (the “Liability Exception”); PROVIDED, HOWEVER, that such Liability Exception shall not apply to or include any Losses in excess of $100,000 in the aggregate or those in respect of misrepresentations or breaches of warranty contained in Section 5.4, hereof, as to which Seller is
24
liable in full hereunder, or (ii) for any amount that exceeds, in the aggregate, the Escrow Amount under this Agreement (but only to the extent of such excess).
(a) Any and all Losses resulting from any untrue representation, breach of warranty or non-fulfillment of any covenant or other agreement by Purchaser contained herein or in any certificate, document or instrument delivered to Seller pursuant hereto or in connection herewith, or any and all Losses that would not have been suffered or incurred if such representation or warrant were true and not breached or if such covenant or other agreement were fully performed;
(b) Any and all Assumed Liabilities; and
(c) Any and all actions, suits, Proceedings, claims, demands, assessments, judgments, costs and expenses, including, without limitation, legal fees and expenses, incident to any of the foregoing or incurred in investigating or attempting to avoid the same or to oppose the imposition thereof, or in enforcing this indemnity.
25
Indemnified Party shall permit the Indemnifying Party to assume the defense of any such claim and any litigation resulting from such claim; PROVIDED, HOWEVER, that the Indemnified Party shall not be required to permit such an assumption of the defense of any claim or litigation which, if not first paid, discharged or otherwise complied with, would with substantial certainty result in a material interruption or disruption of the Business of the Indemnified Party, taken as a whole, or any material part thereof. Notwithstanding the foregoing, the right to indemnification hereunder shall not be affected by any failure of the Indemnified Party to give such notice (or by delay by the Indemnified Party in giving such notice) unless, and then only to the extent that, the rights and remedies of the Indemnifying Party shall have been prejudiced as a result of the failure to give, or delay in giving, such notice. Failure by the Indemnifying Party to notify the Indemnified Party of its election to defend any such claim or action by a third party within twenty (20) days after notice thereof shall have been given to the Indemnifying Party shall be deemed a waiver by the Indemnifying Party of its right to defend such claim or action.
If the Indemnifying Party assumes the defense of such claim, investigation or Proceeding resulting therefrom, the obligations of the Indemnifying Party hereunder as to such claim, investigation or Proceeding shall include taking all steps necessary in the defense or settlement of such claim, investigation or Proceeding and holding the Indemnified Party harmless from and against any and all damages caused by or arising out of any settlement approved by the Indemnifying Party or any judgment entered in connection with such claim, investigation or Proceeding, except where, and only to the extent that, the Indemnifying Party has been prejudiced by the actions or omissions of the Indemnified Party. The Indemnifying Party shall not, in the defense of such claim or any Proceeding resulting therefrom, consent to entry of any judgment (other than a judgment of dismissal on the merits without costs) except with the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned) or enter into any settlement (except with the written consent of the Indemnified Party)(which consent shall not be unreasonably withheld, delayed or conditioned) unless (i) there is no finding or admission of any violation of law and no material effect on any claims that could reasonably be expected to be made against the Indemnified Party (ii) the sole relief provided is monetary damages and (iii) the settlement shall include the giving by the claimant or the plaintiff to the Indemnified Party a release from all Liability in respect to such claim or litigation.
If the Indemnifying Party assumes the defense of such claim, investigation or Proceeding resulting therefrom, the Indemnified Party shall be entitled to participate in the defense of the claim, but solely by observation and comment to the Indemnifying Party, and the counsel selected by the Indemnified Party shall not appear on its behalf in any Proceeding arising hereunder. The Indemnified Party shall bear the fees and expenses of any additional counsel retained by it to participate in its defense unless any of the following shall apply: (i) the employment of such counsel shall have been authorized in writing by the Indemnifying Party; or (ii) the Indemnifying Party’s legal counsel shall advise the Indemnifying Party in writing, with a copy to the Indemnified Party, that there is a conflict of interest that would make it inappropriate under applicable standards of professional conduct to have common counsel. If clause (i) or (ii) in the immediately preceding sentence is applicable, then the Indemnified Party may employ separate counsel at the expense of the Indemnifying Party to represent the Indemnified Party, but in no event shall the Indemnifying Party be obligated to pay the costs and expenses of more than
26
one such separate counsel for any one complaint, claim, action or Proceeding in any one jurisdiction.
If the Indemnifying Party does not assume the defense of any such claim by a third party or litigation resulting therefrom after receipt of notice from the Indemnified Party, the Indemnified Party may defend against such claim or litigation in such manner as it reasonably deems appropriate, and unless the Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to the total amount demanded in such claim or litigation plus the Indemnified Party’s estimate of the cost (including attorneys’ fees) of defending the same, the Indemnified Party may settle such claim or Proceeding on such terms as it may reasonably deem appropriate and the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of such settlement and for all costs (including attorneys’ fees), expenses and damages incurred by the Indemnified Party in connection with the defense against or settlement of such claim, investigation or litigation, or if any such claim or litigation is not so settled, the Indemnifying Party shall promptly reimburse the Indemnified Party for the amount of any judgment rendered with respect to any claim by a third party in such litigation and for all costs (including attorneys’ fees), expenses and damage incurred by the Indemnified Party in connection with the defense against such claim or litigation, whether or not resulting from, arising out of, or incurred with respect to, the act of a third party.
Each party shall cooperate in good faith and in all respects with each Indemnifying Party and its representatives (including without limitation its counsel) in the investigation, negotiation, settlement, trial and/or defense of any Proceedings (and any appeal arising therefrom) or any claim. The parties shall cooperate with the other in any notifications to and information requests of any insurers. No individual representative of any Person, or their respective Affiliates shall be personally liable for any Loss under this Agreement, except as specifically agreed to by said individual representative.
(a) By mutual written consent of all parties hereto;
(b) By Purchaser if any of the conditions provided for in Article VIII of this Agreement have not been timely met and have not been waived in writing by Purchaser on or before the Closing Date;
27
(c) By Seller if any of the conditions provided for in Article IX of this Agreement have not been timely met and have not been waived in writing by Seller on or before the Closing Date;
(d) By either Purchaser or Seller if the Closing shall not have occurred on or before December 31, 2002, provided such party is not in default.
In the event of termination by any party as provided in this Section 11.1, written notice shall forthwith be given to the other party. Except as otherwise specifically provided herein, each party shall pay its own expenses incident to preparation or consummation of this Agreement and the transactions contemplated hereunder and, subject to Section 11.2, neither party shall have any Liability to the other hereunder, except such Liability as may arise as a result of a breach hereof.
ARTICLE XII
28
that is engaged in competitive activities) competitive with the present Business of Purchaser, including Seller’s Business therein. Seller acknowledges and agrees that this Section 12.2 shall be geographically applicable to USA including North & South America, Canada and Mexico. The Purchaser acknowledges that the Seller is involved in yacht construction and sales companies in Asia and Mideast, which he shall continue.
29
12.8 PERFORMANCE OF SELLER’S 000 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxx 00000 Att: Xxxxx Xxxxxxx
13.2 LEGAL AND OTHER COSTS. In the event that any party (the “Defaulting Party”) defaults in his or its obligations under this Agreement and, as a result thereof, the other party (the “Non-Defaulting Party”) seeks to legally enforce his or its rights hereunder against the Defaulting Party, then, in addition to all damages and other remedies to which the Non-Defaulting Party is entitled by reason of such default, the Defaulting Party shall promptly pay to the Non-Defaulting Party an amount equal to all costs and expenses (including reasonable attorneys’ fees) paid or incurred by the Non-Defaulting Party in connection with such enforcement.
13.3 TRANSACTIONAL BROKERAGE FEE. The parties hereto agree that Xx. Xxx Xxxxxxx of Miami, Florida, is the transactional broker in this transaction, and shall be paid a fee in the amount of lump sum US$ 10,000, for his introduction of Seller to Purchaser. It shall be the responsibility and obligation of the Purchaser to pay this fee to Xxxxxxx or his nominee within thirty days after the signature of this Agreement. In exchange the broker shall supply the business plan and the Private Placement memorandum draft and information related thereto.
13.5 GOVERNING LAW. This Agreement, including all the documents, instruments and agreements to be executed and/or delivered by the parties hereto, shall be construed, governed by and enforced in accordance with the internal laws of the State of Florida.
31
hereof and include the Schedules and Exhibits hereto and any document, instrument or agreement executed and/or delivered by the parties pursuant hereto.
32
For purposes of this Agreement, the following terms have the meanings specified:
“AFFILIATE” - when used in reference to a specified Person, means any Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with the specified Person.
“AGREEMENT” - has the meaning set forth in the introductory paragraph hereof.
“APPLICABLE LAW” OR “APPLICABLE LAWS” - means any and all laws, ordinances, constitutions, regulations, statutes, treaties, rules, codes, licenses, certificates, franchises, permits, requirements and Injunctions adopted, enacted, implemented, promulgated, issued, entered or deemed applicable by or under the authority of any Governmental Body having jurisdiction over a specified Person or any of such Person’s properties or assets. Unless used in either Section 5.20 hereof, the foregoing definition shall not include Environmental Laws.
“ASSETS” - has the meaning set forth in Section 1.2(a) of this Agreement.
“ASSUMED LIABILITIES” - has the meaning set forth in Section 1.3 of this Agreement.
“BENEFIT PLANS” - means any and all bonus, stock option, restricted stock, stock purchase, stock appreciation, phantom stock, profit participation, profit-sharing, deferred compensation, severance, pension, retirement, disability, medical, dental, health, life or dental insurance, death benefit, incentive, welfare and/or other benefit, compensation and/or retirement plan, policy, arrangement and/or contract maintained, sponsored or participated in by Seller.
“BUSINESS” - has the meaning set forth in the paragraph 1.1 of this Agreement.
“CLOSING” - has the meaning set forth in Article III of this Agreement.
“CLOSING DATE” - has the meaning set forth in Article III of this Agreement.
“CODE” - means the Internal Revenue Code of 1986, as amended, or any successor law and regulations issued by the IRS pursuant to the Internal Revenue Code or any successor law.
“CONFIDENTIAL INFORMATION” - means any information or compilation of information not generally known to the public or the industry or which Seller has not disclosed to third parties without a written obligation of confidentiality, which is proprietary to Seller, relating to Seller’s procedures, techniques, methods, concepts, ideas, affairs, products, processes, services and trade secrets, including, but not limited to, information relating to marketing, merchandising, selling, research, development, manufacturing, purchasing, accounting, engineering, financing, costs, customers, plans, pricing, billing, needs of customers and products and services used by customers, all lists of customers and their addresses, prospects, sales calls,
33
products, services, prices and the like as well as any specifications, formulas, plans, drawings, accounts or sales records, sales brochures, code books, manuals, trade secrets, knowledge, knowhow, pricing strategies, operating costs, sales margins, methods or operations, invoices or statements and the like.
“COPYRIGHTS” - has the meaning set forth in Section 5.13(a) of this Agreement.
“DEFAULTING PARTY” - has the meaning set forth in Section 13.2(a) of this Agreement.
“ENCUMBRANCE” - means and includes with respect to any personal property, any intangible property or any property other than real property, any security or other property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional sale, or other title claim or retention agreement or lease or use agreement in the nature thereof whether voluntarily incurred or arising by operation of law, and including any agreement to grant or submit to any of the foregoing in the future.
“FINANCIAL STATEMENTS” - has the meaning set forth in Section 5.5 of this Agreement.
“GENERALLY ACCEPTED ACCOUNTING PRINCIPLES” - shall mean generally accepted accounting principles used and applied in the United States of America and which are recognized as generally accepted by the American Institute of Certified Public Accountants.
“GOVERNMENTAL BODY” - (a) the United States of America and any state, county, city, town, village, district or other jurisdiction thereof; (b) federal, state, local, or municipal government of any of the foregoing jurisdictions; (c) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, board, commission, department, instrumentality, office or other entity, and any court or other tribunal) of any of the foregoing jurisdictions; (d) body of any of the foregoing jurisdictions exercising or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory or Taxing authority or power of any nature.
“INDEMNIFIED PARTY” - has the meaning set forth in Section 10.4 of this Agreement.
“INDEMNIFYING PARTY” - has the meaning set forth in Section 10.4 of this Agreement.
“INJUNCTION” - means any and all writs, rulings, awards, directives, injunctions (whether temporary, preliminary or permanent), judgments, decrees or other orders adopted, enacted, implemented, promulgated, issued, entered or deemed applicable by or under the authority of any Governmental Body.
“INTELLECTUAL PROPERTY” - means any and all (i) inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all Patents, Patent applications and Patent disclosures, together with all reissuances, continuations, continuations in part, revisions, extensions and reexaminations thereof, (ii) Trademarks, service
34
marks, trade dress, logos, trade names, assumed names and corporate names, together with all translations, adaptations, derivations and combinations thereof and including all goodwill associated therewith, and all applications, registrations and renewals in connection therewith; (iii) copyrightable works, all Copyrights and all applications, registrations and renewals in connection therewith; (iv) mask works and all applications, registrations and renewals in connection therewith; (v) trade secrets and confidential business information (including ideas, research and development, know-how, technology, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals); (vi) computer software (including data and related software program documentation in computer-readable and hard-copy forms); (vii) other intellectual property and proprietary rights of any kind, nature or description; and (viii) copies of tangible and embodiments thereof (in whatever form or medium).
“KNOWLEDGE” - An individual will be deemed to have “Knowledge” of a particular fact or other matter if: (i) such individual is actually aware of such fact or other matter; or (ii) a prudent individual could be expected to discover or otherwise become aware of such fact or other matter with reasonable investigation. An entity or other Person will be deemed to have “Knowledge” of a particular fact or other matter if any individual who is serving, or who has at any time served, as a stockholder, director, officer, partner, member or trustee of such entity (or in any similar capacity) has, or at any time had, Knowledge of such fact or other matter.
“LIABILITY” or “LIABILITIES” - means any and all debts, liabilities and/or obligations of any type, nature or description (whether known or unknown, asserted or unasserted, secured or unsecured, absolute or contingent, accrued or unaccrued, liquidated or unliquidated and whether due or to become due).
“LIABILITY EXCEPTION” - has the meaning set forth in Section 10.1 of this Agreement.
“LOSS” or “LOSSES” - has the meaning set forth in Section 10.1(a) of this Agreement.
“MATERIAL ADVERSE EFFECT” or “MATERIAL ADVERSE CHANGE” - means, in connection with any Person, any event, change or effect that is materially adverse, individually or in the aggregate, to the condition (financial or otherwise), properties, assets, Liabilities, revenues, income, business, operations or results of operations of such Person except for any event, change or effect that is attributable to (i) changes or developments in general economic conditions; or (ii) changes in political or regulatory conditions.
“NON-DEFAULTING PARTY” - has the meaning set forth in Section 13.2(a) of this Agreement.
“ORDER”- means any judgment, award, decision, consent decree, Injunction, ruling, writ or order of any federal, state or local Governmental Body, or authority that is binding on any Person or its property under Applicable Law.
35
“ORDINARY COURSE OF BUSINESS” - means an action taken by a Person only if (i) such action is consistent with the past practices of such Person and is taken in the ordinary course of the normal day-to-day operations of such Person; and (ii) such action is not required to be authorized by the governing body of such Person (or by any Person or group of Persons constituting a governing body of a Person exercising similar authority).
“PATENT” - has the meaning set forth in Section 5.13(a) of this Agreement.
“PERMITTED ENCUMBRANCES” – means (i) those Encumbrances set forth in Schedule 5.11 hereto, (ii) municipal zoning ordinances, recorded easements for public utilities and recorded building and use restrictions and covenants, (iii) general real estate Taxes and installments of special assessments payable in the year of Closing, and (iv) minor survey exceptions, licenses, easements or reservations of, or rights of others for, oil, gas minerals, ores or metals, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions on the use of real property, minor defects in title or other similar charges not interfering in any material respect with the Ordinary Course of Business of the Seller or with the use of the Real Property.
“PERSON” - means any individual, corporation (including any non-profit corporation), general, limited or limited liability partner SYHI, limited liability company, joint venture, estate, trust, association, organization, or other entity or Governmental Body.
“PR MARINE” – has the meaning set forth in the Recitals to this Agreement.
“PROCEEDING” - means any suit, litigation, arbitration, hearing, audit, investigation, Injunction or other action (whether civil, criminal, administrative or investigative) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator.
“PURCHASER” - has the meaning set forth in the introductory paragraph hereof.
“SCHEDULES” - mean the Schedules to this Agreement.
“SELLER” - has the meaning set forth in the introductory paragraph of this Agreement.
“SHAREHOLDERS OF PR MARINE A.G.” shall mean shareholders as recorded on the books of PR Marine Inc.
“TAX” or “TAXES” - has the meaning set forth in Section 5.6 of this Agreement.
“TAX RETURN” - means any return, declaration, report, claim for refund or information return or statement relating to Taxes, including without limitation any schedule or attachment thereto, any amendment thereof, and any estimated report or statement.
“THREATENED” - a claim, Proceeding, dispute, action, or other matter will be deemed to be “Threatened” if any demand or statement has been made, or any notice has been given, that
36
would lead a reasonably prudent Person to conclude that such a claim, Proceeding, dispute, action, or other matter will be asserted, commenced, taken or otherwise pursued in the future.
“TRADEMARKS” - has the meaning set forth in Section 5.13(a) of this Agreement.
“TRANSACTIONAL BROKERAGE FEE” – has the meaning set forth in Section 13.3 of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
| SELLER: |
| For & On behalf of the |
| THE SHAREHOLDERS OF PR MARINE INC. |
| ____________________________________ |
| Mr. Shahid Xxxxxx Xxxxx |
| PURCHASER: |
| Superyacht Holdings Inc , A Nevada CORPORATION |
| By: _________________________________ |
| President & CEO |
| Xx. Xxxxx Xxxxxxx |
37